judgement stringlengths 875 654k | summary stringlengths 200 73.4k |
|---|---|
ivil Appeal Nos.
3159 3170 of 1988.
From the Judgment and Order dated 30.12.1985 of the Andhra Pradesh High Court in Appeal No. 2578 to 2583 of 1985.
K. Rajendra Chowdhary and A. Subba Rao for the Appellants.
P.A. Choudhary, T.V.S.N. Chari, Mrs. Sunita Rao, Badrinath and K. Ram Kumar for the Respondent.
The Judgment of the Court was delivered by JAGANNATHA SHETTY, J.
We grant Special Leave and proceed to dispose of these appeals.
These appeals are from a judgment dated 3() December, 1985 of the High Court of Andhra Pradesh in a batch of appeals arising out of land acquisition proceedings.
The lands in question are situated in Hasanapur of Karimnagar Taluk.
The lands are acquired for the purpose of submergence under Lower Manair Dam Reservoir project.
SeCtion 4(1) notification was issued on 24 March, 1977.
The land acquisition officer by his award dated 15 July, 1978 awarded compensation ranging from Rs.1320 to 4,000 per acre depending upon the nature of the land and the crop grown PG NO 855 thereon.
The District Judge on a reference under section 18 of the Act enhanced the compensation to Rs.85,000 per acre regardless of categorisation.
The High Court by the Judgment under appeals herein has remanded the matter for fresh disposal with liberty for both parties to adduce additional evidence.
The high Court has specifically observed that the District Judge should exclude exhibit A. 4 and exhibit A. 5 from consideration.
exhibit A. 4 and exhibit A. 5 are the awards pertaining to acquisition of certain lands situated in Karimnagar.
Thereunder, compensation at the rate of Rs. 85,000 per acre under exhibit A.4 and Rs.70,000 under exhibit A.5 were given.
The High Court has observed that the lands concerned in those awards are not comparable lands.
Hence these appeals.
The first question that arises for consideration is whether exhibit A.5 should be altogether excluded or it should be kept open for being considered by the District Judge on merits.
This is the specific question on which this Court issued notice on the Special Leave petition.
If first part of the question is answered in the negative, then the second question for consideration is whether the matter should go back to District Judge for fresh disposal.
We heard counsel on both sides on the merits of the entire matter.
The claimants have alleged that the lands acquired are fit for residential houses as they are adjacent to industrial estate.
MARKFED factory, Vanaspathi complex, diary farm and Padmanagar colony.
The lands have potentiality of being used as house sites and the like of which was sold for Rs.5,000 per gunta prior to the present acquisition.
The lands are near to Karimnagar town The town is developing into a modern town in Andhra Pradesh, with a lot of industrial, commercial, educational activities.
They have claimed compensation at Rs.1,60,000 per acre for dry lands and a little more for wet lands.
The evidence in support of their claim consists of the testimony of one of the claimants (PW 1).
He has given a rosy picture of the location and value of the lands.
Another witness (PW 2) has corroborated the version of PW 1.
Besides we have the evidence of a Commissioner.
Mr. G. Santosh Reddy Advocate was appointed as Commissioner in this case.
He has filed his report exhibit A.7 and Plan.
PG NO 856 The High Court appears to have brushed aside all that evidence.
The High Court compared the combined map of karimnagar and Hasnapur village (exhibit A.3) with the sketch map (exhibit A.8) prepared by the Commissioner.
The High Court was of opinion that the lands concerned in exhibit
A.5 are abutting Karimnagar town.
They are close to MARKFED and other industrial institutions and buildings, but not the lands in question.
The High Court said: "whereas admittedly the lands in question are 3 kms from Karimnagar town".
This statement has been seriously disputed before us.
It is said that the claimants or their counsel did not admit, and indeed could not have made that admission suicidal to their case.
Be that as it may, the distance determined by the High Court whether on admission or by comparison of village maps makes little difference.
The distance from Karimnagar town should not be a ground to reject exhibit A.5.
If the lands are suitable for house sites, exhibit A.5 would still be relevant.
The location of lands will have to be borne in mind while ascertaining the market value.
As to the nature of lands we have the evidence of the Commissioner.
He is an Advocate of the local Bar.
He had gone to the spot.
He had a topographic surveying.
According to his evidence, the lands in question are similar in nature and of value as the lands covered under the Award exhibit A.5.
The lands are nearer to collectorate complex, RTC Bus stand and other housing complex.
He has stated that the lands are more suitable for house sites than for agriculture.
There is no reason to discard this evidence.
We cannot therefore, reject exhibit A.5 altogether.
The next question for consideration is whether it is now necessary to keep the remand order undisturbed.
Counsel for the claimants ' is totally against the matter being sent back to the District Judge.
He urged that the claimants are small holders and agriculturists.
they are hard pressed and unable to fight another round of litigation.
I hey are prepared to accept any compensation which this Court may think fit to award.
This plea of the counsel has an appealing simplicity.
It reflects the facts of life and problems of litigation.
We can very well appreciate the anxiety and need of claimants to get compensation here and now.
No matter what it is.
The lands were acquired as far back in 1977.
One decade has already passed.
Now the remand means another round of litigation.
There would be further delay in getting the compensation.
After all money is what money PG NO 857 buys.
What the claimants could have bought with the compensation in 1977 cannot do in 1988.
Perhaps, not even one half of it.
It is a common experience that the purchasing power of rupee is dwindling.
With rising inflation, the delayed payment may, lose all charm and utility of the compensation.
In some cases, the delay may be detrimental to the interests of claimants.
The Indian agriculturists generally have no avocation.
They totally depend upon land.
If uprooted, they will find themselves nowhere.
They are left high and dry.
They have no savings to draw.
They have nothing to fall back upon.
They know no other work.
They may even face starvation unless rehabilitated.
In all such cases, it is of utmost importance that the award should be made without delay.
The enhanced compensation must be determined with out loss of time.
The appellate power of remand, at any rate ought not to be exercised lightly.
It shall not be resorted to unless the award is wholly unintelligible.
It shall not be exercised unless there is total lack of evidence.
If remand is imperative, and if the claim for enhance I compensation is tenable, it would be proper for the appellate court to do modest best to mitigate hardships.
The appellate court may direct some interim payment to claimants subject t o adjustment in the eventual award.
Counsel for the State argued that there is no material on record for this Court to determine compensation and the remand may be useful for the claimants themselves.
He however.
reluctantly indicated his own estimate of the market value in the event of this Court giving a quietus to the litigation.
It seems to us that this is not a case ot no evidence.
This is a case of both relevant and irrelevant evidence mixed up together.
We must exclude the irrelevant and exaggerated claim.
The claimants have not justified the award generously given by the District Judge.
Rs. 85,000 per acre appears to be on the high side as against the award exhibit A.5.
In the first place, Section 4 notification concerned in that Award was dated 16 February l978.
It was almost a year after the notification in these cases.
Secondly, the lands therein were close to the town of Karimrtagar.
The situation is not similar in this case.
Here the lands are 3 kms awy from Karimnagar town.
It is in this background I we have carefully considered the rough estimates given by counsel on both sides.
We have also examined the relevant material.
A distance of 3 kms from a growing town of District headquarters should not however.
make a world of difference.
We are of opinion that the compensation at the rate of Rs.25,000 per acre regardless of categorisation would be sufficient to meet the ends of justice.
It is needless to state that the claimants are entitled to mandatory solatium PG NO 858 at 30 per cent and also statutory interest.
In the result, we allow these appeals and set aside the judgments of the High Court and District Judge.
There shall be an award in terms as indicated above.
In the circumstances of the case, we make no order as to costs.
M.L.A. Appeals allowed. | The appellants were awarded by the Land Acquisition Officer compensation ranging from Rs.1,320 to 4,000 per acre depending upon the nature of the land acquired in 1977.
The District Judge enhanced the compensation to Rs.85,000 per acre on the ground that compensation @ Rs.85,000 per acre under Award exhibit A.4 and Rs.70,000 under Award exhibit A.5 had already been awarded in respect of acquisition of certain other similar lands situated in Karimnagar.
However, the High Court, in appeal, remanded the matter for fresh disposal and also observed that the District Judge should exclude exhibit A.4 and exhibit A. 5 from consideration as the land concerned in those awards are not comparable lands.
In appeals to this Court by Special Leave, it was contended on behalf of the appellants that the matter should not be remanded to the District Judge, since the claimants being small holders and agriculturists, are hard pressed and unable to fight another round of litigation and that they are prepared to accept any compensation which this Court may think fit to award.
Allowing the appeals, HELD: (1) The Judgments of the High Court and the District Judge e are set aside.
The compensation at the rate of Rs.25,000 per acre regardless of categorisation would be sufficient to meet the ends of justice.
It is needless to state that the claimants are entitled to mandatory solatium at 30% and also statutory interest.
[857G H] 2(i) It is of utmost importance that the award should be made without delay.
The enhanced compensation must be determined without 108s of time.
[857C] PG NO 853 PG NO 854 2(ii) The appellate power of remand at any rate ought not to be exercised lightly.
It shall not be resorted to unless the award is wholly unintelligible.
It shall not be exercised unless there is total lack of evidence.
If remand is imperative, and if the claim for enhanced compensation is tenable, it would be proper for the appellate court to do modest best to mitigate hardships.
The appellate court may direct some interim payment to claimants subject to adjustment in the eventual award.
[857C D] 3.
This is not a case of no evidence.
This is a case of both relevant and irrelevant evidence mixed up together.
Therefore irrelevant and exaggerated claim must be excluded.
[857F] In the instant case, the location of lands will have to be borne in mind while ascertaining the market value.
The Commissioner has stated that the lands are more suitable for house sites than for agriculture.
There is, no reason to discard this evidence and reject exhibit A. 5 altogether.
[856C D] |
Appeal No. 119 of 1955.
Appeal from the judgment and order dated June 16, 1953, of the Punjab High Court in Civil Reference No. 1 of 1953.
A. V. Viswanatha Sastri and Naunit Lal, for the appellant.
H. N. Sanyal, Additional Solicitor General of India, R. Gopalakrishnan, R. H. Dhebar and D. Gupta, for the respondent.
November 24.
The Judgment of the Court was delivered by SARKAR, J.
The appellant is a company carrying on business as a distiller of country liquor.
It was incorporated in May 1945 and was in fact a previously existing company called the Amritsar Distillery Co. Ltd. reconstructed under the provisions of the Company 's Act.
The appellant carried on the same business as its predecessor, namely, sale of the produce of its distillery to licensed wholesalers.
The wholesalers in their turn sold the liquor to licensed retailers from whom the actual consumers made their purchases.
The entire trade was largely controlled by Government regulations.
After the war started the demand for country liquor increased but difficulty was felt in finding bottles in which the liquor was to be sold.
In order to relieve the scarcity of bottles the Government devised in 1940 a scheme called the buy back scheme.
The scheme in substance was that a distiller on a sale of liquor became entitled to charge a wholesaler a price for the bottles in which the liquor was supplied at rates fixed by the Government which he was bound to repay to the wholesaler on the latter returning the bottles.
The 685 same arrangement, but with prices calculated at different rates was made for the liquor sold in bottles by a wholesaler to a retailer and by a retailer to the consumers.
Apparently it was conceived that the price fixed under the scheme would be found to be higher than the price which the bottles would fetch in the open market and the arrangement for the refund of the price would therefore encourage the return of the bottles from the consumers through the intermediaries ultimately to the distiller.
The price refundable was later increased perhaps because the previous price did not fully achieve the desired result of the bottles finding their way back to the distillers.
Sometime in 1944, the Amritsar Distillery Co. Ltd. which then was in existence, insisted on the wholesalers paying to it in addition to the price of the bottles fixed under the buy back scheme, certain amounts described as security deposits and calculated at varying rates per bottle according to sizes for the bottles in which the liquor was supplied to them promising to pay back for each bottle returned at the rate ' applicable to it and further promising to pay back the entire amount paid on a transaction when 90 per cent.
of the bottles covered by it had been returned.
The company while it was in existence realised these additional sums and so did the appellant after it took over the business.
The object of demanding and taking these additional sums was obviously to provide additional inducement for the return of the bottles to the distiller so that its trade in selling the produce of its distillery might not be hampered for want of bottles.
No time limit had been fixed within which the bottles had to be returned in order to entitle a wholesaler to the refund, nor does it appear that a refund had ever been refused.
The price of the bottles received by the appellant under the buy back scheme was entered by it in its general trading account while the additional sum received for them was entered in the general ledger under the heading " Empty Bottles Return Security Deposit Account ".
It is not disputed that for the accounting periods with which this case is concerned, the additional amounts had been taken 686 without Government 's sanction and entirely as a condition imposed by the appellant itself for the sale of its liquor.
The appellant was assessed to income tax on the balance of the amounts of these additional sums left after the refunds made there out.
It had also been assessed to business profits tax and excess profits tax on the same balance.
Its appeals against the orders of assessment to these taxes to the Appellate Assistant Commissioner and thereafter to the Tribunal failed.
It then obtained an order referring a certain question arising out of the assessments for decision by the High Court of Punjab.
The question originally suggested was reframed and in its final form reads thus: Whether on the facts and circumstances of the case the collections by the assessee company described in its accounts as " empty bottle return security deposits" were income assessable under section 10 of the Income tax Act? The High Court answered the question in the affirmative.
The present appeal is against that decision which related to all the three varieties of taxes for which the appellant had been made liable.
We are concerned in this appeal only with the additional sums demanded and received by the appellant and described as security deposit and not with the price of bottles which also it took under government sanction.
The question is whether these amounts called security deposits were.
trading receipts.
Now, as already stated, the appellant 's trade consisted in selling in bottles liquor produced in its distillery to wholesalers.
The sale was made on these terms: In each transaction of sale the appellant took from the wholesaler the price of the liquor, a certain sum fixed by the government, as price of the bottles in which the liquor was supplied and a further sum described as security deposit for the return of the bottles.
The moneys taken as price of the bottles were returned as and when the bottles were returned.
The moneys described as security deposit were also returned as and when the bottles were returned with only this difference that in this case the entire sum taken in one 687 transaction was refunded when 90 per cent.
of the bottles covered by it had been returned, though the remaining 10 per cent.
had not been returned.
Such being the nature of the appellant 's trade and the manner in which it was conducted, these additional sums appear to us to be its trading receipts.
Mr. Vishwanatha Sastri appearing on behalf of the appellant first contended that on these facts the amounts could not be regarded as price and that therefore they were not trading receipts.
He said that the price of the bottles was separately fixed and the amount taken as deposit was different from and exclusive of, it.
This contention is founded on the use of the word price in the buy back scheme in connection with the rates which the distiller was entitled to charge a wholesaler for the bottles.
It seems to us that this contention lays undue emphasis on that word.
We think that the High Court took substantially a correct view of the matter when it said that in realising these amounts " the company was really charging an extra price for the bottles ".
It is clear to us that the trade consisted of sale of bottled liquor and the consideration for the sale was constituted by several amounts respectively called, the price of the liquor, the price of the bottles and the security deposit.
Unless all these sums were paid the appellant would not have sold the liquor.
So the amount which was called security deposit was actually a part of the consideration for the sale and therefore part of the price of what was sold.
Nor does it make any difference that the price of the bottles was entered in the general trading account while the so called deposit was entered in a separate ledger termed " empty bottles return deposit account ", for, what was a consideration for the sale cannot cease to be so by being written up in the books in a particular manner.
Again the fact that the money paid as price of the bottles was repaid as and when the bottles were returned while the other moneys were repaid in full when 90 per cent.
of the bottles were returned does not affect the question for ,none of these sums ceased to be parts of the consideration because it had been agreed that they would be 688 refunded in different manners.
It is not contended that the fact that the additional sums might have to be refunded showed that they were not part of the price.
It could not be so contended because what was expressly said to be the price of bottles and admitted to be price was also refundable.
If so, then a slightly different method providing for their refund cannot by itself prevent these additional sums from being Price.
Now, if these additional sums were not part of the price, what were they ? Mr. Sastri said that they were deposits securing the return of the bottles.
According to him if they were such security deposits, they were not trading receipts.
Again we are unable to agree.
There could be no security given for the return of the bottles unless there was a right to their return for if there was no such right, there would be nothing to secure.
Now we find no trace of such a right in the statement of the care.
The wholesalers were clearly under no obligation to return the bottles.
The only thing that Mr. Sastri could point out for establishing such an obligation was the use of the words " security de posit ".
We are unable to hold that these words alone are sufficient to create an obligation in the wholesalers to return the bottles which they had bought.
If it had been intended to impose an obligation on the wholesalers to return the bottles, these would not have been sold to them at all and a bargain would have been expressly made for the return of the bottles and the security deposit would then have been sensible and secured their return.
The fact that there was no time limit fixed for the return of the bottles to obtain the refund also indicates that there was no obligation to return the bottles.
The substance of the bargain clearly was that the appellant having sold the bottles agreed to take them back and repay all the amounts paid in respect of them.
For this part of the case Mr. Sastri relied on Davies vs The Shell Company of China Ltd. (1), but we do not think that case assists at all.
What had happened there was that the Shell Company had appointed a large number of agents in China to sell its products (1) 689 and had taken from each agent a deposit to secure itself against the risk of default by the agent duly to PI account for the sale proceeds.
The deposits were made in Chinese dollars and later converted into sterling.
When the Company closed its business in China it reconverted the deposits into Chinese dollars and refunded to the agents the deposits made by them.
Owing to a favourable exchange for the conversion of sterling into dollars, the Company made a profit and it was sought to assess this profit to income tax.
It was held that the profit could not be taxed, for the deposits out of which it was made were really not trading receipts at all.
Jenkins, L. J., observed at p. 157: " Mr. Grant described the agents ' deposits as part of the Company 's trading structure, not trade receipts but anterior to the stage of trade receipts, and I think that is a fair description of them.
It seems to me that it would be an abuse of language to describe one of these agents, after he had made a deposit, as a trade creditor of the Company; he is a creditor of the Company in respect of the deposit, not on account of any goods supplied or services rendered by him in the course of its trade, but simply by virtue of the fact that he has been appointed an agent of the Company with a view to him trading on its behalf, and as a condition of his appointment has deposited with or, in other words, lent to the company the amount of his stipulated deposit.
" lie also said at p. 156: it If the agent 's deposit had in truth been a payment in advance to be applied by the Company in discharging the sums from time to time due from the agent in respect of petroleum products transferred to the agent and sold by him the case might well be different and might well fall within the ratio deciding of Landes Bros. vs Simpson (1) and Imperial Tobacco Co. vs Kelly (2).
But that is not the character of the deposits here in question.
The intention manifested by the terms of the agreement is that the deposit should be (1) (2) 87 690 retained by the Company, carrying interest for the benefit of the depositor throughout the terms of the agency.
It is to be available during the period of the agency for making good the agent 's defaults in the event of any default by him ; but otherwise it remains, as I see it, simply as a loan owing by the Company to the agent and repayable on the termination of the agency ".
It would therefore appear that the deposits in that case were held not to be trading receipts because they had not been made as part of a trading transaction.
It was held that they had been received anterior to the commencement of the trading transactions and really formed the trading structure of the Company.
The character of the amounts with which we are Concerned is entirely different.
They were parts of the trading transactions themselves and very essential parts: the appellant would not sell liquor unless these amounts were paid and the trade of the appellant was to make profit out of these sales.
The fact that in certain circumstances these amounts had to be repaid did not alter their nature as trading receipts.
We have already said that it is not disputed that what was expressly termed as price of bottles was a trading receipt though these had to be repaid in almost similar circumstances.
We may point out that it had not been said in Shell Company case(1) that the deposits were not trading receipts for the reason that they might have to be refunded; the reason for the decision was otherwise as we have earlier pointed out, namely, that they were no part of the trading transactions.
We therefore think that the deposits dealt with in the Shell Company case were entirely of a different nature and that case does not help.
Mr. Sanyal was prepared to argue that even if the amounts were securities deposited for the return of the bottles, they would still be trading receipts, for they were part of the trading transactions and the return of the bottles was necessary to enable the appellant to carry on its trade, namely, to sell liquor in them.
As we have held that the amounts had not been paid as security for the return of the bottles, we do not (1) 691 consider it necessary to pronounce upon thiscontention.
We might also refer to the observationsmade in Imperial Tobacco Co. vs Kelly(1) mentioned in the Shell Company case (2) and set out below.
There the Company in the course of its trading activity used to purchase tobacco in America and for that purpose had to acquire American dollars.
It so happened that after it had acquired a certain amount of dollars for making the purchases, it was prevented from buying tobacco in America by Government orders passed due to outbreak of war.
While the dollars lay with the Company, they appreciated in value and later the Treasury acquired the dollars and paid the Company for them in sterling at the then current rate of exchange, as a result of which payment the Company made a profit.
It was hold that the profit was a trading receipt of the Company.
Lord Greene said at p. 300: " The purchase of the dollars was the first step in carrying out an intended commercial transaction, namely, the purchase of tobacco leaf.
The dollars were bought in contemplation of that and nothing else ".
He also observed that the dollars " were an essential part of a contemplated commercial operation ".
It seems to us that the amounts with which this case is concerned, were paid and were refundable as an integral part of a commercial transaction, namely, the sale of liquor in bottles by the appellant to a wholesaler.
The case nearest to the present one is, in our view, that decided by this Court in K. M. section Lakshmanier & Sons vs Commissioner of Income tax and Excess Profits Tax, Madras (3).
There the appellants, who were the assessees, were merchants carrying on business as the sole selling agents for yarn manufactured by the Madura Mills Co. Ltd. They sold the yarn to their constituents and in the relevant accounting period the sales were made under three successive arrangements each of which covered a part of it.
Under each arrangement, the assessees were paid a certain initial (1) (2) (3) ; 692 sum by their customers.
The question was as to the nature of these initial payments.
Under the first arrangement " the appellants had two accounts for each constituent, namely, ' a contract deposit account ' and ' a current yarn account ', crediting the moneys received from the customers in the former account and transferring them to the yarn account in adjustment of the price of the bales supplied then and there, that is, as and when deliveries were made under a contract either in instalment or in full ".
It was held that the amounts received from the customers under this arrangement were taxable as they were merely advance payments of the price and could riot therefore be regarded as borrowed money.
This was clearly so because under this arrangement cash was deposited by a purchaser in respect of a contract of purchase at the time it was made and was to be applied when the goods had been delivered by the appellant under that contract towards the price payable in respect of them, such price not being payable in any other manner.
The arrangement for the second part of the accounting period was that the payment made by a constituent at the time of the making of a contract was taken as " Contracts advance fixed deposit " and it was refunded when the goods under the contract had been supplied and the price in respect thereof paid in full irrespective of the earlier payment.
With respect to the payment initially made under this arrangement Patanjali Sastri, C. J., said at p. 1067 : ". we are of opinion that, having regard to the terms of the arrangement then in force, they partake more of the nature of trading receipts than of security deposits.
It will be seen that the amounts received were treated as advance payments in relation to each " contract number " and though the agreement provided for the payment of the price in full by the customer and for the deposit being returned to him on the completion of delivery under the contract, the transaction is one providing in substance and effect for the adjustment of the mutual obligations on the completion of the contract.
We hold accordingly that 693 the sums received during this period cannot be regarded as borrowed money. .
It seems to us that the amounts involved in the present case were exactly of the nature of the deposits made in the second period in Lakshmanier & Sons ' case (1).
There, as here, as soon as a transaction of sale was made the seller received certain moneys in respect of it.
It is true that in Lakshmanier & Sons ' case the transaction was a contract to sell goods in future whereas in the present case the transaction was a sale completed by delivery of the goods and receipt of the consideration.
But that cannot change the nature of the payment.
In Lakshmanier & Sons ' case, the payment initially made was refundable after the price had been paid; in the present case the contract is to refund the amount on the return of the bottles already sold.
In each case therefore the payment was made as part of a trading transaction and in each case it was refundable on certain events happening.
In each case again the payment was described as a deposit.
As in that case, so in the present case, the payment cannot be taken to have been made by way of a security deposit.
We must therefore on the authority of Laskhmanier & Sons ' case, hold the amounts in the present case to have been trading receipts.
It was Mr. Sastri 's effort to bring the case within the arrangement that prevailed in the third part of the accounting period in Laskhmanier & Sons ' case, the initial payments made during which were held to be loans.
But we think that he has not succeeded in this.
The payments during the third period were made under the following arrangements: " Instead of calling for amounts from you towards 'Security Deposit ' due to bales for which we are entering into forward contracts with you and returning the same to you from the said deposit then and there, as we are doing now, and in order to make it feasible, we have decided to demand from you a certain sum towards Security Deposit and keep the same with us so long as our business connections under forward contracts will continue with you." Under this arrangement a certain (1)[1953] S.C.R. 1057.
694 sum was kept in deposit once and for all and there.
after Lakshmanier & Sons commenced to enter into the trading transactions, namely, forward contracts for sale of yarn with the constituents who deposited the money.
The sum so deposited was to be refunded with interest at three per cent.
per annum at the end of the business connection between the parties, if necessary, after retaining there out any amount due on the contracts made with the constituent which, the latter was at the termination of the business found not to have paid.
Patanjali Sastri, C. J., observed at p. 1063 in regard to the deposits made under this arrangement: "The amount deposited by a customer was no longer to have any relation to the price fixed for the goods to be delivered under a forward contract either in instalments or otherwise.
Such price was to be paid by the customer in full against delivery in respect of each contract without, any adjustment out of the deposit, which was to be held by the appellants as security for the due performance of his contracts by the customer so long as his dealings with the appellants by way of forward contract continued, the appel lants paying interest at 3 per cent.
in the meanwhile, and having, as appears from the course of dealings between the parties ' the use of the money for their own business.
It was only at the end of the " business connection " with the appellants that an adjustment was to be made towards any possible liability arising out of the customer 's default.
Apart from such a contingency arising, the appellants undertook to repay an equivalent amount at the termination of the dealings.
The transaction had thus all the essential elements of a contract of loan, and we accordingly hold that the deposits received under the final arrangement constitute borrowed money ".
Having observed that the description of the payment made by the customer as a deposit made no difference for a deposit included as a loan, the learned Chief Justice further said at p. 1064: " The fact that one of the conditions is that it is to be adjusted against a claim arising out of a possible 695 default of the depositor cannot alter the character of the transaction.
Nor can the fact that the purpose for which the deposit is made is to provide a security for the due performance of a collateral contract invest the deposit with a different character.
It remains a loan of which the repayment in full is conditioned by the due fulfilment of.
the obligations under, the collateral contract ".
In coming to the view that he did with regard to the arrangement prevailing in the third period, the learned Chief Justice referred ' with approval to the case of Davies vs Shell Company of China(1) which we have earlier mentioned.
Now it seems to us that the reasons on which the learned Chief Justice based his conclusion that the deposits during the third period were loans do not apply to the present case.
In the present case, unlike in Lakshmanier & Sons ' case, the amount paid has a relation to the price of the goods sold ; it is part of that price as we have earlier said.
It was a condition of each transaction of sale by the appellant.
It was refundable to the wholesaler as soon as he returned the bottles in which the liquor had been supplied to him in the transaction in respect of which the deposit had been made.
The deposit in the present case was really not a security at all ; it did not secure to the appellant anything.
Unlike Lakshmanier & Sons ' case, in the present case a deposit was made every time a transaction took place and it was refundable under the terms of that transaction independently of other deposits under other transactions.
In Lakshmanier & Sons ' case, the deposit was in the nature of the assee 's trading structure and anterior to the trading operations, as were the deposits considered in Shell Company case(1).
In the case in hand the deposit was part of each trading transaction.
It was re.
fundable under the terms of the contract relating to a trading transaction under which it had been made; it was not made under an independent contract nor was its refund conditioned by a collateral contract, as happened in Lakshmanier & Sons ' case.
(1) 696 We therefore think that the present case is governed by the arrangement covering the second period and: not the third period mentioned in Lakshmanier & Sons case (1), and, come to the conclusion that the amounts with which we are concerned were trading receipts.
Mr. Sastri also referred us to Morley vs Pattersall and contended that the amounts with which we are concerned, were of the same kind as those consideredin that case and were not income.
It seems to us that there is no similarity between the two cases at all.
Tattersall was a firm who sold horses of its constituents on their behalf and received the price which it was liable to pay them.
It so happened that in the course of years various customers did not come and demand the amounts due to them.
Initially Tattersall showed those amounts in its accounts as liabilities which they really were.
Later it thought that it would never have to pay back these amounts and thereupon transferred them to the credit of its partners.
The Revenue sought to tax the amounts so transferred as Tattersall 's income.
The question was whether the amounts upon transfer became Tattersall 's income.
It was never contended that the amounts when received as price of the constituent 's horses sold were Tattersall 's income and the only contention was that they became income upon being transferred to the credit of the partners.
It was held that the amounts had not by being entered on the credit side, become income of the firm.
Sir Wilfrid Greene said at p. 65 : " Mr. Hill 's argument was to the effect that, although they were not trading receipts at the moment of receipt, they had at that moment the potentiality of becoming trading receipts.
That proposition involves a view of Income Tax Law in which I can discover no merit except that of novelty.
" Then again he said: " It seems to me that the quality and nature of a receipt for Income Tax purposes is fixed once and for all when it is received.
What the partners did in (1) ; (2) 697 this case, as I have said, was to decide among themselves that what they had previously regarded as a liability of the firm they would not, for practical reasons, regard as a liability; but that does not mean that at that moment they received something, nor does it mean that at that moment they imprinted upon some existing asset a quality different from what it had possessed before.
There was no existing asset at all at that time.
" All that this case decided was that moneys which were not when received, income and as to this there was no question could never later become income.
With such a case we are not concerned.
The case turned on the fact that the moneys received by Tattersall were never its moneys; they had been received on behalf of others and that receipt only created a liability towards them.
Now it seems to us quite impossible to say that the amounts with which we are concerned were not the appellant 's moneys in the sense that the constituent 's moneys in the hands of Tattersall were not its.
The amounts in this case were not received on account of any one but the appellant.
No doubt these moneys might have to be refunded if certain things happened which however might never happen, but that did not make them the moneys of those who might become entitled to the refund.
Mr. Sastri referred us to the observations of Sir Wilfrid Greene, M. R., in Morley vs Tattersall (1) at p. 65 to the effect that, " The money which was received was money which had not got any profit making quality about it; it was money which, in a business sense, was a client 's money and nobody else 's" and contended that the amounts involved in the presentcase were of the same nature.
We are unable to agree.
If we are right in our view that the amounts were trading receipts, it follows that they must have a profit making quality about them.
Their payment was insisted upon as a condition upon which alone the liquor would be supplied with an agreement that they would.
be repaid oil the return of the bottles.
They (1)(1938) 88 698 were part of the transactions of sale of liquor which produced the profit and therefore they had a profit making quality.
Again, a wholesaler was quite free to return the bottles or not as he liked and if he did not return them, the appellant had no liability to refund.
It would then keep the moneys as its own and they would then certainly be profit.
The moneys when paid were the moneys of the appellant and were thereafter in no sense the moneys of the persons who paid them.
Having given the matter our anxious consideration which the difficulties involved in it require, we think that the correct view to take is that the amounts paid to the appellant and described as " Empty Bottles Return Security Deposit " were trading receipts and therefore income of the appellant assessable to tax.
We agree with the High Court that the question framed for decision in this case, should be answered in the affirmative.
In the result the appeal fails and is dismissed.
The appellant will pay the costs in this Court.
Appeal dismissed. | The appellant, a distiller of country liquor, carried on the business of selling liquor to licensed wholesalers.
Due to shortage of bottles during the war a scheme was evolved, where under the distiller could charge a wholesaler a price for the bottles in which liquor was supplied at rates fixed by the Government, which lie was bound to repay to the wholesaler on his returning the bottles.
In addition to this the appellant took a further sum from the wholesalers described as 'security deposit ' for the return of the bottles.
Like the price of the bottles these moneys were also repaid as and when the bottles were returned with this difference that the entire sum was refunded only when go% of the bottles covered by it had been returned.
The appellant was assessed to income tax on the balance of the amounts of these additional sums left after the refunds made there out.
Held, that the amounts paid to the appellant and described as 'security deposit ' were trading receipts and therefore income of the appellant assessable to tax.
These amounts were paid as an integral part of the commercial transaction of the sale of liquor in bottles and represented an extra price charged for the bottles.
They were not security deposits as there was nothing to secure, there being no right to the return of the bottles.
684 K. M. section Lakshmanier & Sons vs Commissioner of Income tax and Excess Profits Tax, Madras, ; , followed.
Davies vs The Shell Company of China Ltd., (1951) Tax Cas. 133; and Morley vs Tattersall, , distinguished.
Imperial Tobacco Co. vs Kelly, , referred to. |
WP No. 24842 of 2022
WP No. 24842 of 2022
The Petitioner – wife is knocking at the doors of Writ
Court for assailing the order dated 25.11.2022 wher eby
the learned I Additional Principal Judge, Family Co urt at
Bengaluru in O.S.No.137/2017 having dismissed her
application in I.A. No.9 (Annexure-A), has refused to club
two pending suits for a common trial and disposal.
Learned counsel for the Petitioner vehemently argue s that
when the matter essentially relates to the same pro perty
and the lis is between the ex-spouses, the grant of the
subject application was eminently warranted.
2. Learned counsel appearing for the Respondent
– husband opposes the petition with equal vehemence
contending that her client’s suit in O.S No. 137/20 17 is for
partition, whereas petitioners injunctive suit in O .S No.
220/2022 is of recent times; the issues to be decid ed in
the former are different from those in the latter; the
WP No. 24842 of 2022
impugned order being the product of discretionary p ower,
the indulgence of Writ Courts is not warranted.
3. Having heard the learned counsel for the partie s
and having perused the Petition papers, this Court is
inclined to grant indulgence in the matter for the following
reasons:
(a) The parties are ex-spouses is not in dispute, their
marriage having been dissolved by the Family Court. The
challenge to the Dissolution Decree in MFA No. 1850 /2020,
is still pending, is true. However, that pendency i s
irrelevant inasmuch as even if their spousal status is
restored by reversing the decree of dissolution of
marriage, every spouse is an independent person qua the
other.
(b) The Respondent – husband has filed a Partition
Suit in O.S.No.137/2017 wherein the Petitioner wife is the
defendant; similarly, in Petitioners Injunctive Sui t in
O.S.No.220/2022 the Respondent – husband happens to
be the defendant; the subject property in both the suits is
WP No. 24842 of 2022
the same. In both the suits, pleadings are complete and
issues have been framed. The trial has begun in the
partition suit, whereas it is yet to begin in the i njunctive
suit. Obviously, two suits will have their own issu es;
however, that per se, is no ground for denying the request
for clubbing, especially when both the suits are at the
hands of the same learned Judge.
(c) It is also true that in matter of transfer and
clubbing of cases, a greater discretion lies with t he Court
in which they are pending. However, it is not a dis cretion
of a Mughal Emperor. Lord Halsbury, more than cent ury
ago in SHARP vs. WAKEFIELD, 1891 AC 173, said that
discretion means according to rules of reason and j ustice.
Such an approach, at the hands of the Court below i s not
reflected. What prejudice would be caused to the
Respondent should these suits be clubbed for the pu rpose
of trial, is not forthcoming despite the vociferous
submission of the learned counsel appearing for the
Respondent.
WP No. 24842 of 2022
(d) When parties are the same, property involved is
same and Court in which the suits are brought is th e
same, ordinarily, the request for clubbing should n ot be
denied, subject to all just exceptions, into which the
argued case of the Respondent does not fit. This Co urt
hastens to add that, there is no repugnancy between the
issues framed in the partition suit and those in th e
injunctive suit and therefore, clubbing would save time,
energy, and vyavadhaana of all the stakeholders. Of
course, it is left to the Judge’s discretion to ren der a
common or separate judgment & decree.
In view of the above, this Writ Petition succeeds; a
Writ of Certiorari issues quashing the impugned ord er; the
learned Trial Judge is request to allow the subject
application of the Petitioner for clubbing and try both the
suits together. | The Karnataka High Court recently observed that courts enjoy great discretion when it comes to clubbing or transfer of matters pending before it but such a discretion cannot be exercised like a 'Mughal Emperor' [Reet Abraham vs Sunil Abraham].
Single-judge Justice Krishna S Dixit said that when parties to the case are same and the court before which suits are pending is the same, the request for clubbing of suits should not ordinarily be denied.
"It is true that in matter of transfer and clubbing of cases, a greater discretion lies with the Court in which they are pending. However, it is not a discretion of a Mughal Emperor," the bench observed in the order order passed on May 24.
The Court was hearing a plea by a woman who sought to club two different suits filed before a family court in Bengaluru.
The family court had refused to club the two separate suits filed by the the woman and her husband against each other.
The High Court said that no prejudice would be caused to the husband or even the wife of the suits are clubbed together.
The judge invoked Lord Halsbury, who had more than a century ago, said in Sharp v. Wakefield that discretion should be exercised according to rules of reason and justice.
"Such an approach, at the hands of the Court below is not reflected. What prejudice would be caused to the husband should these suits be clubbed for the purpose of trial, is not forthcoming despite the vociferous submission of the husband," the bench opined.
In the present case, the Court said that there is no repugnancy between the issues framed in the partition suit and those in the injunctive suit and therefore, clubbing would save time, energy, and vyavadhaana of all the stakeholders.
"Of course, it is left to the Judge’s discretion to render a common or separate judgment & decree," the High Court clarified.
With these observations, the bench clubbed the two suits.
Senior Advocate Suresh Lokre and Shravan Lokre appeared for the wife.
Advocate SK Prathima represented the husband. |
Civil Appeal No.951 of 1977.
From the Judgment and Order dated 29.7.1976 of the Madras High Court in S.A. No.89 of 1972.
A.T.M. Sampath and P.N.Ramalingam for the Appellant.
S.Balakrishnan and S.Prasad for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
The appellant is the defendant in a suit insti 392 tuted by the respondent to set aside a transfer of property made by the guardian of a minor and for recovery of possession of the property.
The suit was decreed, and the decree was confirmed by the first appellate court as well as by the High Court.
The plaintiff respondent purchased the suit property from an ex minor within three years after the minor attained majority.
During his minority, the property was sold by his father as his natural guardian to a person from whom the present appellant purchased the property.
All the courts found that the guardian had not obtained the permission of the Court for the sale of the property, as required by section 8 of the Hindu Minority & Guardianship Act, 1956 ("the Guardianship Act") and that the sale of the property was not for legal necessity.
Dismissing the second appeal, the High Court held that the suit was rightly instituted by the respondent as a transferee from the ex minor within three years after the minor attained majority and that the contention of the defendant that the suit by a transferee from the ex minor was hit by section 6(e) of the was unsustainable.
The only question which arises in the present appeal, as it did before the High Court, is (to quote the words of the High Court) "Whether a transferee from a minor after he attained majority, can file a suit to set aside the alienation made by the minor 's guardian or the said right is one to be exercised only by the minor?".
The relevant facts are that the suit property belonged to one Veerammal.
She had a daughter by name Kaliammal.
Veerammal died shortly after she purchased the property in 1948.
She left behind her husband Kandayya and their duaghter Kaliammal.
Subsequently, Kandayya married a second time when his daughter Kaliammal was a minor.
She thereupon left her father 's house and resided with her maternal grand father who protected and maintained her.
During her minority, Kandayya sold the property on 29.10.1959 to Jainulavudeen.
On 25.4.1966, Jainulavudeen in turn sold the property to the defendant appellant.
Subsequently, on 26.5.1966 the plaintiff obtained a deed of sale of the suit property in his favour from Kaliammal who had by then attained majority.
The Plaintiff thereafter instituted the present suit (O.S. No. 491 of 1968) against the appellant to set aside the transfer of property made by Kandayya and for recovery of its possession.
393 The question is whether the respondent in his capacity as a transferee from the ex minor was competent to bring a suit to set aside the sale effected by the minor 's guardian.
It is no longer disputed that the suit was brought within three years after the minor attained majority.
Nor is it any longer contended that the father of the minor, as her natural guardian, had obtained the permission of the Court or that the sale effected by him was one for legal necessity.
These two vital points have been concurrently found against the appellant.
The only contention which Mr. Sampath, appearing for the appellant, is in a position to urge is as regards the question whether the suit is hit by section 6(e) of the T.P. Act.
Counsel says that all that the ex minor was in a position to transfer, was her mere right to sue to set aside the sale and recover possession of the property transferred by her father as her natural guardian.
The property itself had been transferred by the father prior to its sale by the ex minor.
The minor had, therefore, no property to sell, except a right to set aside the sale.
Accordingly, whatever transfer that was effected by the minor in favour of the plaintiff was nothing more than a mere right to sue and such transfer was invalid by reason of section 6(e) of the T.P. Act.
Mr. Balakrishnan, appearing for the respondent plaintiff, contends that the ex minor was fully competent to bring a suit to set aside the sale within a period of three years after attaining majority and any person claiming under her is equally competent to institute action for the same purpose.
He refers to the provisions of section 8(3) of the Guardianship Act.
He contends that a suit to set aside a sale is not for the enforcement of any personal right, but a right in property, and is, therefore, not hit by section 6(e) of the T.P. Act.
In any view, counsel says, section 8(3) of the Guardianship Act sepcifically allows such a suit to be brought by a person claiming under a minor and, therefore, such a statutory right specially granted by an enactment dealing with the protection of the minor cannot be defeated by the general provisions of an earlier enactment.
The two provisions, counsel says, can be read harmoniously so as to avoid an artificial conflict.
What the Guardianship Act intends to protect is the right of a person claiming under a minor to sue for setting aside the sale of property sold otherwise than as permitted by section 8 of the Act.
On the other hand, the T.P. Act only prohibits suits in the the nature of champerty and maintenance based on bare or naked right of litigation.
The general provision contained in section 6(e) of the T.P. Act does not derogate from the special protection of the minor 's interest and the interest of a person claiming under him, as afforded by the Guardianship Act, which is addressed to a specific problem, In any view, counsel says a sale by the guardian 394 otherwise than as permitted by section 8 is void and is, therefore, incapable of passing a title.
For all these reasons, Mr. Balakrishna submits that the suit was competent and was rightly decreed on the facts found and the appeal by the defendant has no merits.
As concurrently found by the courts below, the sale effected by the guardian during the minority of his daughter was not in compliance with the provisions of section 18(i) of the Guardianship Act.
The property was transferred by him without obtaining the previous permission of the Court and the transfer was not for the benefit of the minor.
Such a sale by the minor 's father who is his natural guardian is, unlike in the case of transfer by a de facto guardian (Section 11), not a void sale, but only a voidable sale.
Such a sale until set aside is sufficiently effective to pass title, but being a voidable sale, what the buyer has obtained is a defeasible title which is liable to be set aside at the instance of the person entitled to impeach it.
Section 8(3) of the Guardianship Act says: "Any disposal of immovable property by a natural guardian, in contravention of sub section (1) or sub section (2), is voidable at the instance of the minor or any person claiming under him." (emphasis supplied) The effect of this sub section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the Court is voidable.
A person entitled to avoid such a sale is either the minor or any person claiming under him.
This means that either the minor, or his legal representative in the event of his death, or his successor in interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e., three years from the date on which the minor died or attained majority, as the case may be.
In the present case, the suit was brought, as found by the courts below, within three years after the minor attained majority.
Mr. Sampath, however, contends that a person claiming under a minor, referred to in section 8(3), can only be a legal representative of a deceased minor and not a person succeeding to the interests of the minor by reason of transfer inter vivos.
He refers to the decisions in Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel & Ors, ; Mon Mohan Bhattacharjee & Ors.
vs Bidhu Bhusan Dutta & Ors., ; Palani Goundan & Anr.
vs Vanjiakkal & 395 Anr., ; Premprakash Surajmal vs Maharashtra Revenue Tribunal, Nagpur & Ors., AIR 1969 Bom.361 and Ghanshyam Dass vs Dr. Shiva Shankar Lal & Ors., [1980] All.
Law Journal 130 and other cases in which certain High Courts have taken the view that the right of the minor is a personal right and it cannot be transferred otherwise than by inheritence.
The "person claiming under him" mentioned under section 8(3) of the Guardianship Act, counsel says, can only be a representative and not a purchaser or transferee inter vivos.
He refers to Article 60 of the and submits that the provision refers only to a legal representative and not any other successor.
In Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel & Ors.
, , it was held: "what was assigned by the minor to the plaintiff in that suit was not the property in question but his right to sue for it, and if he could establish his allegation, to have the sale avoided, this I think was no more than a right of suit, and if I am correct such a transfer is forbidden by section 6, Cl.
(e), T.P. Act.
" Similar reasoning was adopted in the other decisions cited by Mr. Sampath on the point.
The rationale of these decisions is that the right to impeach a sale effected by the guradian is a personal right vested in the minor and it is not transferable inter vivos.
The expression "person claiming under him", according to this line of reasoning, must, therefore, be understood as a legal representative and not an assignee.
On the other hand, a Division Bench of the Madras High Court in P. Kamaraju vs C. Gunnayya & Ors., AIR 1924 Madras 322 held that the right of the minor was not a bare right to sue and it was an assignable right.
The High Court held: ".
.By selling the property to the plaintiff on the footing that the sale by the mother was not binding on him he has chosen to avoid it, and the result of it is that from his point of view he has got a complete title.
The title no doubt will only be effective if the Court ultimately finds that the sale by the mother is not binding on him.
But contingent on that event he has got a complete title and this title is not a bare right to sue and is, therfore, assignable. . " 396 In Palaniappa Goundan vs Nallappa Goundan & Ors., AIR 1951 Madras 817, Viswanatha Sastri, J. observed: "Where an ex minor transfers property unauthorisedly sold by his guardian during his minority he transfers not a mere right to use but his interest in the property, though a suit may be necessary to avoid the transfer by the guardian & recover possession of the property from his alienee.
Conversely, the liability of the transferee from the guardian is not a liability to pay damages for the unauthorised act of the guardian, but is a liability to restore the property to the rightful owner or his transferee".
Similar view was expressed in Karnam Nagabhushana Rao vs Karnam Gowramma & Ors., [1968] 2 Andhra Weekly Reporter 57.
These decisions on which reliance was placed by the Madras High Court in the impugned judgment are to the effect that the right of the minor is not a bare or naked right to sue but a right in property which is assignable.
In Halsbury 's Laws of England, 4th edn.
, Vol. 6, paragraphs 86 87 at pages 49 50, this is what is stated "A bare right of litigation, such as a mere right to damages for a wrongful act, is not assignable, on the principle that the law will not recognise any transaction savouring of maintenance or champerty.
By way of exception to the rule stated in the previous paragraph there is nothing unlawful in the purchase of property which the purchaser can only enjoy by defeating existing adverse claims, or in the assignment (for example by mortgage) of property, being the fruits of litigation.
In every case it is a question whether the purchaser 's real object was to acquire an interest in the property, or merely to acquire a right to bring an action, either alone or jointly with the vendor . ".
In the instant case, on the facts found, the transfer of the property made by the guardian was a voidable transaction and it was, therefore, open to the minor to challenge it and seek recovery of possession.
Such a right of the minor is a right or interest in property 397 which he himself or "any person claiming under him" may enforce by instituting a suit [Section 8(3) of the Guardianship Act].
"Any person claiming under him" must necessarily include a purchaser.
Section 8(3) confers a right of suit in the special circumstances postulated in that provision.
The object of the Act being the protection of the minor, the legislature has thought it fit to confer a right of suit in certain circumstances not only on the minor, but also on a person to whom the minor has transferred his rights.
The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the ex minor prior to the transfer.
Such a provision, indeed specially for the protection of the interests of the minor, must be read in harmony and consistently with the general provisions contained in section 6 of the T.P. Act.
[See The J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The State of Uttar Pradesh & Ors., ; , 194 and Ashoka Marketing Ltd. & Anr.
vs Punjab National Bank & Ors., [1990] 3 JT SC 417, 439].
The transfer made by the father during his son 's minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural guardian obtained only a defeasible title.
The minor retained a right in the property to defeat existing adverse claims, and such right is an assignable right.
We are in complete agreement with what has been stated on the point in Palaniappa Goundan vs Nallappa Goundan & Ors., AIR 1951 Madras 817 and in P. Kamaraju vs C. Gunnayya & Ors., AIR 1924 Madras 322.
We do not agree with the contrary view expressed on the point in Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel & Ors., ; Mon Mohan Battacharjee & Ors.
vs Bidhu Bhushan Dutta & Ors., and Palani Goundan & Anr.
vs Vanjiakkal & Anr., A construction which is unduly restrictive of the statutory provisions intended for the protection of the interest of the minor must be avoided.
This is all the more so in view of section 5(b) of the Guardianship Act which says.
Save as otherwise expressly provided in this Act (a) . . . . . . . . (b) any other law in force immediately before the com 398 mencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
" For the reasons stated by us, we see no merit in the challenge against the judgment under appeal.
The appeal is accordingly dismissed.
We do no, however, make any order as to costs.
V.P.R. Appeal dismissed. | The appellant purchased the suit property of the minor from a person, to whom the same was sold by the father, the natural guardian, whereas the respondent purchased the suit property from the minor within three years on his attaining majority.
The respondent plaintiff instituted a suit against the appellant defendant, to set aside the transfer of property made by the natural guardian and for recovery of possession of property.
The suit was decreed and the decree was confirmed by the appellate Court as well as by the High Court.
Dismissing the second appeal, the High Court held that the suit instituted bythe respondent as a transferee from the ex minor within three years after the minor attained majority was not hit by section 6(e) of the , against which the present appeal preferred by the appellant defendant.
The appellant contended that the suit was hit by section 6(e) of the , as all that the ex minor was in a position to transfer was the mere right to sue to set aside the sale and recover possession of the property transferred by the natural guardian; and 390 that a person claiming under a minor, referred to in section 8(3) of the Hindu Minority and Guardianship Act, 1956 can only be a legal representative of a deceased minor and not a person succeeding to the interest of the minor by reason of transfer inter vivos.
The contentions of the respondent were that the ex minor was competent to bring a suit to set aside the sale within a period of three years of his attaining majority and any person claiming under the minor was equally competent to institute action for the same purpose; that the suit to set aside a sale was not for the enforcement of any personal right, but a right in property and the suit was not hit by Section 6(e) of the T.P.Act; and that the provisions contained in Section 6 of the T.P. Act and Section 8 of the Guardianship Act were to be read together.
On the question, whether the respondent in his capacity as a transferee from the ex minor was competent to bring a suit to set aside the sale effected by the minor 's guardian, who had sold the property without obtaining the permission of the Court as required under Section 8 of the Hindu Minority and Guardianship Act 1956 and without any legal necessity.
Dismissing the appeal of the appellant defendant this Court, HELD: 1.
In the instant case, on the facts found, the transfer of the property made by the guardian was a voidable transaction and it was, therefore, open to the minor to challenge it and seek recovery of possession.
Such a right of the minor is a right or interest in property which he himself or "any person claiming under him" may enforce by instituting a suit (Section 8(3) of the Guardianship Act).
"Any person claiming under him" must necessarily include a purchaser.
[396G 397A] 2.
Section 8(3) confers a right of suit in the special circumstances postulated therein.
The object of the Act being the protection of the minor, the legislature has though it fit to confer a right of suit in certain circumstances not only on the minor, but also on a person to whom the minor has transferred his rights.[397A B] 3.
The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the ex minor prior to the transfer.
Such a provision intended specially for the protection of the interests of the minor, must be read in harmony and consistently with the general provisions con 391 tained in section 6 of the T.P. Act.
[397B C].
A construction which is unduly restrictive of the statory provisions intended for the protections of the interests of the minor must be avoided.
[397F G] 5.
The transfer made by the father during his son 's minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural guardian obtained only a defeasible title.
The minor retained a right in the property to defeat existing adverse claims, and such right is an assignable right.
[397D E] The J.K.Cotton Spinning & Weaving Mills Co.Ltd.
vs The State of Uttar Pradesh & Ors., [1961] 3 S.C.R.185, 194 and Ashoka Marketing Ltd. & Anr.
vs Punjab National Bank & Ors., , 439, followed.
Palaniappa Goundan vs Nallappa Goundan & Ors., AIR 1951 Madras 817 and P.Kamaraju vs C.Gunnayya & Ors., AIR 1924 Madras 322, approved.
Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel & Ors., AIR 1933 Bom.42; Mon Mohan Battacharjee & Ors.
vs Bidhu Bhusan Dutta & Ors., and Palani Goundan & Anr.
vs Vanjiakkal & Anr., [1956] I.L.R. Mad.1062, over ruled.
Preprakash Surajmal vs Maharashtra Revenue Tribunal.
Nagpur &Ors., A.I.R. 1969 Bom.361; and Ghanshyam Dass vs Dr.
Shiva Shankar Lal & Ors., [1980] All Law Journal 130, referred to. |
Appeal No. 3850 of 1991.
From the Judgment and Order dated 21.4.1978 of the Andhra Pradesh High Court in Civil Revision Petition No. 3974 of 1977.
A. Subba Rao, G. Narasimhulu and A.D.N. Rao for the Appel lants.
T.V.S.N. Chari and Ms. Manjula Gupta for the Respondent.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
As we are in agreement with the conclusions arrived at by the High Court of Andhra Pradesh, we propose to set out the few facts necessary for the appreciation of the argu ments before us very briefly.
517 The parties belong to the Reddi caste in an area of Andhra Pradesh which originally formed part of the Madras Presidency.
Appellant No. 1 is the illatom son in law of Appellant No. 2.
The appellants filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973, (hereinafter referred to as "the Ceiling Act").
In his declaration, appellant No. 2 claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1 as his illatom son in law who had attained the age of majority had a share in the properties of his father in law, appellant No. 2.
Appellant No. 2 deposed in the inquiry held that appellant No. 1 was entitled to a half share in his properties as his illatom son in law.
Both of them claimed that appellant No. 1 was entitled to the afore said share under an agreement (Exhibit A I).
The Land Re forms Tribunal, Anantapur by its judgment dated May 31, 1977, rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding to an extent of 0.4109 standard acres and directed him to surrender the excess land.
Appellant No. 1 was declared as not holding any land in excess of ceiling limit.
The appellants preferred an appeal to the Land Reforms Appellate Tribunal, Anantapur which was dismissed on November 4, 1977.
Aggrieved by the order of dismissal made by the said Tribunal, the appellants filed a Civil Revision Petition No. 3974 of 1977 in the High Court of Andhra Pradesh which was dismissed by a learned Single Judge of the High Court by a common judgment along with other connected matters on April 21, 1978.
This appeal by special leave is one of the appeals directed against the common judgment of the said High Court.
An illatom son in law is in a sense, a creature of custom.
It is well settled by a series of decisions that a custom of illatom adoption prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency.
It is stated in Mayne 's Hindu Law and Usages, 13th Edition, Paragraph 242 in Chapter VII, as follows: "A custom known as that of illatom adoption prevails among the Reddi and Kamma castes in the Madras Presidency.
It consists in the affiliation of a son in law, in consideration of assistance in the management of the family property.
No religious significance appears to attach to the act.
Neither the execution of any document nor the performance of any cere mony is necessary.
The incidents of an illatom adoption have now become crystallized into fixed rules of law by a long course of deci sions.
To constitute a person an illatom, a specific agreement is necessary . .
After the death of the adop 518 ter he is entitled to the full rights of a son even as against natural sons subse quently born or a son subsequently adopted in the usual manner." It has also been stated by Mayne that an illatom son in law has no right to claim partition with his father in law unless there is an express agreement or custom to that effect.
An illatom son in law is not an adopted son in any sense.
In N.R. Raghavachariar 's Hindu LaW, 8th Edition, in paragraph 176, it is stated that an illatom son in law loses no rights of inheritance in his natural family and the property he takes in the adoptive family is taken by his own relations to the exclusion of those of his adoptive father.
The position, as set out in Mulla 's Hindu law, 16th Edition is no different.
Regarding the position of an illatom son in law it has been inter alia observed by Mulla at para 515 (page 534) as follows: "He does not lose his right of inheritance in his natural family.
Neither he nor his de scendants become coparceners in the family of adoption though on the death of the adopter he is entitled to the same rights and the same share as against any subsequently born natural son or a son subsequently adopted in accord ance with the ordinary law.
He cannot claim a partition with the father in law and the incidence of a joint family, such for instance as right to take by.
survivorship, do not apply.
In respect of the property or share that he may get he takes it as if it were his separate and self acquired property.
" To cite just a few decisions, the custom of having an illatom son in law in the Kamma Castes and the Reddis in Madras Presidency has been recognised in Nalluri Kristnamma and another vs Kamepalli Venkatasubbayya and others.
(1918 19) L.R. 46 I.A. 168.
The same custom has also been recog nised by the decision of a Division Bench of the Madras High Court in Hanumantamma vs Rami Reddi.
(1882) L.R. 4 I.A. Madras Series, 272.
In Narasayya and others vs Rammachan drayya and others A.I.R. [1956] 43 A.P. 209 it has been held that the institution of illatom adoption, that is, affiliat ing a son in law and giving him a share, is purely a crea ture of custom and judicial recognition has been given to it.
Learned Counsel for the appellants contends that appel lant No. 1 as an illatom son in law of appellant No. 2, was entitled to a half share in the property of appellant No. 2.
He submitted that an illatom son in law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did not hold any land independently nor in any manner specified under Section 4 A of the Ceiling Act.
519 Before examining the correctness of these submissions, we may refer to the relevant provisions of the Ceiling Act.
The Ceiling Act which provided for a ceiling on agricultural holding in Andhra Pradesh was enacted in 1973 and amended by Act No. 10 of 1977 which was reserved tot the assent of the President and received the same on April 29, 1977.
The said amending Act was made effective from January 1, 1975.
Section 3 of the said Act is the definition section.
Sub section (c) of Section 3 defines the term 'ceiling area ' after the amendment as meaning the extent of land specified in Section 4 or 4A to be the ceiling area.
Sub section (5) of Section 3 defines the term "family unit" and clause (i) thereof provides that in case of an individual who has a spouse or spouses such individual, the spouses and their minor sons and their unmarried minor daughters, if any, constitute his family unit.
Section 4 provides for the ceiling area.
After Section 4 of the said Act, the following Section 4A was inserted in the Act.
"4A. Increase of ceiling area in certain cases : Notwithstanding anything in section 4, where an individual or an individual who is a member of a family unit, has one or more major sons and any such major son either by himself or together with other members of the family unit of which he is a member, holds no land or holds an extent of land less than the ceiling area, then, the ceiling area, in the case of said individual or the family unit of which the said individual is a member computed in accordance with section 4, shall be increased in respect of each such major son by an extent of land equal to the ceiling area applicable to such major son or the family unit of which he is a member, or as the case may be, by the extent of land by which the land held by such major.
son or the family unit of which he is a member falls short of the ceiling area.
" Section 5 prescribes how the standard holding for dif ferent categories of land is to be computed.
Section 8 provides for declaration of holding by persons whose holding on the notified date together with the other lands mentioned therein exceeds the specified limit.
Section 9 provides for the determination of the ceiling area by the Tribunal.
Section 10 inter alia provides that if the extent of the holding of a person is in excess of the ceiling area, the person shall be liable to surrender the land held in excess.
The question which arises is whether, for the purposes of Section 4A 520 of the Ceiling Act, an illatom son in law can be regarded as a major son, that is, whether an illatom son in law is covered in the definition of the term 'major son ' as em ployed in Section 4A of the Ceiling Act.
It has been ob served in the impugned judgment that an illatom son in law is a creature of custom and hence, his rights are such as recognised by the custom or under an agreement duly proved.
It has been pointed out in the impugned judgment that the Land Reforms Tribunal held, on consideration of the evidence, that half share in property of appellant No. 2 was bequeathed to him and hence, he would be entitled to half share only after the demise of appellant No. 2.
It was further pointed out that all the lands stood registered in the name of appellant No. 2 and hence, appellant No. 1 was not entitled to any share in the properties of appellant No. 2 during the life time of appellant No. 2.
It has been held in the impugned judgment that appellant No. 1 who is the illatom son in law could not be regarded as a son of appellant No. 2, although he had some rights which were similar to the rights of a natural born son or an adopted son.
The agreement (Exhibit A) which was set up by the appellants and under which appellant No. 1 given a share the land belonging to appellant No. 2 in presenti has not been accepted by the courts below on consideration of the evi dence.
It has been held that the said agreement was a document brought into existence merely with a view to avoid the ceiling law.
In this appeal, we are not inclined to interfere with these findings of the appeal.
It was also held in the impugned judgment that in the aforestated cir cumstances, the ceiling limit of appellant No. 2 was not liable to be increased on the ground that appellant No. 1 was his illatom son in law who had attained majority on the relevant date.
Coming to the position in law, the discussion in the text books, which we have referred to in some detail earli er, makes it clear that although an illatom son in law has some rights similar to those of a natural son born F after the adoption of the iliatom son in law, his rights are not identical to those of conferred by law on a son or an adopt ed son.
To cite two main differences, he does not succeed to the properties of his father in law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father in law.
His position is not identical to that of an adopted son because he does not lose his rights in his natural G family on being taken as an iliatom son in law and continues to be entitled to a share in the property of his natural father.
It is, therefore, difficult to regard an iliatom son in law who has attained majority as a major son for the purposes of Section 4A of the Ceiling Act.
Learned Counsel for the appellants placed reliance on the decision of a learned Single Judge of the Andhra Pradesh High Court in Peechu 521 Ramaiah vs Government of Andhra Pradesh [1976] 2 (H.C.) Andhra Pradesh Law Journal 278, where it has been held that after the death of the father in law an iliatom son in law is entitled to the rights of his son.
If there is an agree ment to that effect, the illatom son in law is also entitled to half share in the property of the adoptive father in law even during his lifetime.
The Division Bench in the impugned judgment has not accepted the correctness of the aforesaid judgment.
In our opinion, the view taken by the Division Bench in the impugned judgment appears to be correct.
From the texts which we have cited earlier it is clear that the general recognised position is that an illatom son in law becomes entitled to a share in the property of his father in law as his heir; that is, on his death, it being well settled in law that there can be no heir to a living person.
Moreover, in Peechu Ramaiah vs Government of Andhra Pradesh the conclusion arrived at by the learned Single Judge that the illatom son in law was entitled to a half share in presenti, that is, even during the lifetime of his father in law, was based on an agreement to that effect which was duly proved.
In the present case, the agreement (Exhibit A) has been disbelieved by the authorities below as well as the High Court.
It has been pointed out by the Land Reforms Tribunal that the half share to which appellant No. 1 would be entitled was bequeathed to him in the Will of appellant No. 2 and he would be entitled to that share only on the death of appellant No. 2.
In fact, it was fairly conceded by learned Counsel for the appellants that he was not in a position to show any evidence on the basis of which it could be said that there was a custom applicable to the parties by which appellant No. 1 as an illatom son in law of appellant No. 2 was entitled to a share in the property of appellant No. 2 during the latter 's lifetime.
In our opinion, it is not possible to equate an iliatom son in law who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act.
As pointed out in Penumatsa Koti Ramachandra Raju vs State of A.P., (1980) 1 (H.C.) Andhra Pradesh Law Journal, 307, it is quite apparent from the language of the Statement of Objects and Reasons of the Act 10 of 1977, whereby Section 4A was in serted in the Ceiling Act, that Section 4A was inserted in order to obviate the hardship caused to the Muslims and Christians among whom the concept of a joint family did not obtain and even major sons did not have any share in the ancestral property during the lifetime of the father unlike in the case of Joint Hindu Families.
It appears that the intention which lay behind the amendment was to put Muslims and Christians at par with Hindus in respect of the ceiling law.
It was with this point of view that it was provided in Section 4A of the Ceiling Act that, although the limit of the father 's holding would be increased on the ground of his having a major son that increase would 522 be limited to the extent by which the land holding of the major son and his family unit fell short of the ceiling unit.
In our opinion, the Statement of Objects and Reasons of the said amending Act whereby Section 4A was inserted into the said Act lends support to the view that we are taking, that an illatom son in law, who does not lose his rights in his own family, cannot be regarded as a major son of his father in law for the purposes of the Ceiling Act.
If he was so regarded, there would be a double benefit, in the sense that because of his presence the ceiling area of his father in law would be increased as well as the ceiling area of his natural father and that certianly could not have been the intention behind the amendment inserting Section 4A.
Since there is no custom of having an illatom among Muslims and Christians such a construction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other.
That would be contrary to the very purpose for which the amendment was made.
In the result, we are of the view that there is no merit in the appeal and it must fail.
Appeal dismissed.
However, looking to the facts and circumstances of the case there will be no order as to costs.
V.P.R Appeal dismissed. | The appellants, who belonged to the Reddi caste in an area of Andhra Pradesh, which originally formed part of the Madras Presidency filed their respective declarations under Section 8 of the Andhra Pradesh Land Reforms (Ceiling on Agricultural Holdings) Act, 1973.
Appellant No. 2 in his declaration claimed an increase in the ceiling unit permitted to be held by him on the ground that appellant No. 1, as his illatom son in law who had attained the age of majority, had a share in the proper ties.
In the inquiry held Appellant No. 2 deposed that appel lant No. 1 was entitled to a half share in his properties as his illatom son in law.
Both the appellants claimed that appellant No. 1 was entitled to a share under an agreement.
The Land Reforms Tribunal rejected the claim of the appellants and held that the declarant, appellant No. 2 held surplus holding and directed him to surrender the excess land.
Appellant No. 1 was declared as not holding any land in excess of ceiling limit.
The appellants preferred an .appeal to the Land Reforms Appellate 514 515 Tribunal, which was dismissed.
The appellants filed a Civil Revision Petition in the High Court, which was also dismissed.
This appeal by special leave is one of the appeals directed against the common judgment of the High Court.
The appellants contended that appellant No. 1 as an illatom sonin law of appellant No. 2, was entitled to a half share in the property of appellant No. 2; that an illatom son in law who had attained the age of majority was in the same position as a major son and hence, the ceiling area permitted to appellant No. 2 was liable to be increased by one ceiling unit as appellant No. 1 did not hold any land independently nor in any manner specified under Section 4A of the Ceiling Act.
Dismissing the appeal, this Court, HELD: 1.
The institution of illatom adoption, that is, affiliating a son in law and giving him a share, is purely a creature of custom and judicial recognition has been given to it.
It prevails among the Reddi and Kamma castes in territories which earlier formed part of the then Madras Presidency.
[518 G, 517 F] 2.
An illatom son in law becomes entitled to a share in the property of his father in law as his heir, that is, on his death.
[521 C] 3.
Although an illatom son in law has some rights simi lar to those of a natural son born after the adoption of the illatom son in law, his rights are not identical to those of conferred by law on a son or an adopted son.
The illatom son in law does not succeed to the properties of his father in law by survivorship, but only on account of custom or an agreement giving him a share in the property of his father in law.
His position is not identical to that of an adopted son because he does not lose his rights in his ' natural family on being taken as an illatom son in law and continues to be entitled to a share in the property of his natural father.
It is not possible to equate an illatom son in law who has attained majority with a major son for the purposes of Section 4A of the Ceiling Act.
[520 F G, 521 E] 516 4.
The Statement of Objects and Reasons of the Amending Act whereby Section 4A was inserted into the Ceiling Act indicate that an illatom son in law, who does not lose his fights in his own family, cannot be regarded as a major son of his father in law for the purposes of the Ceiling Act.
If he was so regarded, there would be a double benefit, because of his presence as the ceiling area of his father in law would be increased as well as the ceiling area of his natu ral father.
That Certainly could not have been the intention behind the amendment.
Since there is no custom of having an illatom among Muslims and Christians such a construction would lead to disparity between the position of Muslims and Christians on the one hand and Hindus on the other.
That would be contrary to the very purpose for which the amend ment was made.
[522A C] Nallun Kristnamma and another vs Kamepalli Venkatasub bayya and others, (1918 19) L.R. 46 I.A. 168; Hanumantamma vs Rami Reddi, (1882) L.R.4 I.A. Madras Series 272; Nara sayya and others vs Ramachandrayya and others, AIR [1956] 43 A.P. 209; Penumatsa Koti Ramachandra Raju vs State of A.P. (1980) 1 (H.C.) Andhra Pradesh Law Journal 307, referred to.
Peech Ramaiah vs Government of Andhra Pradesh, (1976) 2 (H.C.) Andhra Pradesh Law Journal 278, distinguished.
Mayne: Hindu Law and Usages, 13th Edition, Chapter VII, Paragraph 242, N.R. Raghavachariar; Hindu Law 8th Edition, Paragraph 176; Mulla: Hindu Law, 16th Edition, Para , referred to. |
Appeal No. 1345 of 1986.
From the Judgment and Order dated 29.8.1984 of the Madhya Pradesh High Court in Misc.
Petition No.613 of 1983.
Avadh Behari Rohtagi.
S.K. Gambhir, Vivek Gambhir and K.K. Mohan for the Appellants.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra, B.K Satija and Surinder Karnai for the Respondents.
The Judgment of the Court was delivered by 260 KASLIWAL, J.
In all the above appeals the parties are the same and the controversies raised are intimately con nected and dependent on each other, hence all the cases are disposed of by one single order.
Land measuring 19 bighas was granted by the ruler of the erstwhile State of Ratlam in favour of ancestors of respond ents Shantilal and Poonam Chand Pitaliyas (hereinafter referred to as 'Pitaliyas ') for installation of a Ginning factory.
Ancestors of Kantilal Jhalani and other appellants (hereinafter referred to as 'Jhalanis ') entered into part nership with Pitaliyas and the partnership started a Ginning factory on a portion of the above 19 bighas of land.
The names of Jhalanis and Pitaliyas were recorded in the revenue records in respect of the entire land.
The above 19 bighas of land had some different survey numbers but subsequently at the time of settlement in Ratlam in the year 1956 57, the numbers were changed to survey numbers 120 and 121.
Survey No. 120 comprised of 2 biswas and survey No.121 of 18 bighas and 18 biswas.
According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhala nis purchased the said land in an auction.
Thereafter, an application was moved by the Jhalanis on 13th April, 1951 for mutation of their names before the Tehsildar in respect of the entire lands bearing survey Nos. 120 and 121 leaving such portion of the land on which the Ginniing factory was standing.
The Tehsildar vide his order dated 20th February, 1953 allowed the application and passed an order mutating the names of Jhalanis on the entire 19 bighas of land.
The said mutation was allowed on the basis of compromise between Pitaliyas and Jhalanis and also on the basis of a sale certificate issued by the Civil Court.
The Town Improvement Trust, Ratlam (hereinafter referred to as 'the Trust ') started acquisition proceedings for a housing scheme under the provisions of the Town Improvement Trust Act, 1960 (hereinafter referred to as 'the Act ') and issued a notification on 28th August, 1964 under Sec.68 of the Act.
Survey Nos. 120 and 121 were shown in the notifica tion leaving out some area of survey No.121.
In the acquisi tion proceedings, the Trust obtained possession of the acquired land on 21st March, 1968.
The Collector started svomotu proceedings under Sec.50 of the Madhya Pradesh Land Revenue Code, 1959 and issued a notice on 17th December, 1970 to the Jhalanis stating that the mutation proceedings did not appear to be legal.
It is not necessary to state the details of other proceedings by which the Jhalanis went to the higher authorities as ulti mately the matter came back to the Collector by remand.
The Jhalanis contested the proceedings before the Collector and prayed for the cancellation of the 261 notice dated 15th February, 1972 which was issued afresh by the Collector after the remand of the case to him.
The Collector ultimately by an order dated 31st March, 1977 set aside the order of mutation passed by the Tehsildar and gave a direction that the Tehsildar, Ratlam will again make the same entry in the revenue records which was done previously in respect of disputed land.
It was further directed that thereafter the Tehsildar will do proper investigation and analyse all the concerned facts and events which had hap pened in the case and take steps for making the record upto date.
Particularly he will see by which lease and on what conditions originally how much land was given for factory purpose by the State and whether that lease is effective or lapsed.
An appeal filed by the Jhalanis to the Additional Commissioner was dismissed by order dated 11th December, 1981.
The Jhalanis then filed an appeal before the Board of Revenue.
This appeal filed by the Jhalanis was allowed in their favour by the Board of Revenue by order dated 26th March, 1983.
The Board inter alia held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar.
The Pitaliyas then filed a writ petition before the High Court for setting aside the order of the Board of Revenue.
The High Court by order dated 29th August, 1984 allowed the Writ Petition and set aside the order of the Board of Revenue and restored the orders of the Additional Commissioner and the Collector.
Aggrieved against the aforesaid judgment of the High Court, the Jhalanis have filed Civil Appeal No. 1345 of 1986 by grant of Special leave.
In the acquisition proceedings the question of compensa tion was decided by the Tribunal constituted under Sec.73 of the Act.
The Tribunal by its order dated 30th November, 1973 held that Pitaliyas had no right to claim compensation and the Jhalanis alone were entitled to the entire amount of compensation.
The Order of the Tribunal was challenged by Pitaliyas, for apportionment of the amount of compensation, also by Jhalanis for increasing the amount of compensation and by the trust for reducing the amount of compensation by filing separate appeals in the High Court.
The High Court by its order dated 29th July, 1984 allowed the appeal filed by the Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis.
The High Court dismissed the appeal filed on behalf of the Trust.
The High Court allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 0.65 paisa per Sq.
10 0.75 paisa per Sq.
Aggrieved against the afore said judgment of the High Court in acquisition proceedings, the Jhalanis have filed Civil Appeal No. 1346 of 1986 and the Trust has flied appeal No.3426 of 1987 by grant of special leave.
262 We have heard learned counsel for the parties and have thoroughly perused the record.
The land in question was given by the Ruler of erstwhile State of Ratlam for establishing a Cotton Ginning factory at Ratlam.
The deed of partnership between the Pitaliyas and Jhalanis has not been produced on the record of this case but the admitted position is that the Janlabandi entries in the revenue records of the year 1921 22 show tllat survey Nos. 1326 to 1336, 1337/2 and 1340 to 1342 (subsequently changed to Survey Nos. 120 and 121), stood in the name of Keshrimal Vardhman Pitaliya and Keshrimalji Dhanrajji Jhala ni in equal shares.
Keshrimal Vardhman Pitaliya proprietor of firm Vardhman Keshrimal died sometime prior to 1932 and he left behind two sons Sagarmal and Vinayakrao Pitaliya who became the proprietors of Hindu Undivided Family firm Vard human Keshrimal.
Sagarmal and Vinayakrao Pitaliyas did not apply for the mutation of their names in the revenue re cords, after the death of their father Keshrimal Pitaliya.
Keshrimal Dhanraj Jhalani had to recover some amount from the firm Vardhman Keshrimal and he filed a civil suit for the recovery of the money against Sagarmal and Vinayakrao Pitaliyas.
A degree was passed in favour of Keshrimal Dhan raj Jhalani and they filed an application for execution of the decree.
In the execution case No. 161/42 the right, title and interest of Pitaliyas in the Ginning Factory were sold in auction for Rs.6541 and which was purchased by Keshrimal Dhanraj Jhalani on 2nd November, 1946.
A sale certificate was also issued in favour of Keshrimal Dhanraj Jhalani by the Civil Court Ratlam on 3rd October, 1950.
On the basis of this sale certificate Keshrimal Dhanraj Jhalani applied for mutation in the revenue records on 3rd April, 1951 before the Tehsildar, Ratlam.
Alongwith the application Keshrimal Jhalani filed a copy of the sale certificate and a certified copy of the Jamabandi of the land of Samwar year 20,35 (1948 49 A.D).
During the pendency of this mutation application Vinayakrao Pitaliya died leaving no heirs.
Sagarmal who was Karta of the Joint Hindu Family filed objections to the mutation application on 17th March.
It is important to note that in these objections Sagannal clearly raised the ground that in the auction proceedings only movable property of the factory was sold and as such Keshrimal Dhanraj Jhalani had no right to clam mutation of the entire agricultural land in his favour.
Thereafter an agreement took place between Sagarmal Pitaliya and Keshrimal Dhanraj Jhalani on 16th October.
This agreement made in writing was filed before the Tehsildar in which Sagarmal Pitaliya agreed to with draw his objections for the mutation of his share in 19 bighas of land.
in favour of Shri Keshri mal Dhanraj Jhalani in lieu of Shri Keshrimal Dhanraj JhaIa ni having agreed not to recover Rs.4941.
being the balance amount of decree passed in suit No.2 of 1932 against Pita liyas.
Apart from the 263 aforesaid compromise application the statement of Sagarmal Pitaliya was also recorded on 16th October, 1952 itself and Sagarmal clearly made a statement that he was withdrawing his objections as regards mutation in respect of his share in the land of 19 bighas and that he had no objection to the mutation of Shri Keshrimal Dhanraj Jahalani 's name in re spect of the land in dispute.
Thereafter, the Teshsildar rejected the objections filed by Sagarmal and passed an order on 20th February, 1953 granting mutations in the name of Shri Keshrimal Dhanraj Jhalani.
After this order of mutation passed by the Tehsildar on 20th February, 1953 Sagaramal or any other member of the family of Pitaliyas did not take any steps for challenging the aforesaid order of the Tehsildar.
It is further proved on record that thereaf ter names of Jhalanis alone was continued in the revenue records in respect of the entire 19 bighas of land.
The land acquisition proceedings then commenced in the year 1964 and possession over the land was taken by the Trust on 21st March, 1968 from Jhalanis.
The Collector took suo motu proceedings in 1970 and passed an order on 31st March, 1977 setting aside the order of the Tehsildar.
In the above set of circumstances Pitaliyas came forward and claimed half share in the compensation amount in land acquicition pro ceedings before the Tribunal.
The Tribunal rejected the claim of the Pitaliyas but High Court by order dated 29th August,1984 granted half share in favour of Pitaliyas taking the view that they were persons interested under the Town Improvement Trust Act.
On the same day by a separate judg ment the High Court set aside the order of Board of Revenue and maintained the order of the Additional Commissioner and the Collector passed in mutation proceedings.
After going through the entire record , 'red hearing the arguments at length, we are clearly of the view that the High Court went wrong in passing the impugned orders.
As already mentioned above from the year 1922 onwards the entries in the Revenue records in respect of 19 bighas of land was made in favour of Jhalanis and Pitaliyas both in equal share.
Jhalanis had a decree against Pitaliyas and in execution of said decree share of Pitaliyas was auctioned and was purchased by Jhalanis for a sum of Rs. 6541.
Sale certificate was also issued in favour of Jhalanis.
According to Jhalanis the half share of Pitaliyas in the land was also sold and on that basis an application was filed before the Tehsildar for ranration of the entire land in their favour.
According to Sagarmal Pitaliya who was also Karta of Joint Hindu Family, no such land was sold in auction.
11 may be noted that the bid in auction was for an amount of Rs.6541 but it did not satisfy the entire decretal amount and the balance of Rs.4941 still remained due against the Pitaliyas Judgment debtors.
In view of these circumstances a compromise took place between the parties according to which Sagarmal agreed to withdraw his objections in consid eration of 264 satisfaction of the aforesaid amount of Rs.4941 outstanding against him.
On 16th October, 1952 the compromise applica tion was filed in writing and statement of Sagarmal.
was also recorded in which he clearly agreed that he will not claim any right in the land and withdraw his objections and the amount of Rs.4941 was taken as satisfied and Jhalanis agreed not to recover the aforesaid amount of Rs.4941.
It is an admitted position that the order passed by the Tehsildar on 20th February, 1953 rejecting the objections of Sagarmal Pitaliya and mutating the name of Jhalanis for the entire land, was not challenged and the same became final.
Mr.U.R.Lalit, learned Sr.
Advocate appearing on behalf of Pitaliyas did not argue, that the compromise application filed on 16th October, 1952 and the statement recorded on the same day were forged or not genuine.
The only submission made by Mr. Lalit was that any order passed in mutation proceedings cannot confer any legal title in favour of Jhalanis nor such order can divest the ownership rights of Pitaliyas in the agricultural land.
We do not find any force in this submission.
Admittedly, there was a decree of a Civil Court and in execution of the same the properties were auctioned.
Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auc tion proceedings, the same was settled at rest by making a compromise between the parties.
Not only that after the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and also continued to remain in possession.
It is also proved that the Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings.
It is no where proved on record that the Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compensation before the Tribunal.
The Collector in our view had no justification at all to have initiated such proceed ings suo motu in 1970 after 17 years of the order passed by the Tehsildar.
Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation.
There was also no Justification for entering the names of pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th Febru ary,1953 after 17 years, As already mentioned above, Tehsil dar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement of Sagarmal marie before him on 16.10.52.
Now, we shall deal with Civil Appeal No.3426 of 1987 filed by the Trust.
It was argued on behalf of the appel lant Trust that in the erstwhile State of Ratlam one bigha was equivalent to 21511 Sq.
as per Jantri 265 Milan Bigha Va Ekad prepared in 1911 and the lower courts wrongly calculated the area acquired by treating one bigha equivalent to 22500 Sq.
as now prevalent according to the prescribed standards.
We do not find any force in the abvoe contention.
No such argument was raised before the Tribunal and it was raised for the first time before the High Court.
The High Court rejected the aforesaid argument on the ground that admittedly at present one bigha was equivalent to 22500 Sq.
and no contention was raised before the Tribunal that one bigha was equivalent to 21511 Sq.
prevalent in the erstwhile State of Ratlam.
This being a controvercial question of fact and the other side having given no chance to lead any evidence on this point it was difficult to rely on the Jantri Milan Bigha Va Ekad.
The High Court thus held that the compensation for one Bigha of land would be calculated as equivalent to 22500 Sq.
We do not find any error in the aforesaid view taken by the High Court.
It was next contended on behalf of the Trust that the Tribunal had awarded compensation at the rate of 0.65 paisa per Sq.
and there was no ground or justification for the High Court to have increased the same at the rate of 0.75 paisa per sq.
There is some force in the above conten tion raised on behalf of the Trust.
The High Court in in creasing the rate of compensation to 0.75 paise per Sq.
Ft. has given no reason.
The High Court in this regard observed as under: "Thus, after going through the oral as well as documentary evidence and material placed on record and after beatifing the learned counsel for the Trust as also appellant No. 1 and also after going through the case law cited, the question arises at what rate compensation should be paid for the land which is compulso rily acquired.
It cannot be disputed that either party No. 1 nor party No.2 was making any use of the land at the time of acquisi tion.
On the contrary it was being treated as a waste and fallow land having no importance.
There is no satisfactory evidence placed on record to prove that in fact the land was being used as an agricultural land from which certain income was derived.
It appears this land gained importance only when the trust proposed to acquire the same.
Therefore, though the principles enunciated in the various authorities cited and referred to above are not disputed, we are of opinion that considering the facts and circumstances of the case it would be just, proper and reasonable to award compensation for the land at the rate of 0.75 p. per square feet and not more be cause the price fetched for the developed lands also the price fetched for the small plots of land cannot be taken 266 into consideration for purposes of comparision in respect of such big lands.
After all for a developed plot of land the cost of development has also to be taken into consideration which cannot be said to be quite meagre, Besides, admittedly there is a big nala in the land in question, that there was no direct independent road to approach this land and that even the factory was also not working for several years before the acquisition.
All these facts indi cate that the potential value of the land even as a building site was not so high.
" Learned Distt.
Judge after considering large number of documentary evidence placed on record by both the parties arrived to the conclusion that the fair market price of the acquired land on 22nd August, 1964 was 0.65 p. per Sq.
The finding recorded by the Distt.
Judge in this regard was based on adequate material placed on record and supported by good reasons.
In our view the High Court went wrong in increasing the rate from 0.65p.
to 0.75p.
without any valid reasons whatsoever.
As a result of the findings recorded above, the appeal Nos. 1345 and 1346 of 1986 filed by Kanti lal & Ors. are allowed.
The appellants therein would alone be entitled to claim the entire amount of compensation.
The orders of the High Court, Addl.
Commissioner and Collector in the matter of mutation proceedings are set aside and that of the Board of Revenue is upheld.
The appeal No.3426 of 1987 filed by the Trust is allowed in part.
The market value determined by the High Court at the rate of 0.75p.
per Sq.
is set aside and the rate determined by the District Judge at 0.65p.
per Sq.
Ft. is maintained.
In the facts and circumstances of the case, there would be no order as to costs.
G.N. Appeals allowed. | The land in question was granted by the Ruler of erst while State of Ratlam in favour of ancestors of respondents (Pitaliyas) for installation of a ginning factory.
Ancestors of appellants (Jhalanis) entered into a partnership with Pitaliyas and started a ginning factory on a portion of the said land.
In the revenue records, in respect of the entire land the names of Jhalanis and Pitaliyas were entered.
According to the Jhalanis in execution of a decree against Pitaliyas the above land was sold and Jhalanis purchased the said land in an auction.
On an application moved by the Jhalanis, the Tehsildar passed an order mutat ing the names of Jhalanis in respect of the entire land.
The said mutation was allowed on the basis of compromise between the parties and on the basis of a sale certificate issued by the Civil Court.
The Town Improvement Trust started acquisition proceed ings for a housing scheme and acquired certain lands includ ing the land in question.
The Collector started suo motu proceedings, issued notice to the Jhalanis and set aside the order of mutation passed by the Tehsildar.
An appeal pre ferred by the Jhalanis before the Addi 258 tional Commissioner was dismissed.
The Board of Revenue allowed the further appeal and held that pending mutation proceedings, there was compromise between the parties, objections were withdrawn by the Pitaliyas and no appeal or revision was filed against the mutation order nor any suit was filed challenging the order of the Tehsildar.
The Pita liyas then filed a writ petition before the High Court, which was allowed and the order of the Board of Revenue was set aside.
Against the said judgment of the High Court, the Jhalanis have preferred an appeal before this Court.
In the acquisition proceedings the Tribunal gave a finding that Pitaliyas had no right to claim compensation and Jhalanis alone were entitled to the entire amount of compensation.
The order of the Tribunal was challenged by the parties by filing separate appeals before the High Court.
The High Court allowed the appeal filed by Pitaliyas and held that they were entitled to claim compensation in equal proportion with Jhalanis; it dismissed the appeal filed on behalf of the Trust for reducing compensation and allowed the appeal filed by Jhalanis in part and increased the rate of compensation from 65 paise per sq.ft to 75 paise per sq.ft.
Aggrieved against the aforesaid judgment of the High Court in acquisition proceedings, the Jhalanis and the Trust have filed the other two appeals before this Court.
Allowing the appeals on the questions of validity of the mutation made and entitlement to receive compensation, and partly allowing the appeal on the question whether enhance ment of compensation was justified, this Court, HELD: 1.1.
There was a decree of a Civil Court and in execution of the same the properties were auctioned.
Even if there was any dispute as to whether any share of Pitaliyas in the land was sold or not in the auction proceedings the same does not survive after the compromise between the parties.
In the order of the Tehsildar passed as back as 20th February, 1953 the Jhalanis alone were recorded as full owners of the properties and they continued to remain in possession.
The Trust took possession from Jhalanis on 21st March, 1968 in the land acquisition proceedings.
There is nothing on record to show that Pitaliyas ever remained in possession of the land in question after 20th February, 1953 till the time they made a claim of half share in the compen sation before the Tribunal.
[264 D, E] 1.2.
The Collector had no justification at all to have initiated the proceedings suo motu in 1970 after 17 years of the order passed 259 by the Tehsildar.
Even under the law of limitation no suit for possession could have been maintained after 12 years by Pitaliyas and they were not entitled to any share in the amount of compensation.
There was also no justification for entering the names of Pitaliyas in the revenue records and to set aside the order of the Tehsildar dated 20th February, 1953, after 17 years.
The Tehsildar was perfectly justified in passing the order dated 20.2.1953 on the basis of the sale certificate, as well as compromise application and the statement made before him on 16.10.1952.
[264 F, G] 2.
One bigha is equivalent to 22500 sq.
and no contention was raised before the Tribunal that one bigha was equivalent to 21511 sq.
ft. prevalent in the erstwhile State of Ratlam.
For the first time, this point was raised before the High Court.
This being a controversial question of fact and the other side did not have the chance to lead any evidence on this point, the High Court rightly negatived it and held that the compensation for one bigha of land would be calculated as equivalent to 22500 sq.
[265 A C] 3.
The District Judge after consideriug large number of documentary evidence placed on record by both the parties arrived at the conclusion based on good and valid reasons that the fair market price of the acquired land on 22nd August, 1964 was 65 paise per sq.
The High Court went wrong in increasing the rate from 65 paise to 75 paise without any valid reasons whatsoever.
In the circumstances, enhancement ordered by the High Court is set aside and the compensation determined by the District Judge at the rate of 65 paise per sq.
ft. is maintained.
[266 C E] |
(Civil) No. 1345 of 1989.
(Under Article 32 of the Constitution of India).
431 WITH WRIT PETITION (Civil) 1110/89, 869/90, 740/90, 1100/90, 194/91, 195/91, 265/90, 327/91, 337/91, 334/91, 333/91, 330/91, 329/91, 322/91, 432/91, 420/91, 431/91, 573/91, 181/91, 316/91, 381/91, 390/91, 238/91, 686/91, 687/91 & 167/91) R.K. Garg, R.K.Jain, Govind Mukhoty, Ved Prakash Gupta, Suresh Chand Garg, Ms. Bharti Sharma, Rani Chhabra, B.S. Chauhan, Gaurav Jain, N.K. Goel, D.B. Vohra, Ms. Abha Jain, Vijay Hansaria, A.K. Tiwari and C.K. Ratnaparkhi for the Petitioners.
Yogeshwar Prasad, Mrs. S.Dixit, G.V.Rao, A.V.Rangam, B.Parthasarthy and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The liberalization for private sector operations in the Road Transport field under Section 80 and other provisions of The has been challenged in these bunch petitions under Article 32 of the Constitution, filed by the existing operators, primarily on the ground that they have been adversely affected in the exercise of their rights under Articles 14 and 19 of the Constitution of India.
It is necessary to notice the statutory provisions operating in the field of motor transport business prior to and after the coming into force of The (hereinafter called 'the Act ') The (hereinafter called 'the old Act was enacted and en forced with the object of having closer control to establish a coordinated system of transport.
The subject of 'Mechani cally Propelled Vehicles ' being in List Ill of the VIIth Schedule to the Constitution, various amendments were made from time to time by several State Legislatures either adding to or modifying the provisions of the old Act.
Chap ter IV of the old Act consisted of sections 42 to 68 provid ing "control of transport vehicles".
Sections 47 and 57, to the relevant extent, are re produced as under: "47.Procedure of Regional Transport Authority in considering application for stage carnage permit (1) A Regional Transport Authority shall, in considering an application for a stage carriage permit, have regard to the following matters, namely: (a) the interest of the public generally; (b) the advantages to the public of the serv ice to be provided, 432 including the saving of time likely to be effected thereby and any convenience arising from journeys not being broken; (c) the adequacy of other passenger transport services operating or likely to operate in the near future, whether by road or other means, between the places to be served: (d) the benefit to any particular locali ty or localities likely to be afforded by the service; (e) the operation by the applicant of other transport services, including those in respect of which applications from him for permits are pending; (f) the condition of the roads included in the proposed route or area, and shall also take into consideration any representations made by persons already pro viding passenger transport facilities by any means along or near the proposed route or area, or by any association representing persons interested in the provision of road transport facilities recognized in this behalf by the State Government, or by any local authority or police authority within Whose jurisdiction any part of the proposed route or area lies; . . . . (3) A Regional Transport Authority may, having regard to the matters mentioned in sub section (1), limit the number of stage carriages generally or of any specified type for which stage carriage permits may be granted in the region or in any specified area or on any specified route within the region.
Procedure in applying for and granting permits. (1) An application for a contract carriage permit or a private carrier 's permit may be made at any time.
(2) An application for a stage carriage permit or a public carrier 's permit shall be made not less than six weeks before the date on which it is desired that the permit shall take effect, or, if the Regional Transport Authori ty appoints dates for the receipt of such applications, on such dates.
(3) On receipt of an application for a stage carnage permit or a public carrier 's permit, the Regional Transport Authority shall make the application available for inspection at the office of the Authority and shall publish the application or the sub ' 433 stance thereof in the prescribed manner to gether with a notice of the date before which representation in connection therewith may be submitted and the date, not being less than thirty days from such publication, on which, and the time and place at which, the applica tion and any representations received will be considered: Provided that, if the grant of any permit in accordance with the application or with modi fications would have the effect of increasing the number of vehicles operating in the re gion, or in any area or any route within the region, under the class Of permits to which the application relates, beyond the limit fixed in that behalf under sub section (3) of Section 47 or sub section (2) of Section 55, as the case may be,, the Regional Transport Authority may summarily refuse the application without following the procedure laid down in this sub section.
The old Act was repealed by the Act which came into force on July 1, 1989.
The Statement of Objects and Reasons appended to the Act is re produced as under: "The (4 of 1939), consolidates and amends law relating to motor vehicleS.
This has been amended several times to keep it up to date.
The need was, however, felt that this Act should now inter alia, take into account also changes in the road trans port technology, pattern of passenger and freight movements, development of the road network in the country and particularly the improved techniques in the motor vehicles management.
Various Committees like National Transport Policy Committee, National Police Commission, Road Safety Committee, Low Powered Two wheel ers Committee, as also the Law Commission have gone into different aspects of road transport.
They have recommended updating, simplification and rationalisation of this law.
Several Members of Parliament have also urged for comprehensive review of the , to make it relevant to the modern day requirements.
A Working Group was, therefore, constitut ed in January, 1984 to review all the provi sions of the and to submit draft proposals for a comprehensive legislation to replace the existing Act.
This Working Group took into account the suggestion and recommendations earlier made by various bodies and institutions like Central Institute of Road 434 Transport Automotive Research Association of India, and other transport organisations including the manufacturers and the general public.
Besides, obtaining comments of State Governments on the recommendations of the Working Group, these were discussed in a specially convened meeting of Transport Minis ters of all States and Union Territories.
Some of the more important modifications so sug gested related for taking care of (a). . . . . (b). . . . . . (c) the greater flow of passenger and freight with the least impediments so that islands of isolation are not created leading to regional or local imbalances; (d). . . . . (e) simplification of procedure and policy liberalization for private sector operations in the road transport field; and (f). . . .
The proposed legislation has been prepared in the light of the above background.
Some of the more important provisions of the Bill provide for the following matters, namely: (a) to (f) . . . . . . (g) liberalized schemes for grant of stage carriage permits on non nationalized routes, all india tourist permits and also national permits for goods carriages. (h) to 1) . . . . .
Chapter V of the Act substitute for Chapter IV of the old Act consisting of Sections 66 to 96, provides for 'co ntrol of transport vehicles '.
Sections 71, 72 and 80, to the relevant extent, are reproduced as under: "71.Procedure of Regional Transport Authority in considering application for stage carriage permit.
(1) A Regional Transport Authority shall, while considering an application for a stage carriage permit, have regard to the objects of this Act: Provided that such permit for a route of fifty kilometers or less shall be granted only to an individual or a State transport undertaking.
435 (2) A Regional Transport Authority shall refuse to grant a stage carnage permit if it appears from any time table furnished that the provisions of this Act relating to the speed at which vehicles may be driven are likely to be contravened: Provided that before such refusal an opportunity shall be given to the applicant to amend the time table so as to conform to the said provisions.
(3)(a) The State Government shall, if so directed by the Central Government having regard to the number of vehicles, road condi tions and other relevant matters, by notifica tion in the Official Gazette, direct a State Transport Authority and a Regional Transport Authority to limit the number of stage car riages generally or of any specified type, as may be fixed and specified in the notifica tion, operating on city routes in towns with a population of not less than five lakhs. . . . (4) A Regional Transport Authority shall not grant more than five stage carriage permits to any individual or more than ten stage carriage permits to any company (not being a State transport undertaking).
(5) In computing the number of permits to be granted under sub section (4), the permits held by an applicant in the name of any other persons and the permits held by any company of which such applicant is a director shall also be taken into account.
Grant of stage carriage permits (1) Subject to the provisions of Section 71, a Regional Transport Authority may, on an appli cation made to it under Section 70, grant a stage carriage permit in accordance with the application or with such modifications as it deems fit or refuse to grant such a permit: Provided that no such permit shall be granted in respect of any route or area not specified in the application.
Procedure in applying for and granting permits, (1) An application for a permit of any kind may be made at any time.
(2) A Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under this Act: Provided that the Regional Transport Authority may summarily refuse the application if the grant of any permit in 436 accordance with the application would have the effect of increasing the number of stage carriages as fixed and specified in a notifi cation in the Official Gazette under clause (a) of sub section (3) of section 71 or of contract carriages as fixed and specified in a notification in the Official Gazette under clause (a) of sub section (3) of Section 74: Provided further that where a Regional Transport Authority refuses an application for the grant of a permit of any kind under this Act, it shall give to the applicant in writing its reasons for the refusal of the same and an opportunity of being heard in the matter.
" A comparative reading of the provisions of the Act and the old Act make it clear that the procedure for grant of permits under the Act has been liberalised to such an extent that an intended operator can get a permit for asking irre spective of the number of operators already in the field.
Under Sections 57 read with Section 47(1) of the old Act an application for a stage carnage permit was to be published and kept for inspection in the office of the Regional Trans port Authority so that the existing operators could file representations/objections against the said application.
The application, along with objections, was required to be decided in a quasi judicial manner, Section 47(3) of the old Act further permitted the imposition of limit on the grant of permits in any region, area or on a particular route.
It is thus obvious that the main features of Chapter IV "con trol of transport vehicles" under old Act were as under: 1.
The applications for grant of permits were published and were made available in the office of the Regional Transport Authority so that the existing operators could file repre sentations; 2.
The applications for grant of permits along with the representations were to be decided in quasi judicial manner; and 3.
The Regional Transport Authority was to decide the applications for grant of permits keeping in view the criteria laid down in section 47(1) and also keeping in view the limit fixed under Section 47(3) of the Act.
An application for grant of permit beyond the limited number fixed under Section 47(3) was to be rejected summarily.
The Parliament in its wisdom has completely effaced the above features.
The scheme envisaged under Section 47 and 57 of the old Act has been completely done away with by the Act.
The right of existing 437 operators to file objections and the provision to impose limit on the number of permits have been taken away.
There is no similar provision to that of Section 47 and Section 57 under the Act.
The Statement of Objects and Reasons of the Act shows that the purpose of bringing in the Act was to liberalize the grant of permits.
Section 71(1) of the Act provides that while considering an application for a stage carriage permit the Regional Transport Authority shall have regard to the objects of the Act.
Section 80(2), which is the harbinger of Liberalisation, provides that a Regional Transport Authority shall not ordinarily refuse to grant an application for permit of any kind made at any time under the Act.
There is no provision under the Act like that of Section 47(3) of the old Act and as such no limit for the grant of permits can be fixed under the Act.
There is, however, a provision under Section 71(3) (a) of the Act under which a limit can be fixed for the grant of permits in respect of the routes which are within a town having popula tion of more than five lakhs.
The petitioners are existing stage carnage operators on different routes.
They hold permits granted by the Regional Transport Authorities concerned.
Mithlesh Garg, petitioner in Civil Writ Petition No. 1345/89 has stated that he holds a stage carnage permit and plies his vehicles on the Meerut Parikshitgarh Hasifabad Laliana and allied routes under the jurisdiction of the Regional Transport Authority, Meerut.
According to him prior to the enforcement of the Act, 23 permit holders were operating on the said route but thereafter under Section 80 of the Act the Regional Trans port Authority, Meerut has issued 272 more permits in re spect of the same route.
Similar facts have been stated in the other writ petitions.
As mentioned above the petitioners are permit holders and are existing operators.
They are plying their vehicles on the routes assigned to them under the permits.
They are in the full enjoyment of their funda mental right guaranteed to them under Article 19(1)(g) of the Constitution of India.
There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators.
There is no complaint of infringement of any of their statu tory rights.
Their only effort is to stop the new operators from coming in the field as competitors.
We see no justifi cation in the petitioners ' stand.
More operators mean healthy competition and efficient transport system.
Over crowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the roof top are some of the common sights in this country.
More often one finds a bus which has noisy engine, old upholstry, uncomfortable seats and continuous emission of black smoke from the exhaust pipe.
It is, therefore, necessary that there should be plenty of operators on every route to pro vide ample choice to the commuter public to board the vehi cle of their choice and patronize the operator who is 438 providing the best service.
Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting permits.
Re stricted licensing under the old Act led to the concentra tion of business in the hands of few persons thereby giving rise to a kind of monopoly, adversely affecting the public interest.
The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, is without any basis.
The transport business is bound to be ironed out ultimately by the rationale of demand and supply.
Cost of a vehicle being as it is the business requires huge invest ment.
The intending operators are likely to be conscious of the economics underlying the profession.
Only such number of vehicles would finally remain in operation on a particular route as are economically viable.
In any case the transport system in a state is meant for the benefit and convenience of the public.
The policy to grant permits Liberally under the Act is directed towards the said goal.
The petitioners who are already in the business want to keep the fresh entrants out of it and as such eliminate the healthy compe tition which is necessary to bring efficiency in the trade.
This Court in Jasbhai Desai vs Roshan Kumar & Ors., ; posed the following questions for its determina tion: "Whether the proprietor of a cinema theater holding a licence for exhibiting cinematograph films, is entitled to invoke the certiorari jurisdiction ex debito justitiae to get a 'No Objection Certificate ', granted under Rule 6 of the Bombay Cinema Rules, 1954 (for short, the Rules) by the District Magistrate in favour of a rival in the trade, brought up and quashed on the ground that it suffers from a defect of jurisdiction, is the principal question that falls to be determined in this appeal by special leave.
" Sarkaria, J. speaking for the Court an swered the question in the following words: "In the light of the above discussion, it is demonstrably clear that the appellant has not been denied or deprived of a legal right.
He has not sustained injury to any legally pro tected interest.
In fact the impugned order does not operate as a decision against him, much less does it wrongfully affect his title to something.
He has not been subjected to a legal wrong.
He has suffered no legal griev ance.
He has no legal peg for a justiciable claim to hang on.
While a Procrustean approach should be avoided, as a rule the Court should not interfere at 439 the instance of 'stranger ' unless there are exceptional circumstances involving a grave miscarriage of justice having an adverse impact on public interests.
Assuming that the appellant is a 'stranger ', and not a busybody, then also, there are no exceptional circum stances in the present case which would justi fy the issue of a writ of certiorari at his instance.
On the contrary, the result of the exercise of these discretionary powers, in his favour, will, on balance, be against public policy.
It will eliminate healthy competition in this business which is so essential to raise commercial morality; it will tend to prepetuate the appellant 's monopoly of cinema business in the town; and above all, it will, in effect, seriously injure the fundamental rights of respondents 1 & 2, which they have under Article 19(1) (g) of the Constitution, to carry on trade or business subject to 'reasonable restrictions ' imposed by law.
The instant case fails well nigh within the ratio of the this Court 's decision in Rice and Flour Mills vs N.T. Gowda, wherein it was held that a rice mill owner has no locus standi to challenge under Article 226, the setting up of a new rice mill by another even if such setting up be in contravention of section 8(3) (c) of the Rice Milling Industry (Regulation) Act, 1958 because no right vested in such an appli cant is infringed.
For all the foregoing reasons, we are of opinion that the appellant had no locus standi to invoke this special jurisdiction under article 226 of the Consti tution.
Accordingly, we answer the question posed at the commencement of this judgment, in the negative.
" We, therefore, see on justification for the petitioners to complain against the liberalised policy for grant of permits under the Act.
Article 19(1)(g) of the Constitution of India guarantees to all citizens the right to practice any profession, or to carry on any occupation, trade or business subject to rea sonable restrictions imposed by the State under Article 19(6) of the Constitution of India.
A Constitution Bench of this Court in Saghir Ahmad vs The State of U.P. and Others, ; held that the fundamental right under Article 19(1)(g) entitles, any member of the public to carry on the business of transporting passengers with the aid of the vehicles.
Mukerjea, J. speaking for the Court observed as under: "Within the limits imposed by State regula tions any member of the public can ply motor vehicles on a public road.
To that extent he can also carry on the business of transporting passen 440 gers with the aid of the vehicles.
It is to this carrying on of the trade or business that the guarantee in article 19(1)(g) is attracted and a citizen can legitimately complain if any legislation takes away or curtails that right any more than is permissible under clause (6) of that article.
" It is thus a guaranteed fight of every citizen whether rich or poor to take up and carry on, if he so wishes, the motor transport business.
It is only the State which can impose reasonable restrictions within the ambit of Article 19(6) of the Constitution of India.
Section 47(3) and 57 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the fight under Article 19(1)(g) so far as the motor transport business was concerned.
The said restrictions have been taken away and the provisions of Section 47(3) and 57 of the old Act have been repealed from the Statute Book.
The Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business.
The provisions of the Act are in con formity with Article 19(1)(g) of the Constitution of India.
The petitioners are asking this Court to do what the Parlia ment has undone.
When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of india in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint by the petitioners.
On an earlier occasion this Court dealt with somewhat similar situation.
The Uttar Pradesh Government amended the old Act by the Motor Vehicle (U.P. Amendment) Act, 1972 and inserted Section 43A.
The new Section 43 A apart from making certain changes in Section 47 of the old A Act also omitted sub section (3) of Section 47 of the old Act) Section 43A provided that in the case of non nationalised routes, if the State Government was of the opinion that it was for the public interest to grant permits to all eligible applicants it might, by notification in the official gazette issue a direction accordingly.
The necessary notification was issued with the result that the transport authorities were to proceed to grant permits as if sub section (3) of section 47 was omitted and there was no limit for the grant of permits on any specified route within the region.
Section 43 A and the consequent notification was challenged by the existing operators before the Allahabad High Court.
The High Court dismissed the writ petitions.
On appeal this Court in Hans Raj Kehar & Ors.
vs The State of U.P. and Ors., ; dismissed the appeal.
Khanna, J.speaking for the Court held as under; "It hardly need much argument to show that the larger number of buses operating on different routes would be for the conven 441 ience and benefit of the travelling public and as such would be in the public interest.
Any measure which results in larger number of buses operating on various routes would neces sarily eliminate or in any case minimise long hours of waiting at the bus stands.
It would also relieve congestion and provide for quick and prompt transport service.
Good transport service is one of the basic requirements of a progressive society.
Prompt and quick trans port service being a great boon for those who travel, any measure which provides for such an amenity is in the very nature of things in the public interest. . . .
The conten tion that the impugned notification is viola tive of the rights of the appellants under article 19(1)(f) or (g) of the Constitution(is equally devoid of force.
There is nothing in the notification which prevents the appel lants from acquiring, holding and disposing of their property or prevents them from practis ing any profession or from carrying on any occupation, trade or business.
The fact that some others have also been enabled to obtain permits for running buses cannot constitute a violation of the appellants ' rights under the above two clauses of article 19 of the Consti tution.
The above provisions are not intended to grant a kind of monopoly to a few bus operators to the exclusion of other eligible persons.
No right is guaranteed to any private party by article 19 of the Constitution of carrying on trade and business without compe tition from other eligible persons.
Clause (g) of article 19(1) gives a right to all citizens subject to article 19(6) to practise any profession or to carry on any occupation, trade or business.
It is an enabling provision and does not confer a right on those already practising a profession or carrying on any occupation, trade or business to exclude and debar fresh eligible entrants from practising that profession or from carrying on that occupation, trade or business.
The said provi sion is not intended to make any profession, business or trade the exclusive preserve of a few persons.
We, therefore, find no valid basis for holding that the impugned provisions are violative of article 19".
The identical situation has been created by Sections 71, 72 and 80 of the Act by omitting the provisions of Section 47(3) of the old Act.
It has been made easier for any person to obtain a stage carriage permit under the Act.
The attack of the petitioner on Section 80 on the ground of Article 19 has squarely been answered by this Court in Hans Raj Kehar 's case (supra).
It has been contended in the writ petitions that differ ent yard sticks have been provided for interregion, intra region and inter State permits 442 under the Act.
According to the petitioners the imposition of limit for grant of inter State permits is permissible under Section 88(5) of the Act whereas no such limit can be imposed in respect of intra region permits.
The contention is that the provisions are discriminatory and are violative of article 14 of the Constitution of India.
We are not impressed by the argument.
The three categories of permit seekers cannot be considered to be belonging to the same class.
Different criteria have been provided under the Act for granting permits in respect of each of the categories.
It is nobody 's case that Section 80 brings about discrimina tion in the matter of grant of permits between applicants belonging to the same class.
The argument on the ground of Article 14 is thus wholly untenable and is rejected.
This question also came for consideration in Hans Raj Kehar 's case (supra) and this Court rejected the contention in the following words: "Argument has also been advanced that the deletion of Section 47(3) would have the effect of removing the limit on the number of permits for intra region routes but that fact would not prevent the imposition of a limit for the number of permits for inter region routes.
This argument has been advanced in the context of the case of the appellants that the impugned provisions discriminate in the matter of issue of permits for intraregion routes and those for inter region routes and as such are violative of article 14 of the Constitution.
We are not impressed by this argument for we find no valid basis for the inference that if there is no limit on the number _of permits for intra region routes,limit on the number of permits for interregional routes would ' have to be imposed.
The object of the impugned notification is to liberalise the issue of permits and we fail to see as to how such a liberal measure can have the effect of intro ducing strictness or stringency in the matter of grant of permits for inter region routes.
Assuming that a different rule is applicable in the matter of inter region routes, the differentiation is based upon reasonable classification.
It is nobody 's case that the impugned provision brings about discrimination in the matter of grant of permits between applicants belonging to the same class.
The argument about the impugned provision being violative of article 14 is wholly trotenable." The learned counsel for the writ petitioners, have relied upon a later decision of this Court in Rameshwar Prasad & Ors., vs State of Uttar Pradesh & Ors., [1983] 2 S.C.C. 195 and have contended that the decision of this Court in Hans Raj Kehars case (supra) no longer holds the 443 field.
There is no force in the contention.
This Court on two occasions interpreted the old Act as amended by the State of Uttar Pradesh at the relevant times.
The provisions of law which were interpreted in Hans Raj Kehar 's case were entirely different than those which were before this Court in Rameshwar Prasad 's ease.
The legal position with which we are faced in these writ petitions is almost similar to that which was considered by this Court in Hans Raj Kehar 's case.
What happened in the State of Uttar Pradesh was that after the U.P. Amendment of 1972 to the old Act, which was subject matter of interpretation before this Court in Hans Raj Kehars ease, it was found that certain anomalies had arisean in the working of the liberal policy of granting permits.
With a view to remedy the situation the U.P. Legislature amended the old Act again by the U.P. Act 15 of 1976 permit ting imposition of limit on the number of permits to be issued.
In spite of the restrictions on grant of permits as provided in the U.P. Act 15 of 1976 the State Government issued notifications permitting grant of permits to all eligible applicants without any upper limit.
This Court held in Ratneshwar Prasad 's ease that the said notifications were inconsistent with the limitation as to the number of permits introduced by the U.P. Amending Act 1976 and as such were bad in law.
Venkataramiah, J. (as he then was) speaking for the Court in Rameshwar Prasad 's ease observed as under: "We may here state that any observations made in Hans Raj Kehar case would be inapplicable so far as these cases presently before us are concerned.
In that case the court was con cerned with sub section (2) of Section 43 A of the Act as it stood then which was a provision enacted by the legislature.
That sub section provided that without prejudice to the gener ality of the power contained in Section 43 A(1) of the Act where the State Government was of opinion that it was in public interest to grant stage carriage permits (except in re spect of routes or areas for which schemes have been published under Section 68 C) or contract carriage permits or public carrier permits to all eligible applicants it may issue appropriate directions as stated there in.
That sub section contained a clear legis lative policy which considered that there could be no public prejudice if all eligible applicants were granted permits.
Without saying anything more on the point, it may be slated that whatever this court may have observed while considering that provision would not apply now as there is a clear depar ture made by the legislature from that policy when it enacted the new sub section (2) of Section 43 A." It is thus obvious that the reliance by the petitioners on the ratio and observations of this Court in Rameshwar Prasad 's case is wholly mis 444 placed.
The Parliament has, under the Act, made a clear departure from the policy and has reverted to the position which was before this Court in Hans Raj Kehar 's case.
Relying on Rameshwar Prasad 's case the petitioners contend that it is in 'public interest ' to limit the grant of permits on intra region routes and while fixing the limit various factors indicated by this Court in the said case are to be taken into consideration.
We do not agree.
The concept of public interest, in relation to motor transport business, as propounded by this Court in Rameshwar Prasad 's case was only in the context of the old Act as amended by the U.P. Act.
We are of the view that the Act having brought in complete change in the policy of granting permits, the observations of this Court in Rameshwar Prasad 's case are not relevant in the present context.
The provisions of law for consideration before this Court in Hans Raj Kehar 's case were almost similar to Section 80 of the Act.
We are, there fore, bound by the law laid down by the four Judges Bench of this Court in Hans Raj Kehar 's case.
The petitioners have further contended that the condi tions of roads, social status of the applicants, possibility of small operators being eliminated by big operators, condi tions of hilly routes, fuel availability and pollution control are some of the important factors which the Regional Transport Authority is bound to take into consideration while taking a decision on an application for grant of permit.
These are the matters which are supposed to be within the comprehension of the transport authorities.
The legislative policy under the Act cannot be challenged on these grounds.
It is not disputed that the Regional Trans port Authority has the power under the Act to refuse an application for grant of permit by giving reasons.
It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits.
The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of power in granting permits under the liberalised policy.
We, therefore, see no force in any of the contentions raised by the petitioners and as such we dismiss the writ petitions.
The parties are left to bear their own costs.
G.N. Petitions dis missed. | These Writ Petitions filed before this Court challenged the liberalisation for private sector operations in the Road Transport field, under the .
The petitioners were the existing operators on different routes.
On behalf of the petitioners, it was contended that the issue of more permits on the same route adversely affected their rights guaranteed under Articles 14 and 19 of the Constitution of India.
It was further contended that though imposition of limit for grant of inter State permits was permissible under Section 88(5) of the Act, it was not so in respect of intra region permits and hence it is discrimina tory; that in public interest the grant of intra region permits should be limited.
Dismissing the Writ Petitions, this Court, HELD: 1.1.
Restricted licensing under the old Act led to the 429 concentration of business in the hands of few persons there by giving rise to a kind of monopoly, adversely affecting the public interest.
The apprehensions of the petitioners, that too many operators on a route are likely to affect adversely the interest of weaker section of the profession, is without any basis.
The transport business is bound to be ironed out ultimately by the rational of demand and supply.
Cost of a vehicle being as it is the business requires huge investment.
The intending operators are likely to be con scious of the economics underlying the profession.
Only such number of vehicles would finally remain in operation on a particular route as are economically viable.
In any case the transport system in a State is meant for the benefit and convenience of the public.
The policy to grant permits liberally under the new Act is directed towards the said goal.
[438 A C].
1.2 The petitioners are in the full enjoyment of their fundamental right guaranteed to them under Article 19(1)(g) of the Constitution of India.
There is no threat of any kind whatsoever from any authority to the enjoyment of their right to carry on the occupation of transport operators.
There is no complaint of infringement of any of their statu tory rights.
More operators mean healthy competition and efficient transport system.
Over crowded buses, passengers standing in the aisle, persons clinging to the bus doors and even sitting on the roof top are some of the common sights in this country.
More often one finds a bus which has noisy engine, old upholstery, uncomfortable seats and continuous emission of blacksmoke from the exhaust pipe.
It is, there fore, necessary that there should be plenty of operators on every route to provide ample choice to the commuter public to board the vehicle of their choice and patronise the operator who is providing the best service.
Even otherwise the liberal policy is likely to help in the elimination of corruption and favouritism in the process of granting per mits.
[437 EH; 438 A].
Hans Raj Kehar & Ors.
vs The State of U.P. and Ors., ; , followed.
Jasbhai Desai vs Roshan Kumar & Ors., ; ; ,Saghir Ahmad vs The State of U.P. and Ors., ; , relied on.
Rameshwar Prasad & Ors.
vs State of Uttar Pradesh & 0rs.[1983] 2 SCC 195, distinguished.
It is only the State which can impose reasonable res tric 430 tions within the ambit of Article 19(6) of the Constitution of India.
Section 47(3) and S7 of the old Act were some of the restrictions which were imposed by the State on the enjoyment of the right under Article (19)(1)(g) so far as the motor transport business was concerned.
The said re strictions have been taken away and the said provisions have been repealed from the Statute Book.
The new Act provides liberal policy for the grant of permits to those who intend to enter the motor transport business.
The provisions of the Act are in conformity with Article 19(1)(g) of the Constitu tion of India.
When the State has chosen not to impose any restriction under Article 19(6) of the Constitution of India in respect of motor transport business and has left the citizens to enjoy their right under Article 19(1)(g) there can be no cause for complaint.
[440 B D].
The three categories of permit seekers in respect of interegion, intra region and inter State permits cannot be considered to be belonging to the same class.
Different criteria have been provided under the Act for granting permits in respect of each of the categories.
It is not the case that Section 80 brings about discrimination in the matter of grant of permits between applicants belonging to the same class.
[442 B] Hans Raj Kehar & Ors.
vs The State of U.P. and Ors.
; , relied on.
Matters such as conditions of roads, social status of the applicants possibility of small operators being eliminated by big operators, conditions of hilly routes, fuel availability and pollution control are supposed to be within the comprehension of the transport authorities.
The legislative policy under the Act cannot be challenged on these grounds.
It is not disputed that the Regional Trans port Authority has the power under the Act to refuse an application for grant of permit by giving reasons.
It is for the authority to take into consideration all the relevant factors at the time of quasi judicial consideration of the applications for grant of permits.
The statutory authorities under the Act are bound to keep a watch on the erroneous and illegal exercise of.
power in granting permits under the liberalised policy.
[444 D F] |
ivil Appeal Nos.
10574 10583 of 1983.
From the Judgment and Order dated 7.7.1980 of the Alla habad High Court in I.T.R. No. 948 of 1975.
V.Gourishanker, B.V. Desai, S.K. Aggarwal and Ms. Vinita Gharpade for the Appellants.
S.C. Manchanda, B.B.Ahuja, Manoj Arora and Ms. A. Subha shini (N.P.) for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
Radhasoami Satsang, an assessee under the Income Tax Act in these appeals by special leave assails the decision of the Allahabad High Court on refer ence under Section 256 of the Income tax Act.
The following question had been referred by the Tribunal to the High Court: "Whether on the facts and in the circumstances of the case Tribunal is justified in holding that the income derived by the Radha Swami Satsang, a religious institution, is entitled to exemption under sections 11 and 12 of the income Tax Act, 1961 '." ' The ambit and purport of the question would not be properly appreciated unless the background is indicated.
The assessee is the Radhasoami Satsang, Agra.
This sect was founded by Swami Shiv Dayal Singh in 1861.
The tenets of this faith, inter alia, accept the position that God is represented on earth by a human being who is called the Sant Satguru.
The first of such gurus .was the thunder himself and he was popularly known as 'Soamiji Madharaj ' The second Satguru (1889 1898) was Rai 315 Bahadur Salig Ram and he was known as 'Bazoor Maharaj '.
The third sant Satguru was Pandit Brahma Shanker Misra (1898 1907) and was widely known as 'Maharaj Sahib '.
These three Satgurus have been regarded as the real exponents of the creed.
Out of donations and offerings made to the Satgurus, large funds were built up and properties were acquired over the years.
During the time of the third Satguru, in 1902, the members of the creed at a largely attended convention established a Central Council and the right, title and interest of all the properties movable and immovable which had by then been collected were vested in the Council under the directions of Maharaj Sahib.
In June, 1904 the constitution and bye laws of the Central Council of Radhasoami Satsang were drawn up in a formal way and a body by the name 'Radhasoami Satsang Trust ' was set up.
A trust deed was executed by some members of the Central Council in October, 1904.
A set of bye laws were also framed.
On the death of third Satguru which took place in Octo ber 1907, the oread split into two and came to be known as Swami Bagh Sect and the Dayal Bagh Satsangis respectively.
Disputes arose as to the management of the shrines and the administration of the properties which had vested in the trustees under the Trust Deed of 1904.
The Dayal Bagh Sat sangis claimed that all the properties were held in a trust for a public purpose of a charitable and religious nature and prayed for a decree by going to the Civil Court The litigation had started in the form of an application under section 3 of the Charitable and Religious Trusts Act, 1920 but was converted into a regular suit and eventually ended with the decision of the Privy Council in the case of Patel Chhotahhai and Ors.
vs Jnan Chandra Basic and Ors., AIR 1935 Privy Council 97.
The Judicial committee reversed the deci sion of the High Court and held that even if the trust came into existence it was difficult to hold that it was of a public, charitable or religious character as contemplated by the Charitable and Religious Trust Act, 1920.
The question of assessing the income for the first time arose in the assessment year 1937 38.
The Income Tax Officer relied upon the observations of the Privy Council and com pleted assessments for two years being 1937 38 and 1938 39 treating the then Satguru, Sri Madho Prasad Sinha as the assessee.
He was a retired Assistant Accounts Officer and was earning a pension.
His pension as also the income from the institution were tagged together for assessment.
The Appellate Assistant Commissioner confirmed the assessments.
Assessee then filed applications under section 66(2) of the Income tax Act of 1922 for reference.
The Commissioner took the view that the offerings though made to the Satgurus were not used for their personal benefit and held that even though no formal 316 trust had been created by the donors in respect of offer ings, the guru impressed the offerings with trust character at the time of receipt, and treated the offerings as held in trust.
He was, therefore, of the view that such offerings were exempt under section 4(3)(1) of the Income tax Act, 1922 and directed that the offerings be deleted from the assessment for the two years.
He accordingly held that no reference under Section 66(2) was necessary to be made.
an application under section 35 of the Act was later filed for ratification by pointing out that offerings received by the Satgurus consisted of interest income, property income, and income derived from sale of books and photographs etc.
and the same should also be excluded.
On 8.12.1945 the Commis sioner directed deletion thereof.
For the year 1939 40, the income tax Officer did not grant exemption under section 4(3)(1) of the Act but the appeal challenging the assessment was accepted by the Appel late Assistant Commissioner in September, 1947 upholding the assessee 's claim of exemption.
Nothing substantial happened until the assessment year 1963 64.
During this period refund applications of the Satsang were accepted by the department on the basis that the income was exempt and as tax had been deducted at source the same was refundable.
For the first time claim for refund in the years 1964 65, 1965 66 and 1966 67 was not allowed and the assessee was treated as an association of persons and taxed; subsequentiy for the assessment years 1966 67, 1967 68 and 1968 69 and 196970 assessments were also com pleted.
The Income tax Officer did not accept the assessee 's claim of exemption and proceeded to hold that the donations and contributions had been received voluntarily and had been limited to religious use but there was no obligation to do so.
The assessee appealed but the appellate authority upheld the assessments for the years referred to above.
The asses see then appealed to the Tribunal.
The Tribunal examined the matter from various aspects and held: "So far as the Radhasoami sect is concerned its properties were held only for the further ance of the object of the Satsang and this object was to propagate the religion known by the name of Radhasaomi.
This was a purely religious purpose as held by the Privy Council and therefore the objects of the assessee are clearly religious objects.
" While the Tribunal did not accept that the words 'held under trust ' merely meant a consideration of the factual position and that if the income had been applied for reli gious purpose it was unnecessary to find out whether in law a trust had been created or not.
But the Tribunal was of 317 the opinion that the words legal obligation were much wider and the activities of the Satsang could be brought within the purview of that expression.
It finally held that the assessee was entitled to the exemption claimed under section 11.
The High Court did not accept the conclusions of the Tribunal by heavily relying upon the revocability of the trust as clearly specified in the document and accepting the stand of the Revenue that exemption under section 11 was subject to the provisions of ss.60 to 63 of the Act and on the finding that the trust was revocable it upheld liability, Section 11(1) of the Act, as far as relevant, provides: "Subject to the provisions of sections 60 63, the following income shall not be included in the total income of the previous year of the person in receipt of the income: (a) income derived from property held under trust wholly for charitable or religious purposes, to the extent to which such income is applied to such purposes in India; and Co) where any such income is accumulated or set apart for application to such purposes in India, to the extent to which the income so accumulated or set apart is not in excess of 25% of the income from such property;. " The conditions which have to be satisfied to entitle one for exemption, therefore, are: (a) the property from which the income is derived should be held under trust or other legal obligation.
(b) the property should be so held for charitable or religious purposes which enure for the benefit of the public.
It is well settled that no formal document is necessary to create a trust.
The reference itself accepts the position that the assessee is a religious institution.
There has been some amount of debate in the forums below as to whether Radha soami Satsang is a religion.
This Court in Acharya Jagdish waranand ,Avadhuta & Ors.
vs Commissioner of Police, Calcut ta & Anr.
; , while examining the claim of Anand Marg is to be treated as a separate religion indicat ed: "The words 'religious denomination ' in Article 25 of the Constitution must take their colour from the word 'religions ' and 318 this be so the expression religious denomina tion must also satisfy three conditions: (i) it must be a collection of individu als who have a system of beliefs of doctrines which they regard as conductive to their spiritual well being, that is, a common faith, (ii) common organisation; and (iii) designation by a distinctive name." In that case Anand Marg was held to be a 'religious denomination ' within the Hindu religion.
It is not necessary for us to decide whether Radhasoami Satsang is a denomina tion of the Hindu religion or not as it is sufficient for our purposes that the institution has been held to be reli gious and that aspect is no more in dispute in view of the frame of the question.
The question of assessment to income tax arose only following the decision of the Privy Council in the dispute between the two factions.
The Judicial Committee found that the properties which were the subjectmatter of the suit were acquired with the moneys presented to the Sant Satguru in the form of bhents or other contributions by the followers of the Radhasoami faith.
The Judicial Committee found that it was almost inconceivable that the followers of the faith when making their gifts to the Sant Satguru intended to create a trust within the meaning of the Act 14 of 1920 of which they, the donors and the worshippets, should be the beneficiaries.
The Privy Council further also found that it could not be said that the donors of the gifts were the authors of the alleged public trust.
The question was exam ined keeping the provisions of the 1920 Act in view.
The requirements of section 11 of the Income Tax Act are considerably different from what the Judicial Committee of the Privy Council was required to consider.
We have already pointed out that after 1907 the denomi nation got divided.
The claim of Dayalbagh group for exemp tion under the IncomeTax Act came for consideration before the Allahabad High Court in the case of The Secretary of State for India in Council vs Radha Swami ,Sat Sang, There it was found that the offerings made by the Dayalbagh Satsangis to Sahebji Maharaj and the property which had grown out of them and which admittedly stood in the name of the Sabha and the property which at all material times had stood in the name of the Sabha vested in the Sabha for the benefit of the Satsangis and Sahebji Maharaj had no beneficial or personal interest in that.
What has been found for the Dayalbagh Satsangis on this score is fully applica ble so far as the assessee is concerned, There is no dispute that the properties of the assessee are 319 also recorded in the name of the Sabha (Central Council) and there is no personal interest claimed by the Sant Satguru in such property.
Ever the years the Satguru has never claimed any title over, or beneficial interest in, the properties and they have always been utilized for the purpose of the religious community.
The test applied by the Privy council in the case of A 11 India Spinners ' Association vs Commis sioner of Income Tax.
Bombay is indeed applica ble to the facts of the present case and the result would then be in favour of the assessee.
We would like to point out that even if the trust was revocable, the property was not to go back to the Satguru on revocation.
The constitu tion and the bye laws on record indicate in clause 1(b): "1.
The constitutional powers of the Central Council Radhasoami Satsang . . . . are as below: (b) to collect, preserve and administer the properties movable and immovable that have been or may hereafter be dedicated to Radha soami Dayal or that may be acquired for or presented to the Radhasoami Satsang for the furtherance of the objects of the Satsang.
" This envisages that where the property was given to the Sant Satguru, it was intended for the common purpose of further ing the objects of the Sant Satguru and the Central Council had the authority to manage the property.
Clause 9 of the document stipulated that the properties would vest in the trust and clause 25 provided that the trust shall be revoca ble at the discretion of the Council and the trustees shall hold office at its pleasure.
Upon revocation the property was not to go back to the Satguru and at the most.
in place of the trust, the Central Council would exercise authority.
It is on record that there has been no Satguru long before the period of assessment under consideration.
As a fact, therefore, the Tribunal was justified in holding that the property was subject to a legal liability of being used for the religious or charitable purpose of the Satsang.
This aspect had not been properly highlighted before the High Court.
One of the contentions which the learned senior counsel for the assessee appellant raised at the hearing was that in the absence of any change in the circumstances, the Revenue should have felt bound by the previous decisions and no attempt should have been made to reopen the question.
He relied upon some authorities in support of his stand.
A full Bench of the Madras High Court considered this question in T.M.M Sankaralinga Nadar & Bros. & Ors, vs Commissioner of Income Tax, Madras, After dealing with the con cession the Full Bench expressed the following opinion: 320 "The principle to be deducted from these two cases is that where the question relating to assessment does not vary with the income every year but depends on the nature of the property or any other question on which the rights of the parties to be taxed are based, e.g., whether a certain property is trust property or not, it has nothing to do with the fluctua tions in the income; such questions if decided by a Court on a reference made to it would be res judicata in that the same question cannot be subsequentiy agitated.
" One of the decisions referred to by the Full Bench was the case of Hoystead &Ors.
vs Commissioner of Taxation Speaking for the Judicial Committee Lord Shaw stat ed: "Parties are not permitted to begin fresh litigations because of new views they may entertain of the law of the case, or new versions which they present as to what should be proper apprehension by the Court of the legal result either of the construction of the document or the weight of certain circum stances.
If this were permitted litigation would have no end, except when legal ingenuity is exhausted.
It is a principal of law that this cannot be permitted, and there is abun dant authority reiterating that principle.
Thirdly, the same principle namely, that of setting to rest rights of litigants, applies to the case where a point, fundamental to the decision, taken or assumed by the plaintiff and traversable by the defendant, has not been traversed.
In that case also a defendant is bound by the judgment, although it may be true enough that subsequent light or ingenuity might suggest some traverse which had not been taken.
" These observation were made in a case where taxation was in issue.
This Court in Parashuram Pottery Works Co. Ltd. vs Income Tax Officer, Circle 1, Ward A, Rajkot, at p. 10 stated: "At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi judicial controversite as it must in other spheres of human activity.
" Assessments are certainly quasi judicial and these observations equally apply.
321 We are aware of the fact that strictly speaking resjudi cata does not apply to income tax proceedings.
Again, each assessment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have allowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year.
On these reasonings in the absence of any material change justifying the Revenue to take a different view of the matter and if there was not change it was in support of the assessee we do not think the question should have been reopened and contrary to what had been decided by the Com missioner of Income Tax in the earlier proceedings, a dif ferent and contradictory stand should have been taken.
We are, therefore, of the view that these appeals should be allowed and the question should be answered in the affirma tive, namely, that the Tribunal was justified in holding that the income derived by the Radhasoami Satsang was enti tled to exemption under sections 11 and 12 of the Income Tax Act of 1961.
Counsel for the Revenue had told us that the facts of this case being very special nothinng should be said in a manner which would have general application.
We are inclined to accept this submission and would like to state in clear terms that the decision is confined to the facts of the case and may not be treated as an authority on aspects which have been decided for general application.
We direct the parties to bear their respective costs.
V.P.R. Appeals allowed. | The then Satguru of the appellant Creed was assessed for the assessment years 1937 38, 1938 39 for the first time.
He was a retired Govt.
servant.
His pension as well as the income from the institution were assessed together.
On appeal, the Assistant Commissioner of Income tax confirmed the assessments made by the Income tax Officer.
The Income tax Commissioner under reference made under section 66(2) of the Income tax Act, 1922 held that the offerings made to the assessee Satguru were offerings as held in trust and same were exempted under section 4(3)(1) of the Act.
When an application under Section 35 of the Act was made for ratification, whether the offerings received by the assessee consisted of interest income, property income, and income derived from sale of books and photographs etc.
to be excluded, the Commissioner directed deletion thereof.
For the year 1939 40, though the Income tax Officer did not allow exemption u/s.4(3)(1) of the Act, the Appellate Assistant Commissioner allowed exemption.
Till 1963 64 the appellant was not taxed and its refund applications were accepted by the respondent Revenue.
For the assessment years 1964 65, 1965 66, 1966 67, 1967 68, 1968 69, 1969 70, the assessee appellant was as sessed, treating it to be an association of persons, and held that the donations and contributions received volun tarily had limited religious use.
When the appellant assesses appealed, the appellate authority upheld the assessments.
313 Against the orders of the Appellate authority the asses see appealed before the Income tax Tribunal.
The Tribunal allowing the appeals of the assessee, held that the assessee was entitled to the exemption claimed under Section 11 of the Income tax Act, 1961.
On the question, referred to the High Court by the Tribunal, "Whether on the facts and in the circumstances of the case the Tribunal was justified in holding that the income derived by the Radha Swami Satsang, a religious institution, was entitled to exemption under Sections 11 and 12 of the Income Tax Act, 1961?", the High Court answered the question in favour of the Revenuerespondent, holding that the trust deed was revocable and the conditions for exemption under Sections 11 and 12 of the Act were not satisfied.
Allowing the appeals of the assessee, this Court, HELD: 1.01.
Assessments are quasi judicial.
Each assess ment year being a unit, what is decided in one year may not apply in the following year but where a fundamental aspect permeating through the different assessment years has been found as a fact one way or the other and parties have al lowed that position to be sustained by not challenging the order, it would not be at all appropriate to allow the position to be changed in a subsequent year.
[320H, 321 A B] 1.02.
No formal document is necessary to create a trust.
The conditions which have to be satisfied to entitled one for exemption are: (a) the property from which the income is derived should be held under trust or legal obli gation, (b) the property should be so held for charitable or religious purposes which enure for the benefit of the pub lic.
[317 E G] 1.03.
The property was given to the Satguru for the common purpose of furthering the objects of the Sat Guru.
The property was therefore subject to a legal liability of being used for the religious or charitable purpose of the Satsang.
[319 E, F] 1.04.
The Tribunal was justified in holding that the income derived by the Radhasoami Satsang was entitled to exemption under Sections 11 and 12 of the Income Tax Act, 1961.
[321 D] Patel Chhotahhai and Ors.
Janan Chandra Bask and Ors., AIR 314 1935 Privy Council 97; Acharya Jagdish Waranand Avadhuta & Ors.
vs Commissioner of Police, Calcutta & Ant., , The Secretary of State for India in Council vs Radha Swami Sat Sang, ; All India Spinners 'Associ ation vs Commissioner of Income Tax, Bombay, ; TM.M. Sankaralinga Nadar & Bros. & Ors.
vs Commissioner of Income tax, Madras, ; Hoystead & Ors.
vs Commis sioner of Taxation, and Parashuram Pottery Works Co. Ltd. vs Income tax Officer, Circle 1, Ward A Rajkot, at p.10, referred to. |
Appeal No. 131 of 1993.
From the Judgment and Order dated 17.12.1991 of the Himachal Pradesh High Court in Civil Revision No. 210 of 1990.
P.P. Rao and Ashok K. Mahajan for the Appellants.
D.D. Thakur, N.N. Bhat, E.C. Agrawala, A.V. Palli and Ms. Purnima Bhat for the Respondent.
The Judgment of the Court was delivered by YOGESHWAR DAYAL J.
Special leave granted.
With the consent of learned counsel for the parties, the appeal itself was heard.
The respondent is a tenant at the rate of Rs. 183.33 per month in the premises in dispute i.e. Shop No. 50, The Mall Shimla.
On 7th March, 1983, late Smt.
Dhani Devi, Predecessor in interest of appellant No. 2 and Shri Madan Mohan, appellant No.1, filed an application for eviction of the respondent on various grounds.
One of the grounds on which the eviction was claimed was non payment of rent.
It was stated in eviction petition that the respondent was in arrears of rent with effect from 1.3.1980 to 28.2.1983.
The Rent Controller on 29.7.1986 passed an order of eviction on the ground of non payment of arrears of rent.
The operative part of the said order is as under: "In the tight of my finding on issue No.1 above, the application is allowed on the ground of non payment of arrears of rent and the petition fails on other grounds.
However, the respondent shall not be evicted from the premises in question if he pays to the petitioner or deposit in this court a sum of Rs. 6,600, being arrears of rent from 1.3.1980 to 28.2.1983 @ 2,200 p.a. plus interest thereon @ 6% p.a.
amounting to Rs. 609.39, upto 28.2.1983and further interest on Rs. 6,600/ @ 6% p.a.
from 1.3.1983 till 28.8.1986 plus costs assessed at Rs. 100 within a period of 30 days from today. ' On 13.8.1986 the respondent deposited a sum of Rs. 8,500 in the court of the Rent Controller, Shimla.
According to the appellants, decree holders, the amount due inclusive of interest and costs upto 29.7.1986 was Rs. 8,661.29 and till the date of deposit it worked out to Rs. 8,677.79 if the 113 interest was to be calculated at the ordered rate till 13.8.1986.
According to the appellants the amount deposited was not in accordance with the order of the ejectment dated 29th July, 1986 and was short, and they filed the execution petition before the Rent Controller seeking possession of the suit premises.
On the execution petition being opposed, the Rent Controller framed the following two issues: "(a) Whether the tender made by the respondent of the rent amount is short as alleged? (b) Relief" By an order dated 18.5.1990 the Rent Controller while deciding issue No. 1 held that the tender made by the respondent was short to the tune of Rs. 161.29.
However, while deciding issue No.2, the Rent Controller allowed 15 days ' time from the date of the order for deposit of the said amount.
The appellants being aggrieved by the order of the Rent Controller dated 18.5.1990 filed revision petition in the High Court.
It was submitted on behalf of the appellants that the executing court had no jurisdiction to extend the time for making good the deficiency of.
161.29 inasmuch as since period of 30 days has been fixed by the Himachal Pradesh Urban Rent Control Act, 1987 (hereinafter referred to as 'the Act ') itself, the court could not either enlarge or abridge this period.
By the impugned judgment dated 17.12.1991, the High Court dismissed the revision petition.
The High Court while interpreting the words "amount due" occurring in the third proviso to Section 14(2) (i) of the Act held that these words referred to arrears of rent only and do not include interest and costs.
It will be noticed that neither of the parties had challenged the order 29.7.1986 by which the order of eviction was passed on the ground of non payment of rent against the respondent but the respondent had been given the liberty of avoiding eviction provided he deposited the amounts as stated in the order within the period of 30days from the date of the said order.
Before the High Court it was submitted on behalf of the appellants 114 that the executing court had no jurisdiction to extend the time to make good the deficiency in the amount as directed by the order dated 29.7.1986.
It was submitted on behalf of the appellants that since the period of 30 days had been fixed in the Act itself the court could not enlarge or abridge this period.
The High Court agreed with this submission but posed a question for itself, whether short fall of Rs. 161.29 which had been ordered to be deposited constitutes arrears of rent or interest and costs.
While following an earlier decision of the same High Court reported as Om Parkash vs Sarla Kumari & Ors., 1991 (1) Sim.
L.C. 45 interpreted the word "amount due" occurring in the third proviso to Section 14(2)(i) of the Act wherein it had been held that in order to save eviction the tenant is required to deposit only arrears of rent due at the time of filing application for eviction and not arrears of rent together with interest and costs within the statutory period of 30 days from the date of eviction order.
After answering the question the High Court took the view that the deficiency of Rs. 161.29 pertains to interest and costs.
So far as the arrears of rent which amountedto Rs. 6,600 for the period in question i.e. from 1.3.1980 to 28.3.1983 at the rate of Rs. 2,200 p.a. is concerned, it had been deposited within 30days.
In view of this finding the High Court was of the view that the respondent was not liable to be evicted.
High Court also held that the order of the executing court extending time to deposit Rs. 161.29 in pursuance of its order dated 29.7.1986 is of no consequence.
The relevant part of Section 14 of the Act may be noticed: '14.
Eviction of tenant (1) A tenant in possession of a building or rented land shall not be evicted therefrom in execution of a decre passed before or after the commencement of this Act or otherwise, whether before or after the termination of the tenancy, except in accordance with the provisions of this Act.
(2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf.
If the Controller, after giving the tenant a reasonable opportunity of showing cause against the applicant, is satisfied (i) that the tenant has not paid or tendered the rent due from him in respect of the building or rented land within fifteen days 115 after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement by the last day of the month next following that for which the rent is payable: Provided that if the tenant on the first hearing of the application for ejectment after due service pays or tenders the arrears of rent and interest at the rate of 9 per cent per annum on such arrears together with the cost of application assessed by the Controller, the tenant shall be deemed to have duly paid or tendered the rent within time aforesaid: Provided further that if the arrears pertain to the period prior to the appointed day, the rate of interest shall be calculated at the rate of 6 per cent per annum: Provided further that the tenant against whom the Controller has made an order for eviction on the ground of non payment of rent due from him, shall not be evicted as a result of his order, if the tenant pays the amount due within a period of 30 days from the date of order; or (ii).
; or (iii) . ; or (iV).
; or (v). ; the Controller may make an order directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application:" A reading of the aforesaid relevant part of the Section shows that sub section (1) of Section 14 creates a ban against the eviction of a tenant except in accordance with the provisions of the Act.
The ban is liable to be lifted.
Sub section (2) of Section 14 provides the circumstances in which the ban is partially lifted.
It contemplates that where an eviction petition is filed, inter alia, on the ground of non payment of rent by the landlord, 116 the Controller has to be satisfied that the tenant has neither paid nor tendered the rent in the circumstances mentioned in clause (i) of sub section (2) of Section 14.
He has to arrive at this satisfaction after giving a reasonable opportunity of showing cause against it to the tenant.
But there may be cases where the tenant, on being given notice of such an application for eviction, may like to contest or not to contest the application.
The tenant is given the first chance to save himself from eviction as provided in the first proviso to clause (i) of sub section (2) of Section 14.
This first proviso contemplates that the tenant may on the first hearing of the application for ejectment pay or tender in court the rent and interest at the rate mentioned in the proviso on such arrears together with the cost of application assessed by the Controller and in that case, the tenant is deemed to have duly paid or tendered the rent within the time as contemplated by clause (i) of sub section (2) of Section 14.
Where the tenant does not avail of this opportunity of depositing as contemplated by the first proviso and waits for an ultimate decision of the application for eviction on the ground of non payment of rent, the Controller has to decide it and while deciding, the Controller has to find whether the ground contained in clause (i) of sub section (2) of Section 14 has been made out or not.
If the Controller finds that the ground as contemplated by clause (i) of sub section (2) of Section 14 is made out, he is required to pass an order of eviction on the ground of non payment of rent due from him.
A second opportunity to avoid eviction is provided by the third proviso to clause (i) of sub section (2) of Section 14.
But the second opportunity is provided after the order of eviction.
The benefit of avoiding eviction arises if the tenant pays the "amount due ' within the period of 30 days of the date of order.
The question is what is the meaning of the words 'amount due" occurring in the third proviso to clause (i) of sub section (2) of Section 14 of the Act.
It will be noticed that there is no provision in the Act for giving powers to the Controller to direct payment or deposit of 'Pendente lite" rent for each month during the pendency of the petition for eviction of the meant.
First Proviso to sub section (2) of section 14 shows that in order to show payment or valid tender as contemplated by clause (i) of sub section (2) of Section 14 by a tenant in default, he has to pay on the first date of hearing the arrears of rent alongwith interest and costs of the application 117 which are to be assessed by the Controller.
Surely where a tenant does not avail of the first opportunity and contests the eviction petition on the ground of non payment of arrears of rent and fails to show that he was not in default and court finds that the ground has been made out, an order of eviction has to follow.
Therefore, it does not stand to reason that such a tenant who contests a claim and fails to avoid order of eviction can still avoid it by merely paying the rent due till the date of the filing of the application for ejectment.
The third proviso to clause (i) of sub section (2) of Section 14 should also receive an interpretation which will safeguard the rights of both the landlord and tenant.
The "amount due" occurring in the third proviso in the context will mean the amount due on and upto the date of the order of eviction.
It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction peti tion as well.
If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the "amount due" will be only arrears which have not been paid.
The landlord, as per the scheme of the section, cannot be worse off vis a vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing.
If the interpretation given by the High Court is accepted the result would be that the tenant will be better off by avoiding to pay the arrears of rent with interest and costs on the first date of hearing and prefer suffering order of ejectment after contest and then merely offer the amount due as mentioned in the application for ejectment to avoid eviction.
This could not be the intention of the legislature.
In such cases it will be advisable if the Controller while passing the order of eviction on the ground specified in clause (i) of sub section (2) of Section 14 of the Act specifies the "amount due" till the date of the order and not merely leave it to the parties to contest it after passing of the order of eviction as to what was the amount due.
Surely the Rent Control Acts, no doubt, are measures to protect tenants from eviction except on certain specified grounds if found established.
the grounds are made out and subject to any further condition which may be provided in the Act, the tenants would suffer ejectment.
Again the protection given in the Acts is not to give licence for continuous litigation and bad blood.
118 Surely the legislature which made the Act could not have envisaged that after the parties finish off one round of litigation, the party should be relegated to another round of litigation for recovery of rent which accrued pendente lite.
Whatever protection Rent Acts give they do not give blanket protection for "non payment of rent".
This basic minimum has to be complied with by the tenants.
Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent.
The order which the Controller passed was a composite order of eviction in the sense that if the tenant wanted to save himself from eviction, he had to comply with the order.
The order which was passed by the Controller cannot be said to be an order without jurisdiction.
It may be a right order; it may have been a wrong order.
It was not a nullity that the executing court will ignore it.
But at the stage when the execution application was filed, the rent Controller could not go behind its own order dated 29.7.1986.
If the Controller could not go behind its own order in execution proceedings, surely the High Court could not also go behind the order in revision against the order of Controller refusing execution.
It was not the appropriate stage for the High Court to examine what order ought to have been passed or to limit the efficacy of the order to its interpretation of the words "amount due" as mentioned in the third proviso to clause (i) of sub section (2) of Section 14.
The question which the High Court posed never arose.
Mr., Thakur, who appeared on behalf of the respondent submitted: (1)that sub section (2) of Section 14 gives discretion to the Controller to pass an order of eviction or not to pass an order of eviction even if the ground mentioned in clauses (i) to (v) of sub section (2) of Section 14 are made out; (2)that the order of eviction which was passed is not the final order in the sense that it is an interim order.
The final order is passed only after the expiry of 30 days if the tenant fails to avail of the second opportunity provided by the third proviso to clause (i) of sub section (2) of Section 14.
With due respect to learned counsel for the respondent we are not able to persuade ourselves to agree with either of his submissions.
It is true that sub section (2) uses the expression "the Controller may make an order 119 directing the tenant to put the landlord in possession of the building or rented land and if the Controller is not so satisfied he shall make an order rejecting the application".
It will be noticed that the Controller is required to dismiss the eviction application if he is not satisfied to the existence of any ground mentioned in clauses (i) to (v) of sub section (2) of Section 14 of the Act but where the Controller is satisfied with existence of any of the grounds mentioned in clauses (i) to (v) of sub section (2) of Section 14 the Controller has no discretion to decline to pass the order of eviction.
In the context in which the expression "may" is used it means "shall '.
Otherwise the section would read that "not only the Controller can reject an application when he is not satisfied with the ground but is also entitled to dismiss the application when he is so satisfied".
Such an intention cannot be attributed to the legislature particularly when the consequences of non satisfaction is expressly mentioned.
Even if the consequences of non satisfaction was not mentioned, we are of the view that the expression "may" occurring would still mean "shall" and all that would mean is that if the grounds are not made out, he will be bound to dismiss the application and if the grounds are made out, he is bound to pass the order of eviction.
If any other interpretation is given to the word "may" the section may itself become subject matter of challenge under Article 14 of the Constitution of India.
The Court shall avoid interpretation which make the provisions violative of the Constitution, if possible.
Coming to the second submission, as we have noticed earlier, subclause (i) of sub section (2) of Section 14 gives two opportunities to the tenant to avoid eviction.
The first opportunity to avoid eviction is if the tenant avails of the benefit of first proviso.
This opportunity is before the passing of the order of eviction.
The second opportunity is after the order of eviction.
The order, which is passed for eviction, is final in the sense as it is not an interim order.
If the tenant avails of the second opportunity as provided in the third proviso then the order of eviction becomes inexecutable and he saves himself from eviction.
Having found that the question posed and answered by the High Court was not relevant at the stage it was posed, namely during the execution proceedings and, therefore, the order is bad.
The validity of the order of the executing court dated 18th May, 1990 120 now needs to be considered.
The executing court, on consideration of the evidence recorded during the execution proceedings held that the judgment debtor, respondent, himself calculated the interest for the period 1.3.1983 to 28.2.1986 with the result that Rs. 161.29 ps. was deposited less by the judgment debtor and thought that it had power to extend the time for making up the deficiency and accordingly extended the time.
So far as the Himachal Pradesh High Court is concerned it has consistently taken the view that the executing court has no such power since the time is fixed by the statute.
R.S. Pathak, CJ.
(As His Lordship then was) in Shri Krishan Kumar vs Shri Gurbux Singh, while interpreting the third proviso to Section 14(2) (i) of the Act took the view thus: "It is apparent that the statute itself provides a period of 30 days from the date of the order for payment of rental arrears by the tenant.
On such payment, the statute declares, effect will not be given to the order of eviction.
The statute does not leave the determination of the period to the Rent Controller.
It is not open to the Rent Controller, when disposing of the petition for eviction, to make an order either abridging or enlarging the period of 30 days.
Indeed, the period having been determined by the statute itself, no order was necessary by the Rent Controller.
There being no power in the Rent Controller to vary the period mentioned in the statute, it is apparent that the order made by him in the execution proceedings is a nullity.
The Appellate Authority is right in the view taken by it." Mr. Thakur, learned counsel for the respondent, referred us to Shyamcharan Sharma vs Dharamdas, ; ; Miss Santosh Mehta vs Om Prakash and others; , ; Ram Murti vs Bhola Nath and another, and Ganesh Prasad Sah Kesari and another vs Lakshmi Narayan Guptta ; and submitted that this Court had, in spite of there being no express provisions to extend time taken the view that the Court has inherent powers to extended time for deposit of rent.
We are of the view that the reliance placed on these cases is wholly misplaced.
It may be noticed that the case of Shyamcharan Sharma (supra) related to the powers of the Court under Section 13(6) of the Madhya 121 Pradesh Accommodation Control Act, 1961.
This Act contemplated an eviction petition being filed under Section 12 and one of the grounds for eviction was for failure of the tenant to pay or tender within two months from the date of service of notice of demand of rent and Section 12 (3) thereof provided that the order of eviction will not be passed on this ground if the tenant makes the payment of deposit as required by Section 13.
Section 13(1) contemplated that when a suit has been instituted on any of the grounds against the tenant for his eviction, the tenant shall, within one month of the service of summons on him or within such further time as the court may, allow in this behalf, deposit in the court or pay to the landlord the arrears of rent and shall also continue to pay, month by month, the future rent as well.
Sub section (5) of Section 13 contemplated that if the deposit was made as contemplated by sub section (1) of Section 13 no order for recovery of possession should be made on the ground of default in the payment of rent.
Sub section (6) of Section 13 provide that if the tenant fails to pay any amount as required by Section 13 the court had the power to strike out the defence and proceed with the hearing of the suit.
While dealing with the powers under Section 13(6) of the said Act this Court took the view that the court had discretion to strike off the defence or not even if there is delay in depositing rent falling due after institution of suit for eviction.
The Court held : "In case of non deposit or non payment of rent by the tenant, Section 13(6) vests a discretion in the Court to order striking off the tenant 's defence against eviction; it neither clothes the landlord with an automatic right to an eviction decree nor visits the tenant with the penalty of such a decree being automatically passed.
If the court has the discretion to strike off or not to strike off the defence, it has further discretion to condone the default and extend the time for making the payment or deposit.
Such a discretion is a necessary implication of the discretion not to strike off the defence.
A different construction might lead to perversion of an object of the Act, namely 'adequate protection of the tenant '.
" An express provision for extending time for deposit or payment was not made in Section 13(1) because the consequences of non payment was proposed to be dealt with separately by Section 13(6) and the discretion to extend time is incidental to the discretion in the said section to strike 122 off or not to strike off the defence.
This view in Shyamcharan Sharma 's case (supra) was followed by this Court in Miss Santosh Mehta 's case (supra) and Ram Murti 's case (supra), which were the cases under the Delhi Rent Control Act, 1958, which also had the provisions similar to the Madhya Pradesh Accommodation Control Act, 1961 contemplating direction by the court to direct the tenant to pay the pendente lite rents which have become due and consequences for not complying with such directions.
Again the case of Genesh Prasad Sah Kesari (supra) related to the provisions for striking out the defence for failure of the tenant to deposit arrears of rent within 15 days of date of the courts 's order and this court again followed the decision in the case of Shyamcharan Sharma.
These cases have no application where the final orders were passed after satisfaction of the Controller for entitling the landlord to seek eviction on the grounds specified in the Act.
Mr. Thakur then submitted that this Court should not exercise its powers under Section 136 of the Constitution of India as the rent laws are meant for protection of the tenants.
Rent Control Acts are necessary social measures for protection of tenants.
The Rent Control Laws have tried to balance the equity.
Landlord is duty bound to satisfy the ground of eviction mentioned in various Rent Acts and if he does not satisfy, he cannot get the order of eviction merely because the Act restricts his rights.
There are certain Rent Acts which, even when a ground of eviction is satisfied, still confer powers on the Rent Controllers to consider the question of comparative hardship and it is only in those types of cases, if the Controller is satisfied, he can decline passing orders of eviction.
But if there is no such limitations, the Rent Controllers.
after the ground of eviction specified in the Act is made out, have no discretion to reject the application.
Once the order of eviction is passed, in the circumstances like the present, the executing court is duty bound to execute its orders.
No question of equity or hardship arises at that stage.
We are in complete agreement with the view expressed by R.S. Pathak, CJ (as His Lordship then was ) in the aforesaid case of Shri Krishan Kumar.
123 In the present case the tenant spared no efforts to harass the landlords.
After the order of eviction dated 29th July, 1986 the matter did not rest there.
The tenant again failed to pay the rent and the landlord was forced to file another eviction petition on the ground of non payment of rent for the period from 1.3.1983 to 30.11.1986 and it was only after the filing of the said eviction petition and in order to avoid eviction he deposited the rent.
The matter did not rest there even and it was only after the notice of the Special Leave Petition was issued in the present case that the tenant chose to pay the rent from 1.12.1986 after keeping it in arrears for practically six years.
In view of the aforesaid facts and circumstances of the case we set aside the impugned order of the High Court dated 17th May, 1991 and the order of the Rent Controller dated 18th May, 1990 and direct the Rent Controller, Shimla, to issue the warrants of possession for ejectment of the respondent from the premises in dispute and place the landlords/appellants in possession.
V.P.R. Appeal allowed. | The respondent was a tenant at the rate of Rs. 183.33 per month In the suit premises.
The respondent was in arrears of rent with effect from 13.1980 to 28.2.1983.
On 7th March, 1983, predecessor in interest of appellant No.2 and appellant No.1, flied an application for eviction of the respondent on the ground of non payment of rent.
The Rent Controller on 29.7.1986 passed an order of eviction.
On 13.8.1986 the respondent deposited a sum of Rs. 9,500 In the court of the Rent Controller.
According to the appellant the account deposited was not In according with the order dated 29th July 1986.
They filed the execution petition before the Rent Controller seeking possession of the suit premises.
The Rent Controller framed two Issues: (a) whether the tender made by the respondent of the rent amount was short as alleged , (b) Relief.
108 The Rent Controller held that the tender made by the respondent was short of Rs. 161.29.
While deciding issue No. 2, the Rent Controller allowed 15 days ' time to deposit the said amount.
The appellants being aggrieved by the order of the Rent Controller riled a revision petition in the High Court.
Before the High Court the appellants submitted that the executing court had no jurisdiction to extend the time for making good the deficiency of Rs. 161.29 inasmuch as since period of 30 days was fixed by the Himachal Pradesh Urban Rent Control Act, 1987 itself, the court could not either enlarge or abridge this period.
The High Court dismissed the revision petition, holding that the respondent was not liable to be evicted and also held that the order of the executing court extending time to deposit Rs. 161.29 in pursuance of its order dated 29.7.1986 was of no consequence.
The landlord riled this appeal by special leave against the High Court 's judgment.
The respondent tenant submitted that sub section (2) of Section 14 gave discretion to the Controller to pass an order of eviction or not to pass an order of eviction, even if the ground mentioned in clauses (i) to (v) of Sub section (2) of Section 14 were made out; that the order of eviction which was passed was not the final order in the sense that it was an interim order and the final order was passed only after the expiry of 30 days if the tenant failed to avail of the second opportunity provided by the third proviso to clause (i) of sub section (2) of Section 14.
Allowing the appeal of the landlord, this Court HELD:1.01.
The Rent Control Acts are measures to protect tenants from eviction except on certain specified grounds if found established.
Once the grounds are made out and subject to any further condition which may be provided in the Act, the tenants would suffer ejectment.
Again the protection given in the Acts is not to give licence for continuous litigation and bad blood.
[117H] 1.02.The legislature which made the Act could not have envisaged that after the parties finish of one round of litigation, the party should be 109 relegated to another round of litigation for recovery of rent which accrued pendente lite.
Whatever protection Rent Acts give, they do not give blanket protection for "non payment of rent '.
This basic minimum has to be complied with by the tenants.
Rent Acts do not contemplate that if one takes a house on rent, he can continue to enjoy the same without payment of rent.
[118A B] 1.03.Rent Control Acts are necessary social measures for protection of tenants.
The Rent Control Laws have tried to balance the equity.
Landlord is duty bound to satisfy the ground of eviction mentioned in various Rent Acts and if he does not satisfy, he cannot get the order of eviction merely because the Act restricts his rights.
[122E] 1.04.There are certain Rent Acts which, even when a ground of eviction is satisfied, still confer powers on the Rent Controller to consider the question of comparative hardship and it is only in those types of cases, if the Controller is satisfied, he cap decline passing orders of eviction.
But if there is no such limitations, the Rent Controllers after the ground of eviction specified in the Act is made out, have no discretion to reject the application.
Once the order of eviction is passed the executing court is duty bound to execute its orders.
No question of equity or hardship arises at that stage.
[122F G] 2.01.There is no provision in the Act for giving powers to the Controller to direct payment or deposit of "pendente lite" rent for each month during the pendency of the petition for eviction of the tenant.
First Proviso to sub section (2) of Section 14 shows that in order to show payment or valid tender as contemplated by clause (i) of sub section (2) of Section 14 by a tenant in default, he has to pay on the first date of bearing the arrears of rent alongwith interest and costs of the application which are to be assessed by the Controller.
[116G H] 2.02.Sub clause (i) of sub section (2) of Section 14 gives two opportunities to the tenant to avoid eviction.
Ile first opportunity to avoid eviction is if the tenant avails of the benefit of first proviso.
This opportunity is before the passing of the order of eviction.
The second opportunity is after the order of eviction.
The order which is passed for eviction, is final in the sense as it is not an interim order.
If the tenant avails of the second opportunity as provided in the third proviso then the order of eviction becomes inexecutable and he saves himself from eviction.
[119G] 110 2.03.The Controller is required to dismiss the eviction application if he is not satisfied to the existence of any ground mentioned in clauses (i) to (v) of sub section (2) of Section 14 of the Act but where the Controller is satisfied with existence of any of the grounds mentioned in clauses (1) to (v) of sub section (2) of Section 14 the Controller has no discretion to decline to pass the order of eviction.
[119B] 2.04.The order which the Controller passed was a composite order of eviction in the sense that if the tenant wanted to save himself from eviction, he had to comply with the order.
The order which was passed by the Controller cannot be said to be an order without jurisdiction.
It may be a right order, it may have been a wrong order.
It was not a nullity that the executing court will ignore it.
But at the stage when the execution application was riled, the Rent Controller could not go behind its own order dated 29.7.1986.
[118C] 2.05.If the Controller could not go behind Its own order in execution proceedings, the High Court could not also go behind the order in revision against the order of Controller refusing execution.
It was not the appropriate stage for the High Court to examine what order ought to have been passed or to limit the efficacy of the order to its interpretation of the words "amount due" as mentioned in the third proviso to clause (i) of subsection (2) of Section 14.
[118D E] 2.06.The landlord, as per the scheme of the section, cannot be worse off vis a vis a tenant who was good enough to deposit in court the arrears of rent together with interest and costs on the first date of hearing.
[117D] 2.07.In the present case the tenant spared no efforts to harass the landlords.
After the order of eviction dated 29th July, 1986 the matter did not rest there.
The tenant again failed to pay the rent and the landlord was forced to file another eviction petition on the ground of non payment of rent for the period from 1.3.1983 to 30.11.1986 and it was only after the filing of the said eviction petition and in order to avoid eviction he deposited the rent.
It was only after the notice of the Special Leave Petition was issued, the tenant chose to pay the rent from 1.12.1986 after keeping it in arrears for practically six years.
[123A B] Om Parkash vs Sarla Kumari & Ors., 1991 (1) Sim.
L.C. 45, referred to.
111 Shri Krishnan Kumar vs Shri Gurbux Singh, , approved.
Shyamcharan Sharma vs Daramdas, ; ; Miss Santosh Mehta vs Om Prakash and others; , ; Ram Murti vs Bhola Nath and another, [1984] 3 SCC Ill and Ganesh Prasad Sah Kesari and another vs Lakshmi Naryan Gupta; , , distinguished.
3.01.The 'amount due" occurring in the third proviso in the context will mean the amount due on and upto the date of the order of eviction.
It will take into account not merely the arrears of rent which gave cause of action to file a petition for eviction but also include the rent which accumulated during the pendency of eviction petition as well.
If the tenant has been paying the rent during the pendency of the eviction petition to the landlord, the 'amount due" will be only arrears which have not been paid.
[117C D] 3.02.It will be advisable if the Controller while passing the order of eviction on the ground specified in clause (1) of sub section (2) of Section 14 of the Act specifies the 'amount due" till the date of the order and not merely leave it to the parties to contest it after passing of the order of eviction as to what was the amount due.
[117F] 3.03.In the context in which the expression "may ' is used it means .shall".
Otherwise the section would read that 'got only the Controller can reject an application when he is not satisfied with the ground but is also entitled to dismiss the application when he is so satisfied.
" Such an intention cannot be attributed to the legislature particularly when the consequences of non satisfaction is expressly mentioned.
Even if the consequences of non satisfaction was not mentioned, the expression .may ' occurring would still mean "shall" and all that would mean Is that if the grounds are not made out, he will be bound to dismiss the application and If the grounds are made out, he is bound to pass the order of eviction.
If any other interpretation Is given to the word "may" the section may itself become subject matter of challenge under Article 14 of the Constitution of India.
The Court shall avoid interpretation which make the provisions violative of the Constitution if possible.
[117C F] 112 |
minal Appeal No. 210 of 1963.
Appeal by special leave from the judgment and order dated July 27, 1963, of the Madhya Pradesh High Court (Gwalior Bench) in Criminal Appeal No. 83 of 1963 and Criminal Reference No. 4 of 1963.
K. K. Luthra, for the appellant.
I. N. Shroff, for the respondent.
January 24, 1964.
RAGHUBAR DAYAL J. Faddi appeals, by special leave, against the order of the High Court of Madhya Pradesh confirming his conviction and sentence of death under section 302 I.P.C. by the Additional Sessions Judge, Morena.
Jaibai, widow of Buddhu, began to live with Faddi a few years after the death of her husband Buddhu.
Faddi and Jaibai at first lived at Agra, but later on shifted to 314 Morena.
Jaibai had a son named Gulab, by Buddhu.
Gulab was aged 11 years and lived in village Torkheda at the house of his phupa Ramle.
He was living there from Sawan, 1961.
Gulab 's corpse was recovered from a well of village Jarah on January 21, 1963.
It reached the mortuary at Morena at 5 15 p.m. that day.
It is noted on the postmortem report that it had been despatched from the place of occurrence at 1 p.m. Dr. Nigam, on examination, found an injury on the skull 'and has expressed the opinion that the boy died on account of that injury within two or three days of the postmortem examination.
He stated in Court that no water was found inside either the lungs or the abdomen or the larynx or in the middle ear.
This rules out the possibility of Gulab 's dying due to drowning.
As a result of the investigation, the appellant and one Banwari were sent up for trial for the murder of Gulab.
It is interesting to observe the course of the investigation.
The police knew nothing of the offence till 9 p.m. on January 20, 1963, when the appellant himself went to the police station, Saroichhola, and lodged a first information report stating therein that on peeping into the well near the peepul tree of Hadpai on the morning of January 20, 1962, he found his son lying dead in the well.
Earlier, he had narrated the events leading to his observing the corpse and that narration of facts accused Ramle, Bhanta and one cyclist of the offence of murdering the boy Gulab.
It was this information which took the police to the well and to the recovery of the corpse.
The police arrested the persons indicated to be the cul prits, viz., Ramle, Bhanta and the cyclist, who was found to be Shyama, by January 26.
These persons remained in the lock up for 8 to 11 days.
In the meantime, on January 26, the investigation was taken over, under the orders of the Superintendent of Police, by the Circle Inspector, Nazat Mohd. Khan from Rajender Singh, who was the Station Officer of Police Station, Saraichhola.
The Circle Inspector arrested Faddi on January 27.
He other arrested persons were got released in due course.
Faddi took the Circle 3I5 Inspector to the house and, after taking out a pair of shorts of Gulab, delivered them to the Circle Inspector.
Ramle, Bhanta alias Dhanta and Shyamlal have been examined as prosecution witnesses Nos. 15, 4 and 5 respectively.
The conviction of the appellant is based on circumstantial evidence, 'there being no direct evidence about his actually murdering Gulab by throwing him into the well or by murdering him first and then throwing the dead body into the well.
The circumstances which were accepted by the trial Court were these: 1.
Faddi went to the house of Ramle at about noon on 19th January, 1962 and asked Ramle to send the boy with him.
Gulab was at the time in the fields.
After meals, Faddi left suddenly when Shyama arrived and gave a message to Ramle from Gulab 's mother that the boy be not sent with any one.
Faddi caught hold of Gulab from the fields forcibly and took him away.
It may be mentioned here that one Banwari who has been acquitted is also said to have been with Faddi at this time.
Gulab had not been seen alive subsequent to Faddi 's taking him away on the afternoon of January, 19.
His corpse was recovered on the forenoon of January, 21.
Faddi had not been able to give any satisfactory explanation as to how he and Gulab parted company.
Faddi knew the place where Gulab 's corpse lay.
It was his information to the Police which led them to recover the corpse.
His statement that he had noted the corpse floating on the morning of January 20 was untrue, as according to the opinion of Dr. Nigam, the corpse could come up and float in the water approximately after two days.
The witnesses of the recovery deposed that they could not see the corpse floating and that it had to be recovered by the use of angles.
316 4.
The accused 's confession to Jaibai and two other witnesses for the prosecution viz., Jimipal and Sampatti about his killing Gulab.
The pair of shorts recovered was the one which Gulab was wearing at the time he was taken away by Faddi.
The High Court did not rely on the confession and on the recovery of the pair of shorts from the appellant 's posses sion, and we think, rightly.
The evidence about the confes sion is discrepant and unconvincing.
Bhagwan0 Singh and Ramle deposed that the deceased was wearing the pair of shorts recovered, at the time the appellant took him away.
Bhagwan Singh did not go to the test identification.
The accused was not questioned about the deceased wearing these pair of shorts at the time he was taken away from the village.
The High Court considered the other circumstances sufficient to establish that the appellant had committed the murder of Gulab.
It therefore confirmed the conviction and sentence.
Learned counsel for the appellant has taken us through the entire evidence and commented on it.
He has contended that the evidence is unreliable and should not have been accepted by the Courts below.
We have considered hi,,, criticism and are of opinion that the Courts below have correctly appreciated the evidence.
It is not necessary for us to discuss it over again.
It may be mentioned now that the.
appellant denies having gone to Ramle 's house in village Torkheda and to have taken away Gulab from that village forcibly on the afternoon of January 19, but admits his lodging the report, and the recovery of the dead body from the well with the help of the angle.
He however states that he had lodged the report on the tutoring of one Lalla Ram of Utampur.
Ile hag neither stated why he was so tutored nor led any evidence in support of his allegation.
In his report the appellant admitted the prosecution allegations up to the stage of 317 his forcibly taking away Gulab from village Torkheda.
He then stated that Ramle, Bhatta and the third person, viz., Shyamlal threatened him with life, took out the pyjama and half pant from the body of Gulab and taking the boy with them remained sitting on the well near the peepul tree of Hadpai.
The appellant kept himself concealed from their view, nearby.
He heard the sound of something being thrown into the well.
Those three persons then ran away, but he himself remained sitting there throughout the night and then, on peeping into the well next morning, observed the corpse of his son in the well,, He then went to Morena, consulted one Jabar Singh Vakil, and one Chhotey Singh and was advised to lodge the report.
He definitely accused Ramle, Bhatta and the cycle rider with killing his son Gulab by throwing him into the well.
This report is not a confessional statement of the appel lant.
He states nothing which would go to show that he was the murderer of the boy.
It is the usual first information report an aggrieved person or someone on his behalf lodges against the alleged murderers.
The learned Sessions Judge and the High Court considered the appellant 's statements in this report which went to explain his separation from Gulab on account of the conduct of Ramle and others and came to the conclusion that those statements were false.
This was in a way justified as the burden lay on the appellant to account for the disappearance of Gulab when the prosecution evidence showed that the appellant had taken Gulab with him.
Besides, what the appellant had stated in the report, he had given no explanation for the disappearance.
Of course, he had denied that he took Gulab with him.
The evidence about that aspect of the case consists of the statement of Ramle, Shyamlal and Bhagwan Singh which have been accepted by the Courts below.
The High Court also took into consideration the fact that the appellant knew where the deceased 's body was as it was on what he had stated in the report that the police went to the well of village Jarah and recovered the dead body.
The accused gave no explanation in Court as to how he came to know about it.
What he had stated in the report had been considered and found to be untrue and 318 specially in view of the appellant 's own conduct.
It has been rightly stressed that if Gulab had been forcibly taken away from him by Ramle and others, the appellant ordinarily would have gone and taken some action about it, without wasting his time in just following those people.
Even if he felt interested in following them and had heard the sound of something being thrown inside the well and had also seen those persons running away, he had no reason to remain hidden at that spot the whole night.
He should have informed people of what he had observed as he must have suspected that these persons had played mischief with Gulab.
The High Court also took into consideration the in correctness of the appellant 's statement that he observed the dead body floating in the well on the morning of January 20.
It is contended for the appellant that the first information report was inadmissible in evidence and should not have been therefore taken on the record.
In support, reliance is placed on the case reported as Nisar Ali vs State of U.P. (1).
We have considered this contention and do not see any force in it.
The report is not a confession of the appellant.
It is not a statement made to a police officer during the course of investigation.
Section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure do not bar its admissibility.
The report is an admission by the accused of certain facts which have a bearing on the question to be determined by the Court, viz., how and by whom the murder of Gulab was committed, or whether the appellant 's statement in Court denying the correctness of certain statements of the prosecution witnesses is correct or not.
Admissions are admissible in evidence under section 21 of the Act.
Section 17 defines an admission to be a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, thereafter mentioned, in the Act.
Section 21 provides that admissions are relevant and may be proved as against a person who makes them.
Illustrations (1)[1957] S.C.R. 657. 319 (c), (d) and (e) to section 21 are of the circumstances in which an accused could prove his own admissions which go in his favour in view of the exceptions mentioned in section 21 to the provision that admissions could not be proved by the person who makes them.
It is therefore clear that admissions of an accused can be proved against him.
The Privy Council in very similar circumstances, held long ago in Dal Singh vs King Emperor(1) such first information reports to be admissible in evidence.
It was said in that case at p. 142: "It is important to compare the story told by Dal Singh when making his statement at the trial with what he said in the report he made to the police in the document which he signed, a document which is sufficiently authenticated.
The report is clearly admissible.
It was in no sense a confession.
As appears from its terms, it was rather in the nature of an information or charge laid against Mohan and Jhunni in respect of the assault alleged to have been made on Dal Singh on his way from Hardua to Jubbulpore.
As such the statement is proper evidence against him. .
It will be observed that this statement is at several points at complete variance with what Dal Singh afterwards stated in Court.
The Sessions Judge regarded the document as discrediting his defence.
He had to decide between the story for the prosecution and that told for Dal Singh.
" Learned counsel for the appellant submits that the facts of that case were distinguishable in some respects from the facts of this case.
Such a distinction, if any, has no bearing on the question of the admissibility of the report.
The report was held admissible because it was not a confession and it was helpful in determining the matter before the Court.
(1) L. R. 44 1.
A. 137.
320 In Nisar Ali 's case(1) Kapur J. who spoke for the Court said, after narrating the facts: "An objection has been taken to the admissibility of this report as it was made by a person who was a co accused.
A first information report is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under section 157, Evidence Act, or to contradict it under section 145 of that Act.
It cannot be used as evidence against the maker at the trial if he himself becomes an accused, nor to corroborate or contradict other witnesses.
In this case, therefore, it is not evidence.
" It is on these observations that it has been contended for the appellant that his report was inadmissible in evidence.
Ostensibly, the expression 'it cannot be used as evidence the maker at the trial if he himself becomes accused supports the appellant 's contention.
But it appears to us that in the context in which the observation is made and in the circumstances, which we have verified from the record of that case, that the Sessions Judge had definitely held the first information report lodged by the co accused who was acquitted to be inadmissible against Nisar Ali, and that the High Court did not refer to it at all in its.
judgment, this observation really refers to a first information report which is in the nature of a confession by the maker thereof.
of course, a confessional first information report cannot be used against the maker when he be an accused and necessarily cannot be used against a co accused.
Further, the last sentence of the above quoted observation is significant and indicates what the Court meant was that the first in formation report lodged by Qudratullah, the co accused, was not evidence against Nisar Ali.
This Court did not meanas it had not to determine in that case that a first informa tion report which is not a confession cannot be used as an admission under section 21 of the Evidence Act or as a relevant statement under any other provision of that Act.
We find also that this observation has been understood in this way by the Rajasthan High Court in State vs Balchand(2) and (1) [1957]S.C.R.657.
(2) A.I.R. 1960 Raj 101 321 in State of Rajasthan vs Shiv Singh(1) and by the Allahabad High Court in Allahdia vs State(2).
We therefore hold that the objection to the admissibility of the first information report lodged by the appellant is not sound and that the Courts below have rightly admitted it in evidence and have made proper use of it.
The circumstances held established by the High Court are sufficient, in our opinion, to reach the conclusion that Gulab was murdered by the appellant who was the last person in whose company the deceased was seen alive and who knew where the dead body lay and who gave untrue explanation about his knowing it in the report lodged by him and gave no explanation in Court as to how he separated from the deceased.
We therefore dismiss the appeal.
Appeal dismissed. | On the first information report lodged by the appellant, the corpse of his step son was recovered.
The police arrested three other persons indicated to be the culprits, but as a result of the investigation, the appellant (1) A.I.R. 1961 Orissa, 131.
313 was sent up for trial for the murder and sentenced to death.
The High Court confirmed the conviction and sentence.
On appeal by special leave it was contended that the first information report was inadmissible in evidence and should not have been, therefore, taken on the record.
Held:There was no force in the contention.
The report was neither confession of the accused nor a statement made to a police officer during the course of investigation.
Section 25 of the Evidence Act and section 162 of the Code of Criminal Procedure do not bar its admissibility.
The report was an admission by the accused of certain facts which had a bearing on the question to be determined by the Court viz., how and by whom the murder was committed or whether the accused 's statement in court denying the correctness of certain statements of the prosecution witnesses was correct or not.
Admissions ire admissible in evidence under section 21 of the Evidence admission of an accused can be proved against him.
Dal singh vs King Emperor, L. R. 44 I.A. 137, applied.
Nisar Ali vs State of U.P. , considered and distinguished.
State vs Balachand A.I.R. 1960 Raj. 101, State of Rajasthan V. shiv Singh A.I.R. 1962 Raj. 3 and Allohdia vs State, 1959 All.
L.J. 340, referred to. |
Appeal No. 5897 of 1983.
From the Judgment and Order dated 25.7.1979 of the Madras High Court in Tax Case No. 54/76 (Reference No. 35/76.) T.A. Ramachandran and Janki Ramachandran for the Appellant.
J. Ramamurthy, P. Parmeswaran (NP), Ranbir Chandra (NP), T.V. Ratnam and Ms. A. Subhashini (NP) for the Respondent.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Legal issues that arise for consideration in this appeal, directed against the decision of the High Court in Commissioner of Income Tax, Tamil Nadu vs Universal Radiators, on questions of law referred to it in a reference under the Income Tax Act (in brief 'the Act ') are, if the excess amount paid to the assessee due to fluctuation in exchange rate was taxable either because the payment being related to trading activity it could not be excluded under Section 10(3) of the Act even if it was casual and non recurring in nature or it was stock in trade, therefore, taxable as revenue receipt or in any case the compensation for the loss of goods could not be deemed anything but profit.
Shorn of details the assessee, a manufacturer of radiators for automobiles booked copper ingots from a corporation in the United States of America for being brought to Bombay where it was to be rolled into strips and sheets and then despatched to assessee for being used for manufacture.
While the ingots were at sea, hostilities broke out between India and Pakistan and, the vessel carrving the goods was seized by the authorities in Pakistan.
The claim of the assessee for the price paid by it for the goods was ultimately settled in its favour by the insurer in America.
Meanwhile the Indian Rupee had been devalued and, therefore, in terms of rupees the appellant firm got Rs. 3,43,556 as against their payment 780 of Rs. 2,00,164 at the old rate.
The difference was credited to profit on devaluation in the Profit and Loss Account.
The claim of the appellant that the difference being a casual receipt and non recurring in nature, it was not liable to tax, was not accepted by the Income Tax Officer.
In appeal the Appellate Assistant Commissioner was of opinion that the receipt was one which did not arise directly from carrying on business by the assessee but was incidental to it.
But he did not find any merit in the submission that the ultimate realisation was in nature of capital gains and not revenue receipt.
In further appeal the Tribunal held that when the goods were seized by the Pakistan authorities the character of the goods changed and it became sterlised and, therefore, it ceased to be stock in trade of the assessee.
The Tribunal held that the devaluation surplus was in nature of.
capital receipt and not a profit made by the assessee in course of business.
It further found that the money which came to the assessee was as a result of the settlement of the insurance claim and, therefore, the profit that resulted from it could not be considered to have arisen in normal course of business.
When the matter came to the High Court, in its advisory jurisdiction, at the instance of the department, on the following questions of law, (i) Wether, on the facts and in the circumstances of the case, the Appellate Tribunal was right in law, in holding that the devaluation surplus earned by the assessee consequent to the settlement of the claim by the insurance company is not assessable as revenue receipt for the assessment year 1967 68 ? (ii)Whether on the facts and in the circumstances of the case, the Appellate Tribunal was right in holding that the profit earned by the assessee on account of devaluation of Indian Currency was not in the course of carrying on of the business or incidental to the business ? It did not agree with the Tribunal as according to it if the assessee had got the goods imported into India and sold them it would have got higher amount as a result of devaluation.
Therefore, it held that there could be no dispute that the assessee was liable to pay tax on difference of the sale price and the cost.
The High Court further held that the nature of the amount which came in the hands of the assessee was revenue receipt.
It 781 did not agree that the payment made to the assessee was otherwise than for business, as the whole transaction was part and parcel of the business carried on by the assessee and could not be described as extraneous to it.
The High Court thus negatived the claim of assessee for two reasons, one, the difference in the cost price and the sale price, and the other, that it was revenue receipt.
In observing that, 'If the assessee had got the goods imported into India and had sold them at a higher rate, which would have increased as a result of devaluation, then there can be no dispute that the assessee would be liable to tax on the difference between the sale price and the cost ', the High Court oversimplified the issue.
May be any profit or gain accruing to an assessee as a result of difference between the sale price and the cost price in a year is income.
And by that yardstick the devaluation surplus, irrespective of any other consideration, may be receipt which in common parlance may be income.
But liability to pay tax under the Act arises on the income accruing to an assessee in a year.
The word 'income ', ordinarily in normal sense, connotes any earning or profit or pin periodically, regularly or even daily in whatever manner and from whatever source.
Thus it is a word of very wide import.
Clause (24) of Section 2 of the Act is legislative recognition of its elasticity.
Its scope has been widened from time to time by extending it to varied nature of income.
Even before it was defined as including profits, gains, dividends and contributions received by a trust it was held to be a word, 'of broadest connotation ' which could not be 'understood in restricted or technical sense '.
The wide meaning of the word was explained by this Court in Raghuvanshi Mills Ltd., Bombay vs Commissioner of Income Tax, Bombay city, and it was emphasised that the expression, 'from whatever source derived ' widened the net.
But exigibility to tax is not the same as liability to pay tax.
The former depends on charge created by the Act and latter on computation in accordance with the provisions in the Act and the rules.
Surplus in consequence of devaluation of the currency was undoubtedly receipt, but the liability to pay tax on it could arise only if it was income for purposes of the Act and was not liable to be excluded from computation under any of the provisions of the Act or the rules framed thereunder.
Section 10 of the Act provided for exclusion of certain income from computation.
One of its subsection, which is relevant for this appeal, during the period under dispute, stood as under, In computing the total income of a previous year of any 782 person, any income failing within any of the following clauses shall not be included (3) any receipts which are of a casual and non recurring nature, unless they are (i) (ii)receipts arising from business or the exercise of a profession or occupation; or (iii) In substantive clause, an income which was casual and non recurring in nature was excluded from being charged as income of the assessee.
Due to use of word, 'and ', existence of both the conditions was mandatory.
Absence of any disentitled the assessee from claiming any benefit under the clause.
C Casual ' according to dictionary means 'accidental or irregular '.
this meaning was approved by this Court in Ramanathan Cheuiar vs Commissioner of Income Tax, Madras, Non recurring is one which is not likely to occur again in a year.
But an income even after satisfying the two conditions may still not have been liable to be excluded if it fell in one of the exceptions carved out by the proviso.
In other words, the receipt should not only have been casual and non recurring only but it should not have been 'receipts arising from business '.
To put it the other way, if an income arose in the usual course of business, then it would not have been liable for exclusion even if it was casual or non recurring in nature. 'Casual ', as explained earlier, means accidental or irregular.
But if the irregular or the accidental income arose as a result of business activity, then even if it was non recurring, it may not have fallen outside the revenue net.
The real test, therefore, was the nature and character of income which accrued to the assessee.
The casual nature of it or non recurring nature were only aids to decide if the nature of income was in the course of business or otherwise.
In Raghuvanshi Mills Ltd. (Supra) it was held by this Court that a receipt even if it was casual and non recurring in nature would be liable to tax if it arose from business. 'Business ' has been defined in Clause ' 13 of Section 2 of the Act as including 'any trade, commerce or manfacture or any adventure or concern in the nature of trade, commerce or manufacture '.
In Barendra Prasad Ray and Ors.
vs Income Tax Officer, it has been held, by this Court, that the expression, 783 'business ' is of very wide import and it means an activity carried on continuously and systematically by a person by the application of his labour and skill with a view to earning the income.
The width of the definition has been recognised, by this Court, even in S.G. Mercantile Corporation Pvt. Ltd. vs Commissioner of Income Tax and Commissioner of Income Tax vs Calcutta National Bank, And even a single venture has been held to amount to business and the profit arising out of such a venture has been held to be taxable as income arising from business.
In Commissioner of Income Tax, Mysore vs Canara Bank Ltd., (1967) LXIII ITR 328 it was held, by this Court, that where money was lying idle and the blocked balance was not employed for internal operation or for business by the bank the profit accruing to the assessee on the blocked capital due to fluctuation in exchange rate could not be held to be income arising out of business activity or trading operation.
The ratio reflects the rationale implicit in sub section (3) of Section 10 of the Act.
An income which was casual in nature could be brought in the revenue net only if it arose from business.
In other words the receipt or profit of the nature covered by Section 10(3) could be brought to tax if it was result of any business activity carried on by the assessee.
The assessee carried on business of manufacturing radiators and not ingots.
They were imported to be converted into strips and sheets at Bombay.
The link which could create direct relationship between the finished goods and raw material was snapped even before it reached Bombay.
Payment made for loss of such goods did not bear any nexus with the assessee 's business.
May be that if it would have reached, it could have been after conversion into strips and sheets used as raw material.
But so long it did not reach Bombay and was not converted into raw material, the connection it bore with the assessee 's business was remote.
And any payment made in respect of it could not be said to accrue from business.
In Strong and Company of Romsay, Limited vs Woodifield (Surveyor of Taxes), 5 Tax Cases p.215, a converse case where the assessee claimed deduction of certain payments made to a customer, for the injury caused to him by falling off a chimney due to the assessee 's servant 's negligence, it was held, "it does not follow that if a loss is in any sense connected with the trade, it must always be allowed as a deduction; for it may be only remotely connected with the trade or 784 it may be connected with something else quite as much as or even more than with the trade.
I think only such losses can be deducted as are connected with it in the sense that they are really incidental to the trade itself.
" The word 'from ' according to dictionary means 'out of.
The income thus should have accrued out of the business carried on by the assessee.
An income directly or ancillary to the business may be an income from business, but any income to an assessee carrying on business does not become an income from business unless the necessary relationship between the two is established.
What was lost on the seas was not raw material, but something which was capable of being converted into raw material.
The necessary nexus between ingots and radiators which could have resulted in income from ingots never came into being.
Thus any devaluation surplus arising out of payment paid for loss of ingots could not be treated as income from business of the.
assessee.
For deciding the next aspect, namely, if the excess payment due to devaluation could be treated as revenue receipt, two questions arise, one, if the ingots were stock in trade and other the effect in law of its being blocked or sterlised.
Stock in trade is goods or commodity in which the assessee deals in course of business activity.
Good or commodity may be capital or revenue depending on.
if it is bought or sold or is used or exploited by the assessee.
Since the ingots by itself were not raw material and were not usable by the assessee for the business of manufacturing radiators, unless they were converted into strips and sheets, they could not be treated as stock in trade.
The buying of the ingots by the assessee was not a part of its trading activity.
Income from goods purchased for business is not an income from business.
Ratio in State Bank of India vs Commissioner of Income Tar, Emakultam, relied on behalf of department is not helpful ' as the Bank of Cochin, as part of its banking business, had been purchasing cheque payment orders, mail transfers, demand drafts etc.
drawn in foreign currencies which were sold or en cashed through assessee correspondent banks in foreign currencies concerned and proceeds credited to the current account of the assessee and therefore the foreign exchange was held to be stock in trade of the assessee, and any increase in value of foreign currency resulting in excess credited to the a 'ssessee 's account as a result of devaluation was held to be in consequence of assessee 's business activity.
785 Even assuming it was stock in trade, it was held by this Court in Commissioner of Income Tax vs Canara Bank Lid, (supra) that stock intrade, if it gets blocked and sterlised and no trading activity could be carried with it, then it ceased to be stock in trade, and any devaluation surplus arising on such capital due to exchange rate would be capital and not revenue.
Applying the ratio of this case, the copper ingots, which even if assumed to be stock in trade, were blocked and sterlised due to hostilities between India and Pakistan, and, therefore, it ceased to be stockin trade and any surplus arising due to exchange ratio in the circumstances was capital receipt only.
Coming to the issue whether devaluation surplus earned by the assessee consequent on the settlement of the claim by the insurance company could be treated as revenue receipt, it may be stated that taxability on profit or deduction for loss depends on whether profit or loss arises in course of business.
The courts have maintained a distinction between insurance against loss of goods and insurance against loss of profits.
The latter is undoubtedly taxable as is clear from the decision in Raghuvanshi Mills (supra) where any amount paid by the insurance company 'on account of loss of profit ' was held taxable.
But what happens where the insurance company pays any amount against loss of goods.
Does it by virtue of compensation become profit and is taxable as such.
Taxability of the amount paid on settlement of claim by the insurance company depends both on the nature of payment and purpose of insurance.
Raghuvanshi Mills ' decision is an authority for the proposition where the very purpose of insurance itself is profit or gain.
Result may be the same where the payment is made for goods in which the assessee carried on business.
Any payment being accretion from business, the excess or surplus accruing for any reason may be nothing but profit.
(see the King vs B. C Fir and Cedar Lumber Company, Ltd. , Green (HM Inspector of Taxes) vs J. Gliksten & Son, Ltd Reports of Tax Gases Vol.14 p.365, Commissioner of Income Tax, Bombay City III vs Popular Metal Works & Rolling Mills (1983) ITR Vol.
142 p.361.
But where payment is made to compensate for loss of use of any goods in which the assessee does not carry on any business or the payment is a just equivalent of the cost incurred by the assessee, but excess accrues due to fortuitous circumstances or is a windfall, then the accrual may be a receipt, but it would not be income arising from business, and, therefore, not taxable under the Act.
In Commissioner of Inland Revenue vs William 's Executors, 26 Tax Cases p.23, 786 the distinction was explained thus, "A manufacturer can, of course, insure his factory against fire.
The receipts from that insurance will obviously be capital receipts.
But supposing he goes further, as the manufacturer did in that case, and insures himself against the loss of profits which he will suffer while his factory is out of action; it seems to me it is beyond question that sums received in respect of that insurance against loss of profits must be of a revenue nature.
" The assessee did not carry on business of buying and selling ingots.
The compensation paid to the assessee was not for any trading or business activity, but just equivalent in money of the goods lost by the assessee which it was prevented from using.
The excess arose onsuch payment in respect of goods in which the assessee did not carry on any business.
Due to fortuitous circumstances of devaluation of currency, but not due to any business or trading activity the amount could not be brought to tax.
The Appellate Tribunal in the instant case had found, "the profit on account of devaluation is not business profit or income as it has nothing to do with the business or trading activity of the assessee.
The profit arose since the clai m was settled by the Insurance Company and the Indian rupee was devalued.
Even without paying for the goods contracted for, the assessee by an extraordinary set of fortuitous circumstances earned a profit which by its very nature is causal and non recurring.
In this view of the matter the profit cannot be charged to tax." The High Court of Kerala in Commissioner of Income Tax vs Union Engineering Works, held : "In the instant case, the excess profit, as found by the Tribunal, was not a receipt arising from business; nor was it, as admitted on both sides, capital gains.
This was part of the compensation received by the assessee from the insurer for damage caused to its goods.
The claim for the compensation for damage caused to the goods had. been 787 settled with the insurer, and the sum, so settled did am include any excess profit.
The excess profit arose entirely due to the , devaluation.
This excess amount was in the nature of a windfall, being the unexpected fruit of devaluation, and it can not, therefore, be regarded as a receipt arising from business though it may be said in a sense to be a receipt in the course, of business.
We hold that the Tribunal had correctly held that the sum of Rs.13,455.75 received by the assessee was not a recipt arising from its business within the meaning of section 10(3)(ii) 'of the Income Tax Act, 1961.
" We are of the view that on the facts of that case, the High Court of Kerala was right in law in upholding the findings of the Tribunal while on the facts found in the instant case, the High Court, of Madras was wrong in law in reversing the well considered order of the Tribunal.
For reasons stated by us this appeal suceeds and is allowed.
Both the questions referred by the Tribunal to the High Court are answered in the affirmative, i,e, in favour of assessee and against the department.
The assessee shall be entitled to its costs.
N. V. K. Appeal allowed. | The appellant assessee a manufacturers of radiators for automobiles booked copper ingots from a corporation In the United States of America for being brought to Bombay where it was to be rolled Into strips and sheets and then despatched to the assessee for being used for manufacture.
While the ingots were at sea, hostilities broke out between India and Pakistan and, the vessel carrying the goods was seized by the authorities in Pakistan.
The claim of the assessee for the price paid by it for the goods was ultimately settled in its favour by the Insurer in America.
The Indian Rupee In the meanwhile had been devalued and, therefore, in terms of rupees the appellant firm got Rs. 3,43,556/ as against their payment of Rs. 2,00,164/ at the old rates.
The differnece was credited to profit on devaluation in the Profit and Loss Account.
The claim of the appellant that the difference being a causal receipt and non recurring In nature, and as such was not liable to tax, was not accepted by the IncomeTax Officer.
The Appellate Assistant Commissioner rejected the appeal of the assessee, being of the opinion that the receipt was one which did not arise directly from carrying on business by the assessee but was the incidental 776 to it, and not finding any merit in the submission that the ultimate realisation was in the nature of capital gains and not revenue recipt.
In further appeal by the assessee, the Tribunal held that when the goods were seized by the Pakistan authorities the character of the goods changed and it became sterilized and, therefore, it ceased to be stock intrade of the assessee, that the devaluation surplus was in nature of capital receipt and not a profit made by the assessee in the course of business, that the money which came to the assessee was as a result of the settlement of the insurance claim and, therefore, the profit that resulted from it could not be considered in the normal course of business.
The High Court in its advisory jurisdiction at the instance of the ' Department negatived the claim of the assessee for two reasons, one the difference in the cost price and the sale price, and the other that it was revenue receipt, and did not agree with the Tribunal as according to it if the assessee had got the goods imported into India and sold them it would have got higher amount as a result of devaluation, and held that there could be no dispute that the assessee was liable to pay tax on the difference of the sale price and the cost.
It further held that the nature of the amount which came in the hands of the assessee was a revenue receipt, and did not agree that the payment made to the assessee was otherwise than for business, as the whole transaction was part and parcel of the business carried on by the assessee and could not be described as extraneous to it.
In the assesses appeal to this Court, on the question whether the excess amount paid to the assessee due to fluctuation in exchange rate was taxable or not.
Allowing the appeal, this Court, HELD : 1.
The word 'income ', ordinarily in normal sense, connotes any earning or profit or gain periodically, regularly or even daily in whatever manner and from whatever source.
It is thus a word of very wide import.
Section 2(24) of the Income Tax Act is legislative, recognition of its elasticity.
Its scope has even widened from time to time by extending it to varied nature of income.
Even before it was defined as including profits, gains, dividends and contributions received by a trust it was held to be a word, 'of broadest connotation ' which could not be understood in restricted or technical sense. ' [781 D E] 777 Raghuvanshi Mills Ltd., Bombay vs Commissioner of Income Tax, Bombay City, , referred to.
[781 E] 2. 'Casual ' means accidental or irregular.
If the irregular or the accidental income arose as a result of business activity, them even if it was non recurring, it may not have fallen outside the revenue net.
The real test, is therefore, what was the nature and character of the income which accrued to the assessee.
The causal nature of it or non recurring nature were only aids to decide if the nature of income was in the course of business or otherwise.
[782 F] Barendra Prasad Ray and Ors.
vs Income Tax Officer, ; section G. Mercantile Corporation Pvt. Ltd. vs Commissioner of Income Tax, ; Commissioner of Income Tax vs Calcutta National Bank, and Commissioner of Income Tax, Mysore vs Canara Bank Ltd. (1967) LXIII ITR 328, referred to.
[782 G, H, 783 B] 3.
An income which was casual in nature could be brought In the revenue net only if it arose from business.
In other words the receipt or profit of the nature covered by Section 10(3) could be brought to tax if it was the result of any business activity carried on by the assessee.
[783 D] In the instant case, the assessee carried on business of manufacturing radiators and not ingots.
The ingots were imported to be converted into strips and sheets at Bombay.
The link which could create direct relationship between the finished goods and the raw material was snapped even before it reached Bombay.
Payment made for loss of such goods did not bear any nexus with the assessee 's business.
May be that if it would have reached, it could have been 'after conversion into strips and sheets used as raw material.
But so long as it did not reach Bombay and was not converted into raw material, the connection it bore with the assessee 's business was remote.
And any payment made in respect of it could not be said to accrue from business.
[783 E] Strong and Company of Romsey, Limited vs Woodifieid (Survevor of Taves), 5 Tax Cases p.215, referred to.
[783 F] 4.
An income directly or ancillary to the business may be an income from business, but any income to an assessee carrying on business does not become an income from business unless the necessary relationship 778 between the two is established.
[784 B] In the Instant case, what was lost was not raw material, but something which was capable of being converted into raw material.
The necessary nexus between ingots and radiators which could have resulted in income from ingots never came into being.
Thus any devaluation surplus arising out of payment paid for loss of ingots could not be treated as income from business of the assessee.
[784 C] section Income from goods purchased for business is not an income from business.
In the instant case buying ingots by the assessee was not a part of its trading activity.
[784 F] State Bank of India vs Commissioner of Imcome Tax, Ernakulam, , distinguished.
[784 F] 6.
Taxability on profit or deduction for loss depends on whether profit or loss arises in the course of business.
The courts have maintained a distinction between insurance against loss of goods and insurance against loss of profits.
The latter is undoubtedly taxable.
Taxability of the amount paid on settlement of claim by the insurance company depends both on the nature of payment and purpose of insurance.
[785 D E] 7.
Any payment being accretion from business, the excess or surplus accruing for any reason may be nothing but profit.
But where payment is made to compensate for loss of use of any goods in which the assessee does not carry on any business or the payment is a just equivalent of the cost incurred by the assessee, but excess accrues due to fortuitous circumstances or is a windfall, then the accrual may be a receipt, but it would not be income arising from business, and, therefore, not taxable under the Act.
[785 F G] Commissioner of Inland Revenue vs William 's Executors, 26 Tax Cases p.23, referred to.
[785 H] In the instant case, the assessee did not carry on business of buying and selling of ingots.
The compensation paid to the assessee was not for any trading or business activity, but just equivalent in money of the goods lost by the assessee which it was prevented from using.
The excess arose on such payment in respect of goods in which the assessee did not carry on any business.
Due to fortuitous circumstances of devaluation of currency, but not due to any business or trading activity the amount could not 779 be brought to tax.
[786 C D] Commissioner of Income Tax vs Union Engineering Works, , approved.
[786 G] |
Appeals Nos. 182 186 of 1963.
Appeals by special leave from the judgment and order dated January 1961 of the Gujarat High Court in Second Appeals Nos. 105, 106, 107, 112 and 193 of 1960.
C. K. Daphtary, Attorney General, R. Ganapathy Iyer, R. K. P. Shankardass and R. H. Dhebar, for the appellant (in all the appeals).
Purshottam Trikamdas, B. Parthasarathy, J. B. Dadachanji O. C. Mathur and Ravinder Narain, for the resdondents (in all the appeals).
January 30, 1964.
Hidayatullah J., Shah J., and Mudholkar J. delivered separate Judgments allowing the appeal.
Raghubar Dayal J. agreed with the order proposed by Hidayatullah J. The dissenting opinion of Sinha C.J. and Rajagopala Ayyangar J. was delivered by Ayyangar J. Subba Rao J. delivered a separate dissenting opinion.
AYYANGAR J.
In this batch of five analogous appeals, by special leave, the main question for determination is whether the rights which were in controversy between the 472 parties in the courts below could be enforced by the Munici pal courts; or in other words, whether or not "Act of State" pleaded by the State of Gujarat is an effective answer to the claims made by the respective respondents to the rights over forests claimed by them in the suits giving rise to these appeals.
Vora Fiddali Badruddin Mithibarwala is the respondent in Civil Appeals Nos. 182 and 184 of 1963.
Vora Hakimuddin Tayabali Amthaniwala is the respondent in Civil Appeal No. 183 of 1963.
Mehta Kantilal Chandulal is the respondent in Civil Appeal No. 185 of 1963, and Pathan Abbaskhan Ahmedkhan is the respondent in Civil Appeal No. 186 of 1963.
In all these Appeals the State of Gujarat is the appellant.
The course these litigations have taken in the courts below may briefly be stated as follows: The respondent in Civil Appeal No. 182 of 1963, is the assignee of the rights of one Vora Hatimbhai Badruddin and was brought on a record as plaintiff during the pendency of the suit in the trial court, namely, the court of the Civil Judge (Senior Division) at Godhra, being Civil Suit No. 115 of 1950, for an injunction and ancillary reliefs to restrain the appellant and its officers from interfering with the plaintiff 's alleged rights to cut and carry away timber etc., from the Gotimada jungle, rasing his rights under a contract dated August 21, 1948, for a period of three years on payment of a consideration of Rs. 9,501 to the Jagirdar of the village, Thakore Sardar Singh Gajesingh.
Civil Suit No. 134 of 1950, giving rise to Civil Appeal No. 184 of 1963, was also instituted by the same plaintiff who claimed by virtue of an assignment of the rights under a similar contract in respect of another forest in village Nanirath for a period of four years, the consideration being the cash payment of Rs. 9,501.
Civil Suit No. 106 of 1951, giving rise to Civil Appeal No. 183 of 1963.
was instituted by Vora Hakimuddin Tayyabali Amthaniwalla.
His claim was based on an agreement with the Jagirdar.
dated December 7, 1948, for a period of four years for a consideration of Rs. 6,501 in respect of the forest in village Rathda.
All these three suits, in which the reliefs claimed 473 were similar, were tried together and disposed of by a com mon judgment, delivered by the trial court on January 3, 1956.
All the suits were dismissed.
The Court took the view that the rights of the plaintiffs, such as they were, could not be enforced by the courts.
Civil Appeal No. 185 of 1963 arises out of Suit No. 80 of 1953, filed by Mehta Kantilal Chandulal.
He owned the Inami villages Lalekapur and Narsingpur and alleged that he had given a contract for cutting the trees in his villages for a consideration of Rs. 11,000 on May 29, 1948, for a period of four years, and that his transferee had been prevented by the State from exercising those rights.
He also prayed for a similar injunction, as in the other suits.
This suit was also dismissed by the trial court by its judgment, dated March 23, 1956.
The last of the suits is Suit No. 90 of 1955, giving rise to Civil Appeal 186 of 1963.
The plaintiff had claimed to have obtained similar right of felling trees in the forest belonging to the Jagirdar of Mayalapad on August 16, 1948 for Rs. 1,191 for a period of three years.
This suit was decreed by a judgment dated August 6, 1956.
The unsuccessful plaintiffs filed four appeals to the District Judge, Panch Mahals, at Godra, being appeals Nos. 17, 18, 19 and 48 of 1956.
All the appeals were heard together and, by a common judgment, were dismissed on February 28, 1957, the judgment of the trial court being confirmed.
The 5th appeal, being appeal No. 74 of 1956, was filed by the State.
Ile appeal was allowed by a separate judgement, dated September 30, 1957, dismissing the suit.
The plaintiffs respondents filed five second appeals, being Second Appeals Nos. 105, 106, 107, 112 and 193 of 1960 in the High Court of Gujarat.
The appeals were heard together and were allowed on January 24, 1961 with the result that the suits were decreed and the appellant was restrained by an injunction from interfering with the plaintiffs ' enjoyment of the rights in the forests, as claimed by them.
As the State failed to obtain the necessary certificate of fitness from the High Court, it moved this Court and obtained special leave to appeal.
And that is how these appeals have come up to this Court.
These appeals were first heard by a Bench of five Judges, and it was directed that the matter be placed for hearing by a larger Bench, as the Bench was of the opinion that the decision of this Court in Virendra Singh vs The 474 State of Uttar Pradesh(1) required reconsideration.
That is how these appeals have been placed before this special Bench.
Before dealing with the questions that arise for deter mination in these appeals, it is necessary and convenient at this stage to set out the course of events leading up to the institution of the suits aforesaid, giving rise to these appeals.
The several villages, the forest rights in which are in dispute in these cases, formed part of the State of Sant.
The steps in the transition of this State under its ruler who was designated the Maharana into an integral part of the territory of the Union of India conformed to the usual pattern.
With the lapse of the paramountcy of the British Government on the enactment of the Indian Independence Act, the ruler achieved complete sovereignty.
Soon thereafter by an instrument of accession executed by the ruler, the State acceded to the Dominion of India so as to vest in the latter power in relation to 3 subjects Defence, External Affairs and Communications.
On March 19, 1948 the ruler entered into a merger agreement with the Governor General of India by which "with a view to integrate the territory with the Province of Bombay at as early a date as possible", the full and exclusive authority and powers in relation to the administration of the State were ceded to the, Dominion Government.
The agreement was to take effect from June 10, 1948.
It is necessary to set out two of the Articles of this Agreement.
Article 1 ran thus: "1.
The Maharana of Sant hereby cedes to the Dominion Government full exclusive authority, jurisdiction and powers for and in relation to the governance of the State and agrees to transfer the administration of the State to the Dominion Government on the 10th day of June, 1948 (hereinafter referred to as "the said day").
And from the said day the Dominion Government will be competent to exercise the said powers, (1) ; 475 authority and jurisdiction in such manner and through such agency as it may think fit.
" Under Article 3 of the agreement, the ruler agreed to furnish to the Dominion Government before October 1, 1948 a list of all his private properties over which he was, under the terms of the agreement, to retain full ownership and enjoyment.
After this agreement came in force on June 10, 1948, the Central Government delegated its functions to the Bombay Government by virtue of the powers vested in it by the Extra Provincial Jurisdiction Act, 1947.
Subsequently, Shri V. P. Menon, Secretary in the Ministry of State, wrote a letter to the Maharana of Sant on October 1, 1948 (exhibit 194).
This letter was entitled a "Letter of Guarantee" and was to be treated as supplementary to the Agreement of Merger dated March 19, 1948.
Amongst other matters.
it provided by cl. 7: "No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned un less the order was passed or action taken after the 1st day of April, 1948, and it is considered by the Government of India to be palpably unjust or unreasonable.
The decision of the Government of India in their respect will be final.
" In view of the forthcoming integration of (,lie territory of Indian States into the Dominion of India, the Government of India Act, 1935, was amended and section 290 A was inserted.
In exercise of the powers conferred by that section, the Governor General of India promulgated the States Merger (Governor Provinces) Order, 1949, on July 27 1949 which came into force on August 1, 1949.
As a result of that order the integration of Indian States, including the Sant State with that of the province of Bombay, was completed with effect from that date, namely August 1, 1949.
In the meantime, the ruler of the Sant State passed or issued "a resolution" or Tharao on March 12, 1948, which has given rise to the present series of litigations.
Under this " 'instrument" marked as exhibit 192, to use a neutral expres 476 sion in view of the controversy as to its nature, called Tharao, an order was passed by the Maharana of Sant State whose terms will be referred to later and discussed in greater detail, granting forest rights to holders of certain specified tenures.
The holders of such tenures in the Sant State entered into a number of agreements with the, parties, parting with their rights in the forest timber, e.tc., for a specified period, in consideration of cash payments made by those third parties to the holders of the tenures.
It is not necessary to set out in detail all those agreements it is enough to mention, by way of a sample the agreement dated August 21, 1948 (exhibit 175) whereby the tenure holder granted as briefly adverted to earlier to Vohra Hatimbhai Badruddin Mithiborwala the right to cut and remove timber and firewood from the forest of Mouja Gothimada for a consideration of Rs. 9,501 for a period of three years.
The written agreement contains quite a number of clauses which it is not necessary to set out for the purposes of this case.
After the aforesaid grants, correspondence started between the grantors and the grantees on the one hand, and the State Forest Department on the other.
When the District Forest Officer was informed about the transactions aforesaid.
and the grantees applied for authorisation to remove timber etc. the Forest Authorities ordered that no export outside would be permitted, pending receipt of orders from Government.
They also required an undertaking from the purchaser that he would abide by the decision and orders passed by the Government.
Thereupon the grantor, Thakur Sardar Singh Gaje Singh gave an undertaking to abide by the decision and orders of the Government of Bombay in respect of the Gothimada forests "rights over which were conferred on me.
by Santrampur State Government on March 12, 1948 in their resolution No. G. 371, dated March 12, 1948.
" The Divisional Forest Officer, by his order dated January 10, 1949, passed an order under the provisions of r. 4 of the Rules under section 41 of the Indian Forest Act authorising the grantee to remove forest produce like timber firewood and charcoal from Gothimada forest.
This was followed by a memorandum by the Conservator of Forests North Western Circle of the Bombay State by which the Divisional Forest Officers were directed to conti 477 nue to issue authorisations to contractors of Jagirdars who had obtained rights over the forests in the Sant State under the Tharao of the ruler, dated March 12, 1948.
He, however, pointed out that until the question of the rights of the grantees over private forests was finally settled by the Government an undertaking should be taken from the, persons concerned that they would abide by the orders passed by the Government in respect of their rights.
This, as stated al ready had been obtained by the District Officers even earlier.
On July 8, 1949, the Government of Bombay passed an order in which they stated "Government considers that the order passed by the ruler of the Sant State under his No. 371, dated March 12, 1948, transferring forest rights to all the Jagirdars of the Jagir villages, are mala fide and that they should be cancelled. .
This decision or order was, however, not communicated to the jagirdars or their contractors though effect was given to it by the Forest Authorities by stopping all further fellings.
Some time thereafter the respondents issued notices under section 80 of the Civil Procedure Code to the Government of Bombay seeking respect for their rights under the Tharao of March, 1948 and after waiting for two months filed the suits out of which these appeals arise.
By the written statements which they filed, the Government of Bombay raised principally the def ence that the act of the ruler in passing the Tharao was not binding on them as the successor State and that they in exercise of their sovereign authority, had cancelled the concession as unreasonable and mala fide by their order, dated July 8, 1949, already referred.
It might be mentioned that after the suit was instituted and while it was pending before the trial judge a formal resolution of the Government of Bombay was passed and published on the 6th of February, 1953, in which they set out the legal position that the rights acquired under the Tharao were not enforceable as against the Bombay Government as the successor State unless those rights were recognised and that as on the other hand the same had been specifically repudiated, the Jagirdars and their contractors had no title which they could enforce against the Government.
We have already narrated the course of the litigations and this would be the convenient stage at which to indicate 478 the grounds on which the learned Judges of the High Court have upheld the claims of the plaintiffs who are the respondents in the several appeals before us.
There were two, principle points that were urged on their behalf before the learned Judges.
The first was that the Tharao of March 12, 1948, was in truth and substance a 'law ', a legislative act of the ruler of Sant, which was continued under article 372 of the Constitution and that in consequence the rights obtained by the grantees thereunder could not be abrogated or set at naught by a mere executive order which the Government resolution of February, 1953, undoubtedly was.
This submission was rejected by the Court holding that the Tharao was merely a grant originating in an administrative or executive order of the ruler.
The other contention was that through the agreement of merger by which the integra tion of the Sant State with the Dominion of India brought about an "act of state" and that accordingly, no rights based on the agreement of merger, dated March 19, 1948, or in the supplementary letter, dated October 1, 1948, could be, asserted or enforced in the Municipal Courts of the successor State unless the same were recognised by Government still cl. 7 of the letter of Shri V. P. Menon, dated October 1, 1948, to the ruler could be referred to and relied on for the purpose of drawing an inference that the right of the Government to repudiate the grant by the ruler had been waived.
This submission was accepted and it was on this reasoning that the learned Judges have decreed the suits of the several plaintiffs.
It is the correctness of these two conclusions that are being challenged before us, the first by the respondente and the other by the appellant State.
Arising from the submissions of the learned Attorney General the points that require examination are as to the legal effect of the acces sion, integration and merger of the Sant State in the Indian Union, on the rights that the plaintiffs acquired under the Tharao, dated March 12, 1948 and secondly whether the provisions in section 299 of the Government of India Act, 1935, or those contained in Part III of the Constitution affect the nature or enforceability of those rights. 'Me questions to be considered under the first head in particular are: (a) Whether the rights acquired under the previous 479 ruler are enforceable against the Governments of the Union and the States without those rights being recognised by the appropriate Government.
(b) What is the effect of the letter of the Government of India, dated October 1, 1948, on the right of the Government to refuse to recognise a grant under the Tharao.
(c) What is the effect of the Government 's communication to the Chief Conservator of Forests dated July 8, 1949 and of the resolution of Government of February, 1953.
Under the second head, besides the constitutional guarantees protecting rights to property contained in the Government of India Act and the Constitution, the effect in the first instance of section 5 of the Government of India Act, 1935, of the acceding States becoming part of the Dominion of India and later of the manner in which the Constitution of India was framed.
The other question that requires consideration is whether the Tharao dated March 12, 1948 is merely a grant originat ing in an executive order or is it a law which is continued in operation by article 372 of the Constitution.
In Virendra Singh 's case(1) this Court held that even on the basis that the merger of the Indian States in the Indian Union and the treaties by which that was accomplished were acts of State, still by reason of the manner in which the Constitution of India was brought into being and because of the provisions which it contained, in particular those guaranteeing property rights of its citizens, the acquired rights of the inhabitants of the Indian States quoad their rulers could not, after the Constitution, be annulled or abrogated by arbitrary executive action on the part of the, Union or State Governments.
The learned Judges thus assumed as correct the rule of Public International Law relevant to that context expounded by the Privy Council in a number of decisions rendered on appeals from the Indian (1) 480 High Courts.
For this reason we consider that it would be convenient for a proper appreciation of the points now in controversy to premise the discussion by briefly setting out the principles underlying these decisions of the Privy Coun cil, reserving their detailed examination to a later stage.
These principles have been tersely summarised and the ratio of the rule explained by Lord Dunedin in Vajesinghji vs Secretary of State for India etc.(1) in a passage which has been often quoted in later cases on the subject and we consider that it would be sufficient if we extract it.
The learned Lord said: "When a territory is acquired by a sovereign state for the first time that is an act of State.
It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler.
In all cases the result is the same.
Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has through his officers, recognized.
Such rights as he had under the rule of prede cessors avail him nothing.
Nay more, even if in a treaty of cession it is stipulated that certain inhabitants could enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal courts.
The right to enforce remains only with the high contracting parties." (italics ours).
This has been accepted as expressing the constitutional law of the United Kingdom and the same has been.applied tot merely to claims or titles which were sought to be enforced against the Indian Government but also in other parts of the British Empire See Cook vs Spring(2).
This was the law laid down and given effect to by the Privy Council until India attained independence.
151 IA 357.
(2) 481 Virendra Singh vs State of Uttar Pradesh (1), however, struck a different note particularly as regards the matters covered by the sentences we have given in italics in Lord Dunedin 's exposition of the law, and to this decision we shall immediately turn.
The facts of the case were briefly these: On January 5, 1948, the ruler of Sarila granted the village Rigwara to the petitioners who moved this Court while on the 28th of January, 1948, the ruler of Charkari granted certain other villages to the same petitioners.
As the rights of the petitioners were sought to be nullified by an order of the Government of Uttar Pradesh they filed a petition under article 32 of the Constitution praying that the order of the Government of Uttar Pradesh revoking the grants in their favour be declared void and for consequential reliefs.
A few more facts in regard to the constitutional history of these two States is necessary to be stated to appreciate some of the matters which figured in the decision in Virendra Singh 's case(2).
After the date of the grant in favour of the petitioners 35 States in Bundelkhand and Bhagalkhand, including Charkari and Sarila agreed to unite themselves into a State to be called the United State of Vindhya Pradesh.
While this Union was in existence, certain officials of this Government interfered with the rights of the petitioners but the Government of the United State of Vindhya Pradesh issued orders directing the officers to abstain from such interference.
Subsequently the rulers of the 35 States dissolved their Union and ceded to the Gov ernment of Indian Dominion all their powers and jurisdiction and the Dominion constituted the area into a Chief Commissioner 's province for the purpose of administration, but the four villages granted to the petitioners were, how ever, detached from the centrally administered State and absorbed into Uttar Pradesh.
On August 29, 1952, the Governor of Uttar Pradesh revoked the grants made in favour of the petitioners.
The question before the Court was whether this order of revocation of the grants made by the former rulers was justiciable in courts and if justiciable, valid.
(1) ; S.C. 31 482 The judgment of the Court was delivered by Bose J.
The learned Judge after stating the question arising for decision as being "whether the Union Government had the right and the power to revoke these grants as an act of State?", pointed out that jurists had held divergent views on this matter.
At one extreme, he said, was the view expressed by the Privy Council in a series of cases to which reference was made and as summarising their effect the passage from the judgment of Lord Dunedin we have extracted already was cited.
At the other extreme was the view of Marshall C.J., in United States vs Percheman(1) from which he quoted the following: "It may not be, unworthy of remark that it is very unusual, even in case of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country.
The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally confiscated, and private rights annulled.
The people change their allegiance; their relation to their ancient sovereign is dissolved; by their relations to each other, and their rights of property, remain undisturbed.
If this be the modem rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?.
A cession of territory is never understood to be a cession of the property belonging to the inhabitants.
The King cedes that only which belonged to him.
Lands he had previously granted were not his to cede.
Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilised world.
The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be (1) ; at pp. 86 87.
483 necessarily understood to pass the sovereignty only, and not to interfere with private property After referring to a few other decisions of the English Courts the learned Judge proceeded: "We do not intend to discuss any of this because, in our opinion, none of these decisions has any bearing on the problem which confronts us, namely, the impact of the Constitution on the peoples and territories which joined the Indian Union and brought the Constitution into being. .
Now it is undoubted that the accessions and the acceptance of them by the Dominion of India were acts of State into whose competency no municipal court could enquire; nor any Court in India, after the Constitution, accept jurisdiction to settle any dispute arising out of them because of Article 363 and the proviso to Article 131; all they can do is to register the fact of accession. .
But what then; Whether the Privy Council view is correct or that put forward by Chief Justice Marshall in its broadest outlines is more proper, all authorities are agreed that it is within the competence of the new sovereign to accord recognition to existing rights in the conquered or ceded territories and, by legislation or otherwise, to apply its own laws to them and these laws can, and indeed when the occasion arises must, be examined and interpreted by the municipal courts of the absorbing State.
" The learned Judge then went on to point out that the title of the petitioners to the disputed villages had not been repudiated upto January 26, 1950.
Because of the non exercise of the right to repudiate till that date, the petitioners were admittedly in de facto possession of the villages and the learned Judge adverted to the circumstance that those possessory rights could have been asserted and enforced against all persons except the rulers who granted the lands, and 484 except possibly the succeeding State.
Considering it unnecessary to pronounce whether these rights could be enforced against the rulers as well as the Dominion of India as the succeeding sovereign, he observed that as these rights were factually in existence at the date of the Constitution and as by that date the subjects of the rulers of Charkari and Sarila had become the subjects of the Union, there could be no question of the Union Government claiming to exercise an " act of State" operating to deprive the petitioners of their property following in this respect the well known decisions of Walker vs Baird(1) and Johnstone vs Pedlar(2).
He further explained that "the Constitution by reason of the authority derived from and conferred by the peoples of this land blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State now seeks to uphold.
" The passage extracted and indeed the entire judgment is replete with a description of the poetry of India 's constitutional evolution as an unified State during the most momentous period of her history from the Declaration of Independence on August 15, 1947, to the coming into force of the Constitution on January 26, 1950 and of the saga of the march of the subjects of the former Indian princes from being subjects of an autocratic ruler to a modern democatic set up in which they are full fledged citizens of India, in language at once picturesque and of authentic eloquence.
We should not be understood to minimise in any manner the political significance of the events described or underrate their importance, content or meaning if we differ somewhat from certain of the conclusions drawn on matters which are relevant for the purposes of the points arising for decision in these appeals.
Pausing here we ought to point out that several decisions of this Court subsequent to Virendra Singh 's case(4) of which it is sufficient to refer to Mls.
Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income Tax(4), Jagan (1) (2) ; (3) ; (4) [1959] S.C.R. 729.
485 nath Agrawala vs State of Orissa(1), Promod Chandra Deb vs The State of orissa(2) and State of Saurashtra vs Jamadar Mohamad Abdulla(3) have proceeded on the acceptance of the constitutional doctrine enunciated by the Privy Council.
We shall be referring to them later, but before doing so it is necessary to set out certain matters which are not in controversy.
The native Indian rulers were undoubtedly sovereign in the territories under their jurisdiction and they parted with their sovereignty in stages, firstly on accession, then on integration and finally by what has been felicitously termed in the White Paper on Indian States as 'unionization ' i.e., by State territory becoming part and parcel of the territory of the Union of India which meant the complete extinction of their separate existence and individual sovereignty and of their States as separate political units.
Proceeding next to deal with Virendra Singh 's case(4) a close analysis of the reasoning underlying the decision discloses the following as its ratio: (1) There were two schools of thought as regards the effect of a change in sovereignty in respect of the enforceability of the rights of private individuals against the succeeding sovereign.
At one end of the scale were the decisions of the Privy Council which proceeded on the acceptance of the principle, that rights enforceable against the previous ruler or sovereign ceased to be enforceable by the Municipal Courts of the succeeding sovereign unless and until a competent authority or organ of the succeeding sovereign recognised those rights.
The passage in the judgment of Lord Dunedin in Vajesingjis case(5) was typical of this view.
On the other hand, there was another and, if one might say so, an opposite view expressed in the decisions of the Supreme Court of the United States of which the classic exposition by (1) ; (2) [1962] 1 Supp.
S.C.R. 405.
(3) (4) (1955] 1 S.C.R. 415.
(5) 51 I. A. 357.
486 Chief Justice Marshall in Percheman 's case(1) was typical, that the proper and just rule of Public International Law which should be given effect to by municipal courts was that the changes in sovereignty over a territory did not or should not have any effect on the rights of the private individuals even as regards the enforceability of their claims as against the State and that it was the obligation certainly moral, if not also legal, of the succeeding sovereign to give effect to such rights previously acquired by gants from the previous sovereign.
After pointing out these divergent views the learned Judges, in Virendra Singh 's case(2), considered it unnecessary to express their opinion as regards the correctness or acceptability of either view, but proceeded, however, on the assumption that the constitutional doctrine as enunciated by the Privy Council appealed to the facts of the case before them.
(2) Starting from the position that the petitioners obtained a good title to the villages granted to them by the rulers of Sarila and Charkari, they proceeded to analyse the nature of the title which they had under the grants.
As a result of this examination they arrived at the conclusion that even on the basis of the decisions of the Privy Council, their title was only voidable at the option of the succeeding sovereign.
They recognised that the changes that took place in the constitutional position of the State of Charkari and Sarila undoubtedly brought in a change in the sovereignty of that territory and hold that the changes thus brought about including the treaties which marked the transition were "Acts of State" and that the interpretation or enforcement of rights under the treaties was outside the jurisdiction of municipal courts.
The petitioners, they held, could not, therefore obtain any advantage by reliance on any provision in the (1) ; at pp.
86 87.
(2) ; 487 treaty safeguarding their rights, for apart from the treaties being "Acts of State" they were engagements between two sovereign States and enforceable between them at the instance of the high contracting parties through diplomatic channels and not by recourse to municipal courts, and the petitioners not even being parties to the treaties could not obviously claim any right to enforce them.
In this connection the terms of article 363 of the Constitution which contained an express embargo on the enforcement by the municipal courts of the, provisions of these treaties were adverted to as reinforcing this position.
(3) If guarantees contained in the treaties be put aside, the next question to be considered was whether the Governments which emerged as a result of the Constitution, were competent to avoid or repudiate the titles obtained by the petitioners under the previous ruler by an "Act of State".
They answered this question in the negative for four reasons: (i) The constitution emerged as a result of the conjoint action of the subjects of the former Indian rulers and the people of former British India.
When as a result of this joint effort the Constitution was brought into existence there was no question of conquest or cession so as to attract those doctrines of Public International Law relating to the effects of rights arising out of changes in sovereignty brought about by conquest, cession, treaty etc.
(ii) The subjects of the former Indian rulers became, when the Constitution emerged, Indian citizens, and as against its own subjects or citizens there was no question of any "Act of State" by any Indian Government.
(iii) Even if the previous rulers had vested in them autocratic powers to revoke grants 488 made by them in favour of their subjects, the Government of the Union and the States which were functioning under a Constitution which contained fundamental rights guaranteeing protection of property rights against arbitrary executive action could 'not claim to exercise those arbitrary powers which they might have inherited from the previous rulers, and (iv) The petitioners had at the commencement of the Constitution a possessory title to the property granted to them and had also a right at that date, to continue in possession unless and until their title which was voidable was extinguished by repudiation by the Governments which were established by the Constitution.
These proprietary rights were, however, protected by articles 19 (1) (g) and 31 (1) of the Constitution and so the petitioners could not be deprived of their proprietary rights except by competent legislation enacted after the commencement of the Constitution.
We shall now proceed to examine the above reasoning of the learned Judges.
Reserving for later consideration the arguments addressed to us regarding the divergent views of judges, jurists and writers on Public International Law on the topic of the enforceability of the rights derived from previous sovereigns against a succeeding sovereign on a change of sovereignty, we shall proceed on the same lines as in Virendra Singh 's case(1) viz., on the acceptance of the rule as enunciated in the decisions of the Privy Council.
It is necessary, first to understand the precise scope and implications of these decisions and of the law explained in them.
The earliest of these usually referred to in this connection is Secretary of State for India vs Kamachee Boye Sahiba(2) which was concerned with the justiciability in municipal courts of a seizure by the East India Company of not merely the Raj but even of the private properties of the (1) ; (2) (1859) 7 MOO.
I.A. 489 Raja of Tanjore.
The Privy Council held in a judgment delivered by Lord Kingston that as the seizure had been made by the Company as a sovereign power the municipal courts "had no means of forming or the right of expressing if they had formed any opinion of the propriety or the justice of that act.
" That is, however, a different aspect of what is termed 'Act of State ' from what is strictly relevant to the facts before us.
That decision was referred to with approval by the Privy Council in a case from India Secretary of State for India in Council vs Bai Rajbai(1) where the point in controversy was somewhat akin to those in the present appeals.
The question at issue before the Privy Council was whether the respondent was entitled to the continued ownership and possession of a village called Charodi in the province of Gujarat.
The respondent 's title to the village was ultimately based on rights claimed to have been granted by the Gaekwar of Baroda.
The territory in which the village was situated was ceded by the Gaekwar to the British Government in 1817.
The claim of the respondent to full ownership of the property was not recognised by the Indian Government after the cession and Government held that the respondent had no more than a leasehold interest.
The question before the Privy Council was whether the respondent was entitled to assert in municipal courts rights more extensive, than what had been recognised by the authorities.
Dealing with this Lord Atkinson delivering the judgment of the Board stated: ".
It is essential to consider what was the precise relation in which the kasbatis (respondents) stood to the Bombay Government the moment the cession of their territory took effect, and what were the legal rights enforceable in the tribunals of their new sovereign, of which they were thereafter possessed.
The relation in which they stood to their native sovereigns before this cession, and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters.
They could not carry in under the new regime the legal rights, (1) 42 I.A. 229.
490 if any, which they might have enjoyed under the old.
The only legal enforceable rights they could have as against their new sovereign were those, and only those, which that new sovereign, by agreement expressed or implied, or by legislation, chose to confer upon them.
Of course, this implied agreement might be proved by circumstantial evidence, such as the mode of dealing with them which the new Sovereign adopted, his recognition of their old rights, and express or implied election to respect them and be bound by them, and it is only for the purpose of determining whether and to what extent the new sovereign has recognised these antecession rights of the kasbatis, and has elected or agreed to be bound by them, that the consideration of the existence, nature, or extent of these rights becomes a relevant subject for enquiry in this case.
This principle is wellestablished, though it scarcely seems to have been kept steadily in view in the lower courts in the present case.
It is only necessary to refer to two authorities on the point, namely, the case of Secretary of State for India vs Kamachee Boye Sahiba [(1859) 7Moo.
I.A. (476) decided in the year 1859, and Cook vs Sprigg decided in the year 1899.
" This passage would appear to indicate that the effect of the change of sovereignty is not to treat rights previously enforceable against the former ruler as only voidable at the instance of the succeeding sovereign, but to effect a com plete destruction of those rights until by recognition or by legislation of the succeeding sovereign the same is obtained by the previous grantee.
A question very similar to Bai Rajbais case(1) arose in Vajesingji 's case(2) where the statement of the law as explained by Lord Atkinson was approved and Lord Dunedin, as already stated, conveyed the same idea when he said: "Any inhabitant of the territory can make good in the municipal Courts established by the new (1) 42 1.A. 229.
(2) 51 I.A. 357.
491 sovereign only such rights as that sovereign has, through his officers recognised.
Such rights as he had under the rule of predecessors avail him nothing.
" It need hardly be stated that this passage, just like that extracted from Lord Atkinson, is wholly inconsistent with the theory that an inhabitant of a territory in which there has been a change of sovereignty carries with him a voidable title to property which inheres in him until by some positive act of the new sovereign he is divested of that right.
Coming nearer to the present times we have the decision in Secretary of State vs Rustam Khan(1) which related to the enforceability of the right to certain land claimed to have been acquired under the Khan of Kalat against the British Government after the cession by the Khan of the territory which included the villages in which the lands of the respondent were situate.
For the appellant the plea raised was 'Act of State ' and the decisions of the Board in Bai Rajbai 's case(2) and Vijayesingji 's case (3) were relied on.
Among the submissions made to the Board on behalf of the respondent we would refer to two as of some relevance to the points under consideration in these appeals.
The two contentions were: (1) that a mere change in sovereignty was not to be presumed to disturb the rights of private owners, and the terms of the cession by which full sovereignty was transferred were to be construed as passing only public property relying for this proposition on Amodu Tijani vs Secretary Southern Nigeria(4), (2) that the effect of a change in sovereignty in regard to title to land which had been perfected under a previous sovereign was different from that in regard to personal obligations.
For the latter proposition support was sought on the observations of Lord Alverstone C.J. in West Rand Central Gold Mining Co. vs Rex(5) reading: "It must not be forgotten that the obligation of conquering States with regard to private pro (1) 68 I.A. 109.
(2) 42 I.A. 229.
(3) (4) (5).
492 perty and private individuals, particularly land to which title had already been perfected before the conqueror annexation are altogether different from the obligations which arise in respect of personal rights by contract.
" We have referred to these arguments and particularly to the citation of these two decisions, because they are usually referred to in connection with a suggestion that even according to the British view rights of private individuals to land and interests in relation to land continue to be enforceable unaffected by changes in sovereignty.
Lord Atkinson who delivered the judgment of the Board pointed out that the cession of the territory by the Khan constituted a complete transfer of all sovereignty to the British Government, stated: "On the legal position that arises in such circumstances there is a wealth of weighty authority." After referring in detail to the earlier decisions of the Board in Kamachee Boye(1), Cook vs Sprigg,(2) Bai Rai Bai(2) and Vijayesingji, (4) applied them to the facts and held that as the title which was asserted had not been recognised by the British Government; allowed the appeal and directed the dismissal of the suit of the respondents.
If the Privy Council decisions lay down the law correctly and we are applying that law, the fact that it is land or immovable property which is claimed or as regards which the right is asserted makes no difference for the application of the principle.
The last decision to be referred to in this context is that reported.
as Asrar Ahmed vs Durgah Committee, Ajmer(5) where Lord Simonds said: "From this it follows that the rights, which the inhabitants of that State enjoyed against its former rulers, availed them nothing against the British Government and could not be asserted in the Courts established by that Government (1) (1859) 7 Moo.
I. A. 476.13 Moo.
P.C. 22.
(2) (3) 42 I.A. 229.
(4) 51 I.A. 357.
(5) A.I.R. 1947 P. C. I. 493 except so far as they had been recognised by the new sovereign power.
Recognition may be by legislation or by agreement express or im plied.
This well established rule of law for which reference may be made to 42 I.A. 229 at p. 237 and 51 I.A. 357 at p. 360, appears to their Lordships to be peculiarly applicable to an office, to which material benefits apper tain and which, so far the records show, had consistently been regarded as within the dis position of the sovereign power.
" As we have already pointed out, these decisions of the Privy Council have been referred to and followed by this Court in Dalmia Dadri Cement Co.(1) and the other decisions already referred.
The statement of the law therefore in Virendra 's case(2) that if the doctrine of Public International Law enunciated by the Privy Council were applied, the petitioners in that case had a voidable title, which inhered in them even after the change of sovereignty, is not seen to be correct.
If the view expressed by the Privy Council was to be adopted there is no escape from the conclusion, that the grantees under the previous rulers did not carry with them, on a change of sovereignty, as subjects of the succeeding sovereign any inchoate rights as against the new sovereign, but their rights in so far as enforceability against the new sovereign was concerned sprang into exist ence only on recognition express or implied by the duly constituted competent authorities of the succeeding sove reign, apart from legislation.
Pausing here we might observe that this error on the part of the learned Judges in appreciating the ratio of the judgments of the Privy Council necessarily led them 'to assume that the petitioners before them had certain rights which they continued to enjoy even after the change of sovereignty and which were protected by the guarantees con tained in articles 19 and 31 of the Constitution.
The next step in the reasoning of the learned Judgeswas based on the fact that the Constitution was framed not merely by the people inhabiting the Provin (1) [1959] S.C.R. 729.
(2) ; 494 ces of India but as a result of their conjoint action along with the subjects of the former Indian rulers.
From this the inference was drawn that those rules of Public Interna tional Law which recognised the rights of a successor State to refuse to be bound by obligations incurred by or enforce able against the predecessor State had no application to the change in sovereignty brought about when the Union of India was brought into existence.
This was on the theory that for that doctrine to operate there must be a cession or transfer of territory by one ruler to another and that where the people of the entire subcontinent by their united action brought into existence a new sovereign State there was no question of transfer of territory from one sovereign to an other to afford scope for the application of the rule of Public International Law.
With the greatest respect to the learned Judges, we feel constrained to differ.
that a new sovereign emerged on the unification of India by the merger or absorption of the Indian States with the Provinces of British India cannot be questioned and that this was by the process of the sove reignty of the rulers of the former Indian States being extinguished cannot be disputed either.
We are here not concerned with whether India as an International person has undergone any change, vis a vis in its relationship with other States or in the International Organisations but in a more limited and, so to speak, domes tic sphere.
The territories under the rulers of the former Indian Princes undoubtedly passed from one sovereign to another when as a result of the 'unionisation ' by the Government of India, they became integral parts first of the Dominion of India and later of the Union of India.
A transfer of territory from under one sovereign to another may be effected in a variety of ways conquest, annexation, by cession under a treaty after a war or without a war, by revolution by emancipation of subject peoples and by territorial resettlements.
These changes possess one common feature viz., that one sovereign ceases to rule a territory and another takes its place.
For the application of the rules which have been evolved in connection with the problems arising from such succession, little turns for the purpose of British Constitutional Law on either the manner in which the change of 495 sovereignty was brought about or whether the absorption was partial or complete in the sense of a total extinction of the previous sovereignty of the absorbed State, leaving no trace of survival after the merger.
In passing we might mention that, in fact.
it was in most cases the rulers of the Indian States who ejected the merger and who on behalf of their State and their subjects participated by themselves or through their representatives in the deliberations which brought into existence the Constitution, and the legal and political unity of India.
If, then, as a result of the absorption there was a State succession, its consequences have to be judged by tests or principles similar to those by which State succession is brought about by other means.
We cannot, therefore, agree that the manner in which the Indian States ceased to exist or in which the Constitution and with it the complete political unification of the territory of India was brought about negatives the applicability of rules which govern the enforceability of rights against a succeeding sovereign on State succession.
The point next to be considered is whether the fact that the subjects of the former Indian rulers became, after the Constitution, citizens and subjects of the Indian Union pre cludes the Indian Government from refusing recognition to titles which such persons could have enforced against their previous rulers on the well accepted principle that "there can be no act of State against its own subjects.
" The appli cation of this principle last mentioned of which Walker vs Baird(1) and Johnstone vs Pedlar(2) are classic examples, is intimately bound up with the question as to the precise nature of the action taken by a succeeding State, when it refuses to accord recognition to the right of a former in habitant of the territory of an earlier sovereign and enforce.able against the predecessor.
If the true position in law were that a positive action is necessary to be taken by the succeeding sovereign before it interferes with the pre existing rights of the subjects of the former ruler and that the action thus taken is really a continuance of the act of the State by which the territory of the former ruler became transferred to the new sovereign, it is possible that the rule that there can be no act of State by (1) (2) ; 496 the Government against its own subjects might have some application.
But if, on the other hand, the true theory were, that on the extinction of the sovereignty of the previous ruler over the territory ceded or surrendered, there is an extinction ipso jure of the rights enforceable against the State and that it is really a new right that springs into existence on recognition by the succeeding sovereign, it would be manifest that the refusal of the succeeding sovereign to recognise preexisting rights could in no sense be an act of State.
No doubt, that refusal is in the exercise of sovereign power but by such exercise it neither annihilates nor affects any enforceable right which its subjects had against it.
We consider, therefore, that if the doctrine of Public International Law expounded by the Privy Council were held applicable to the termination of the rights arising on the change of sovereignty in India, as the learned Judges in Virendra Singh 's case(1) did, the power of the Government of India as at present constituted to refuse to recognise titles originating in executive grants by former Indian rulers cannot be negatived by resort to the rule of law laid down in Walker vs Baird(2) and Johnstone vs Pedlar(3).
The next proposition of law which underlies the decision in Virendra Singh 's case(1) is that the arbitrary and absolute powers which the former Indian rulers possessed to revoke grants made by them did not survive the change in sove reignty brought about by the Constitution, when as a result of the setting up of a democratic polity informed by justice and the rule of law, the right to exercise any arbitrary power was abandoned and was no longer available for revoking the grants made by the former rulers.
If the theory of Pub lic International Law which was explained and given effect to by the decisions of the Privy Council rested on the doc trine that the powers of the succeeding sovereign to recog nise or not to recognise grants by the preceding sovereign or to repudiate them was based on the rights of the previous ruler so to revoke or repudiate, the argument would have considerable force.
The juristic basis of the theory underlying the Privy Council decisions is that with the extinction of the previous sovereign the rights theretofore exercisable (1) ; (2) (1892] A.C. 491.
(3) ; 497 by the subjects of that sovereign were likewise extinguished and that without recognition which is really tantamount to a fresh grant by the new sovereign, no title enforceable in the municipal courts of the succeeding sovereign came into being.
If this latter be the correct juristic approach, and that is what the decisions of the Privy Council lay down as we have shown by the extracts we have made of the relevant passages in Bai Rajbai 's(1) and in Vajeysinghji 's(2) case, then it matters not whether the earlier grant was by an absolute ruler who could revoke his grant or by a ruler of a different type who could not or even if he could, had re nounced his rights to revoke by unilateral executive action.
In either case, where the question at issue is whether the right could be enforced against the succeeding sovereign in its courts, nothing turns on the power of the preceding ruler to derogate from his grant; for it is not by virtue of any power derived from the previous sovereign that the succeeding sovereign claims the right not to recognise the earlier rights or grants but as an incident of its own sovereignty and sovereign power.
In the circumstances, the existence of the arbitrary powers of the native Indian rulers and its absence in the Governments under the Constitution is not relevant, nor the fact that these were not inherited by and did not devolve on the Governments of the Union and the States functioning under the Constitution.
The last of the steps in the reasoning underlying Virendra Singh 's case(1) proceeds on the basis that the petitioners had brought with them from their previous rulers into the Indian Union certain rights in the property granted to them, enforceable against the Government in regard to which they were entitled to the protection of articles 19 and 31.
This question has to be approached from two points of view arising from the two stages through which the territory of the former Indian rulers became part of the territory of India under the Constitution.
The first stage is concerned with the effect of the changes which took place from the accession of the States to the Dominion of India followed by the merger agreement executed by the rulers all of which were governed by the provisions of the Government of India (1) 42 I.A. 229.
(2) 51 I.A. 357 (3) ; 134 159 S.C 32 as it stood from time to time and the second stage with the complete 'unionization ' of these territories so as to form part of an unified polity, the Union of India.
So far as the first stage is concerned, there was certainly a transfer of sovereignty over the territory of the former Indian rulers to the Government of India for the purposes of the exercise by the latter of sovereignty with plenary powers of administration.
Sections 290A and 290.B were introduced into the Government of India Act for enabling the administration by the Dominion Government of the territories of the acceding States which under section 5 of that Act became part of the Dominion of India.
At this stage the powers of the Government of India for the administration of the acceding territories were exercised under the Extra Provincial Jurisdiction Act (Act XLVII of 1947) which used the phraseology 'areas outside Provinces which were acquired by the Central Government by treaty, agreement, grant, usage, sufferance or other lawful means '.
It may be mentioned that under orders made by virtue of powers conferred by the Extra Provincial Jurisdiction Act all laws theretofore in force prevailing in the territories which were being administered under that Act were continued in force.
Later by an order issued under section 290A of the Government of India Act, known as the States Merger Order 1949, laws in operation in the merged States, were continued until repealed or modified.
If in that situation the law as to acquired rights enforceable against the successor State as enunciated by the Privy Council applied, all grants which rested solely on executive action could acquire vitality for being enforced against the administration by the Government of India or its delegates only if those rights were recognised; for there was here a true case of State suc cession transfer of territory by one sovereign to another and without the complication arising from the fact that the rulers or the people of the various Indian States participating in the making of the Constitution which the people of India gave to themselves.
We have already ex plained that if the view of the Privy Council as to the effect of a change in sovereignty were accepted, it un mistakably points to their being no survival of any vestige of rights on the extinction of the sovereignty of the previous 499 ruler and to the emergence of any right only by the action express or implied of the new sovereign.
If this principle were applied, there would have been no rights of property vesting in the grantee which he could assert against the new ruler.
No doubt, if the grantees were in possession they would have a right to retain their possession against private trespassers but that is not the question with which we are here concerned, for what is now under consideration is the capacity of these grantees to assert rights as against the Government which is totally different from their right to possession as to the rest of the world.
Digressing a little it may be pointed out that section 299 of the Government of India Act, 1935 as well as articles 19 and 31 which are referred to in this connection deal exclusively with the inference with proprietary rights by the State and have nothing to do with rights inter se between the grantee and his fellow subjects or citizens.
If, therefore, we are correct in our understanding of the decisions of the Privy Council that on a change of sover reignty no scintilla of right inhered in the grantee quoad his right to assert or enforce his rights under the grants against the rulers survived the change of sovereignty, the guarantee against deprivation of property contained in section 299 of the Government of India Act, 1935, availed him nothing, for when the succeeding sovereign refused to recognise the rights obtained by him under the previous sovereign its action deprived him of no right to property; because he brought with him no rights from the previous ruler which he could assert against the new sovereign.
The position, therefore, reduces itself to this: Just previ ous to the Constitution the grantee had no right of property enforceable against the State and in regard to which, there fore, he could invoke the protection of articles 19 and 31 of the Constitution.
The coming into force of the Constitution could not, therefore, make any difference; for the Con stitution does not create rights in property but only protected rights which otherwise existed.
It is necessary to add that if the learned fudges in Virendra Singh 's case(1) were right in their understanding of the Privy Council decision to (1) ; 500 mean that a grantee under the previous ruler had a voidable title which he continued to possess and enjoy until by action of the succeeding ruler the same was revoked or repudiated, they might also be right in their conclusion that such title as the grantees had could not be extinguished by the executive action of the Union or of the State Governments because of the guarantee of the right to property contained in articles 19 and 31.
But, if as we have shown, the decisions of the Privy Council do not lend support to such a view, the conclusion in Virendra Singh 's case(1) as regards this last proposition also cannot be correct.
This takes us to the consideration of the question which was raised by Mr. Purshottam Tricumdass submitting to us that we should discard the theory of Public International Law which underlies the decisions of the Privy Council.
but that we should accept and give effect to what might be termed the American view as formulated by Chief Justice Marshall in U.S. vs Percheman(2) which was approved and applied in the later decisions of the American Supreme Court to which also he drew our attention.
Learned Counsel submitted that this Court was not bound by the decisions of the Privy Council and was free to adopt the more rational, just and human doctrine which found expression in these American decisions.
In this connection his thesis was that the doctrines evolved by the Privy Council were conditioned by Britain being an Imperialist and expansionist power at the date when they originated and were applied and that while these might have been suited to the regime of a colonial power, they were wholly out of place in the set up of this country and with the type of Constitution under which it functions.
Having considered this matter carefully we are clearly of the opinion that there is no justification or reason to dis card the British view as regards the jurisdiction of municipal courts to enforce rights against succeeding sovereigns on a change of sovereignty.
In the first place, Percheman 's case(2) itself came before the courts for ascertaining the proper construction of the treaty under which Florida was surrendered to the United States by Spain under the Florida treaty dated February 22, 1819, on the terms of which the (1) ; (2) ; at pp.
86 87.
501 respondent contended that his title to the property claimed by him had been recognised and confirmed.
The place of a treaty entered into by the United States and the provisions contained in it, in the Constitutional Law of the United States, we shall be referring to later, but that apart the Florida treaty was followed by an Act of Congress of 1828 ,entitled "an Act supplementary to the several Acts provid ing for the settlement of confirmation of private land claims in Florida.
" Under the terms of this Act of the Congress, ,Commissioners were set up to investigate claims by private individuals to lands and in cases where the validity of a claim set up was not upheld by the Commissioner, provision was made for resort to courts for resolving the dispute.
There was, therefore, no scope for invoking the British rule of the lack of jurisdiction of municipal courts to adjudicate on unrecognised titles to property, even if such a doctrine was applicable and the only point in controversy was as to the interpretation of the clauses of the treaty relative to the titles which were recognised because on any view of the law if the treaty and the Act of Congress confirmed the respondent 's title, the same was enforceable in the municipal courts of the United States.
Before passing on from this decision it is necessary to bear in mind the difference in constitutional law prevailing in the United States and in India as regards the effect of treaties and the provisions contained therein.
article 6 cl.
(2) of the United States Constitution reads: "6. . . . . (2) All treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding." Willoughby explains* the object.
and effect of this provision thus: ". the primary purpose of this provision, (article VI cl.
(2) was to make indubitable the supremacy of treaties over State Statutory or *Constitution of the United States Vol. 1, 548.
502 constitutional provisions. it has, from the beginning been held that treaties, so far as they are self executory, operate in the United States, by virtue of this constitutional provision, to create municipal law which the courts are called upon to recognise and apply.
" In the United Kingdom and in India the position is entirely different.
A treaty is, in British jurisprudence, treated merely as a contract between two States and does not become a part of the law of the land unless by an express Act of the Legislature.
A treaty does not confer rights or obligations between the State and its subjects or as between Subjects, such rights can be conferred only by an enactment of the Legislature.
As explained by Lord Atkin in Attorney General of Canada vs Attorney General of Ontraio(1): "Unlike some other countries the stipulations of treaty duly ratified do not within the Empire, by virtue of the treaty alone have the force of law" It was in recognition of this constitutional position that section 106 of the Government of India Act, 1935 was enacted.
Its terms are in substance re enacted in article 253 of the Constitution which reads: "253.
Notwithstanding anything in the foregoing provisions of this Chapter, Parliament has power to make any law for the whole or any part of the territory of India for implementing any treaty ' agreement or convention with any other country or countries or any decision made at any international conference, association or other body." and to reinforce this position we have article 363 by which municipal courts are deprived of jurisdiction to enforce any rights arising from certain treaties.
It would be apparent that in the context of the different constitutional position regarding treaties in the two countries, the rule of law which was enunciated by the American Supreme Court, cannot automatically be applied here.
For in ultimate analysis the court in Percheman 's case (2) was giving effect to provisions (1) at P. 347.
(2) ; at pp.
86 87. 503 of the treaty with Spain which was the law of the land, and if the treaty provisions were different, these again would have been enforced by the courts.
We are making this observation not to minimise the importance of the doctrine of Public International Law explained by Chief Justice Marshall, but to point out that the decision must be under stood in the setting of the provisions of the treaty with Spain and the articles of the American Constitution.
As indicated earlier, we are not insensible to the position that apart from the place of treaties in American Con stitutional Law what Marshall C.J., expounded was a doctrine of Public International Law which lie considered it was necessary; just and proper for succeeding States to observe in their dealings with the rights acquired by private individuals under predecessor sovereigns.
We shall now proceed to deal with the question whether we should discard the rule as enunciated in the decisions of the Privy Council and adopt that which was formulated in Percheman 's case(1).
There are several reasons why we are unable to accept C. J. Marshall 's exposition in Percheman 's case(1) as laying down a law which has to be given effect to by municipal courts in this country.
In the first place, it could not be said that the broad terms in which Marshall C.J., stated the doctrine that every private rights derived from a predecessor sovereign ought to continue to be enforceable against a successor sovereign and that a change in sovereignty makes no difference to the enforceability of private rights, be it against other individuals or the succeeding State, has been in that absolute form accepted as valid by jurists and writers on Public International Law.
Even in treaties in Public International Law in which the most extended scope has been afforded to the enforceability of acquired rights against a successor State two limitations have always been recognised: (1) that the origin of the right should be bona fide and not one designed to injure the economic interests of the successor State, and (2) that the right should not be a political concessions Next, jurists and even the Permanent Court of International Justice have drawn a marked distinction between (1) ; at pp.
86 87.
504 that might be termed the theory of the law and the enforce bility of these rights and in municipal courts.
C.C. Hyde in is treatise on Public International Law(*) after referring of the decision in Percheman 's case(1) and those which allowed it adds: "Acknowledgement of the principle that a change of sovereignty does not in itself serve to impair rights of private property validly acquired in areas subjected to a change, does not, of course, touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States, such as those of its predecessor.
" Similarly George Schwarzenberger in his International Law(**) after referring to a passage in the decision of the Permanent Court of International Justice in the case of German Settlers in Poland reading: "Private rights acquired under existing law do not cease on a change of sovereignty.
No one denies that the German Civil Law, both sub stantive and adjective, has continued without interruption to operate in the territory in question.
It can hardly be maintained that, although the law survives, private rights acquired under it have perished.
Such a contention is based on no principle and would be contrary to an almost universal opinion and practice" adds that though the Permanent Court of International Jus tice negatively stated that private rights acquired under existing law do not cease on a change of sovereignty, the Court did not expressly pronounce on the question whether in the absence of legislation to the contrary on the part of Poland, she was bound by International Law to consider German Civil Law as valid in the ceded territories.
The doctrine of act of State evolved by English Courts is one purely of municipal law.
It denies to such a Court jurisdiction to enquire into the consequences of acts which are inseparable from an extension of its sovereignty.
That doc (*) Vol.
IP. 433.
(**)Vol.
1 p. 83.
(1) ; at Pp.
86 87.
505 trine was, however, not intended to deny any rule of inter national law.
Next we might examine the juristic concept underlying the American view, putting aside for the moment what one might call authority.
There has been at one time a school of thought among writers on Public International Law which has described the process of State succession as if it were a transmission of sovereignty bringing in for this purpose the analogy of an heir in private law clothing the successor with the totality of the rights and obligations qua all inhabitants without exception or modification.
This theory has now been discarded because of the realisation that there could be no analogy between individuals and States, nor could the theory be sustained in the face of the circumstance that it does not accord with practice, which after all is one of the basic foundations of the rules of Public International Law.
It is hardly necessary to add that 'there is here no inconsistency with the comity of nations.
Nor could it be maintained that the theory is just, because it would force upon the successor State obligations which might have owed their birth to political considerations which would not survive the predecessor State.
Besides, it must not be forgotten that when a successor State exercises its sovereignty even over territory which has passed to it from a preceding ruler, it does not do so as a representative of or by delegation from the latter as in the case of the heir in Private Law, but as a sovereign of the territory deriving authority from its own constitution and set up.
It is true that Public International Law might lay on the successor State duties with respect to the acquired territory and to the rights of the inhabitants thereof but those must be compatible with its undoubted sovereignty.
It is in recognition of such a position that successor States give effect to laws which regulate rights inter se between the subjects which theretofore applied, save in so far as either its constitution or its legislation has made other provision.
We are, however, here concerned with rights possessed by individuals in the predecessor 's territory enforceable against the previous rulers and even as regards these we are concerned with a very limited range of rights rights arising out of grants of immovable property or concessions of rights in relation thereto and 506 enforceable against the predecessor State.
We made this Reservation because in the Dalmia Dadri Cement case(1) which dealt with the continued enforceability of a concession regarding the levy of income tax, even Bose J. agreed that such rights did not survive and in a separate judgment confined the operation of the principle that he enunciated in Virendra Singh 's case(2) to rights of immovable property.
If the theory that rights and duties or rather the bundle of them pass ipso jure from the predecessor to the successor State is discarded and at the same time it is recognised that International Law and justice which underlies that body of law might impose some obligations which the successor State should respect, two questions arise: First what are the obligations which International Law might impose? and secondly, whether these obligations which are not the crea tures of municipal law, might give rise to claims enforceable in municipal courts.
It is impossible to lay down exact rules as to the inter ests which are protected by a consensus of opinion as acquired rights.
So much, at least, is clear that to receive the protection of International Law the interest must have been properly vested in the sense that it must not have been voidable at the instance of the predecessor State and bona fide and legally acquired.
Neither the comity of nations, nor any rule of International Law can be invoked to prevent a sovereign State from safeguarding its national economy and taking steps to protect it from abuse.
On the one side the principles of acquired rights demands that the interest of the private individual be not abrogated and on the other side the public interest of the successor State has to be considered.
It is this conflict between the public and private aspects that hinders the laying down of hard and fast rules.
As has been pointed out by O 'Connell in his Treatise on the Law of State Succession, the problems posed by State succession in International Law are notably different in character from those of municipal law though they arise at a different plane, but there is no necessary reason why the one system should not draw on the doctrine or concepts formulated and found to be adequate within the other (1) [1959] 729.
(2) ; 507 system.
The principle of universal succession based on ana logy from the civil law was essentially juristic in character, but the analogy was wrong and the practice of States was not consonant with the theory.
The rejection of this doctrine led to the assumption that solutions are to be found on experience alone.
The choice of the appropriate theory by writers was ' coloured by their standpoint and their legal (Experience.
In theory, therefore, we must have regard both to past experience and the necessities of the present and while on the one hand not being unduly restrictive, ought not on the other become so doctrinaire as to deprive the State of the option not to recognise even mala fide transactions.
Looked at from this point of view the British practice that has prevailed in this country has not proved in actual practice to lead to injustice, but has proceeded on a just balance between the acquired rights of the private indivi dual and the economic interests of the community, and therefore there is nothing in it so out of tune with notions of propriety or justice to call for its rejection.
It is undoubted that the British doctrine was part of the jurisprudence and the constitutional practice that prevailed in pre Constitution India.
Most certainly it does not need to be stated that the British Parliament when it enacted the Government of India Act as the constitutional framework by which this country should be governed, could not have had in contemplation any other rule by which the rights of the inhabitants newly brought into the political set up by other territories becoming part of India.
With this historical background it would not be a violent presumption if we assume that the framers of the Constitution should also be taken to have proceeded on the basis of the acceptance of this doctrine and this state of the law, unless one found some provision or indication in the Constitution repugnant to its continuance.
As already pointed out, the position of treaties vis a vis municipal law was not changed.
On the other hand, by article 363 an embargo was laid in express terms on municipal courts giving effect to the provisions of treaties with rulers of Indian States.
This, in our opinion is a clear indication that the Constitution makers intended no 508 departure from the Constitutional doctrine that was thereto fore accepted as law.
It would, of course, be different if the provisions of any treaty became embodied in subsequent legislation; then they would be enforced as part of the law of the land.
It is also not to be assumed that the Constitution makers were oblivious of the need for continuity of the law when the Indian States were absorbed and a change in sovereignty took place.
By article 372 of the Constitution all the laws which were in force in these States just as in British India without any distinction were continued until they were altered or repealed by competent legislation.
It is only necessary to point out that in the interval between the merger of these States and the coming into force of the Constitution, there were other provisions to which we have already adverted which continued the laws which obtained in these territories till article 372 could be availed of.
There was thus no legal vacuum or hiatus created so far as laws were concerned and it is only where the right sought to be enforced was created not by the laws of the previous sovereign but merely as a result of an administrative order that we have the problem to be solved in these appeals.
If the definition of law in article 366(10) were as that in article 12 so as to include even executive orders every right, however, created would have been continued.
But the Constitution makers decided otherwise and preferred to continue only laws as distinguished from administrative orders.
Next we have the circumstance that the doctrine enunciated in the decisions of the Privy Council have been accepted as correct and thus applicable equally in postConstitution India in a series of decisions of this Court commencing from Dalmia Dadri Cement Co.(1) and unless compelling reasons are found for holding that all these were wrongly decided, it would be neither proper or even open for us to depart from these precedents, and as explained earlier, there are none.
Lastly, as we have already noticed, even in the case of Virendra Singh(2), though the divergent views of the jurists on this question of Public International Law were set (1)(1959] S.C.R. 729.
(2) ; 509 out the court did not express any decisive opinion in favour of accepting the observations in Percheman 's case(1) as proper to be applied by the municipal courts in India.
In the face of these circumstances we would not be justified in departing from the decisions of the Privy Council which have been accepted and applied by this Court.
These decisions both of the Privy Council as well as the earlier ones of this Court were reviewed and the propositions laid down in them were examined and summarised by this Court in Promod Chandra Deb and Ors.
vs The State of Orissa and Ors.(2) as laying down the following propositions: "(1) 'Act of State ' is the taking over of sovereign power by a State in respect of territory which was not till then a part of its territory, either by conquest, treaty or cession, or otherwise, and may be said to have taken place on a particular date, if there is a proclamation or other public declaration of such taking over.
(2) But the taking over full sovereign powers may be spread over a number of years, as a result of a historical process.
(3) Sovereign power, including the right to legislate for that territory and to administer it, may be acquired without the territory itself merging in the new State, as illustrated in the case of Dattatraya Krishna Rao Kane vs Secretary of State for India in Council [(1930) L.R. 57 I.A. 318].
(4) Where the territory has not become a part of the State the necessary authority to legislate in respect of that territory may be obtained by a legislation of the nature of Foreign Jurisdiction Act.
(5) As an act of State derives its authority not from a municipal law but from ultra legal or supra legal means, Municipal Courts have no power to examine the propriety or legality of an act which comes within the ambit of 'Act of State. ' (1) 32 U.S. at pp.
86 87.
(2) [1962] 1 Supp.
S.C.R. 405.
510 (6) Whether the Act of State has reference to public rights or to private rights, the result is the same, namely, that it is beyond the jurisdiction of Municipal Courts to investigate the rights and wrongs of the transaction and to pronounce upon them and, that therefore, such a Court cannot enforce its decisions, if any.
It may be that the presumption is that the pre existing laws of the newly acquired territory continue, and that according to ordinary principles of International Law private property of the citizens is respected by the new sovereign, but Municipal Courts have no jurisdiction to enforce such international obligations.
(7) Similarly, by virtue of the treaty by which the new territory has been acquired it may have been stipulated that the pre cession rights of old inhabitants shall be respected, but such stipulations cannot be enforced by individual citizens because they are no parties to those stipulations.
The Municipal Courts recognised by the new sovereign have the power and the jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise.
(9) Such an agreement or recognition may be either express or may be implied from circum stances and evidence appearing from the mode of dealing with those rights by the new sovereign.
Hence, the Municipal Courts have the jurisdiction to find out whether the new sovereign has or has not recognised or acknow ledged the rights in question, either expressly or by implication, as aforesaid.
(10) In any controversy as to the existence of the right claimed against the new sovereign, the burden of proof lies on the claimant to establish that the new sovereign had recognised or acknowledged the right in question.
" 511 We consider this summary succinctly expressed the rule to be applied in this country as regards the, enforceability against the Governments in India of private rights originat ing in executive or administrative orders of the former Indian rulers.
The next matter to be considered is the correctness of the view expressed by the High Court, that even though the treaty be an Act of State, and the merger agreement executed by the ruler a document on which no rights enforceable in municipal courts could be based, still cl.
(7) of the letter of Shri V. P. Menon dated October 1, 1948 could be referred to and relied upon for founding an argument that the Government waived their right to repudiate the grant made by the previous ruler.
We consider that the submission of the learned Attorney General that the learned Judges were in error in this respect is well founded.
If the treaty or its provisions cannot be looked at to spell out any right.
as the learned Judges themselves conceded.
the use to which they have put the provisions of cl.
(7) that the Government would not re examine grants made earlier than April 1, 1948, is virtually the same though called by another name.
We can see no sensible distinction between reliance on the provisions of the treaty as pointing to a recognition by the Government of rights claimed and reliance on it for the pur pose of establishing that Government had waived their right not to recognise such rights.
In substance, they are the same though the nomenclature employed is different.
In support of the reasoning on which this distinction was accepted the learned Judges have placed reliance on the approach to this question in Virendra Singh 's case(1).
We have discussed this matter fully in the earlier part of this judgment and there is no need to repeat it.
The learned Judges have further referred to and relied on a decision of this Court in Bholanath vs The State of Saurashtra(2) and certain observations contained in it.
We do not agree that the observations in the decision, though couched somewhat widely could properly be understood in the manner in which the learned Judges have done.
The question that arose in the case was whether the condition of service of a person (1) ; (2) A. I. R. 512 originally employed as an officer of one State continued to govern his services after that State became merged in the Government of Saurashtra.
The condition of service in controversy was as to the age at which an officer had to retire on superannuation.
By an enactment of the ruler of Wadhwan State this was, in the case of officers like the appellant before this Court, fixed at 60.
An order by the Government of Saurashtra retiring him after he reached the age of 55 against his will, gave rise to the suit from which the proceedings before this Court arose.
There was contro versy in the Courts below as to whether the law embodying the service conditions was competently enacted by the Wadhwan State.
But this contention was not persisted in this court, and the court recorded a finding that the terms of service of the appellant were regulated by a law which was competently enacted and that the law was continued by article 372 in the Saurashtra State.
On that finding there could really be no defence to the appellant 's claim.
The decision in favour of the appellant was rested on the ground that the law of the Wadhwan State was continued by express provisions contained, first, in statutes of the Saurashtra State and, again, by article 372 of the Constitution when the latter merged in the Dominion of India.
On this it followed that without a valid change in the law the rights of the appellant could not be restricted.
In stating this position, however, the following words were used: "The Covenant (between the ruler of the Wadhwan State and the State of Saurashtra) could be looked at to see whether the new sovereign had waived his rights to ignore rights given under the laws of the former sovereign.
" We do not understand this passage to mean that the covenant which under article 363 could itself not be looked at for founding any right, could be used indirectly for inferring that rights were recognised, without anything more.
The true position appears to us to be that where the new sove reign assumes jurisdiction and it does some Act and there is ambiguity as to whether the same amounts to a recognition of a pre existing right or not, the covenant and the treaty might be looked at in order to ascertain the intention and purpose of that equivocal act, but beyond this the cove 513 nant and the treaty cannot by themselves be used either as a recognition pure and simple or, as the learned Judges of the High Court have held, as waiver of a right to repudiate the pre existing rights.
It is needless to point out that since the enforceability of the rights against the succeeding sovereign springs into existence only on recognition by the sovereign, there is no question of a waiver of the right to repudiate.
The expression 'right to repudiate ' in this con text is a misnomer and there could be no question of a waiver of such right.
This, however, does not conclude the matter, for we have still to deal with the question whether the grant by the ruler of the Sant State which was embodied in a 'resolution ' of his was a "law" or was merely an executive or administra tive order.
Learned Counsel for the respondent submitted to us that the grant under the Tharav No. 371 dated March 12, 1948 was not a grant by executive power but was in truth and substance a law which was continued by article 372 of the Constitution and which, therefore, could be undone only by legislation and not by any executive fiat as has been done in the present case and in this connection relied strongly on the decisions of this Court in Madhaorao Phalke vs The State of Madhya Bharat(1) and in Promod Chandra Deb and Ors.
vs The State of Orissa and Ors.
Both in the trial Court as well as before the High Court the cases had proceeded on the footing that the ruler of the Sant State was an absolute monarch with no constitutional limitations upon his authority, and it was not suggested that this was incorrect.
He was the supreme legislature as well as the supreme head of the executive so that his orders however issued would be effective and would govern and regulate the affairs of the State including the rights of the citizens; (vide Ameer un nissa Begum vs Mahboob Begum(3) and Director of Endowments, Government of Hyderabad vs A kram Ali(4) We should, however, hasten to point out that though in the case of such absolute monarchs the distinction between the administrative action under their executive power and laws passed by them as the supreme legislature (1) ; (2) [1962] 1 Supp.
S.C.R. 405.
(3) A.I.R. 1955 S.C. 352.
(4) A.I.R. 1956 S.C. 60.
134 159 section C. 33.
514 of the State, possess no deference as regards their effectiveness, still the distinction between the two is of vital importance for the purpose of determining their continued efficacy after the coming into force of the Constitution.
Under article 372 of the Constitution "all the law in force in the territory of India immediately before the commencement of this Constitution shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority".
The expression "existing law" is defined in article 366(10): "Existing law means any law, Ordinance, Order bye law, rule or regulation passed or made before the commencement of this Constitution by any legislature, authority or person having power to make such a law, Ordinance, Order, bye law, rule or regulation.
" This definition would include only laws passed by a competent authority as well as rules, bye laws and regulations made by virtue of statutory power.
It would therefore not include administrative orders which are traceable not to any law made by the Legislature but derive their force from executive authority and made either for the convenience of the administration or for the benefit of individuals, though the power to make laws as well as these orders was vested in the same authority the absolute ruler.
What survives the Constitution and is continued by article 372 are those laws which could trace their origin to the exercise of legislative power.
The problem next is to discover that which is "law" from that which is merely an executive order and this is by no means an easy one to solve.
In the case of some States where there are rules which prescribe particular forms which the laws have to or generally take or where laws as distinguished from executive orders are issued bearing a defined nomenclature, there is not much difficulty.
But the cases which have come up before this Court have shown that this is by no means the universal rule.
In the case of the Sant State with which we are concerned it was not suggested that there was any particular formality or process 515 which had to be observed in the promulgation of laws or any particular form which laws had to take or took or that they went by any particular nomenclature to distinguish them from executive or administrative orders.
We have, therefore, to consider whether from the nature of 'the instrument its contents and its general effect whether the Tharav dated March 12, 1948 constitutes a law within article 366(10) and is therefore continued by article 372 or whether it is merely an executive grant or administrative order which might confer rights but which without recognition by the Union or State Government cannot be enforced in the municipal courts of this country.
We shall therefore proceed to consider the terms of the Tharav and for this purpose it would be convenient to set it out in full.
It is headed 'Tharav Order ' by Maharana, Santrampur State, dated March 12, 1948.
It was explained to us that the expression of 'Tharav ' meant a resolution.
The text of this resolution or order by the Maharana is as follows "The Jivak, Patavat Inami, Chakariyat, Dharmada villages in Sant State are being given (granted) to Jagirdars and the holders of the said villages are not given rights over forests.
Hence after considering the complaints of certain Jagirs, they are being given full rights and authority over the forests in the villages under their vahivat.
So, they should manage the vahivat of the forest according to the policy and administration of the State.
Orders in this regard to be issued.
Sd/ in English Maharana, Santrampur State.
" There are a few matters to which it is necessary to advert in this document : The first of them is that it is not a grant to any individual, that is, treating him as an individual or as one of a number of individuals or to a group 516 treating them merely as separate individuals, but to the holders of five specified tenures in the State Jivak, Patavat, Inami, Chakariyat and Dharmada villages.
Next, it states that the rights in the forests of the villages of the several kinds of tenure holders are being given to them in response to the representations made in regard to the villages in the possession and enjoyment of the Jagirdars as regards this matter.
Lastly, the tenure holders were directed to manage and administer the forest according to the policy and administration of the State.
The learned Judges of the High Court have treated the 'Tharav ' as merely an administrative order treating it as if consisted of as many grants of forest rights to the tenure holders as there were such holders and this was the view that was stressed upon us strongly by the, learned Attorney General.
We are, however, not impressed by this argument.
We have no evidence as regards the creation of the several tenures referred (to in the Tharav to base any conclusion as flowing from the original grant.
No doubt, there is on record the translation of the rant of the village of Gothimada dated 1867, but from this it does not follow that everyone of the grants comprised in the ' five tenures specified was of this pattern, We consider that the 'Tharav ' is more consistent with its being a law effecting an alteration in the tenures of the five classes of Jagirdars by expanding the range of the beneficial enjoyment to the forests lying within the boundaries of the villages which had already been ranted to them.
In this light, the 'Tharav ' would not be an administrative order in any sense but would partake of the character of legislation by which an alteration was effected in the scope and content of the tenures referred to.
This aspect is reinforced by the reference to the complaints of the tenure holders whose grievance apparently was that though villages had been granted to them for their enjoyment under the several tenures, they were not permitted any rights in the forests within their villages.
It was not thus a case of an individual grant but the yielding by the ruler to the claims of these large group of Jagirdars who requested that their rights should be extended.
Lastly, the manner of the enjoyment was specified as having to be in accordance with the policy and administration in the 517 State.
It is obvious that there must have been some rules which have the force of law as regards the administration of these forests and the enjoyment by the Jagirdars was made subject to the observance of these laws.
We, therefore, consider that the 'Tharav ' dated March 12, 1948 satisfies the requirement of a "law" within article 366(10), and in consequence, the executive orders of the Government of Bombay by which the forest rights of the plaintiffs were sought to be denied were illegal and void.
The result is that we agree with the learned Judges that the plaintiffs were entitled to succeed, though for different reasons, and we direct that the appeals should be dismissed.
The appellant will pay the costs of the respondents one set of hearing fees.
SUBBA RAO J. I have had the advantage of going through the judgment of my learned brother, Rajagopala Ayyangar J. I agree with him that exhibit 192 is law and that it continued in force after the making of the Constitution.
This conclusion would be enough to dispose of the appeals.
But, Rajagopala Ayyangar J., further expressed his disagreement with the unanimous view propounded by this Court in Virendra Singh vs The State of Uttar Pradesh(1).
As I regret my inability to share his view, I shall state the reasons for my agreement with the decision in Virendra Singh 's case.
As the question raised is common to all the appeals, it is enough if I take up Civil Appeal No. 182 of 1963 for consideration.
The facts necessary to appreciate the alternative contention may now be briefly stated.
In the year 1947, the then ruler of the Sant State made a grant of the village Gotimada to the predecessor in interest of Thakor Sardarsingh Gajesing.
On August 15, 1947, India obtained independence.
Under section 7 of the Indian Indepen dence Act, 1947, the suzerainty of the British Crown over the Indian States lapsed, with the result the Sant State became a full sovereign State.
On March 12, 1948, the Maharana (1) ; 518 of Sant State issued an order conferring full rights over forests to the holders of villages in the State, which included the said Gotimada village.
On March 19, 1948, there was an agreement, described as the Merger Agreement entered into between the Maharana of Sant State and the Dominion Government of India where under the Maharana ceded to the Dominion Government full exclusive authority, jurisdiction and power for and in relation to the governance of the Sant State and agreed to transfer the administration of the Sant State to the Dominion Government on June 10, 1948.
It was also agreed that as from June 10, 1948, the Dominion Government would be competent to exercise full and exclusive authority, jurisdiction and powers for and in relation to the Governance of the Sant State in such manner and through such agency as it might think fit.
Under the other articles of the said agreement certain personal rights and privileges of the Maharana were preserved.
After the merger, under section 3 of the Extra Provincial Jurisdiction Act, 1947, the Government of India delegated the administration of the Sant State to the State of Bombay.
From October 1, 1949, under the States ' Merger (Governor 's Provinces) Order 1949, the said State became part of the State of Bombay; that is to say, from June 10, 1948 to October 1, 1949 the Bombay State administered the Sant State as a delegates of the Dominion of India, and thereafter the State became merged with the State of Bombay.
The Sant State, therefore, became part of the Dominion of India on June 10, 1948 and thereafter the citizens of that State became, the citizens of the Dominion of India.
On August 21, 1948 the respondent entered into a contract with Thakor Sardarsing Gajesing for cutting of the trees in the forest of village Gotimada.
On October 1, 1948 i.e., 4 months after the merger and more than a month after the said contract, Shri V. P. Menon, Secretary to the Government of India, Ministry of States, wrote a letter to the Maharana of Sant State expressly declaring that no order passed or action taken by the Maharana before the date of making over the administration to the Dominion Government would be questioned unless the order was passed or action taken after the 1st day of April 1948, and if considered by the Government of India to be palpably unjust or unreasonable.
By that letter it was also guaranteed that, 519 among others, "the enjoyment of ownership" of jagirs, grants etc., existing on April 1, 1948 would be respected.
A combined reading of the paragraphs of this letter makes it clear that the Dominion of India declared in clear and unambiguous terms that no grants made or orders issued by the Maharana before April 1, 1948 would be questioned by it.
It may be mentioned that in the last paragraph of this letter it was stated that the contents of the letter would be regarded as part of the Merger Agreement entered into by the Maharana with the Governor General of India.
It may be recalled that this letter was written months after the merger and after the citizens of the extinct State became the citizens of the absorbing State.
The effect of the last paragraph of the said letter will be considered in due course.
On July 8, 1949 the Government of Bombay sent a communication to the Commissioner, Northern Division, stating that the Government considered that the order passed by the ruler of Sant State on March 12, 1948 transferring forest rights to all the Jagirdars of the Jagir villages was mala fide and that it should be cancelled.
It was suggested that the Commissioner should do some other preliminary acts before taking further action in the matter.
It would be seen from this communication that the order was not actually cancelled, but there was some correspondence in respect of that matter and that it was not even communicated to the jagirdars.
There was obstruction by the forest officers when the contractor was cutting the trees, but after some correspondence he was permitted to cut the trees, on an undertaking that he would abide by the decision of the Government.
On February 6, 1963 the Government of Bombay passed a resolution after receiving a report from the Forest Settlement Officer specially appointed by it to investigate the rights of jagirdars.
It was stated in the resolution )that the Tharav issued by the ruler of Sant State in 1948 was mala fide and, therefore, not binding on the Government.
Thereafter, it scrutinized the claims of jagirdars to forests in 74 villages in the erstwhile Sant State and recognized their rights in some of the villages.
So far as Gotimada village.
is concerned, it was stated that the question of forest rights in the said village was still under the 520 consideration of the Government and necessary orders in that behalf would be issued in due course.
It is clear that till 1953 the Government did not refuse to recognize the title of the Jagirdars to forests; indeed, in the case of Gotimada village no final order was made even on that date.
On these facts, the question that arises is whether the respondent would be entitled to a permanent injunction issued by the High Court restraining the appellant from interfering with his right to cut trees in Gotimada village.
The argument of the learned Attorney General, so far as it is relevant to the question which I propose to deal with, runs as follows : After the merger of the Sant State with the Dominion of India the jagirdar had nO title to the forests against the Dominion of India unless it recognized such a right, and that, as in the instant case the said Government did not recognize such a right, he or his assignees could not maintain any action against the State on the basis of his title to the said forests.
He conceded that on the basis of the finding of the High Court that the Dominion of India did not repudiate the title of the jagirdar to the forests till after the Constitution came into force, the decision of this Court in Virendra Singh vs The State of Uttar Pradesh(1) is against him.
But he, contended that it was not correctly decided and indeed its binding force was weakened by later decisions of this Court.
As the correctness of the decision in Virendra Singh 's case(1) is questioned, it is necessary to consider the scope of that decision in some detail and also to ascertain whether later decisions of this Court had in any way weakened its authority.
The facts in that case were as follows.
The petitioners in that case were granted in January, 1948,Jagirs and Muafis by the Ruler of Sarila State in one village and by the Ruler of Charkhari State in three villages.
In March, 1948, a Union of 35 States, including the States of Sarila and Charkhari. was formed into the United States of Vindhya Pradesh.
The Vindhya Pradesh Government confirmed these grants in December, 1948, when its Revenue Officers interfered with them questioning their validity.
The integration of the States however did not work well and the same 35 Rulers entered into an (1) ; 521 agreement in December 1949, and dissolve the newly created State as from January 1, 1950, each Ruler acceding to the Government of India all authority and jurisdiction in relation to the Government of that State.
After the Constitution came into force, the Government of Uttar Pradesh in consultation with the Government of India revoked the grant of Jagirs and Muafis in four of the villages.
On an application filed by the petitioners under article 32(2) of the Constitution, this Court issued a writ against the State.
From the said facts it would be seen that the grants were made to the petitioners before the merger, and it was held that the Government had no right to revoke the said grants after the Constitution came into force.
Bose J., speaking for the Court, elaborately considered the doctrine of "Act of State" in the light of English and American decisions and the opinions of jurists of International Law and came to the following conclusion : "We think it is clear on a review of these authorities that whichever view be taken, that of the Privy Council and the House of Lords, or that of Chief Justice Marshall, these petitioners, who were in de facto possession of the disputed lands, had rights in them which they could have enforced up to 26th January, 1950, in the Dominion Courts against Fill persons except possibly the Rulers who granted the land and except possibly the State.
We do not by any means intend to suggest that they would not have enforced them against the Rulers and the Dominion of India as well, but for reasons which we shall presently disclose it is not necessary to enter into that particular controversy.
It is enough for the purpose of this case to hold that the petitioners had.
, at any rate, the rights defined above.
" Pausing here it will be noticed that this Court did not express a final opinion on the question whether the petitioners could have enforced their title to the property against the Rulers before the Constitution came into force.
but it had definitely held that the petitioners had title to the property against all 522 persons except the Rulers.
On the basis of that finding, Bose J., proceeded to consider the impact of the Constitution on the said finding.
The learned Judge observed: "But however that may be, there is no question of conquest or cession here.
The new Republic was.
born on 26th January, 1950, and all derived their rights of citizenship from the same source, and from the same moment of time; so also, at.
the same instant and for the same reason, all territory within its boundaries became the territory of India.
There is, as it were from the point of view of the new State, Unity of Possession, Unity of Interest, Unity of Title and Unity of Time." Then the learned Judge proceeded to state: "All the citizens of India, whether residing in States or Provinces, will enjoy the same fundamental rights and the same legal remedies to enforce them." This decision struck a new and refreshing note.
It pleaded for a departure from imperialistic traditions and to adopt the American traditions, which are in consonance with the realities of the situation created by our Constitution.
It gave new orientation to the doctrine of the act of State to reflect the modern liberal thought embodied in our Consti tution.
It held that citizens of a ceding State have a title to their property against all except possibly the ruler.
Though it inclined to go further and hold that the change of sovereignty does not affect the title of the citizens of the ceding State even against the new sovereign, it did not think fit to decide that question finally, as it found ample justification to sustain the title of the petitioners therein against the sovereign under our Constitution.
It pointed out that the concept of ceding and absorbing States is foreign to our Constitution and that all the people of India, to whichever part of the country they might have belonged, through their representatives, framed the Constitution recognizing the fundamental rights of a citizen to hold property and not to be deprived of it save by authority of law.
In that view it 523 held that the title of the petitioners in ,hat case to their Property was protected by the Constitution.
This is a unanimous and considered decision of five learned Judges of this Court.
I shall not obviously differ from this view unless there are compelling reasons to do so.
I find none.
I shall now proceed to consider whether the subsequent decisions of this Court threw any doubt on the correctness of the decision in regard to the following two aspects on which it had given a firm decision: (1) The citizen of a ceding State does not lose his title to immovable property but continues to have a right thereto against all except possibly the absorbing State; and (2) on the making of the Constitution, his title thereto became indefeasible even against the absorbing State.
Where a company entered into an agreement, with the erstwhile State of Jind whereunder it had to pay income tax only at concessional rates, it was held in Mills.
Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(1) that, after the said State merged with the Union of India, the latter was not bound by the contractual obligations of the ceding State on the basis of the principle that the treaty between the two sovereigns was an act of State and the clauses of that treaty were not enforceable.
In Jagannath Agarwala vs State of Orissa (2) it was held that after Mayurbhanj State had merged with the Province of Orissa the two money claims of the appellant against the Maharaja of Mayurbhanj State were not enforceable against the Orissa State on the ground that the Act of State did not come to an end till the claims made by the appellant were rejected and, therefore, municipal courts had no jurisdiction in the matter.
Where the petitioners held Khor Posh grants from the Rulers of Talcher, Bamra and Kalahandi under the respective State laws it was held in Promod Chandra Deb vs The State of Orissa(3) that the laws continued to have legal force after the merger of the said States with the Union of India.
Where the Nawab of Junagadh State made grants of property before he fled the State, it was held in (1) (2) ; (3) [1962] Supp.
(1) S.C.R. 405.
524 State of Saurashtra vs Jamadar Mohamad Abdullah(1) that the cancellation of the said grants by the Regional Commissioner, who assumed charge of the administration of the State before the said State was integrated with the United States of Saurashtra, was an act of State.
The question now raised did not arise for consideration in those cases.
This Court accepted the English doctrine of Act of State and acted on the principle that till the right of an erstwhile citizen of a ceding State was recognized by the absorbing State, he has no enforceable right against the State.
The scope and extent of the title to immovable property of a citizen of a ceding State was not examined in those decisions.
Nor the impact of the Constitution on such rights was considered therein.
In M/s. Dalimia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(1) the following observations are found at D. 741, which may have some bearing on the first aspect of the question: "It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign, and that as subjects of the new sovereign, they have only such rights as are granted or recognized by him." This observation is couched in wide terms.
But this Court was not concerned in that case with the distinction between pre existing title of a citizen of a ceding State to his property against all and that against the State.
Indeed, Bose J., in his dissenting judgment, made it clear that they were only concerned in that case with the contractual obligation of the erstwhile sovereign and that they were not dealing with the question of the title of the citizens to immovable property.
That the judgment had also nothing to do with the second aspect was made clear by the following observations of Venkatarama Aiyar J., who expressed the majority view, at p. 749: "This argument assumes that there were in existence at the date when the Constitution came into (1) (2) 525 force, some rights in the petitioner which are capable of being protected by article 19(1)(f).
But in the view which we have taken that the concessions under cl.
(23) of exhibit A came to an end when Ordinance No. 1 of section 2005 was promulgated, the petitioner had no rights sub sisting on the date of the Constitution and therefore there was nothing on which the guarantees enacted in article 19(1) (f) could operate.
" These observations indicate that this Court did not go back on the decision in Virendra Singh 's case(1) indeed, it re jected the argument based on that decision on the ground that the appellant lost his rights if any, under a pre Constitutional valid Ordinance.
In State of Saurashtra vs Jamadar Mohamad Abdulla(2), Mudholkar J., speaking for himself and for Sarkar J., expressed the view on the question of impact of section 299(1) of the Constitution Act of 1935 on the title to immovable property of a citizen of a ceding State thus, at p. 1001: ". before the respondents could claim the benefit of section 299(1) of the Constitution Act, 1935, they had to establish that on November 9, 1947, or thereafter they possessed legally enforceable rights with respect to the properties in question as against the Dominion of India.
They could establish this only by showing that their pre existing rights, such as they were recognized by the Dominion of India.
If they could not establish this fact, then it must be held that they did not possess any legally enforceable rights against the Dominion of India, and, therefore, section 299(1) of the Constitution Act, 1935, avails them nothing.
As already stated section 299(1) did not enlarge anyone 's right to property but only protected the one which a person already had.
Any right to property which in its very nature is not legally enforceable was clearly incapable of being protected by that section." (1) ; , 433, 4.
(2) (1962] 3 S.C.R. 970.
526 The same view was restated by the learned Judge in Promod Chandra Deb vs The State of Orissa(1).
It may be stated that the said question did not arise for consideration in either of those two decisions, for in the former the cancel lation of the order issued by the Ruler of the ceding State was made before the merger and in the latter, the Court held that the laws whereunder the grants were made continued to have legal force after the merger of the concerned States with the Dominion of India.
It may be pointed out that Das J., in the earlier decision and Sinha C.J., in the later decision, who delivered the leading judgments in those cases, had specifically left open that question.
It may, therefore, be stated without contradiction that in none of the decisions of this Court that were given subsequent to Virendra Singh 's case(2) the correctness of that decision was doubted.
Indeed, in the latest two decisions, the principle was sought to be extended to a situation arising under the Government of India Act.
but the majority of the learned Judges left open the question, though two of the learned Judges constituting the Bench expressed their view against such an extension.
On the findings, I have accept ed, the said question does not arise for consideration in this case and I do not propose to express my opinion thereon.
If that be the position.
is there any justification for this Court to refuse to follow the decision in Virendra Singh 's case(1).
In my View, the said decision is not only correct, but is also in accord with the progressive trend of modern international law.
After all, an act of State is an arbitrary act not based on law, but on the modern version of "might is right".
It is an act outside the law.
In the primitive society when a tribe conquered another tribe, the properties of the vanquished were at the mercy of the conqueror.
The successful army used to pillage, plunder and commit acts of arson and rape.
When society progressed, the doctrine of Act of State was evolved.
which really was a civilized version of the primitive acts of pillage and plunder of the properties of the conquered tribe.
But the further progress of civilization brought about by custom and agreement factual recognition of pre existing rights of the people of the conquered State.
There were two different lines of (1) [1962] Supp. 1 S.C.R. 405.
(2) ; 527 approach one adopted by imperialistic nations and the other by others who were not.
That divergence was reflected in English and American Courts.
All the jurists of internatio nal law recognise the continuity of title to immovable property of the erstwhile citizens of ceding State after the sovereignty changed over to the absorbing State.
In A Manual of International Law by Georg Schwargenberger, 4th Edn., Vol. 1, at p. 81 the learned author says: "Private rights acquired under the law of the ceding State are not automatically affected by the cession.
They must be respected by the cessionary State.
" A more emphatic statement is found in The Law of State Succession by O 'Connell.
Under the heading "The Doctrine of Acquired Rights" the learned author points out, at pp.
78 79: ". . only sovereignty and its incidents expired with the personality of a State.
The relationships of the inhabitants one to another, and their rights of property were recognized to remain undisturbed.
" He observes at p. 104: The doctrine of acquired rights is perhaps one of the few principles firmly established in the law of State succession, and the one which admits of least dispute." In Hyde 's International Law, second revised edition, Vol. 1, at p. 433, the following extract from the Sixth Advisory Opinion of September 10, 1923 of the Court of International Justice is quoted: "Private rights acquired under existing law do not cease on a change of sovereignty.
No one denies that the German Civil Law, both subs tantive and adjective, has continued without interruption to operate in the territory in question.
It can hardly be maintained that, although the law survives, private rights acquired under it have perished.
Such a contention is based on no principle and would be contrary to an almost universal opinion and practice. " 528 In Oppenheim 's International Law, 8th edition, Vol. 1 the same legal position is re stated at p. 571 thus: "It must be specially mentioned that, as far as the law of Nations is concerned, the subjugating State does not acquire the private property of the inhabitants of the annexed territory.
Being now their sovereign, it may indeed impose any burdens it pleases on its new subjects it may even confiscate their private property, since a sovereign State can do what it likes with its subjects; but subjugation itself does not by International Law affect private property.
" Starke in his book, An Introduction to International Law, 5th edn., observes, at p. 274: "Such of these rights as have crystallised into vested or acquired rights must be respected by the successor State, more especially where the former municipal law of the predecessor State has continued to operate, as though to guarantee the sanctity of the rights.
" Much to the same effect the relevant statement of inter national law is found in Briggs ' The Law of Nations, 2nd edn.
It may, therefore, be held that so far as title to im movable property is concerned the doctrine of international law has become crystallised and thereunder the change of sovereignty does not affect the title of the erstwhile citizens of the ceding State to their property.
In America the said principle of International Law has been accepted without any qualification.
Chief Justice John Marshall of the United States Supreme Court has succinctly stated the American legal position in United States vs Percheman (1) thus: "The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed.
If this be (1) ; at 86, 87.
529 the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?. .
A cession of territory is never understood to be a cession of the property belonging to its inhabitants.
The King cedes that only which belonged to him.
Lands he had previously granted were not his to cede.
Neither party could so understand the cession.
Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilised world.
The cession of a territory by its name from one sovereign to another.
conveying the compound idea of surrendering, at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sove reignty only, and not to interfere with private property.
" This principle has been accepted and followed by the American Courts in other decisions.
But it is said that the view of the American Courts is really based upon the circumstance that international treaties are part of the supreme law of the land.
Article VI of the Constitution of the United States declares that all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the Judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
Chief Justice Marshall in Foster vs Neilson(1) said: "Our Constitution declares a treaty to be the law of the land.
It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision." A treaty in America may be deemed to be a law of the land; but the American view is not solely based on treaties.
(1) ; 134 159 S.C. 34.
530 In The American Insurance Co. and the Ocean Insurance Co. vs Bales of Cotton(1), Chief Justice Marshall clearly recorded the view of the American Courts thus: "On such transfer of territory, it has never been held that the relations of the inhabitants with each other undergo any change.
" Again the learned Chief Justice in Charles Dehault vs The United States(2) expressly pointed out the existence of the said rights apart from any treaty.
He observed: "Independent of treaty stipulations, this right would be held sacred.
The sovereign who acquires an inhabited territory acquires full dominion over it; but this dominion is never supposed to divest the vested rights of individuals to property." Therefore, the distinction sought to be made may perhaps have some relevance, if in a particular treaty there.
is a specific term that the United States shall recognize the acquired rights of a citizen of a ceding State, but none if the treaty does not contain such a covenant.
The American decisions, therefore, cannot be distinguished on this narrow ground; they have recognized the doctrine of International Law and inter woven it in the texture of the American municipal law.
The Courts in England have developed the doctrine of act of State which, in the words of Stephen, means "An act injurious to the person or property of some person who is not at the time of that act a subject of Her Majesty; which act is done by a representative of Her Majesty 's authority, and is either sanctioned or subsequently ratified by Her Majesty.
" A treaty whereunder a sovereign territory is ceded is held to be an act of State, for it is not done under colour of any title but in exercise of a sovereign power.
Has the law of England denied the doctrine of acquired rights so well settled in International Law? (1) (2) , 131.
531 In Vajesingji Joravarsingji vs Secretary of State for India in Council(1), the Judicial Committee summarized the law on the subject thus: "When a territory is acquired by a sovereign State for the first time that is an act of State.
Any inhabitant of the territory can make good in the Municipal Courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized.
Such rights as he had under the rule of predecessors avail him nothing.
Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce these stipulations in the municipal Courts.
The right to enforce remains only with the high contracting parties. . ".
The sentence in the said passage, namely, "such rights as he had under the rule of predecessors avail him nothing", cannot be, in the context in which it appears, interpreted as a denial of the doctrine of acquired rights evolved by International ]Law, but it only refers to the question of enforceability of such an acquired right in a municipal court.
The same view has been expressed in a number of English decision.
Therefore, the law in England is that the municipal courts cannot enforce the acquired rights of the erstwhile citizens of the ceding State against the absorbing State unless the said State has recognized or acknowledged their title.
This Court accepted the English.
doctrine of act of State in a series of decisions noticed by me earlier.
What does the word "recognize" signify? It means "to admit, to acknowledge, something existing before." By recognition the absorbing State does not create or confer a new title, but only confirms a pre existing one.
It follows that till the title Is recognized by the absorbing State, it is not binding on that State.
An exhaustive exposition of this branch of law is found in Promad Chandra Dab 's case(2).
I am bound by that decision.
O 'Connell in The Law of State Succession (1) 51 I.A. 357.
(2) [1962] Supp.
(1) S.C.R. 405.
532 brings out the impact of the doctrine of act of State on that of acquired rights under International Law, at p. 88, thus: "The doctrine of act of State is one of English municipal law.
It merely denies an English Court jurisdiction to inquire into the consequences of Acts of the British Government which are inseparable from the extension of its sovereignty.
The court is not entitled to ask if such acts are 'just or unjust, politic or impolitic ' or what legal rights and duties have been carried over in the change of sovereignty.
The doctrine is not intended, however, to deny a rule of International Law.
" In the words of the same author, the fact that a right can not be enforced does not mean that it does not exist.
Non recognition by the absorbing State does not divest title, but only makes it unenforceable against the State in municipal courts.
The result of the discussion may be summarized thus: the doctrine of acquired rights, at any rate in regard to immovable property, has become crystallized in International Law.
Under the said law the title of a citizen of a ceding State is preserved and not lost by cession.
The change of sovereignty does not affect his title.
The municipal law of different countries vary in the matter of its enforceability against the State.
As the title exists.
it must be held that even in those countries, which accepted the doctrine of act of State and the right of a sovereign to repudiate the title, the title is good against all except the State.
Before the Constitution came into force the State did not repudiate the title.
When the Constitution of India came into force the respondent and persons similarly situated who had title to immovable property in the Sant State had a title to the said property and were in actual possession thereof.
They had title to the property except against the State and they had, at any rate, possessory title therein.
The Constitution in article 31(1) declares that no person shall be deprived of his property save by authority of law.
That is, the Constitution recognized the title of the citizens of the erstwhile State of Sant, and issued an injunction against the 533 soveriegn created by it not to interfere with that right except in accordance with law.
A recognition by the supreme law of the land must be in a higher position than that of an executive authority of a conquering State.
I would, therefore, hold that the title to immovable property of the respondent was recognized by the Constitution itself and therefore, necessarily by the sovereign which is bound by it.
1, therefore, respectfully hold that Virendra Singh 's case(1) has been correctly decided.
Apart from the recognition of the title of the respondent by the Constitution, in this case the letter written by the Government of India, dated October 1, 1948, clearly recognized the title of persons situated in the position of the respondent to their properties.
But the learned AttorneyGeneral contends that the letter shall be regarded as part of the merger agreement and therefore its terms cannot be relied upon for the purpose of recognition of the respondent 's title or of evidence of the Govemment 's waiver of its right to repudiate the respondent 's title.
It is true that in the concluding portion of the letter it is stated that the contents of the letter will be regarded as part of the merger agreement.
But the merger had already taken place on June 10.
1948 and this letter was written on October 1, 1948.
It does not appear from that letter that the Maharana of Sant State, who ceased to be the Ruler except in name for certain privileges, was a party to it.
This letter, therefore, can at best be treated as one of the acts of the Government of India implementing the terms of the merger agreement.
It cannot, therefore, be said to be a part of the merger agreement.
If it was not, by calling it so it did not become one.
At the time the letter was sent all the citizens of the erstwhile Sant State had become the citizens of India.
The letter contains a clear statement in paragraphs 5 and 7 thereof that enjoyment of ownership of jagirs, grant etc.
existing on April 1, 1948 were guaranteed and that any order passed or action taken by the Ruler before the said date would not be questioned.
This is a clear recognition of the property rights of the respondent and similar others.
It is necessary, therefore, to express my opinion on the ques (1) ; 534 tion whether, even if the said letter formed part of the merger agreement, any recital therein can be relied upon as evidence of recognition of pre existing titles by the absorbing State or waiver of its sovereign right to repudiate the said titles.
For the aforesaid reasons I agree that the appeal should be dismissed with costs.
For the same reasons Civil Appeals No. 183 to 186 of 1963 are also dismissed with costs.
HIDAYATULLAH J.
These appeals by the State of Gujarat impugn a common judgment of the High Court of Gujarat dated January 24, 1961.
The respondents were plaintiffs in five suits for declaration of rights in forests and for permanent injunction against interference with those rights by the State.
All suits except one were dismissed by the Court of first instance.
The District Judge on appeal ordered the dismissal of that suit also and dismissed the appeals of the plaintiffs in the other suits.
The plaintiffs then appealed to the High Court and by the judgment under appeal, all appeals were allowed and the suits were decreed.
The State Government has now appealed to this court by special leave.
The forests in respect of which the declaration and injunction were sought are situated in the former State of Santrampur (also called Sant State).
Santrampur Was an Indian State and the Ruler attained independence and sovereignty on August 15, 1947 on the ceasing of the para mountcy of the British Crown.
The Ruler at first ceded his sovereignty on three subjects to the Government.
of India but on March 19, 1948, ceded the territory of the State to the Government of India by an agreement which came into force from June 10, 1948.
The Central Government, by virtue of powers vested in it by the Extra Provincial Jurisdiction Act, 1947, delegated its functions to the Provincial Government of Bombay and on June 2, 1948, the Administration of the Indian States Order was passed and it was applied to Sant State from June 10, 1948.
On July 28, 1948, the Indian States (Application of Laws) Order, 1948 535 was passed.
Certain enactments in force in the Province of Bombay were extended to Sant State and then under the States ' Merger (Governor 's Provinces) Order, 1949, Sant State became a part of the Province of Bombay from August 1, 1949.
On October 1, 1948, a letter of guarantee was written to the Ruler by Mr. V. P. Menon in which it was stated.
as follows: ". . 7.
No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned unless the order was passed or action taken after the 1st day of April, 1948, and it is considered by the Government of India to be palpably unjust or unreasonable.
The decision of the Government of India in this respect will be final.
" It was Added that the letter would be read as part of the original Merger agreement.
A week before ceding the territories of his State, the Ruler of Sant made a Tharao or Thavan order as follows: "Order 3.
Outward Register No. 371.
The Jivak, Patayat, Inami, Chakariyat, Dharmada villages in Sant State are being given (granted) to Jagirdars and the holders of the said villages are not given rights over forests.
Hence after considering the complaints of certain Jagirs, they are being given full rights and authority over the forests in the villages under their vahivat.
they should manage the vahivat of the forest according to the policy and ad ministration of the State.
Orders in this regard to be issued.
In English.
Maharana, Sant State.
" 536 The former grants which were made in favour of the jagirdars and holders of the villages have not been produced, but they were probably like the grant of village Gothimada dated December 1, 1857, which was to the following effect: ". .
You have to do the vahivat (management) of the land situate within the permanent boundaries of the outskirts of the villages in four directions.
This village has been granted for the appropriation and enjoyment of the income thereto except in respect of civil and criminal matters.
So you must behave in the State in accordance with the custom and usage and practice of other Thakarati villages of the State.
If any person of the village is ordered in regard to any work or matter then you should not in any way interfere therein but produce the said person as per order.
You have to act and behave according to the said clauses and should remain with integrity and honesty and loyal to the State.
Dated: 1 12.1867 A.D.S.Y. 1929 Magsar.
Sudu 5.
" After the Tharao was issued on March 12, 1948, some of the Thakores executed contracts in favour of the plaintiffs between May 1948 and 1950.
The agreements which were made with the contractors are on the file of the appeals.
The Thakores and the contractors then began to take forest produce but they were stopped in April 1949.
The present five suits were then filed.
Four of the suits were instituted by the contractors and the fifth by one of the Thakores in the capacity as inamdar.
After merger, a question arose whether these contracts should be approved or not.
On January 1949, on the application of one of the Thakores, an order was passed by the Divisional Forests Officer.
It was as follows: 537 .lm15 "Gothimada village of santrampur State.
Application of the owner requesting to grant authorization to the Contractor and states that he has no objection if the authorization is issued.
Is the authorization up to Lunawada and Signally only, time limit up to 31 3 1949.
No export outside to be permitted, pending receipt of orders from Government.
Written undertaking to be taken from the purchaser that he will abide by the decision and orders passed by Government and then the authorization handed over.
Send copy to F.O. Lunawada." Similar orders were passed in respect of other villages and undertakings were taken from the Thakores and the con tractors.
A sample is quoted here "UNDERTAKING: I, Thakore Sardarsingh Gajesingh hereby give an undertaking to abide by the decision and or ers passed by the Government of Bombay in respect of Gothimada forests, rights over which were conferred on me by Santrampur State Government on 12 3 48 in their resolution No. G. 371 dated 12 3 48.
Authorization Nos. 111, 112 of 1948 49, in respect of village in Santrampur State issued by the Divisional Forest Officer, Integrated States Division, Devgad Baria in favour of Mr. Hatimbhai Badruddin is subject to the above undertaking.
Dated 1 2 49.
in Gujarathi.
" The Conservator of Forests, North Western Circle also issued a memorandum on January 18, 1949 stating: ". .
However, to safeguard the Government interest written undertaking should be taken from the jahagirdars, Inamdars of person or persons.
concerned that he or they would abide by the decision or orders passed by the Bombay Gov ernment in respect of such private forests, when the question of rights over such private forests is finally settled.
" When the undertakings were furnished, passes were issued to the contractors.
In April 1949, however, the work of all the contractors was stopped and on July 8, 1949, Government sent a communique to the Collector of Panch Mahals repudiating the Tharao of March 12, 1948.
In this letter it was stated as follows: "Reference your memorandum No. ADM(P) 50 A11, dated 24th May, 1949, Government considers that the order passed by the Ruler of the Sant State under his No. 371, dated 12th March, 1948 transferring forest rights to all the jagirdars of the jagir village, are mala fide and that they should be cancelled.
Before, however, taking further action in the matter, please ascertain whether the possession of the forests in question is with Government or has gone to the Jagirdars.
If the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes, etc.
to private contractors and purchasers.
By order of the Governor of Bombay.
Sd/ ".
It appears that this was not communicated to the contractors of the Thakores.
On June 29, 1951, the Government of Bombay passed a resolution that the Maharana 's order would not be given effect to.
Another resolution was passed on February 6, 1953 as follows: "On the eve of the merger of the Sant State in the State of Bombay, the Ruler of that State issued Tharav No. 371 on 12th March, 1948, under which Jiwai, Patawat, Inami, Chakriat and Dhannada Jagirdars and inamdars were given full forest rights over the villages in their charge.
The Government 539 of Bombay, after considering the implication of the Tharav, decided that the order was mala fide and cancelled it on 8th July, 1949 vide Government Letter, Revenue Department No. 2103 M 49 dated the 8th July, 1949.
By the time these orders were issued, the tree growth in the Jagiri forests concerned was already sold by some of the Jagirdars and the trees cut.
Further cutting of trees and export of trees cut was however stopped by the Forest Department after receipt of the orders of 8th July, 1949.
On representation being made to Government, however, agreed to allow to release the material felled from the forest under dispute, pending decision on the settlement of forest rights, subject to the condition that the contractor furnished two sureties solvent for the material removed or deposited with the Divisional Forest Officer certain amount per wagon load of material.
The owner of the material was also asked to give a written undertaking that he would abide by the ultimate decision of Government.
. . . 5.
Government is, however, pleased to examine individual cases of Jagirdars and inamdars irrespective of the Tharav of 1948, on the basis of the Forest Settlement Officer 's Report and other considerations.
The question of forest rights in the following villages is still under consideration of Government and necessary orders in that behalf will be issued in due course: (1) Nanirath.
(2) Gothimada.
(3) Rathada.
. . . " Before this the suits we are dealing with were filed.
The contention of the plaintiffs was that the Merger agreement of March 1948 was not an Act of State, because it was preceded by surrender by the Ruler of sovereignty in respect of three subjects.
This contention was not accepted in the High Court and has not been raised here.
The next conten tion was that the Tharao or order of March 12, 1948 was a 540 legislative act and as all the old laws of the State were to continue to be in force except as modified by the Indian States (Application of Laws) Order, 1948, the Tharao could be revoked by the appellant by Legislative authority only and not by an executive act.
The High Court did not accept this contention, because according to the High Court, the Tharao was not a piece of legislation, but was a rant by the Ruler.
The third contention was that the Central Government through Mr. V. P. Menon has undertaken not to question any order or action taken before 1st April, 1948, and that this created a bar to the repudiation of the order of the Maharana dated March 12, 1948.
This contention was not accepted by the High Court.
The High Court held that the letter formed a part of an Agreement which could only be enforced by the High Contracting Parties, if at all, but not by any other person, and in any event, municipal courts had no authority to enforce the agreement.
The High Court relied upon article 363 of the Constitution and the decisions of this Court.
The High Court, however, accepted the contention of the plaintiffs, that it was open to the succeeding sovereign to waive or relinquish its right to repudiate the actions of the previous Ruler and to acknowledge either expressly or impliedly the rights conferred on the subjects of the previous Ruler and that this had been done in this case.
They referred to the permission which had been given by the officers of the Forest Department to the plaintiffs in this suit to cut and carry away the timber and regarded the letter of Mr. V. P. Menon as evidence of waiver and relinquishment.
They held on the authority of Virendra Singh and Others vs The State of Uttar Pradesh(1) and Bholanath J. Thakar vs State of Saurashtra (2) and the judgment of the Bombay High Court in Bhoirajji vs Saurashtra State(3) that the Government must, in these circumstances, be held to have waived or relinquished its rights to enforce the Act of State against the plaintiffs.
On behalf of the appellant, it is urged (a) that the Act of State continued till the resolutions were passed and there (1) ; (2) A.I.R. (1954) S.C. 680 (3) 541 was no waiver or relinquishment in favour of the appellants, and (b) that the action of the subordinate officers of the Forest Department did not bind Government and the res pondents cannot take advantage of the letter of Mr. V. P. Menon.
On behalf of the respondents, in addition to meeting the above arguments, it is contended that the Tharao was a law and could only be revoked by another law.
It is further argued that after the Merger, section 299(1) of the Government of India Act, 1935 which read "No person shall be deprived of his property in British India save by authority of law" protected the respondents and this protection became absolute on January 26, 1950, by reason of article 31 of the Constitution.
As the resolutions in question were passed after the commencement of the Constitution, it is urged that they cannot affect the rights of the respondents who came under the protection of article 31 of the Constitution.
It is contended that in any case, the Act of State could not operate against the citizens of the State which the res pondents became on the Merger or on the inauguration of the Constitution.
It is also argued on behalf of the res pondents on the authority of a case of the Permanent Court of International Justice and certain cases of the Supreme Court of the United States that the Act of State should not interfere with rights in property held from a former Ruler.
The appellant contends in reply that the Act of State continued, because the contractors, and jagirdars were permitted to work the forests on their furnishing under takings, and it was only completed against them in April, 1949, when they were asked to stop their work even though the actual order of Government deciding whether to accept the Tharao or not was communicated to them in 1953.
It is argued that what was of real consequence was not the decision of the Government but the stoppage of the work.
It is also argued that section 299(1) did not protect the respon dents against the Act of State and that as there was no State succession on January 26, 1950, the original Act of State did not come to an end.
It is also pointed out that this Court has not accepted the rule of International Law referred to in Virendra Singh 's case(1) and has instead acted on (1) ; 542 the doctrine of Act of State as interpreted by the Courts in England.
I shall deal with these points in brief, because most of them have been decided against the respondents in the High Court on the basis of earlier rulings of this Court.
To begin with, this Court has interpreted the integration of Indian States with the Dominion of India as an Act of State and has applied the law relating to an Act of State as laid down by the Privy Council in a long series of cases beginning with Secretary of State in Council for India vs Kamachee Boye Saheba(1) and ending with Secretary of State vs Sardar Rustam Khan and Other(2).
The cases on this point need not be cited.
Reference may be made to M/s. Dalmia Dadri Cement Co. Ltd. vs Commissioner of Income tax(3), The State of Saurashtra vs Menon Haji Ismali Haji(4), jaganath Agarwala vs State of Orissa(4) and State of Saurashtra vs Jamadar Mohamed Abdulla and Others(5).
In these cases of this Court, it has been laid down that the essence of an Act of State is an arbitrary exercise of sovereign power on principles which are paramount to the Municipal Law, against an alien and the exercise of the power is neither intended nor purports to be legally founded.
A defence that the injury is by an Act of State does not seek justification for the Act by reference to any law, but questions the jurisdiction of the court to decide upon the legality or justice of the action.
The Act of State comes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens.
It does not come to an end by any action of subordinate officers who have no authority to bind the new sovereign.
Till recognition, either express or implied, is granted by the new sovereign, the Act of State continues.
If we apply these tests (rightly applied in the High Court), we reach the result that the Government of Bombay and the Central Government could refuse to recognise the rights created on the eve of the Merger by the Tharao of the Maharana and to say that it was not acceptable to them and therefore not binding on them.
Such action may be (1) ; (3) [1959] S.C.R. 729 (5) ; (2) (1941) 68 I.A. 109.
(4) (1960] 1 S.C.R. 537.
(6) 543 harsh or unfair; but the Municipal Courts cannot declare it to be so, because unless the rights are irrevocably recog nised earlier the Municipal Courts have no jurisdiction to pronounce upon the legality or the justness of the action.
It is for this reason that the respondents pleaded in the High Court that there was a waiver or relinquishment of the Act of State in their favour.
Relinquishment and waiver were again relied upon by the respondents before us and they refer to two circumstances from which an inference about waiver or relinquishment can be raised.
The first is cl. 7 of the letter of Mr. V. P. Menon quoted above and the second is the conduct of the officers of the Forest Department in allowing the contractors and the jagirdars to work the forests in accordance with the Tharao of the Maharana.
Cl. 7 of a similar letter of guarantee was considered by this Court in Maharaj Umeg Singh and Others vs The State of Bombay and Others(1).
In that case also arguments were the same as here.
It was then contended that the Ruler 's agreement with the Government ensured for the benefit of the subjects even if they were not parties to the agreement.
It was then pointed out on behalf of the Government that the agreement, if any, could not be sought to be enforced by persons who were not parties to it.
This Court observed: "We do not feel called upon to pronounce upon the validity or otherwise of these contentions also for the simple reason that the petitioners would be out of Court either way.
If they were deemed to be parties to the agreements of merger and letters of guarantee they would be faced with the bar to the maintainability of the petitions under Article 363 of the Constitution which lays down that neither the Supreme Court nor any other Court shall have jurisdiction in any dispute arising out of any provision of a treaty, agreement, covenant, engagement, sanad or other similar instrument which was entered into or executed before the commencement of the Constitution by any Ruler of an Indian State and to which the Government of (1) ; 544 the Dominion of India. was a party.
If on the other hand they were deemed not to have been parties to the same they would not be the contracting parties and would certainly not be able to enforce these obligations.
" It would, therefore, appear that the present respondents who were not parties to the Merger agreement or to the letter written by Mr. Menon which was made expressly a part of the Agreement cannot take advantage of cl. 7.
If they were parties, article 363 would bar such a plea.
It is next contended that the Act of State had come to an end after the Government of India Act, 1935 was applied to the State and the State became a part of the territories of the Government of India.
This argument was raised to claim the benefit of section 299 (1) of the Government of India Act 1935.
The interference with the rights in forests conferred by the Tharao and the agreements with the contractors based on the Tharao took, place in April, 1949.
It was contended that on June 10, 1948, the subjects of Sant State became Indian citizens and they were protected by section 299(1).
The Officers of the Forest Department did not unconditionally allow the forests to be worked.
They made it clear to the contractors and the jagirdars that what they were doing was not final and that Government was going to decide about the Tharao and the contracts later.
No doubt, the forests were allowed to be worked, but an undertaking was obtained from each contractor and jagirdar.
This showed that the officers of the Forest Department did not attempt to bind the Government, even if they could.
It is true that the order of Government to stop work was not communicated to the contractors and the jagirdars but the working of the forests was as a matter of fact stooped much earlier and the learned Attorney General is right in pointing out that it was all that mattered.
This action of the officers was later approved by Government when it decided that it would not allow any rights to flow from the Tharao and the contracts.
In other words, while Government was considering the matter, the officers of the Forest Department tentatively allowed the forests to be worked but in no manner to bring the Act of State to art end.
The Act 545 of State could only come to an end if Government recognised the rights flowing from the Tharao.
That, Government never did.
There was thus no recognition of the Tharao or the rights flowing from it at any time.
It was pointed out by this Court in Aggarwala 's case(1) that Government may take time to consider and delay does not militate against the Act of State.
In that case also the decision of Government was taken after the coming into force of the Constitution.
This Court pointed out, agreeing with Vaje Singhji jorawar Singh vs Secretary of State for India(2) that enquiries may continue for some time without any inference of waiver or relinquishment.
No doubt, in Bholanath Thaker 's case(3) and in Virendra Singh 's case(4) waiver or relinquishment was inferred from the conduct of Government.
Such an inference may legitimately be raised where Government, after having accepted the rights, attempts to go back upon such acceptance.
There must, however, be a clear indication, either expressly or by implication, that Government has, in fact, accepted the rights.
In the present case, the subordinate officers of the Forest Department allowed the forests to be worked, making it quite clear that Government was considering the matter and took undertakings from the respondents that they would abide by the decision of Government.
Government passed an order declining to accept the Tharao.
The order so passed was not communicated to the respondents but later it was reiterated as a resolution which was communicated.
To avoid this result, there are two arguments upon which the respondents rely and they are the main contentions in these appeals.
The respondents seek support for the judgment by challenging the decision on some of the points decided against them.
The first is that the Tharao was a law which could only be rescinded by another law.
In this connection, the respondents rely upon the observations made by this Court in Madhaorao Phalke vs The State of Madhya Bharat(5).
These observations were based upon (1) ; (2) (1924) L. R. 51 I. A. 357.
(3) A I.R. (4) ; (5) ; 964. 134 159 SC 35.
546 the earlier case in Ameer un nissa Begum and Others vs Mehboob Begum and Others(1).
In these cases, it was pointed out that the distinction between legislative, executive and judicial acts of an absolute Ruler (such as the Indian Rulers were) was apt to disappear when the source of authority was the sovereign.
These observations are sought to be applied here.
In the past also these observations were invoked on occasion.
In so far as the subjects of the Ruler were concerned, they were bound to obey not only laws but any orders of the Ruler, whether executive or judicial.
For them they did not exist any difference because each emanation of the will of the sovereign required equal obedience from them.
But it does not mean that the Ruler acted legislatively all the time and never judicially or executively.
If this was the meaning of the observations of this Court, then in Phalke 's case(2) it would not have been necessary to insist that in determining whether there was a law which bound the succeeding sovereign, the character.
content and purpose of the declared will must be independently considered.
In Ameer un nissa 's case,(3) this Court was concerned.
With a Firman of the Nizam and that was one of the accepted modes of making laws in Hyderabad State.
In Phake 's case(2), this Court was concerned with Kalambandis which were held by this Court to be laws binding upon the subsequent Government unless repealed or replaced by other law.
The Kalambandis were so regarded partly because the Maharana had himself laid down that Kalambandis issued by him were to be regarded as law, and partly because the Kalambandis created a tenure which carried with it pensions.
The pensions were grants but the manner of enjoyment of the pensions was determined by the rules of tenure provided in the Kalambandis also bearing upon succession and devolution.
These cases were distinguished in more recent cases when the observations were sought to be extended to others which were clearly not legislative and reference may be made to Maharaj shree Umaid Mills Ltd. vs Union of India and Others(3) and The Bengal Nagpur Cotton Ltd. vs The Board of Revenue, Madhya Pradesh and Others(4).
It was pointed (1) A.T.R. (2) ; , 964.
(3) A.T.R. (4) ; 547 out in these two cases that the observations in Ameer un nissa 's case(1) Phalke 's case(2) could not be read as indicating that everything that the Maharaja said or ordered was a law.
In the latter case, this Court pointed out that a proper law would be one which was made in accordance with the traditional mode of making laws in the territory or in accordance with some procedure which was expressly devised for tile occasion.
It was pointed out that law is the result of a legislative process and the result must be intended to bind as a rule of conduct; it must not for example be a contract or a grant or a gift etc.
Viewed from this angle, it is quite obvious that the Tharao was not a law.
It was a grant made to the jagirdars mentioned in the Tharao.
It is contended that it is made applicable to persons belonging to five different tenures and that the 'management ' of the forests was to be done according to the policy and administration of the State.
No doubt, the Tharao is applicable to a large number of persons enjoying different tenures but it is stated therein that orders were to be issued individually to all of them.
The Tharao was issued only 8 days before the Merger.
It is surprising that the Maharaja thought of the complaints of the grantees on the eve of the Merger.
The fact that the Maharana 's Tharao was passed to benefit a large number of persons en bloc does not make it any the more a law if it did not possess any of the indicate of a law.
The respondents would not admit that if it had been addressed to individuals, it would have changed its character from a law to a grant.
This fact makes no difference to its character.
content and purpose.
Further, the original grant of which the Tharao became a part was also a grant.
One such grant has been quoted above.
The word "Vahivat" does show that the grant was for management but in this context, it means more than management.
It was customary to use this word in conferring rights which were liable to be resumed.
These grants did give rights to the grantees but did not lay down any rule of conduct.
It may be pointed out that in Umeg Singh 's case(3) it was contended that cl. 5 of the letter of (1) A.I.R. 1955 S.C. 352.
(2) ; , (3) [1955] 2 S.C.R.164.
548 Mr. Menon prevented legislation and it was then held that the grants were not legislative measures of the Maharaja and did not bar the making of laws to set the grant at naught.
In that case also there was a Tharao in dispute.
The Tharao cannot, therefore, be treated as a law at all.
It is a grant and as a grant it was open to the new sovereign not to recognise it.
It was contended that in any event, after the commencement of the Government of India Act, 1935, the respondents had the protection of section 299(1).
This point was raised but was left open by the majority in Jamadar 's case(1) to which we have already referred.
On that occasion, Sarkar and Mudholkar JJ.
in a separate judgment held that section 299(1) did not afford any protection.
The learned Judges pointed out that section 299(1) did not add to the rights of persons but protected such rights as existed.
If on the Merger of the territories of the Indian Rulers with those of the Government of India.
there was Act of State and if as held by this Court in the cases to which reference has alreadY been made it was open to the Government of India to decide whether or not to recognise certain rights, the Government of India could do so.
In that event, section 299(1) did not come into play because it could only come into play after the rights were recognised.
The Act of State continued because Government was taking time to consider whether to accept the Tharao or not and while the decision was being reached, there was a second change inasmuch as the present Constitution was passed.
It is contended that there was a lapse of the original Act of State because of a State succession on January 26, 1950, and as this was before the Resolutions of 1951 and 1953, the respondents were protected.
The first question to consider is whether there took place in 1950 a State succession.
State succession takes place either in law or in fact.
It takes place in law when there is a juridical substitution of one State for another.
It take place in fact when there is (a) annexation (2) or (b) cession(2) (1) (2) e.g. Algiers by France (1831) or South African Republic by Great Britain (1901).
(3) e.g. the Ionian Islands by Britain to Greece (1864) or territory to Poland by Germany.
549 or (c) fusion of one State with another into a federal Union (2) or (e) partition ration of secession(3).
It will be seen that on the 26th January, 1950, there was no succession in fact because none of these events took place.
As Oppenheim defined "succession" "A succession of International Persons occurs when one or more International Persons take the place of another International Person in consequence of certain changes in the latter 's position International Law, 5th edn.
p. 151.
" In this sense, though the people of India gave themselves a Constitution, there was no State succession in so far as the people of Sant State were concerned.
For them the State succession was over sometime before.
No doubt, when the Dominion of India became a sovereign Democratic Republic, there was a breaking away from the British Crown, but that was a State succession in a different field.
We are not concerned with the secession of India from the British Crown, but with State succession between Sant State and India, and there was no second succession in 1950.
Whatever had happened had already happened in 1948 when Sant State merged with the Dominion of India.
The Act of State which began in 1948 could continue uninterrupted even beyond 1950 and it did not lapse or get replaced by another Act of State.
The Constitution no doubt guaranteed the rights of citizens after 1950 but these rights granted by the Ruler were fort recognised even before 1950 and the Constitution gave its support to those rights which were extant on January 26, 1950.
It only remains to consider the argument of Mr. Purushotham based on the view of Chief Justice John Marshall, of the Supreme Court of the United States expressed in U.S. vs Percheman(3) followed by Cardozo J. in 1937 (1) e.g. Fusion of Serbia with croat etc.
to form Yugoslavia.
(2) e.g. Hawaii in U.S.A. (3) e.g. India and Pakistan.
(4) e.g.
U.S.A. from Britain.
(5) ; at 86, 87. 550 in Shapleigh vs Mier(1).
It was there laid down that private ownership is not disturbed by changes in sovereignty and that according to the modern usage of nations a cession of territory is not understood to be cession of the property of the inhabitants.
These two cases were referred to in the judgment of Bose J. in Virendra Singh 's case (2) who pointed out that these principles were also reflected in the Sixth Advisory Opinion of September 10, 1923 of the Permanent Court of International Justice.
Mr. Purushotham cited other cases where the Supreme Court of the United States had considered obligations which old Spanish and Maxican treaties had created.
It was argued that this represents the modern and progressive view and we were asked to revise the entire law of Act of State as understood in India during the past 100 years and particularly the last dozen years.
The principle on which this Court has acted in the past few years has been amply indicated earlier in this judgment.
It may be summarized in the words of Fletcher Moulton, L. J. in Salaman vs Secretary of State for India(3): "An Act of State is essentially an exercise of sovereign power, and hence cannot be challenged, controlled or interfered with by municipal courts.
Its sanction is not that of law, but that of sovereign power, and, whatever it be, municipal courts must accept it, as it is without question.
But it may, and often must, be part of their duty to take cognizance of it.
For instance, if an act is relied on as being an act of State, and as thus affording an answer to claims made by a subject, the courts must decide whether it was in truth an act of State, and what was its nature and extent".
The Courts in England have also acted on the further principle which may be shortly stated in the words of Lord McNair(4): (1) ; at 470.
(2) ; (3) (1906] 1 K. B. 613.
(4) International Law Opinions (1956) Vol ; See also O 'Connel Y. B. 551 "The term 'Act of State ' is used, not only narrowly to describe the defence explained above, but also, perhaps somewhat loosely, to denote a rule which is wider and more fundamental namely, that 'those acts of the Crown which are done under the prerogative in the sphere of foreign affairs ' (sometimes called 'Acts of State ' or 'Matters of State '); for instance, the making of peace and war, the annexation or abandonment of territory, the recognition of a new State or the new Government of an old State, etc., cannot form the basis of an action brought against the Crown, or its agents or servants, by any person British or alien, or by any foreign State, in British Municipal Tribunals.
Such acts are not justiciable in British Courts, at the suit either of British subjects or of aliens; they may form the subject of political action in Parliament or, when the interests of foreign States or their nationals are involved, of diplomatic protest or of any international judicial process that may be available".
We are not concerned with the obligations created by treaty which according to the opinions of some writers 'run with the land ' and bind the territory.
Other writers, as pointed out by Lord McNair in his Law of Treaties by Keith in his Theory of State Succession and Crandall in Treaties, Their Making and Enforcement.
hold that on cession, the treaties are abrogated automatically.
Such a view was taken by the United Kingdom and United States when Algiers was annexed by France and by the former when South Africa was annexed by Great Britain and by the United States when Korea was annexed by Japan in 1910.
(See Mervyn jones B. Y. B. ; Dr. C. W. Jenks B. Y. B.
On the other hand, the treaties of the annexing or cessionary State are held to apply to the new territories.
These are treaties with other States which is not the case here.
Where is the treaty here? The rights conferred by the Ruler were not the result of a treaty.
Nor 552 can the Merger agreement be exalted to the position of a treaty.
There is no treaty involved here.
Even if it were possible to hold that there was a treaty between the Ruler and the Central Government, there is no power in the Municipal Courts in India to pronounce upon the Agreement as the subject is outside their jurisdiction by reason of article 363.
This distinguishes the jurisdiction and power of the Supreme Court of the United States in which consideration of treaties is included.
The bar of our Constitution also precludes the consideration whether these agreements can be to be of the nature of treaties.
As regards the principles of International Law, it may be pointed out that after the Report of the Transvaal Concessions Commission and Professor Keith 's theories in his book, the attention of the world communities has indeed been drawn to the preservation of economic concessions and acquired rights by the annexing or cessionary State.
When the Indian Islands were ceded to Greece the Law Officers (Sir Robert Phillimore was one of them) advised: "Both according to the principles of International Law and the practice of all civilised States, ceded territories pass, cum onere to the new sovereign. ' (Opinion of 15th August, 83/2287.) McNair International Opinions, Vol.
1 p. 156.
Similar advice was given on the occasion of annexation of Peruvian territory by Chile (1884), of Madagascar by France (1896), cession of Cuba and the Philipines by Spain (1898).
McNair ibid pp.
157 et seq.
Again at the annexation of the Boer Republics between 1900 and 1909 what should be the attitude of Britain led to domestic controversy.
The legal advisor to the High Commissioner advised that responsibility arising from obligations incurred by the South African Republic and Orange Free State could be repudiated but the Law Officers in England reported that a Government annexing territory annexes it subject, speaking generally, to such legal obligations as have been incurred by the previously existing Government.
The obligations included concessionary contracts but the Law Officers added a 553 rider that "the duty to observe such contracts cannot be enforced in a municipal court; it rests merely on the recognition of International Law of what is equitable upon the acquisition of property of the conquered State" (see opinion of 30th November, 1900, F.O. quoted by B. Y. B. 1950 at p. 105).
The Transvaal Concessions Commission made its report in April 1901.
The report said inter alia: "After annexation, it has been said, the people change their allegiance, but their relations to each other and their rights of property remain undisturbed; and property includes rights which lie in contract.
Concessions of the nature of those which are the subject of enquiry present examples of mixed public and private rights : they probably continue to exist after annexation until abrogated by the annexing State, and as a matter of practice in modern times, where treaties have been made on cession of territory, have often been maintained by agreement.
" The Commission, however said that no rule of International Law compelled this but added that the best modern opinion favoured that such rights should be respected.
The distinction between what is a rule of law and what is a rule of ethics was criticised : see Westlake in (1901) 17 Law Quarterly Review p. 395.
However, Prof. Keith gave support to the view.
The report of the Commission was considerably influenced by the opinion in Cook vs Sprigg(1) International experts, however, in drafting the terms of settlement of the first Balkan War accepted a new formula in 1920 by which the cessionary State was treated: as subrogated in all rights and changes.
These opinions were put to test in some cases before the Permanent Court of International Justice in connection with the Jaffa Concessions and the case of the German Settlers Case.
In the former, the Court decided, for technical reasons, that it had no jurisdiction but added that "if Protocol XII left intact the general principles of subrogation," the administration of Palestine was bound to recognise the Jaffa, (1) 554 Concessions "in consequence of the general principles of International Law." In the case of Settlers of German origin in territory ceded by Germany to Poland and German interest in Upper Silesia case (P.C.I.J. series B No. 6 and series A No. 7) the doctrine of acquired rights was accepted, in respect of private rights.
The term "acquired rights" has not received a consistent meaning in this connection.
It is not the notion of ius quaesitum which was the result of juristic activity following upon the social contract theory.
In International Law, it has different meanings.
At one extreme is the view that it must be "a grant to an individual of rights under municipal law which touch public interest" and at the other end "every economic concession" is held included.
Of course even International Law does not recognise,a universal succession.
The term economic concessions" must involve a contract between the State or a public authority on the one hand and a concessionaire on the other and must also involve an investment of capital by the latter for erection of public works or exploitation in the public sector.
Such cases are the Mavromma is case, Lighthouses case, Lighthouses in Crete and Samos case (P.C.I.J. Series A No. 5 and Series A B No. 62 and 71 ).
Cases of mere private rights without any corresponding benefit to the public are not regarded as concessions but there are two cases in which it has been ruled that private rights must be respected.
They are the case of Poland mentioned above.
Most of the cases deal with Concessions in which there are reciprocal advantages.
All this recognition is still in the diplomatic field.
It has never gone beyond political consideration except in the United States.
The cases of the United States are mostly to be found in 2 12 Peters and the leading case is U. section vs Percheman (1).
Occasionally the question of concessionary rights has been considered in the Courts in England : but of that latter.
In U. section vs Percheman(1), Chief Justice John Marshall observed: "It may not be unworthy of remark that it is very unusual, even in cases of conquest for the (1) 555 conqueror to do more than to displace the sovereign and assume dominion over the country.
The modem usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilised world would be outraged, if private property should be generally confiscated, and private rights annulled.
The people change their allegiance; their relation to (their ancient sovereign is dissolved; but their relations to each other, and their rights of property remain undisturbed.
If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory?. .
A cession of territory is never understood to be a cession of the property belonging to its inhabitants.
The King cedes that only which belonged to him.
Lands he had previously granted were not his to cede.
Neither party could so understand the cession.
Neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilised world.
The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them would be necessarily understood to pass the sovereignty only, and not to interfere with private property.
" These words of Chief Justice Marshall have been quoted in legal opinions and have influenced international opinion.
The question has been raised that we must accent this as the exposition of the law to be applied by municipal courts here.
The doctrine in the United States is not unlimited.
Limitations were pointed out by Chief Justice John Marshall himself in the case of Foster vs Nielson(1).
That case (1) ; 556 involved the effect upon private land titles of a phrase in an Article of a treaty with Spain.
That phrase was "shall be ratified and confirmed to those in possession".
It was, as the Chief Justice said, in the "language of contract" and.
it required legislative implementation before titles could be claimed.
This has led to a differentiation between self executing treaties and non self executing treaties.
Says Chief Justice John Marshall: "A treaty is in its nature a contract between two nations, not a Legislative Act.
It does not generally effect, of itself, the object to be accomplished, especially so far as its operation is infra territorial; but is carried into execution by the sovereign powers of the respective parties to the instrument.
In the United States a different principle is established.
Our Constitution declares 'a treaty to be the law of the land.
It is, consequently, to be regarded in courts of justice as equivalent to an Act of Legislature, whenever it operates of itself without the aid of any legislative provision.
But when the terms of the stipulation import a contractwhen either of the parties engages to perform a particular act the treaty addresses itself to the political, not the Judicial Department; and the Legislature must execute the contract before it can become a rule for the Court.
" In India, the position is different.
Article 253 enables legislation to be made to implement international treaties.
This means that the law would bring the treaty in the field of municipal law.
The matter was considered in one cam Birma vs The State(1), where the High Court declared: "Treaties which are a part of international law do not form part of the law of the land unless expressly made so by the legislative authority".
This accords with what has been said by me but the judgment seems to suggest that treaties which do not affect private (1) A.I.R. [1951] Rai.
557 rights also require legislative implementation.
This is not quite accurate, because it is not necessary that all treaties must be made a part of municipal law.
I agree with Alexander in "International Law in India" in International and Comparative Law Quarterly (1952) p. 289 at p. 295.
Preuss [Michigan Law Review (1953) p. 1123 n. 151 calls it a rare example of a treaty which was not enforced without legislative sanction.
The only other example he gives is Re Arrow River and Tributaries Slide and Boom Co. Ltd. see B.Y.B. (1953) 30, pp. 202, 203.
The precedent of the United States cannot be useful because it has been held by the Supreme Court of the United States that, although the Courts have no power to question the validity of the Act of State, they can consider its effect.
See U. section vs Percheman(1) at P. 86 and that the enunciation of treaties must be accepted by Courts, Clark vs Allen (2).
Our practice and Constitution shows that there are limitations upon the powers of Courts in matters of treaties and Courts cannot step in where only political departments can act.
The power of the Courts is further limited when the right is claimed against the political exercise of the power of the State.
Again, the right claimed here is not even a concessionary right such as he has received the support of international writers.
It is more of the nature of a gift by the ruler at the expense of the State.
It lacks bona fides which is one of the things to look for.
There is no treaty involved and whatever guarantee there is, the Constitution precludes the municipal courts from considering.
Politically and ethically there might have been some reason to accept and respect such concessions but neither is a reason for the municipal courts to intervene.
The position of the municipal courts according to English Jurisriudence has been noticed in earlier cases.
To them may be added the following considerations.
In Amodu Tijani vs Secretary, Southern Nigeria (3) it was said: "a mere change in sovereignty is not to be presumed as meant to disturb rights of private owners, and (1) (2) ; (3) 558 the general terms of a cession are prima facie to be construed accordingly." (p. 407).
Again, in West Rand Central Gold Mining Co. vs Regem(1), it was said: "It must not be forgotten that the obligations of conquering states with regard to private property of private individuals, particularly land as to which the title had already been perfected before the conquest or annexation are altogether different from the obligations which arise in respect of personal rights by contracts.
" The observations in Amodu Tijani 's case(2) were cited before the Privy Council in Sardar Rustam Khan 's case(3).
But Lord Atkin after referring to all cases from Kamachee Boye Saheba(4), referred to the observations of Lord Halsbury in Cook vs Sprigg(5).
"It is well established principle of law that the transactions of independent States between each other are governed by other laws than those which municipal courts administer.
It is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assume the duties and legal obligations of the former sovereign with respect of such private property within the ceded territory.
All that can be properly meant by such a proposition, is that, according to the well understood rules of international law, a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has authority to enforce such an obligation".
Lord Atkin referred in his judgment to Secretary of State vs Bai Raibai(6) and Vajje Singh 's case(7 ) as laying the (1) (3) (1941) 68 I. A. 109.(4) (1859.) ; (5) (6) (1915) L. R. 42 I.A. 229.
(7) (1924) L. R. 51 I.A. 357.
559 limits of the jurisdiction of municipal courts.
These cases have been applied in several decisions by this Court and the view of the Supreme Court of the United States or the view taken in International Law has not been accepted.
It is not that the Courts in England have not been pressed by the rules of International Law as a science.
As Westlake pointed out in the Nature and ]Extension of Title by Conquest (op.
cit.): "The authorities on the law of England appear to be prepared to pay that homage ;to international law.
We may refer to what was said by Vice Chancellor Lord Cranworth in King of the Two Sicilies vs Willcox, I Sim.
N.S. 327 9, and by Vice Chancellor Wood in United States of America vs Prioleau, ; and to the generality of the proposition laid down by Vice Chancellor James in United States of America vs Mcrae, L.R.8.
'I apprehend it, ' he said, 'to be the clear public universal law that any government which de facto succeeds to any other government, whether by revolution or restoration, conquest or reconquest, succeeds to all the public property, to everything in the nature of public (property, and to all rights in respect of the public property, of the displaced power, whatever may be the nature or origin of the title of such displaced powers".
But the rule that the Act of State can be questioned in a Municipal Court has been adopted and it has been considered that it is a matter for the political departments of the State.
To quote from Cook vs Sprigg(1).
". if there is either an express or a well understood bargain, between the ceding potentate and the Government to which the cession is made, that private property shall be respected, that is only a bargain which can be enforced by sovereign (1) 560 against sovereign in the ordinary course of diplomatic pressure.
" I do not, therefore, accept the contention that a change of opinion is necessary.
Even Bose J., did not decide in Virendra Singh 's case(1), on the basis of international law or the opinion of the Supreme Court of the United States.
In my opinion, these are matters for the political department of the State.
However, desirable it may be that solemn guarantees should be respected, we cannot impose our will upon the State, because it is outside our jurisdiction.
For these reasons, I would accept the appeals and would set aside the judgment under appeal and restore the decrees dismissing the suits with costs throughout.
SHAH J.
The Ruler of Sant State had made grants of villages to jagirdars but without right to trees.
On March 12, 1948, the Ruler issued an order reciting that the holders of the villages were not given "rights of the forests" and after considering the complaints of certain jagirdars they were given full rights and authority over the forests in the villages under their vahivat.
The jagirdars were directed to manage "the forests according to the policy and administration of the State".
The respondents claim in these appeals that the rights of the grantees to the forests were not liable to be cancelled by the Dominion of India after the merger of the State of Sant in June 1948, and by executive action the Government of Bombay was not competent to obstruct the exercise of those rights.
Pursuant to the agreement dated March 19, 1948 as from June 1, 1948, the State of Sant merged with the Dominion of India.
The sovereignty of the Ruler was thereby ,extinguished and the subjects of the Sant State became citizens of the Dominion of India.
Accession of one State to another is an act of State and the subjects of the former State may, as held in a large number of decisions of the Judicial Committee and of this Court, claim protection of only such rights as the new sovereign recognises as enforceable 'by the subjects of the former State in his municipal courts.
(1) ; 561 In The Secretary of State in Council of India vs Kamachee Boye Saheba(1) the jurisdiction of the courts in India to adjudicate upon the validity of the seizure by the East India Company of the territory of Rajah of Tanjore as an escheat, on the ground that the dignity of the Raj was extinct for want of a male heir, and that the property of the late Rajah lapsed to the British Government, fell to be determined.
The Judicial Committee held that as the seizure was made by the British Government, acting as a sovereign power, through its delegate the East India Company it was an act of State, to, inquire into the propriety of which a Municipal Court had no Jurisdiction.
Lord Kingsdown observed at p. 529: "The transactions of independent States between each other are governed by other laws than those which Municipal Courts administer: Such Courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make.
" In Vajesingji joravarsingji vs Secretary of State for India Council(1) the Board observed (at p. 360): ". when a territory is acquired by a sovereign State for the first time that is an act of State.
It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognized ruler.
In all cases the result is the same.
Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised.
Such rights as, he had under the rule of predecessors avail him nothing.
Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those (1) 7 Moode 's I.A. 476.
(2) L.R. 51 I.A. 357.
184 159 s.c. 476.
562 inhabitants to enforce these stipulations in the municipal courts.
The right to enforce remains only with the high contracting parties." In Secretary of State vs Sardar Rustam Khan and Others(1) in considering whether the rights of a grantee of certain proprietary rights in lands from the then Khan of Kalat, ceased to be enforceable since the agreement between the Khan and the Agent to the Governor General in Baluchistan under which the Khan had granted to the British Government a perpetual lease of a part of the Kalat territory, at a quit rent, and had ceded in perpetuity with full and exclusive revenue, civil and criminal jurisdiction and all other forms of administration, it was observed by Lord Atkin delivering the judgment of the Board that : ". in this case the Government of India bad the right to recognise or not recognise the existing titles to land.
In the case of the lands in suit they decided not to recognize them, and it follows that the plaintiffs have no recourse against the Government in the Municipal Courts.
" The rule that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights which the new sovereign recognises has been accepted by this Court in M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Income tax(2); jagannath Agarwala vs State of Orissa (3); Promod Chandra Deb and Others vs The State of Orissa and Others(4) and The State of Saurashtra vs Jamadar Mohamad Abdulla and others(5), and may be regarded as well settled.
Mr. Purshottam on behalf of the respondents however contended that this rule was a relic of the imperialistic and expansionist philosophy of the British Jurisprudence, which (1) L. R. 68 I.A. 109.
(2) [1959] S.C.R. 729.
(3) ; (4) [1962] Suppl.
1 S.C.R.405.
(5) 563 is inconsistent with our Constitutional set up.
Counsel submits that in jurisdictions where truly democratic institutions exist the rule laid down by the Judicial Committee has not been accepted.
The rule is, counsel submits, inconsistent with the true spirit of our Constitution, which seeks to eschew all arbitrary authority, and establishes the rule of law by subjecting every executive action to the scrutiny of the courts and to test it in the light of fundamental rights.
Counsel says that the true rule should be the one which has been recognized by the Supreme Court of the United States that of the accession of a State to another, private rights of the citizens enforceable against their sovereign are not affected, and may be enforced in the Courts of the new sovereign.
In support of this argument Mr. Purshottam relied upon the observations made by Marshall, C. J., in United States vs Percheman(1): "The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed.
If this be the modern rule even in cases of conquest, who can doubt its application to the case of an amicable cession of territory ? A cession of territory is never understood to be a cession of the property belonging to its inhabitants.
The king cedes that only which belonged to him.
Lands he had previously granted were not his to cede.
Neither party could consider itself as attending a wrong to individuals, condemned by the practice of the whole civilised world.
The cession of a territory by its name from one sovereign to another, conveying the compound idea of surrendering, at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and to interfere with private property.
" But the rights and their enforceability in the Municipal Courts of a State must depend upon the will of the sovereign.
The sovereign is the fountain head of all rights, all laws and (1) (1833] ; , at 86, 87.
564 all justice within the State and only those rights which are recognised by the sovereign are enforceable in his Courts, The Municipal Courts which derive their authority from their sovereign and administer his laws cannot enforce the rights Which the former sovereign whose territory has merged or been seized by the new sovereign recognised but the new sovereign has not, for the right to property of the citizen is only that right which the sovereign recognises.
It may also be observed that the constitutional provisions in the United States are somewhat different.
Under the Con stitution of the United States each treaty becomes a part of the law of the land, the provisions thereof are justiciable and the covenants enforceable by the Courts.
Recognition of the rights of the citizens of the acceding State being the prerogative of the sovereign, if rights be recognized by treaty which by the special rules prevailing in the United States become part of the law of the land, they would be enforceable by the Municipal Courts, Under the rule adopted by this Court, a treaty is a contract between two nations, it creates rights and obligations between the contracting States.
but there is no judicial tribunal which is competent to enforce those rights and obligations.
The treaties have not the force of law and do not give rise to rights or obligations enforceable by the Municipal Courts as observed by Hyde in his 'International Law" vol.
1 p. 433: "Acknowledgement of the principle that a change of sovereignty does not in itself serve to impair rights of private property validly acquired in areas subjected to a change, does not, of course.
touch the question whether the new sovereign is obliged to respect those rights when vested in the nationals of foreign States, such as those of its predecessor.
Obviously, the basis of any restraint in that regard which the law of nations may be deemed to impose must be sought in another quarter.
" The observations made by Marshall C. J., have received repeated recognition in treaties of cession concluded by the 565 United States.
But as observed by Lord Halsbury in cook vs Sprigg(1) "It is a well established principle of law that the transactions of independent States between each other are governed by the others, laws than those which Municipal Courts administer.
it is no answer to say that by the ordinary principles of international law private property is respected by the sovereign which accepts the cession and assumes the duties and legal obligations of the former sovereign with respect to such private property within the ceded territory.
All that can be properly meant by such, a proposition is that according to the well understood rules of international law a change of sovereignty by cession ought not to affect private property, but no municipal tribunal has autho rity to enforce such an obligation.
" It was then urged that by cl. 7 of the letter of guarantee written by Mr. V. P. Menon on behalf of the Government of India on October 1, 1948, which was to be regarded as expressly stated in that letter, as part of the merger agreement dated March 19, 1948, the Government of India had undertaken to accept all orders passed and actions taken by the Ruler prior to the date of handing over of the adminis tration to the Dominion Government.
Clause 7 of the letter is in the following terms: "No order passed or action taken by you before the date of making over the administration to the Dominion Government will be questioned un less the order was passed or action taken after the 1st day of April 1948, and it is considered by the Government of India to be palpably unjust or unreasonable.
The decision of the Government of India in their respect will be final." But by virtue of article 363 of the Constitution, it is not open to the respondents to enforce the covenants of this agree (1) 566 ment in the Municipal Courts: Maharaj Umeg Singh and Others vs The State of Bombay and ohers(1).
It was then urged that the Government of Bombay as delegate of the Dominion of India had recognised the right of the respondents when they were permitted to cut the forests.
But the plea of recognition has no force.
It is true that some of the forests were permitted to be cut by the contractors under special conditions pending decision of the Government of Bombay.
The Conservator of Forests North Western Circle had ordered that the question as to the approval to be given to the agreement dated March 12, 1948, was under the consideration of the Government and that written undertakings should be taken from the jagirdars, inamdars or persons concerned that they would abide by the decision or orders passed by the Bombay Government in respect of such private forests when the question of rights over such private forests will be finally settled.
On January 9, 1949, on the application of the jagirdar the Divisional Forest Officer agreed to issue authorisation to the contractor valid upto March 31, 1949, subject to the condition that export outside was not to be permitted pending receipt of the orders by the Government and that a written undertaking was given by the purchaser that he would abide by the decision and orders passed by Government.
In pursuance of this arrangement undertakings were given by the contractors and the jagirdars agreeing to abide by the decision and the orders to be passed by the Government of Bombay in respect of the forest rights and admitting that the authorization issued by the Divisional Forest Officer was subject to those undertaking.
The Forest Officers therefore did not allow the forests to be worked unconditionally.
Cutting of trees in the forests by the contractors was permitted subject to certain terms and conditions and on the clear undertaking that the question as to the right and the terms under which they could cut the forests would be decided by the Government.
The Government of Bombay on July 8, 1949, resolved that the order passed by the Ruler of the Sant State dated March 12, 1948, transferring forest rights to holders of the (1) ; 567 jagirs villages were mala fide and that they should be can celled, but before taking further action in the matter, the Commissioner should ascertain whether the possession of the forests in question was with the Government or was with the jagirdars.
The order proceeded to state: "It the possession is still with Government please ask the Officer of the Forest Department to retain the same and to refuse to issue passes, etc., to private contractors and purchasers '.
A copy of this order was forwarded to the Forest Officers, Santrampur for information and guidance and it is found endorsed on that order that no transit passes be issued to the jagirdars to whom rights over forests were conceded in March 1948 and all further felling in such jagir forests should be stopped at once and compliance reported.
It is true that the order of the Governor was not directly communicated to the jagirdars or the contractors.
But if the conduct of the Forest Officers in permitting cutting of the forests is sought to be relied upon, it would be necessary to take into consideration the orders passed by the Conservator of Forests, North Western Circle, the undertakings given by the contractors and the jagirdars and the order passed by the Governor of Bombay and the execution of that order by stoppage of the cutting of the forests.
It appears that cutting of trees in forests was permitted only upto some time in 1949 and was thereafter stopped altogether by order of the Revenue Department.
The final resolution cancelling the agreement was passed on February 6, 1953.
It was recited in the resolution that the Tharav issued by the Ruler in 1948 had been considered by the Government to be mala fide and the same had already been repudiated and it was not binding on the Government of Bombay both by law and under the agreement of integration, in spite of the assurance contained in the collateral letter.
It was also recited. "Since the Tharav has not been recognised by Government but has been specifically repudiated, everything done in pursuance thereof including the contracts entered into after passing of the Tharav. is not valid and, therefore, binding on this Government.
" 568 Having regard to the conduct of the Officers of the Govern ment of Bombay and the resolution of the Government, the plea that the Government of Bombay as delegate of the Do minion had renounced its right not to regard itself as bound by the order made by the Ruler of Sant State cannot be sustained.
The next question which falls to be determined is whether the order can be regarded as "law" within the meaning of cl.4 of the Administration of the Indian States Order, 1948.
Clause 4 (1) provided: "Such provisions, or such parts of provisions (a) of any law, or (b) of any notification, order, scheme, rule, form or bye law issued, made or prescribed under any law, as were in force immediately before the appointed day in any Indian State shall continue in force until altered, repealed or amended by an order, under the Extra Provincial Jurisdiction Act, 1947 (XLVII of 1947): Provided that the powers that were exercised by the Ruler of an Indian State in respect of or in relation to such Indian State under any such provisions of law immediately before the appointed day, shall be exercised by the Pro vincial Government or any officer specially empowered in this behalf by the Provincial Government.
" It was urged that the order issued by the Ruler of Sant State was either "law" or an "order made or prescribed under any law" in force immediately before the appointed day and by virtue of cl. 4 of the Administration of the Indian States Order, it must be deemed to have remained in operation and any action taken in contravention thereof by executive action was unjustified.
Our attention has not been invited to any statutory provisions relating to forests in the State of Sant, nor does the order dated March 12, 1948, purport to be issued in exercise of any statutory power.
On the face of it the order grants certain rights in forests which had not been previously granted to the jagirdars by the 569 Ruler.
It is urged that the Ruler of Sant was an absolute Ruler in whom were vested all authority legislative, execu tive and judicial, and whatever he did or directed had to be complied with and therefore his actions and directions must be deemed to be "law" within the meaning of cl. 4 of the Administration of the Indian States Order.
But the fact that ;the Ruler of Sant State was an absolute Ruler not bound by any constitutional limitations upon the exercise of his powers does not, in my judgment, invest every exercise of his powers with legislative authority.
The functions of a State whether it contains a democratic set up or is administered by an autocratic sovereign fall into three broad categories executive, legislative and judicial.
The line of demarcation of these functions in an absolute or autocratic form of Government may be thin and may in certain cases not be easily discernible.
But on that account it is not possible to infer that every act of an autocratic sovereign has a legislative content or that every direction made by him must be regarded as law.
That an act or an order of a sovereign with absolute authority may be enforced and the subjects have no opportunity of getting redress against infringement of their rights in the Municipal Courts of the State will not be decisive of the true character of the functions of the sovereign in the exercise of which the act was done or the order was made.
The distinction between functions executive, legislative and judicial vested in one person may not be obliterated, merely because they are in fact exercised or are capable of being exercised indiscrimi nately.
In the ultimate analysis, the legislative power is the power to make, alter.
amend or repeal laws and within,; certain definite limits to delegate that power.
Therefore it is power to lay down a binding rule of conduct.
Executive power "is the power to execute and enforce the laws, and judicial power is power to ascertain, construe and determine the rights and obligations of the parties before a Tribunal in respect of a transaction on the application of the laws and even in an absolute regime this distinction of the functions prevails.
If an order is made during the regime of a sovereign who exercises absolute powers, and it is enforced or executed leaving nothing more to be done there 570 under to effectuate it, any discussion of its true character would be an idle exercise.
Where however in a set up in which the rule of law prevails, to support action taken pursuant to an order you have to reach the source of autho rity in the power of the previous autocratic sovereign, the true nature of the function exercised may become important, when the laws of the former State are by express enactment continued by the new sovereign.
The order dated March 12, 1948, conveys to the jagirdars rights which had been previously excluded from the grants.
The form of the order is of course not decisive.
An important, test for determining the character of the sovereign function is whether the order expressly or by clear implication prescribes a rule of conduct governing the subject which may be complied with a sanction demanding compliance therewith.
The order dated March 12, 1948, is expressly in the form of a grant of the rights which were not previously granted and does not either expressly or by implication seek to lay down any binding rule of conduct.
I am therefore unable to hold that the order issued on March 12, 1948, by the Ruler of Sant State was "law" or an order made under any law within the meaning of cl. 4 of the Administration of the Indian States Order.
Cases which have come before this Court in which the question as to the binding effect of orders issued by the Rulers of the former Indian States fell to be determined clearly illustrate that principle.
In Ameer un Nissa Begum and others vs Mahboob Begum and others(1) the question as to the binding character of two 'Firmans ' dated February 24, 1949, and September 7, 1949, issued by H. E. H. the Nizam of Hyderabad fell to be determined.
The Court in that case observed (at p. 359); "The 'Firmans ' were expressions of the sovereign will of the Nizam and they were binding in the same way as any other law , nay, they would override all other laws which were in conflict with them.
So long as a particular 'Firman ' held the field, that alone would gov (1) A I.R. 571 ern or regulate the rights of the parties con cerned, though it could be annulled or modi fied by a later 'Firman ' at any time that the Nizam willed.
" The Court declined to consider whether the 'Firmans 'were in the nature of "legislative enactment" or "judicial orders" and observed: "The Nizam was not only the supreme legislature, he was the fountain of justice as well.
When he constituted a new Court, he could, according to ordinary notions, be deemed to have exercised his legislative authority.
When again he affirmed or reversed a judicial decision, that may appropriately be described as a judicial act.
A rigid line of demarcation, however, between the one and the other would from the very nature of things be not justified or even possible.
" In that case the primary question which the Court had to consider was whether certain 'Firmans ' issued by the Nizam could be enforced.
It was held that the order may be legislative or judicial in character, but it could not be regarded as executive.
It may be noticed that no action was required to be taken after the cessor of the sovereignty of the Nizam, in pursuance of the 'Firmans '.
The 'Firmans ' had become effective, and titles of the parties stood adjusted in the light of those 'Firmans ' during the regime of the Nizam.
In Director of Endowments.
Government of Hyderabad vs Akram Ali(1) the effect of a 'Firman ' issued by the Nizam on December 30. 1920, directing that the Ecclesiastical Department to supervise a Dargah within the jurisdiction of the Nizam until the rights of the parties were enquired into and adjudicated upon by a civil court fell to be determined.
The Court in that case held that the right of Akram Ali who claimed to be hereditary Sajjad Nashin and Mutwalli was subject to the order of the Nizam which had been passed before the Hyderabad State merged with the Union of India and the applicant having no rights it could (1) A.I.R. 1956 S.C. 60.
572 be enforced at the date of the Constitution and the Courts were incompetent to grant him relief till the rights were determined by the Constitution.
The effect of the 'Firman ' was to deprive the respondent Akram Ali and all 'other claimants of all rights to possession pending enquiry into the case.
It is clear from the observations made in that judgment that the only decision of the Court was that by the 'Firman ' the rights of the Sajjad Nashin and Mutwalli was suspended till determination by the civil court of his right to possession.
The 'Firman ' was given effect not because it was regarded as the expression of the legislative will but because it had become effective before the Constitution came into effect suspending the rights of the applicant.
In Madhorao Phalke vs The State of Madhya Bharat(1) the true character of certain 'Kalambandis ' issued by the Rulers of Gwalior fell to be determined.
The appellant was the recipient of a hereditary military pension granted by the Ruler of Gwalior to his ancestors in recognition of their military services.
The right to receive pension was recognised by the 'Kalambandis ' of 1912 and 1935 issued by the Ruler.
After the formation of the State of Madhya Bharat under the Constitution, the Government of that State by an executive order terminated the right of the appellant.
The 'Kalam bandis ' though not issued in the form of legislative enactments were issued for the administration of the department relating to the Shiledari units.
and the nature of the provisions unambiguously impressed upon them the character of statutes or regulations having the force of law.
The 'Kalambandis ' recognised and conferred hereditary rights: they provided for the adoption of a son by the widow of a deceased Silledar subject to the approval of the State and also for the maintenance of widows out of funds specially set apart for that purpose, and contemplated the offering of a substitute when a silledar became old or otherwise unfit to render service: they made detailed provi sion as to mutation of names after the death of a silledar.
They further enacted that the Asami being for the shiledari service it could not be mortgaged for a debt of any banker, and if a decree holder sought to proceed against the amount (1) ; 573 payable to him, execution had to be carried out in accord ance with and in the manner and subject to the limitations prescribed in that behalf.
The 'Kalambandis ' were not treated as administrative orders issued merely for the pur pose of regulating the working of the administration of the department of irregular forces, and were therefore to be re garded as regulations having all the characteristics of legislative enactments.
In Promod Chandra Deb 's case(1) the true character of ,certain 'Khor Posh ' grants granted by the Rulers of Talcher, Bamara and Kalahandi fell to be determined, in a group of petitions for enforcement of fundamental rights.
Out of the four petitions, petition No. 167 of 1958 was dismissed ,on the ground that under an order passed by the Extra Provincial Jurisdiction Act, 1947, a grant made by the Ruler ,of Bamra in favour of the petitioner was annulled before Bamra became part of the Union of India and the right created by the grant had on that account ceased to exist.
In two other petitions Nos.
168 of 1958 and 4 of 1959 it was found by the Court that the maintenance grants in favour of certain members of the family of the Ruler were recognised by the Government of India 'and the right thus recognised was given effect to and payments pursuant thereto were continued for nearly eight years after the merger of the State.
This Court held that the State having recognized its obligation to pay the maintenance grants which were agreed to be granted under the statutory law and the custom of the State, the grants could not be annulled by executive action.
In the principal writ petition No. 79 of 1957 the grants by the Ruler of Talcher was made subject to the terms and conditions laid down under Order 31 of the Rules and Regulations of the State of Talcher of 1937.
These Rules and Regulations of Talcher of 1937 were regarded as the law of the State and it was in accordance with the law that the 'Khor Posh ' grants were made by the Ruler.
If was held that these grants had the effect of law.
Sinha C.J., delivering the majority judgment of the Court observed (at p. 436): "There is also no doubt that the grant made by the ruler of Talcher in favour of the petitioner (1) [1962] Suppl.
1 S.C.R. 405. 574 continued to be effective until the Merger.
The nature and conditions of such grant of Khorposh are governed by the provisions of the laws of that State as embodied in Order 31 of the 'Rules and Regulations of Talcher, 1937.
Under the laws of Talcher, the petitioner had been enjoying his Khorposh rights until the cash grant, as it became converted in 1943 44 as aforesaid, was stopped by the State of Orissa, in April, 1949.
" In the view of this Court the terms and conditions, subject to which the grant was made, were on the facts of the cast in the nature of legislative acts and not exercise of executive functions.
The Court in that case did not purport to lay down that any act done by the Ruler whether it be executive, legislative or judicial must be regarded since the merger of the State as in the exercise of the legislative will of the Ruler and therefore continuing as law.
In a recent judgment of this Court in Tilkayat Shri Govindlalji Maharaj etc.
vs State of Rajasthan and others( ') the 'Firman ' issued by the Udaipur Darbar in 1934 relating to the administration of the temple of Sharnathji at Nath dwara, which was expressly declared to be a public temple, and governing the devolution of the right to the management of the temple, and certain incidental matters, fell to be determined.
The 'Firman ' consisted of four clauses.
By the first clause it was declared that according to the law of Udaipur the shrine of Shrinathji had always been and was a religious institution for the followers of the Vaishnava Sampradaya and that all the property immovable and movable dedicated, offered or presented to or otherwise coming to the deity Shrinathji had always been and was the property of the shrine and that the Tilkayat Maharaj for the time being was merely the custodian manager and trustee.
of the said property for the shrine.
The second clause prescribed the rule of succession and declared that it was regulated by the law of primogeniture, and provided that the Udaipur Darbar had absolute right to depose any Tilkayat Maharai on the ground that such Tilkayat Maharaj was unfit.
The (1) A.I.R. (1963) S.C. 1638.
575 third clause provided for measures to be taken by the Ruler for management of the shrine during the minority of the Tilkayat Maharaj and by the last clause it was provided that in accordance with the law of Udaipur the Maharana had declared Shri Damodarlalji the then Tilkayat Maharajunfit to occupy the Gaddi and had approved of the succession of Goswami Govindlalji to the Gaddi of Tilkayat Maharaj.
This 'Firman ' declared the character of the trust relating to the Shrinathji temple, laid down rules as to the succession and provided for the management during the minority of the Tilkayat, and declared the right of the State to remove the Tilkayat and for enforcement of that right by declaring that the then Tilkayat was unfit to occupy the Gaddi.
This was in substance though not in form exercise of the legislative will of the sovereign.
Its operation was not exhausted by its enforcement during the regime of the Maharana of Udaipur.
Devolution of the Gaddi, and declaration about the power of the Ruler over the shrine were intended to govern the administration of the shrine for all times.
It is true that in that case in paragraph 32 it was observed after referring to Madhorao Phalke 's ease(1), Ameer un Nissa Begum 's case (2 ) and the Director of Endowments, Government of Hyderabad 's case(3): "In the case of an absolute Ruler like the Maharana of Udaipur it is difficult to make any distinction between an executive order issued by him or a legislative command issued by him.
Any order issued by such a Ruler has the force of law and did govern the rights of the parties affected thereby.
" It was not and could not be laid down that all orders issued by an absolute Ruler were legislative in character: it was merely sought to be emphasized that so long as the territory of Udaipur and the shrine were under the sovereignty of the Maharana the distinction between commands legislative and executive was academic, for all orders and commands of the Ruler had to be obeyed alike.
But since the merger of the State with the Union of India, the question (1) ; , (2) A.I.R. (1955) S.C. 352.
(3) A.I.R. 1956 S.C. 60, 576 whether the 'Firman ' was a mere executive order or a legis lative enactment assumed vital importance.
If the command was merely executive unless the rights created thereby were recognized by the Dominion of India they had no validity and no reliance could be placed upon them in the Municipal Courts.
If the command was legislative, the laws of the former State having been continued upon merger, the legislative command retained vitality and remained enforceable.
In the context in which it occurs the statement set out did not and was not intended to lay down, that there is no distinction between legislative commands and executive orders which have to be enforced after the merger of the State with the Indian Union.
I may refer to decisions which illustrate the distinction between legislative commands and executive orders of the Rulers of the former Indian States.
In Maharaja Shree Umaid Mills Ltd. vs Union of India and Others(1) the question whether an agreement between the Ruler of Jodhpur and a limited Company whereby the Ruler agreed to exempt or remit certain duties or royalties and to hold the Company not liable to pay taxes and further gave an assurance to the Company to amend the laws so as to make them consistent with the agreement was not regarded as "law" within the meaning of article 372 of the Constitution.
In the view of the Court the agreement rested solely on the consent of the parties: it was entirely contractual in nature an a none of the characteristics of law.
The Court in that case observed that every order of an absolute Ruler who combines in himself all functions cannot be treated as "law" irrespective of the nature or character of the order passed.
There is, it was observed, a valid distinction between an agreement between two or more parties even if one of the parties is the sovereign Ruler, and the law relating generally to agreements; the former rests on consensus of mind, the latter expresses the will of the sovereign.
This case supports the proposition that every act done or order passed by an absolute Ruler of an Indian State cannot have the force of law or be regarded as "law" since the merger of his territory with the 'Union of India '.
To have the vitality of law after (1) ; 577 merger, it must be the expression of the legislative will of the Ruler, There is yet another judgment of this Court in The Bengal Nagpur Cotton Mills Ltd. vs The Board of Revenue, Madhya Pradesh and Others(1) in which also the question whether an agreement between the Ruler of Rajnandgaon and M/s. Shaw Wallace and Company in connection with the setting up of a textile factory on certain concessional terms in the matter of imposition of octroi duties on imported goods fell to be determined.
It was observed in that case: "It is plain that an agreement of the Ruler expressed in the shape of a contract; cannot be regarded as a law.
A law must follow the customary forms of law making and must be expressed as a binding rule of conduct.
There is generally an established method for the enactment of laws, and the laws, when enacted, have also a distinct form.
It is not every indication of the will of the Ruler, however expressed, which amounts to a law.
An indication of the will meant to bind as a rule of conduct and enacted with some formality either traditional or specially devised for the occasion, results in a law but not an agreement to which there are two parties, one of which is the Ruler.
" The order of the Ruler of Sant dated March 12, 1948, was not in the form of a legislative enactment.
It also did not seek to lay down a course of conduct: it merely purported to transmit certain rights which were till the date of the order vested in the Ruler to the jagirdars who were grantees of the villages.
It is difficult to hold that an order merely granting forest rights not in pursuance of any legis lative authority, but in exercise of the power of the sove reign in whom the rights were vested, to the jagirdars to whom the villages were granted without forest rights, can be regarded as "law" within the meaning of cl. 4 of the Administration of the Indian States Order, 1948, when the order was not intended to lay down any binding rule of (1) ; (2) 134 154 S.C. 37.
578 conduct of the grantees and merely purported to convey the rights which till then were vested in the Ruler.
The other question which remains to be determined is whether the respondents are entitled to the protection of section 299(1) of the Government of India Act, 1935, or article 31 (1) of the Constitution.
Undoubtedly the order which deprives them of the right to cut forest trees which they claimed from the jagirdar who derived them under the grant dated March 12, 1948, from the Ruler of Sant is an executive order.
Section 299(1) of the Government of India Act, 1935, protection of which was claimed on the merger of the State of Sant with the Dominion of India provided: "No person shall be deprived of his property in British India save by authority of law.
" The clause conferred protection upon the property rights of persons against any executive action not supported by law.
To attract the clause, there must, however, exist a right to property which is sought to be protected.
If for reasons which we have already stated in considering the first question, the subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize, in the absence of any recognition of the rights of the respondents or their predecessor jagirdars, there was no right to property of which protection could be claimed.
As held by this Court in State of Saurashtra vs Jamadar Mohamad Abdulla and others(1) orders passed by the Administrator of the State of Junagadh appointed on behalf of the Government of India (which had assumed charge of the administration of the State after the Nawab of Junagadh fled the country) on various dates between November 9, 1947 and January 20, 1949, cancelling grants in favour of certain persons in whose favour the grants had previously been made by the Nawab of Junagadh were not liable to be challenged in suits filed by the grantees in the Civil Courts of the Dominion, on the plea that the properties had been taken away without the authority of law.
This Court held that the impugned orders cancelling the grants in favour of the respondents and taking of the properties arose out of and during an act of State and they could not be questioned before Municipal Tribunals, for the (1) (1962] 3 S.C.R. 970.
579 orders of cancellation were passed before the change over of de jure sovereignty.
There is no support for the assumption made by the res pondents that an act of State arises merely at a fixed point of time when sovereignty is assumed.
An act of State may be spread over a period, and does not arise merely on the point of acquisition of sovereign right: see Promod Chandra Deb 's case(1).
Nor is the new sovereign required to announce his decision when he assumes or accepts sovereignty over foreign territory, about the rights created by the quondam sovereign, on pain of being held bound by the rights so created.
The decision of this Court in jagannath Agarwalla 's case(2) pointedly illustrates this principle.
The State of Mayurbhanj merged with the Province of Orissa on January 1, 1949, but an order dated June 28, 1952 made by the Board of Revenue acting on behalf of the State of Orissa rejecting the claim made by a person who had entered into an agreement or arrangement with the Maharaja of Mayurbhanj in 1943 was held to be in the course of an act of State, the rejection of the claim being in pursuance of an order issued under section 4 of the Extra Provincial Jurisdiction Act, 47 of 1947.
Therefore till the right to property of the subjects of the former Indian State was recognized by the new sovereign there was no title capable of being enforced in the Courts of the Dominion or the Union.
It was then urged that in any event since the enactment of the Constitution, by executive action a person may not be deprived of his right to property, and this protection applies as much to rights granted by the former Rulers to persons who on merger became citizens of the Dominion of India as to rights of property of other citizens.
In substance it is urged that even if there was no recognition of the right to property which was granted by the former sovereign by the Dominion Government, after the enactment of the constitution the right granted by the former Rulers may only be taken away by legislative command and not by executive action.
This argument proceeds upon a misconception of the nature of the fundamental right conferred by article 31(1) of the Constitution.
In terms, the Article confers a right to claim protection against deprivation of property otherwise than by (1) [1962] Suppl.
1 S.C.R. 405.
(2) ; 580 authority of law.
A right to property is undoubtedly pro tected against all actions otherwise than under the authority of law.
But the clause postulates a right to property which is protected.
It does not purport to invest a person with a right to property which has not been recognized by the Dominion of India or the Union.
Even if the right to property was recognized by the Indian State of which the claimant was subject, so long as it is not recognized by the Dominion or the Union it is not enforceable by the Courts in India.
On the merger of the State of Sant with the Dominion of India, undoubtedly the respondents became citizens of the Dominion and they were entitled like any other citizen to the protection of the rights which the Dominion recognized.
It has also to be remembered that promulgation of the Constitution did not result in transfer of sovereignty from the Dominion of India to the Union.
It was merely change in the form of Government.
By the Constitution, the authority of the British Crown over the Dominion was extinguished, and the sovereignty which was till then rooted in the Crown was since the Constitution came into force derived from the people of India.
It is true that whatever vestige of authority which the British Crown had over the Dominion of India, since the Indian Independence Act was thereby extinguished, but there was no cession, conquest occupation or transfer of territory.
The new governmental set up was the final step in the process of evolution towards self government.
The fact that it did not owe its authority to an outside agency but was taken by the representatives of the people made no difference in its true character.
The continuance of the governmental machinery and of the laws of the Dominion, give a lie to any theory of transmission of sovereignty or of the extinction of the sovereignty of the Dominion, and from its ashes, the springing up of another sovereign as suggested in Virendra Singh and Others vs The State of Uttar Pradesh(1) which will presently examine.
If therefore the respondents had under the Government of India Act, 1935, after the merger not acquired any right to the forests by virtue of any recognition of the Tharav dated March 12, 1948, the promulgation of the Constitution (1) ; 581 did not invest them with any additional rights which would convert either their claims to the forest rights into property or to enable them to enforce in the Indian Courts such claims not recognized by the State as fundamental right to property.
By article 31 right to property is protected against all actions save by authority of law.
But if there was no right to property, an executive action refusing recognition of a claim to property could not infringe article 31 of the Constitution.
In Virendra Singh 's case(1) this Court held that since the promulgation of the Constitution grants which had been made by the previous Rulers, even if they were not recognized by the Dominion of India or the Union, could not be interfered with except by authority of law.
In that case the petitioners were grantees from the Rulers of the States of Sarila and Charkhari of certain villages before those States merged with the Dominion of India.
The States originally merged with the Union of Vindhya Pradesh, and the Vindhya Pradesh Government confirmed the grants in December 1948.
But the Union of the States of Vindhya Pradesh was dissolved, and the covenanting States separately acceded to the Dominion of India, and surrendered all authority and jurisdiction in relation to the governance of the States and executed instrument called 'The Vindhya Pradesh Merger Agreement '.
The States which formed the Vindhya Pradesh were transformed into a Chief Commissioner 's Province on January 23, 1950.
The grants of the four villages made in favour of the petitioners Were revoked in August 1952 by the Government of the State of Uttar Pradesh to which State those villages being enclaves within its territory were transferred.
The grantees of the villages then petitioned this Court under article 32 of the Constitution challenging the validity of the orders revoking the grant of jagirs and maufis in the four villages as violative of articles 31 (1) and 19 (1 ) (f ) of the Constitution.
This Court observed that the properties in question were the properties over which the Rulers had right of disposition at the date of the grants, and the grants were absolute in character and would under any civilised system of law pass an absolute and indefeasible title to the grantees and that assuming that the titles were defensible at the mere will of (1) ; 582 the sovereign the fact remained that they were neither resumed by the former Rulers nor confiscated by the Dominion of India as an act of State and upto the 25th of January, 1950, the right and title of the grantees to continue in possession was good and was not interfered with.
The Court accordingly held that the Constitution by the authority derived from and conferred by the people of India; destroyed all vestige of arbitrary and despotic power in the territories of India and over its citizens and lands and prohibited just such acts of arbitrary power as the State of Uttar Pradesh in that case was seeking to uphold.
It was further observed that the Dominion of India and the States had abandoned their sovereignty and surrendered it to the people of the land who framed the new Constitution of India and as no sovereign can exercise an act of State against its own subjects, the orders of revocation of the grants were invalid.
In my view the conclusion of the Court proceeded upon two assumptions, neither of which was true: (i) that the sovereignty of the Dominion of India and of the States was surrendered to the people of India, and in the exercise of the sovereign power the people gave themselves the new Constitution as from January 26, 1950; and (ii) the petitioners who were in de facto possession of the disputed lands had rights in them which they could have enforced upto 26th January, 1950, in the Dominion Courts against all persons except possibly the State.
These assumptions are not supported by history or by consti tutional theory.
There is no warrant for holding at the stroke of mid night of the 25th January, 1950, all our pre existing political institutions ceased to exist, and in the next moment arose a new set of institutions completely unrelated to the past.
The Constituent Assembly which gave form to the Constitution functioned for several years under the old regime, and set up the constitutional machinery on the foundations of the earlier political set up.
It did not seek to destroy the past institutions: it raised an edifice on what existed before.
The Constituent Assembly molded no new 583 sovereignty:it merely gave shape to the aspirations of the people, by destroying foreign control and evolving a com pletely democratic form of government as a republic.
The process was not one of destruction, but of evolution.
For reasons already stated it is impossible to hold that what were mere claims to property till the 25th of January, 1950, could be regarded as enforceable against any one.
Till the Dominion of India recognised the right, expressly or by implication there was no right to property which the Courts in India could enforce.
There is nothing in the Constitution which transformed the claims which till January 25, 1950, had not been recognized into property rights so as to prevent all further exercise of the act of State, and extinguish the powers of the Union to refuse to recognize the claims.
The order passed in August 1952 revoking the grants by the Rulers of Sarila and Charkhari was in my view in substance an act of State.
It is true that there can be no act of State by a sovereign against his own subjects.
But the State was seeking to refuse to recognize the claims made by the grantees from the former Rulers, and the fact that the act of State operated to the prejudice of persons who were at the date of refusal of recognition citizens, did not deprive the act of State of either its character or efficacy.
These appeals must therefore be allowed and the suit filed by the respondents dismissed with costs throughout.
RAGHUBAR DAYAL J.
I agree with the views expressed R, by my learned brother Ayyangar J., on all the points except in regard to the Tharao dated March 12.
1948, being law.
I agree with brother Hidayatullah J., that this Tharao is not law, and further agree with him in the order proposed.
MUDHOLKAR J.
This Bench has been constituted for considering whether the reasoning underlying the decision of this Court in Virendra Singh vs The State of Uttar Pradesh(1) that the inhabitants of the Indian States brought with them, after the merger of those States in the Dominion of India pursuant to agreements entered into by the Rulers of those (1) ; 584 States, rights to property granted to them by the Rulers of those States, is correct or not.
The decision and the various grounds upon which it rests have been carefully examined by my brother Ayyangar J., in his judgment and I am generally in agreement with what he has said.
As, however, I take a somewhat different view on some of the matters which arise for consideration in this case this judgment has become necessary.
The facts have been set out fully in the judgment of my learned brother and, therefore, it will be sufficient to mention only such of them as are necessary to elucidate the questions which I propose to deal with.
In consequence of two agreements entered into by the former Ruler of Sant State, the territory of that State merged in the Dominion of India as from June 10, 1948.
Prior to that date it had acceded to the Dominion of India on three subjects only.
This State, along with other ruling States in India, became an independent sovereign State in the year 1947 when the Dominions of India and Pakistan were constituted.
By virtue of the powers vested in the Central Government by the Extra Provincial Jurisdiction Act, 1947 it delegated its functions to the Government of Bombay which passed the Indian States (Application of Laws) Order, 1948 on July 28, 1948.
In, consequence of that Order certain laws in force in the Pro vince of Bombay were extended to the merged territories.
By the operation of the Indian States (Merger of Governors Provinces) Order, 1949, the Sant State became part of the Province of Bombay.
The agreement relating to the merger of the State in the Dominion of India was entered into by the Ruler of Sant some time before the date on which the merger became effective.
The Ruler of the State passed a Tharao (which is translated as 'Order) on March 12, 1948 in the following terms: "section Ta.
Mu Outward Register No. 371.
The Jivak, Patavat, Inami, Chakariyat, Dharmada villages in Sant State are being given (granted) to Jagirdars and the holders of the said villages are not given rights over forests.
Hence after considering the complaints of certain Jagirs, they, 585 are being given full rights and authority over the forests in the villages under their vahivat.
So, they should manage the vahivat of the forest according to the policy and administration of the State.
Orders in this regard to be issued.
" Taking advantage of the Tharao several Jagirdars entered into contracts pertaining to the exploitation of the forests in their Jagirs.
The respondents in these appeals are some of the forest contractors.
The Government of the Province of Bombay through the officers of its Forest Department did not allow the respondents to exercise their rights under the contracts entered into with them by the Jagirdars on the ground that the grant of forest rights by the former Ruler to the Jagirdars was not binding upon the successor Government.
Thus being deprived of their right to work the forests the various respondents instituted suits after the coming into force of the Constitution of India.
Their claims were opposed by the State of Bombay mainly on the ground that in the absence of recognition, express or implied, by the successor State of rights conferred by the former Ruler on the Jagirdars the respondents could not enforce them in the municipal courts.
The suits of the respondents were dismissed by the court of first instance and appeals preferred therefrom by them were dismissed by the District Court.
In second appeal, however, the appeals were allowed by the High Court by a common judgment in which reliance is placed largely upon what has been held and said by this Court in Virendra Singh 's case(1) though a reference has also been made to two other decisions of this Court and some decisions of the Privy Council.
In the arguments before us it has never been in question that the acquisition of the territory of Sant State by the Dominion of India in pursuance of the Instrument of Accession and Merger Agreement was an act of State.
The respondents ' contentions were, however, that (1) in point of fact the Government of Bombay, acting through the officers of the forest department had recognised the Jagirdar 's rights by permitting the contractors to carry on the work of cutting timber; (2) that though the Government of" (1) ; 586 Bombay subsequently repudiated the Jagirdars ' rights that repudiation was of no avail; (3) that the letter sent to the Ruler of Sant State by the Secretary to the States Depart ment, Mr. V. P. Menon, in October, 1948 amounted to a waiver by the Dominion of India of the right of repudiation of the rights of Jagirdars; (4) that after the Jagirdars became the citizens of the Dominion of India there could be no act of State against them; (5) that the doctrine evolved by the Privy Council in its decisions starting from Secretary of State for India vs Kamachee Boye Sahiba(1) and going upto Asrar Ahmed vs Durgah Committee, Ajmer(2) was opposed to the present view on the effect of conquest and cession upon private rights as exemplified in the decisions in United States vs Percheman(3) and that this Court should, therefore, discard the Privy Council 's view and adopt the modem view inasmuch as the latter is considered by common consent to be just and fair and finally (6) that the Jagirdars could not be deprived of the forest rights deprived by them from the Ruler of Sant State before the Constitution, without ,complying with the provisions of section 299 of the Government of India Act, 1935, and after the coming into force of the Constitution without complying with the provisions of article 31 of the Constitution.
I agree with my brother Ayyangar J., that the fact that some officers of the forest department had permitted the respondents to carry on operations in the forests leased out to them by the Jagirdars does not amount to recognition of the right conferred upon the latter by the Tharao of March 12, 1948.
In the first place, it was not open to the officers of the forest department to grant recognition to the Jagirdars ' rights for the simple reason that the right of granting recognition could be exercised only by the Government acting through its appropriate agency.
Moreover the permission which was accorded to the respondents was only tentative and expressly subject to the final decision of the Government on the question of their right under the leases granted by the Jagirdars.
(1) ; (2) A 1 R 1947 P. C I. (3) ; 587 The second contention of the respondents is based upon a misapprehension of the legal position flowing from the long series of decisions of the Privy Council which have been accepted by this Court in several of its decisions and in particular Dalmia Dadri, Cement Co. Ltd. vs The Commissioner of Income tax(1); State of Saurashtra vs Memon Haji Ismail (2) ; Promod Chandra Deb and Ors.
vs The State of Orissa and Ors.(3); State of Saurashtra vs Jamadar Mahamad Abdulla and Ors.(4).
The one decision in which the Privy Council 's view is criticised is that of Virendra Singh 's case(5).
The view of the Privy Council has been expressed by Lord Dunedin in Vajesinghji vs Secretary of State for India(6) in the following passage which has been ,quoted with approval in several judgments.
"When a territory is acquired by a sovereign State for the first time that is an Act of State.
It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, it may be by occupation of territory hitherto unoccupied by a recognised ruler.
in all cases the result is the same.
, Any inhabitant of the territory can make good in the municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognised.
Such rights as he had under the rule of predecessors avail him nothing.
Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to, those inhabitants to enforce those stipulations in the municipal courts.
The right to enforce, remains only with the high contracting parties.
" Thus what is clear beyond doubt is that the rights derived by the inhabitants of the conquered and ceded territory from its former rulers cannot be enforced by them against the new (1) [1959] S.C.R. 729.(2) [19601 1 S.C.R. 537.
(3) [1962] Supp. 1.
S.C.R. 405.(4) [19621 3 S.C.R. 970.
(5) ; 51 T.A. 357.
588 sovereign in the courts of that sovereign unless they have been recognized by the sovereign.
The only basis upon which rights of this kind can be enforced in a municipal court would be the fact of its recognition by the new sovereign.
A right which cannot on its own strength be enforced against a sovereign in the courts of that sovereign must be deemed to have ceased to exist.
It follows therefore that a right which has, ceased to exist does not require repudiation.
As regards the argument that the Government has waived its right to withold recognition, I agree with all that has been said by my brother Ayyangar J. Indeed, if the inhabitants of a ceded territory have ceased to have a right against the new sovereign there is nothing for the sovereign to waive.
I also agree with my learned brother that if the letter of the Secretary to the States Department wpon which reliance is placed by the respondents is regarded as part of the agreement of merger the municipal courts are precluded by article 363 of the Constitution from enforcing any rights arising thereunder.
The argument that there can be no Act of State against its citizens is based upon the supposition that the rights claimed by the Jagirdars from their former Ruler would be available to them against the new sovereign unless they were repudiated and that here, as the resolution of the Government of Bombay dated February 6, 1953 stating that Jagirdars ' rights have already been repudiated amounts to an Act of State against persons who had long before this date become the citizens of the Republic of India it was incompetent.
As already pointed out, the municipal courts cannot take notice of a right such as this unless it had been recognized expressly or by implication by the new sovereign.
doubt, the Government resolution speaks of repudiation.
That in my opinion is only a loose way of conveying that the rights of the Jagirdars have not been recognized.
That resolution does no more than set out the final decision of Government not to give recognition to the Tharao of March 12, 1948 by which the former Ruler of Sant State ad conferred certain forest rights on the Jagirdars.
Indeed, it is clear from paragraph 3 of that resolution that the Government had expressly borne in mind the legal position 589 that rights claimed under the Tharao gave no title to the inhabitants of Sant State to enforce them in a municipal ,court and that the right to enforce them remained only with the high contracting parties.
Now as to the argument that this Court should discard the view taken by the Privy Council in Secretary of State for India vs Kamchee Boye Sahiba(1); Secretary of State for India vs Bai Rajbai(2); Vajesinghji vs Secretary of State for India(3); Secretary of State vs Sardar Rustom Khan(4) and Asrar Ahmed 's case(5) and adopt the view taken by ,Chief Justice Marshall in Percheman 's case(6).
I agree with much which my learned brother has said but would,add one thing.
It is this.
The courts in England have applied the principles of international law upon the view that what is by the common consent of all civilized nations held to be an ,appropriate rule governing international relations must also be deemed to be a part of the common law of England.
Thus English courts have given effect to rules of international law by resorting to a process of incorporation(7).
The English courts also recognise the principle that since the British Parliament is paramount the rules of international law are subject to the right of Parliament to modify or abrogate any of its rules.
A municipal court can only enforce the law in force in the State.
Therefore, if a rule of international law is abrogated by Parliament it cannot be enforced by the municipal courts of the State and where it is modified by Parliament it can be enforced by the municipal courts subject to the modification.
Would the position be different where a particular rule of international law has been incorporated into the common law by decisions ,of courts? So far as the municipal courts are concerned that would be the law of the land which alone it has the power and the duty to enforce.
Where Parliament does not modify or abrogate a rule of international law which has become part of the common law, is it open to a municipal (1) ; 42 I.A. 229.
(3) 51 I.A. 357.
(4) 68 I.A. 109.
(5) ; A.I.R. 1947 P.C. I.(6) (7) See International Law a Text 1962 by Jacobini, p. 32 et seq 590 court to abrogate it or to enforce it in a modified form on the ground that the opinion of civilized States has undergone a change and instead of the old rule a more just and fair rule has been accepted ? Surely the law of a State can only be modified or repealed by a competent legislature of theState and not by international opinion however weighty that Opinion may be.
Now, a rule of international law on which the several Privy Council decisions as to the effect of conquest or cession on the private rights of the inhabitants.
of the conquered or ceded territory is founded has become a part of the common law of this country.
This is 'law in force and is saved by article 372 of the Constitution.
The courts in India are, therefore, bound to enforce that rule and not a rule of international law governing the same matter based upon the principle of state succession which had received the approval of Marshall C.J. and which has also received the approval of several text book writers, including Hyde(1).
It is true that the International Court of Justice has also stated the law on the point to be the same but that does not alter the position so far as the municipal courts are concerned.
If in the light of this our law is regarded as inequitous or a survival of an imperialistic system the remedy lies not with us but with the legislature or with the appropriate Government by granting recognition to the private rights of the inhabitants of a newly acquired territory.
Thus while according to one view there is a State succession in so far as private rights are concerned according to the other which we might say is reflected in our laws, it is not so.
Two concepts underlie our law : One is that the inhabitants of acquired territories bring with them no rights enforceable against the new sovereign.
The other is that the municipal courts have no jurisdiction to enforce any rights claimed by them, even by virtue of the provisions of a treaty or other transaction internationally binding on the new sovereign unless their rights have been recognized (1) See Hyde international Law Vol. 1, 2nd ed.
p. 431, and Wesley L. Gould An introduction to International Law pp.
422 427. 591 by the new sovereign.
Municipal courts derive, their jurisdiction from the municipal law and not from the laws of nations and a change in the laws of nations brought about by the consent of the nations of the world cannot confer upon a municipal court a jurisdiction which it does .lot enjoy under the municipal law.
Apart from that the rule cannot be regarded merely as a device of colonial powers for enriching themselves at the expense of the inhabitants of conquered territories and, therefore, an anachronism.
It would neither be just nor reasonable to bind the new sovereign, by duties and obligations in favour of private parties created by the ex sovereign from political motives or for the purpose of robbing the new sovereign of the full fruits of his acquisition.
No doubt, International Law does not prevent legislation by the new sovereign for the purpose of freeing itself from Such duties and obligations but that would be a long and laborious process and may be rendered onerous or by reason of constitutional provisions such as those contained in Part III of our Constitution, even impossible.
It would also not be reasonable to regard the new sovereign as being bound by duties and obligations created by the ex sovereign till such time as the new sovereign was able to show that they were incurred by the ex sovereign mala fide.
It is apparently for such reasons that the law as found by the Privy Council deprives the grantees under the former ruler completely of their rights as against a new sovereign by making those rights unenforceable in a municipal court.
It, however, also envisages the recognition of those rights by the new sovereign.
This means that the new sovereign is expected to examine all the grants and find out for himself whether any of the grants are vitiated by mala fides or were against his legitimate interests so that he can give recognition to those grants only which were not vitiated by mala fides or which were not against his interests.
That this is how the rule was applied would be clear from what happened in this country when time and again territories were ceded by former Indian Rulers to the British Government.
As an instance of this there was the Inam Enquiry in the middle of the last century as a result of which a very large number of Inams were ultimately 592 recognised by the British Government.
That while dealing with the claims of the former grantees in ceded territories used to be examined meticulously would be clear from the facts in Bai Rajbai 's case(1).
Such being the actual posi tion I do not think that the rule which has been applied in this country can be regarded to be anachronism or to be iniquitous In so far as the argument is based on the provisions of s.299 of the Government of India Act, 1935 and article 31 of the Constitution is concerned I would reiterate the view which my brother Sarkar J. and myself have taken in Jamadar Mahamad Abdulla 's case(3) and Promod Chandra Deb 's case(4) which is the same as that expressed by my brother Ayyangar J., and with which my brother Hidayatullah J., has agreed. , Adverting to a similar argument advanced by Mr. Pathak 'in the former case we quoted the following passage from the judgment of Venkatarama Aiyar J., in Dalmia Dadri Cement Co 's case(4): ",It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign and that as subjects of the new sovereign, they have only such rights as are granted or recognised by him." and a passage from the judgment in Bai Rajbai 's case(5), and then observed : "Any right to property which in its very nature is not legally enforceable was clearly incapable of being protected by that section." (pp. 1001 2).
That was a reference to section 299(1) of the Government of India Act, 1935.
In the other case we have observed at p. 499: "In our opinion section 299(1) of the Constitution Act of 1935 did not help grantees from the former (1) 42 I.A. 229.
(2) (1962] 3 S.C.R. 970.
(3) [1962] Supp. 1 S.C.R. 405.
(4) [1959] S.C.R. 729.
(5) 42 I. A. 229.
593 rulers whose rights had not been recognized by his new sovereign in the matter of establishing their rights in the municipal courts of the new sovereign because that provision only protected such rights as the new citizen had at the moment of his becoming a citizen of the Indian Dominion.
It did not enlarge his rights nor did it cure any infirmity in the rights of thecitizen:. . . " The other point raised in these appeals was as to whether the Tharao relied upon by the respondents was a law and, therefore, could be said to have been kept in force by the provisions of the Application of Laws Order, 1949 made by the Province of Bombay.
My brother Ayyangar J., has largely on the basis of the decision of this Court in Madhorao Phalke vs The State of Madhya Pradesh (1) held that it is law.
On the other hand my brother Hidayatullah J., has come to the opposite conclusion.
My brother Shah J., has also held that the Tharao is not a law.
I agreed with the view taken by my brother Hidayatullah J., and brother Shah J., that it is not a law and that the decision in Madhorao Phalke 's case(1) does not justify the conclusion that it is 'law '.
I do not think it necessary for the purpose of this case to examine further the question as to what are the indicia of a law.
For these reasons I would allow the appeals with costs throughout.
ORDER SINHA C.J.
In accordance with the opinion of the majority the appeals are allowed with costs throughout one set of hearing fees.
(1) ; 134 154 S.C. 38. | The Ruler of the State of Sant had issued a Tharao dated 12th March 1948, granting full right and authority to the jagirdars over the forests in their respective villages.
Pursuant to the agreement dated March 19, 1948, the State of Sant merged with the Dominion of India.
On October 1, 1948, Shree V. P. Menon, Secretary to the Government of India, wrote a letter to the Maharana of Sant State expressly declaring that no order passed or action taken by the Maharana before the day of April 1st 1948, would be questioned.
After merger there was obstruction by the forest officers when the respondents were cutting the forests, but after some correspondence they were permitted to cut the trees on furnishing an undertaking that they would abide by the decision of the government.
The Government of Bombay, after considering the implications of the Tharao, decided that the order was mala fide and cancelled it on 8th July 1949 In the meantime these respondents were stopped from working the forests by the Government of Bombay.
462 Thereupon these respondents filed suits for declaration of rights in the forests and for a permanent injunction against interference with those rights by the State.
The respondents claimed in these suits that the rights of the grantees to the forests were not liable to be cancelled by the Dominion of India after the merger of the State of Sant in June, 1948, by executive action, and that the Government of Bombay was not competent to obstruct them in the exercise of those rights.
Their claims were opposed by the State of Bombay mainly on the ground that in the absence of recognition, express or implied, by the successor State of the rights conferred by the former ruler on the jagirdars the respondents could not enforce them in the Municipal Courts.
These respondents filed five suits against the State of Gujarat.
All suits except one were dismissed by the Trial Court.
The District Judge on appeal ordered the dismissal of that suit also and dismissed the appeals of the plaintiffs in the other suits.
The plaintiffs then appealed to the High Court and the High Court allowed all appeals and the suits were decreed. ' The High Court held on the basis of the letter written by Shri V. P. Menon, Secretary that the succeeding sovereign had waived or relinquished its right to repudiate the Tharao.
The High Court further held that the Tharao was not a legislative action of the Ruler of Sant State.
The State Government appealed to this Court by special leave.
Hence the appeal.
Per majority: Hidayatullah J. (i) The Act of State comes to an end only when the new sovereign recognises either expressly or impliedly the rights of the aliens.
It does not come to an end by an action of subordinate officers who have no authority to bind the new sovereign.
Till recognition, either express or implied, is granted by the new sovereign, the Act of the State continues.
In the present case, the Act of State could only come to an end if Government recognised the rights flowing from Tharao.
That Government never did.
There was thus no recognition of the Tharao or the rights flowing from it at any time.
In the present case, the subordinate officers of the Forest Department allowed each respondent to cut the trees on furnishing an undertaking that he would abide by the decision of the Government and so the question of waiver or relinquishment does not arise.
Secretary of State in Council for India vs Kamachee Boye Sahaba, ; , Secretary of State vs Sardar Rustom Khan and Others, (68) I. A. 109, MIS.
Dalmia Dadri Cement Co. Ltd. vs Commissioner of Income tax, [1959] S.C.R. 729, The State of Saurashtra vs Memon Haji Ismale Haji, ; , Jagan Nath Agarwala vs State of Orissa, ; , State of Saurashtra V. Jamadar Mohamed Abdulla and Ors., and Vaje Singhji Jorwar Singh vs Secretary of State for India, (1924) L.R. 51 I.A. 357, relied on.
Virendra Singh and Ors.
vs The State of Uttar Pradesh ; , disapproved.
Bhola Nath vs State of Saurashtra, A.I.R. 1954 S.C. 680, Bhojrajji vs The State of Saurashtra, , referred to.
463 (ii) The Act of State did not come to an end by virtue of Article 299(1) of Government of India Act, 1935 and so the respondents could not claim the protection of that section.
Section 299(1) did not come into play because it could only come into play after the rights were recognised.
In the present case the rights were never recognised by the Government.
(iii) The original Act of State continued even after January 26, 1950, because there was no state succession on January 26, 1950 in so far as the people of Sant State were concerned.
For them state succession was over some time in 1948.
The Act of State which began in ' 1948 could continue uninterrupted even beyond 1950 and it did not lapse or get replaced by another Act of State.
These rights in question cannot be protected under the Constitution because these rights were not recognised even before 1950.
(iv) That the impugned Tharao was not a law as it did not lay down any rule of conduct.
It was a grant made to the Jagirdars mentioned in the Tharao.
The fact that Maharana 's Tharao was passed to benefit a larger number of persons en bloc does not make it any the more a law if it did not possess any of the indicia of a law.
The Tharao did give rights to the grantees but did not lay down any rule of conduct.
It is a grant and as a grant it was open to the new sovereign not to recognise it.
Madhorao Phalke vs The State of Madhya Bharat, ; , distinguished.
Ameer unnissa Begum and Ors.
vs Mahboob Begum and Ors.
A.I.R. 1955 S.C. 352.
distinguished.
Maharaja Shri Umaid Mills Ltd. vs Union of India and Others.
; and The Bengal Nagpur Cotton Mill Ltd. vs The Board of Revenue, Madhya Pradesh and Others, A.I.R. relied on.
(v) The right claimed here is not even a concessionary right such as has received the support of the International writers.
It is more of the nature of a gift by the Ruler at the expense of the State.
It lacks bona fides which is one of the things to look for.
There is no treaty involved and whatever guarantee there is, article 363 of the Constitution precludes the Municipal Courts from considering.
This distinguishes the jurisdiction and power of the Supreme Court of the United States in which consideration of treaties is included.
In the United States the Constitution declares a treaty to be the law of the land.
In India the position is different.
Article 253 enables legislation to be made to implement international treaties.
This Court has accepted the principles laid down by the Courts in England in regard to the limits of the jurisdiction of Municipal Courts.
The view of the Supreme Court of United States or the view taken in international law has not been accepted by this Court.
Politically and 464 ethically there might have been some reason to accept and respect such concessions but neither is a reason for the Municipal Courts to intervene.
The Rule that the Act of the State can be questioned in a Municipal Court has never been adopted and it has been considered that it is a matter for the political departments of the State.
However desirable it may be that solemn guarantees should be respected, this Court should not impose its will upon the State, because this is outside its jurisdiction.
In this case, the present respondents who were not parties to the merger agreement or to the letter written by Mr. Menon which was made expressly a part of the Agreement cannot take advantage of cl. 7.
If they were parties, Article 363 would bar such plea.
Maharaj Umeg Singh and Others vs The State of Bombay and Others.
; , relied on.
U.S. vs Percheman, ; at 86, disapproved: Shapleigh vs Miar, ; , referred to.
Salaman vs Secretary of State for India, , referred to.
Cook vs Sprigg. , referred to.
Foster vs Nielson.
; , referred to.
Birma vs The State, A.I.R. to 7, referred to.
Amodutijani vs Secretary Southern Nigeria, [1921] 2 A.C. 399, referred to.
Clark V. Allen, ; referred to.
West Rand Central Gold Minning Co. vs Regem, [1905] 2 K.B. 391, referred to.
Secretary of State vs Bai Raj Bai, (1915) L.R. 42 I.A. 229, relied on.
Per Shah J. (1) The rule that cession of territory by one State to another is an act of State and the subjects of the former State may enforce only those rights in Municipal Courts which the new sovereign recognises has been accepted by this Court.
M/s. Dalmia Dadri Cement Co., Ltd. V. Commissioner of incomeTax, [1959] S.C.R. 729, jagannath Agarwala vs State of Orissa, ; , Promod Chandra Dev vs State of Orissa, [1962] Suppl.
1 S.C.R. 405 and the State of Saurashtra vs Jamadar mohd.
Abdullah, , relied on.
The Secretary of State In Council of India vs Kamachee Boye Sahaba, 7 Moore 's I.A. 476, Vajesinghji Joravarsinghji vs Secretary of State for India in Council, L.R. 51 I.A. 357 and Secretary of State vs Sardar Rustam Khan and Others, L.R. 68 I.A. 109, relied on.
465 (ii) The Constitutional provisions in the United States are somewhat different.
Under the Constitution of the United States each treaty becomes a part of the law of the land; the provisions thereof are justiciable and the covenants enforceable by the Courts.
In India the treaties have not the force of law and do not give rise to rights or obligations enforceable by the Municipal Courts.
In the present case by virtue of article 363 of the Constitution, it is not open to the respondents to enforce the covenants of the agreement as stated in the letter of guarantee written by Mr. V. P. Menon in the Municipal Courts.
United States vs Parcheman, ; at 86, 87, not relied on.
Cook vs Sprigg. , referred to.
Maharaj Umeg Singh and Others vs The State of Bombay and Others, ; , relied on.
(iii) An act of State may be spread over a period and does not arise merely an the point of acquisition of sovereign right.
Nor is the new sovereign required to announce his decision when he assumes or accepts sovereignty over foreign territory, about the rights created by the quondam sovereign, on pain of being held bound by the right so created.
There.
fore till the right to property of the subjects of the former Indian State was recognized by the new sovereign there was no title capable of being enforced in the courts of the Dominion or the Union.
(iv) The functions of a State whether it contains a democratic set up or is administered by an autocratic sovereign fall into three broad categories executive, legislative and judicial.
The line of demarcation of these functions in an absolute or autocratic form of government may be thin and may in certain cases not easily discernible.
But on that account it is not possible to infer that every act of an autocratic sovereign has a legislative content or that every direction made by him must be regarded as law.
The legislative power is the power to make, alter, amend or repeal laws and within certain definite limits to delegate that power.
Therefore It is power to lay down a binding rule of conduct.
Executive power is the power to execute and enforce the laws, and judicial power is the power to ascertain, construe.
and determine the rights and obligations of the parties before a tribunal.
In the present case the order dated March 12, 1948, is expressly in the form of a grant of the rights which were not previously granted and does not either expressly or by implication seek to lay down any binding rule of conduct.
The impugned order was not a law or an order made under any law within the meaning of cl. 4 of the Administration of the Indian States Order of 1948.
Promod Chandra Deb and Others vs The State of Orisa and Others, (1962] Suppl.
1 S.C.R. 405, Ameer un Nissa Begum and Others vs Mahboob Begwn and Others, A.I.R. (1955) S.C. 352, Director of Endow 134 159 S.C. 30.
466 ments, Government of Hyderabad vs Akram Ali, A.I.R. (1956) S.C. 60, Tilkayat Shri Govindlalji Maharaj etc.
vs State of Rajasthan and Others, A.I.R. (1963) S.C. 1638, distinguished, discussed.
Madhorao Phalke vs The State of Madhya Bharat, ; discussed.
Maharaja Shree Umaid Mills Ltd. vs Union of India, A.I.R. , relied on.
The Bengal Nagpur Cotton Mills Ltd. vs The Board of Revenue, Madhya Pradesh and Others, C.A. No. 416 of 1961 decided on July 30, 1963, relied on.
(v) To attract section 299(1) of the Government of India Act, 1935, there must, exist a right to property which is sought to be protected.
The subjects of the acceding State are entitled only to such rights as the new sovereign chooses to recognize, in the absence of the any recognition of the rights of the respondents or their predecessor Jagirdars, there was no right to property of which protection could be claimed.
On the Sam* reasoning, grantees of the Ruler could not claim protection under Art 31(1) of the Constitution.
Per Mudholkar J. (i) The rule of international law on which the several Privy Council decisions as to the effect of conquest or cession on the private rights of the inhabitants of the conquered or coded territory are founded has become a part of the common law of this country.
This being a "law in force" and at the commencement of the Constitution is saved by article 372 of the Constitution.
The Courts in India are, therefore, bound to en.
force that rule and not what according to Marshall C.J. is the rule at.
International Law governing the same matter, though the latter has also, received the approval of several text book writers.
The rule which has. been applied in this country is not inequitor nor can it be regarded to be an anachronism.
Virendra Singh vs The State of Uttar Pradesh, [1955] S.C.R. 415 United State vs Percheman, ; disapproved.
Secretary of State for India vs Kamachee Boye Sahiba, (1859) is Moore P. C. 22, Asrar Ahmed vs Durgah Committee, Ajmer, A.I.R. 1947 P.C. 1, Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Incometax, [1959] S.C.R. 729, State of Saurashtra vs Memon Haji Ismail ; , State of Saurashtra vs Jamadar Mohamed Abdullah and Ors., (1962] 3 S.C.R. 970, Vajesinghji vs Secretary of State for India,, 51 I.A. 357 and Secretary of State for India vs Bai Rajbai, 42 I.A. 229 Promod Chandra Dev vs State of Orissa and Ors.
[1962] Supp. 1 S.C.R. 405, relied on (ii) Two concepts underlie our law.
One is that the inhabitants of acquired territories bring with them no rights enforceable against the new sovereign.
The other is that the Municipal Courts have no jurisdiction to enforce any rights claimed by them, against the sovereign despite the provisions of a treaty unless their rights have been recognised by the 467 new sovereign after cession or conquest.
In other words a right which cannot on its own strength be enforced against a sovereign in the Courts of that sovereign must be deemed to have ceased to exist.
It follows therefore that a right which has ceased to exist does not, require repudiation.
Municipal courts derive their jurisdiction from the Municipal law and not from the laws of nations and a change in the laws of nations brought about by the consent of the nations of the world cannot confer upon a Municipal Court a jurisdiction which it does not enjoy under the Municipal law.
(iii) The grantees of the Ruler could not claim the protection of s 299 of Government of India Act, 1935 or of article 31 of the Constitution of India as they possessed no right to property enforceable against the new sovereign.
(iv) The impugned Tharao was not law.
Madhorao Phalke vs The State of Madhya Pradesh ; , referred to.
Per minority Sinha C.J. and Ayyangar J. (i) The juristic basis of the theory underlying the Privy Council decisions is that with the extinction of the previous sovereign the rights theretofore exerciseable by the subjects of that sovereign by virtue of grants for that sovereign were likewise extinguished and that without recognition which is really tantamount to a fresh grant by the new sovereign, no title enforceable in the municipal courts of the succeeding sovereign came into being.
The doctrine of Act of State evolved by English courts is one purely of municipal law.
It denies to such a court jurisdiction to enquire into the consequences of acts which are inseparable from an extension of its sovereignty.
That doctrine was, however.
not intended to deny any rule of International Law.
The British practice that has prevailed in this country has not proved in actual practice to lead to injustice, but has proceeded on a just balance between the acquired rights of the Private individual and the economic interests of the community, and therefore there is nothing in it so out of tune with notions of propriety or justice to call for its rejection.
Even in the case of Virendra Singh this Court did not express any decisive opinion in favour of accepting the observations in Percheman 's case as proper to be applied by the municipal courts in India.
This Court has in subsequent decisions followed the Privy Council decisions.
The view of the Supreme Court of the United States has not been accepted by this Court for the reason that the Constitutional position in regard to the recognition of treaties in both countries are different.
In the United States a treaty has the force of law, which is not the position here.
Besides, in India by virtue of Article 363 of the Constitution, Municipal Courts are deprived of jurisdiction to enforce any rights arising from treaties.
468 Vinrendra Singh vs The State of Uttar Pradesh, ; , disapproved.
Vajesinghji vs Secretary of State for India, 51 I.A. 357, Cook vs Sprigg, , relied on.
walker vs Baird, , Johnstone vs Pedlar, ; , referred to.
United States vs Percheman, ; , disapproved.
M/s, Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Incometax, [1959] S.C.R. 729, Jagan Nath Agarwala vs The State of Orissa, ; , Promodh Chandra Dev vs The State of Orissa, [1962] 1 Supp.
S.C.R. 405, The State of Saurarhtra vs Jamadar Mohamad Abdulla, [1962] 3 S.C.R. 970, Secretary of State for India vs Kanzachee Boye Sahiba [1859] 7 Moore, I.A. 476, Secretary of State for India in Council vs Bai Rai Bat, 42 I.A. 229 and Secretary of State vs Rustom Khan, 68 IA.
relied on.
Amodu Tijani vs Secretary Southern Nigeria, [1921] 2 A.C. 399, referred to.
West Rand Central Gold Mining Co., vs Rex, [1905] 2 K.B. 391.
referred to.
Asrar Ahmed vs Durgha Committee, Ajmer, A.I.R. 1947 P.C. 1, relied on Attorney General of Canada vs Attorney General of Ontario, , referred to.
(ii) Where the new sovereign assumes jurisdiction and it does some act and there is ambiguity as to whether the same amounts to a recognition of a pre existing right or not, the covenant and the treaty right be looked at in order to ascertain the intention and purpose of that equivocal act, but beyond This the covenant and the treaty cannot by them selves be used either as a recognition pure and simple or, as waiver of a right to repudiate the pre excisting rights.
It is needless to point out that since the enforceability of the rights against the succeeding sovereign springs into existence only on recognition by the sovereign, there La no, question of a waiver or the right to repudiate.
In the present case the High Court erred in holding on the basis of cl. 7 of the letter of Shri V. P. Menon that the Government waived their right to repudiate the grant made by the previous ruler.
Bhola Nath vs The State of Saurashtra, A.I.R. (1954) S.C. 680.
distinguished 469 (iii) Just previous to the Constitution the grantee had no right of property enforceable against the State.
The coming into force of the Constitution could not, therefore, make any difference, for the Constitution, did,not create rights in property but only protected rights which otherwise existed.
(iv) In the present case the "Tharao" was not a grant to any individual but to the holders of 5 specified tenures in the State.
The 'Tharao ' is more consistent with its being a law effecting an alteration in the tenures of the 5 classes of Jagirdars by expanding the range of the beneficial enjoyment to the forests lying within the boundaries of the villages which had already been granted to them.
In this light, the 'Tharao ' would not 'be administrative order in any sense but would partake of the character of legislation by which an alteration was effected in the scope and content of tenures referred to.
The "Tharao" dated March 12, 1918 satisfies the requirement of "a law" within article 366(10) of the Constitution and in consequence, the executive orders of the Government of Bombay by which the forests right% of the plaintiffs were sought to be denied were illegal and void.
The "Tharao" was in truth and substance a law which was continued by article 372 of !he Constitution and therefore it could be revoked by the appellant by legislative authority and not by an executive act.
Madhorao Phalke vs The State Madhya Bharat ; , Ameer un nissa Begum vs Mahboob Begum, A.I.R. 1955 Sup 4 Court, 352 and Director of Endowments, Government of Hyderabad Akram Ali, A.I.R. 1956 S.C. 60, relied on.
Per Subha Rao J. (i) The decision in Virendra Singh 's case is not only correct, but.
is also in accord with the progressive trend of modern international law.
It may, therefore, be stated without contradiction that in none of the decisions of this Court that were given subsequent to Vires.
dra Singh 's ease the correctness of that decision was doubted.
After all, an act of State is an arbitrary act not based on law, but on the modern version of 'Might is right '.
It is an act outside the law.
There were two different lines of approach.
One adopted by the imperialistic nations and the other by others who were not.
That divergence was reflected in English and American Courts.
All the jurists of International law recognise the continuity of title to immovable property of the erstwhile citizens of the ceding state after the sovereignty changed over to the absorbing state.
It may, therefore, be held that so far as title to immovable property is concerned the doctrine of International law has become crystallized and thereunder the change of sovereignty does not affect the title of the erstwhile citizens of the ceding state to their property.
In America the said principle of International Law has been accepted without any qualification.
M/S. Dalmia Dadri Cement Co. Ltd. V. The Commissioner of Income tax, [1959] S.C.R. 729, Jagannath Agarwala vs The State of Orissa, ; , Promodh Chandra Dev.
vs The State of Orrissa 470 [1962] Supp. 1 S.C.R. 405, State of Saurashtra vs Jamadar Mohmed Abdulla, , discussed and distinguished.
United States vs Percheman, ; , relied on.
Foster vs Neilson, ; , The American Insurance Co. and the Ocean Insurance Co. vs Bales of Cotton , Charles Dehault vs United States, (1835) 9 Ed. 117, Vajeenngli Joravarsingji vs Secretary of State for India in Council, (1951) I.A. 357, referred to.
(ii) The law in England is that the municipal courts cannot enforce the acquired rights of the erstwhile citizens of the ceding state against the absorbing state unless the said state has recognized or acknowledged their title.
This Court accepted the English doctrine of Act of State in a series of decisions.
The word "recognize" means "to admit, to acknowledge, something existing before".
By recognition the absorbing state does not create or confer a new title, but only confirms a pre existing one.
Non recognition by the absorbing does not divest the title, but only makes it unenforceable against the state in municipal courts.
Pramod Chandra Dev.
vs The State of Orissa, [1962] Supp. 1 S.C.R. 503, relied on.
(iii) The doctrine of acquired rights, at any rate in regard to immovable property has become crystallized in International Law.
Under the said law the title of a citizen of a ceding state is preserved and not lost by cession.
The change of sovereignty does not affect his title.
The municipal laws of different countries vary in the matter of its enforceability against the state.
As the title exists, it must be held that even in those countries, which accepted the doctrine of act of State and the right of a sovereign to repudiate the title, the title is good against all except the State.
Before the Constitution came into force the State did Dot repudiate the title.
When the Constitution of India came into force the respondent and persons similarly situated who had title to immovable pro perty in the Sant State had a title to the said property and were in actual possession thereof.
They had title to the property except against the State and they had, at any rate, possessory title therein.
The Constitution in Article 31(1) declares that no person shall be deprived of his property save by authority of law.
That is, the Constitution recognised the title of the citizens of erstwhile State of Sant, and issued an injunction against the sovereign created by it not to interfere with that right except in accordance with law.
A recognition by the Supreme Law of the land must be in a higher position than that of an executive authority of a conquering State.
It was held that the title to immovable property of the respondent was recognised by the Constitution itself and, therefore, necessarily by the sovereign which Is bound by it.
471 In the present case the letter written by the Government of India dated 'October 1, 1948, clearly recognized the title of the respondents to their properties.
The letter clearly contains a statement in paragraphs 5 and 7 thereof that enjoyment of Jagirs, grants etc.
, existing on April 1, 1948, were guaranteed and that any order passed or action taken by the Ruler before the said date would not be questioned.
This is a clear recognition of the property rights of the respondent and similar others.
Virendra Singh vs The State of Uttar Pradesh, ; , relied on.
M/S. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of Incometax [1959], S.C.R. 729, Jagan Nath Agarwala vs The State of Orissa ; , Promodh Chandra Dev vs The State of Orissa ' [1962], Supp.
1 S.C.R. 405 and State of Saurashtra vs Jamadar Mohamed Abdullah , discussed and distinguished. |
ivil Appeal No. 756 of 1988.
From the Judgment and Order dated 21.7.1987 of the High Court of Allahabad in F.A.F.O. No. 106 of 1984.
F.S. Nariman, M.L. Verma, Jeet Mahajan and Ranjit Kumar for the Appellats.
B. Sen, Gopal Subramanium and Mrs. Shobha Dikshit for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is from the judgment and order of he High Court of Allahabad, dated 21st July, 1987.
The High Court has set aside the award of the Umpire.
To appreciate the decision and the contentions urged, a few facts are necessary.
On or about 20th October, 1962 there was a Bulk Supply Agreement entered into between Agra Electric Supply Co. Ltd. and the appellant herein, for supply of electrical energy to the latter 's hotel, inter alia, containing terms of rates, discounts, minimum sum payable and increase in the rates and sums payable once a year on account of increase in cost of production and distribution of electrical energy.
Clause 9 of the said agreement contained terms of the rate of supply and the contingencies in which such rates could be increased.
The said Clause provided as follows: PG NO. 674 "The consumer shall, subject to the provisions hereinafter contained, pay to the Company for all electrical energy supplied and registered or estimated as herein provided at the rate of Rs.0.20 (Rupees zero decimal two zero) per unit per month for all energy so supplied and registered and/or estimated in the case of a defective meter installation in accordance with the proviso to clause 6 thereof.
The charge for all energy shall be subject to the scale of special discounts in accordance with the schedule annexed thereto.
Provided that, (without regard to the quantity of units supplied) if the payment made or to be made for any one English Calendar year ending 31st March in respect of the electricity consumed shall fall short of a minimum sum of Rs. 38640 (Rs. Thirty eight thousand six hundred and forty) the consumer shall nevertheless pay to the Company such amount in addition to the payments already made in respect of the electricity consumed for such Calendar year as will, being the total payment made in this respect to the said minimum of Rs.38640 (Rs. Thirty eight thousand six hundred and forty).
Provided Further that, in the event of the first and last years of this Agreement not being complete calendar year as aforesaid the Company shall make a proportionate reduction on the aforesaid annual Maximum Demand and Minimum charges in respect of the period for which the said first and last year as the case may be shall be less than a complete calendar year.
Provided also that.
if and whenever during the subsistence of this Agreement the Company is satisfied that there has been an increase in the cost of production and distribution of electrical energy it shall be at liberty (but not more than once in any year of accounts) to increase the rates and sums payable by the Consumer under the foregoing provision of this present clause 9 by such amount as it shall in its sole and absolute discretion decide.
" There was a clause providing for arbitration i.e. clause 18 which read as follows: "If any question or difference whatsoever shall arise between the parties to these presents as to the PG NO 675 interpretation or effect of any provision or clause herein contained or the construction thereof or as to any other matter in anyway connected with or arising out of these presents or the operation thereof or the rights, duties or liabilities of either party in connection therewith, when unless the means for deciding any such question or difference is provided for by the or the as the case may be, or by the rules made respectively under the said Acts or by a specific provision of this Agreement, in every such case the matter in difference shall be referred to the Arbitration of two Arbitrators, one to be appointed by each party hereto, and an Umpire to be appointed by the Arbitrators before entering upon the reference and the decision or award of the said Arbitrators or Umpire shall be final and binding on the parties hereto and any reference made under this clause shall be deemed to be a submission to arbitration under the Indian (Act X of 1940) or any statutory modification or re enactment thereof for the time being in force.
The Arbitrators or the Umpire giving their or his decisions shall also decide by which party the cost of the Arbitration and award shall be paid and if by both parties in what proportion.
" On or from 26th September, 1973 the Agra Electric Supply Co. Ltd. increased per unit rate of electricity from 0.20 P to 21.5 P in terms of clause 9 of the said agreement.
Thereafter, the bills were sent @ 21.5 P per unit, after giving discounts and rebates as per the agreement.
On or about 17/18th December, 1973, the respondent herein took over the undertaking of the Agra Electric Supply Co. Ltd. On or about 16th January, 1974, the respondent informed the appellant by a written communication that consequent upon the expiry of licence granted to Agra Electric Supply Co. Ltd. to generate and supply electricity the respondent had taken it over and would supply electric energy to the hotel and that the Bulk Supply Agreement with Agra Electric Supply Co. Ltd. will continue to be in force with the respondent until such time the agreement is determined in accordance with its relevant provisions.
All bills received subsequent to the take over were billed at the agreed rate allowing discounts and rebates.
On or about 23rd November, 1974, the appellant received a communication from the respondent informing that uniform PG NO 676 tariff rates issued under section 49 of the Electricity Supply Act, 1949 will be applicable to the electrical energy supplied to the hotel w.e.f.
12.10.1974.
Section 49 of the (hereinafter called `the Act '), is to the following effect: "49.
Provision for the sale of electricity by the Board to persons other than licensees.
(1) Subject to the provisions of this Act and of regulations, if any, made in this behalf, the Board may supply electricity to any person not being a licensee upon such terms and conditions as the Board thinks fit and may for the purposes of such supply frame uniform tariff.
(2) In fixing the uniform tariffs, the Board shall have regard to all or any of the following factors, namely: (a) the nature of supply and the purposes for which it is required: (b) the co ordinated development of the supply and distribution of electricity within the State in the most efficient and economical manner, with particular reference to such development in areas not for the time being served or adequately served by the licensee: (c) the simplification and standardisation of methods and rates of charge for such supplies; (d) the extension and cheapening of supplies of electricity to sparsely developed areas.
(3) Nothing in the foregoing provisions of this section shall derogate from 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 or any area, the nature of the supply, and purpose for which supply is required and any other relevant factors.
(4) In fixing the tariff and terms and conditions for the supply of electricity, the Board shall not show undue preference to any person.
" PG NO.
677 After the said date the bills were sent at the enhanced rate of 0.30 P per unit, adding fuel cost variation charges and without allowing any discount or rebate.
On or about 28th November, 1974, the appellant, however, protested against the unilateral withdrawal of contractual discount and rebates and enhancement in the rates and drew the attention of the respondent to the existing and subsisting bulk supply agreement, but the respondent took no action.
On or about 31st August, 1976, a Circular was issued by the Chief Engineer of the respondent advising all Engineers in charge of the undertakings to bill the consumers having special agreements with the ex licensees as per those agreements and steps be taken to terminate the old agreements with new agreements providing for application of tariff.
On 7th October, 1977, vide written communication the appellant informed the respondent that upon latter 's failure to resolve the disputes and differences arising between them consequent to the illegal increase in the rates and discontinuation of discounts and rebates w.e.f.
12.10.1974, the appellant was referring the disputes for decision by the arbitrator and appointed Justice Manchanda, a retired Judge of the Allahabad High Court, as the arbitrator and the respondent appointed Justice Nigam, another retired Judge of the same High Court, as its arbitrator.
On or about 8th April, 1977, the joint arbitrators appointed Justice V. Bhargava, a retired Judge of this Court, as an Umpire.
Between 3rd November, 1979 and 4th March, 1980, several sittings were held before the arbitrators but the parties were unable to agree and upon their disagreement the disputes were referred to the learned Umpire for decision.
From 4th March, 1980 onwards, proceedings started before the Umpire and there was a plea for de novo hearing of the proceedings before the Umpire, by the respondent.
The learned Umpire started de novo proceedings taking evidence of the parties.
On 21st March, 1980, the respondent filed an application, being Case No. 59 of 1980 under section 33 of the before the District Judge, Lucknow, denying the existence of the agreement dated 20th October, 1962.
The respondent also denied the acceptance and adoption of the agreement consequent upon the take over and sought a declaration from the Court that the arbitration agreement did not exist.
The Vth Addl.
District Judge by his order dated 27.5.1983 held that the agreement was duly executed, accepted and adopted by the respondent and was binding on it and that the arbitration proceedings were pursuant to the arbitration clause and, as such, the application under section 33 of the , was rejected.
PG NO.
678 On 1st June, 1983, the award was made by the learned Umpire holding that in terms of clause 9 the increase in the unit rate was permissible and the fuel cost variation charges which were variable every month was contrary to clause 9 as increase was permitted only once in a year of accounts, and further held that the appellant was entitled to discount of 50% on the charges for electricity; and was also entitled to 0.03 paise per rupee for prompt payment of bills.
The learned Umpire in his award set out the facts and therein recited these as follows: "The main terms of the agreement were that in respect of the bulk electric supply to the petitioner the Hotel was to be charged at the rate of twenty paise per unit per month.
There was also a clause for granting a special discount to the petitioner to the extent of 50% and in addition a cash discount of three paise per whole rupee was to be allowed to the petitioner in case the petitioner paid the bills of the Company within the stipulated period.
The bills for the electric energy supplied by the Supply Company continued on these contractual rates till October 1974, even after the Supply Company was acquired by the opposite party in December 1973, and the bills were accordingly paid.
However, in October 1974, the opposite party under section 49 of the (hereinafter referred to as the Act) unilaterally and according to the petitioner illegally and arbitrarily purported to replace the original terms in the agreement and revised the charges with effect from 12th October, 1974.
The Board, under this notification, increased the rate of electricity supplied to 30 paise per unit and further refused to grant the discount to which the petitioner was entitled under the agreement as well as the cash discount of three paise per rupee.
The opposite party further levied a fuel cost adjustment charges and subsequently the rate was raised to 31 paise per unit with effect from June 1976.
" Thereafter, the learned Umpire set out the history of the negotiations between the parties resulting in the agreement dated 20.10.1962.
After referring to the bulk supply agreement the learned arbitrator set out the terms upon which supply was made to the appellant.
The appellant was to make an initial payment of Rs.35,326 towards service connection for the purpose of supply, though irrespective of PG NO 679 the payment the service connection was to continue to be the property of the Supply Company.
The Supply Company was to make provision in the appellant 's monthly bill granting a rebate of Rs. 147.20 for each month that the agreement remained inforce upto a maximum of 20 years.
Under para 9 of the agreement the appellant was to pay the Company for all electric energy supplied, registered, and estimated at the rate of 20 paise p.m.
The charges for energy consumed were subject to special discount according to the scale in the schedule which permitted a maximum discount of 50% in case a minimum of 41,000 units were consumed in each month.
The consumption as shown by the record was never less than 41,000 units p.m.
In addition, there was a provision under clause (ii) of the agreement for cash discount of 3 paise per whole rupee in case payment was made within the stipulated period.
Under the first proviso to para 9, the appellant had to pay a minimum sum of Rs.38,640 for electricity consumed in any English calendar year.
The provision made was that in addition to the amount paid in accordance with the bills, the appellant was to make payment in such cases so as to make up the said minimum of Rs.38,640.
The second proviso laid down that if and whenever during the subsistence of the agreement the Supply Company was satisfied that there was an increase in the cost of production and distribution of electric energy it shall be at liberty (but not more than once a year) to increase the rates and sums payable by the consumer under the provisions of clause 9 by such amount as the Company shall, in its sole and absolute discretion, decide.
Hence, it was held by the Umpire on the oral and documentary evidence that the payment was made at the enhanced rate under protest.
Challenging the Award, several contentions were raised, namely, (i) that there was no agreement in existence and that neither the Umpire nor the arbitrator had any jurisdiction to make the award.
This contention was rejected and no argument was advanced before us challenging this finding of the Umpire, (ii) that the appellant should prove the terms and conditions upon which the Supply Company was supplying the electricity to the appellant.
This the Umpire held, had been duty proved and there was no challenge to either of the findings of the Umpire.
(iii) it was thirdly contended that the agreement even if in existence, was not binding upon the respondent.
and that while admitting that the respondent under section 49 of the Act, issued Notification under which the tariff was revised w.e.f.
12.10.1974, it was claimed that the opposite party had not, in any way, failed to fulfil its obligations on the alleged agreement and that the opposite party was fully competent under law to fix a uniform tariff and also to levy fuel PG NO 680 adjustment charges.
This is the main and substantial question involved in this matter.
It was then contended that the respondent was entitled even under the agreement and under its second proviso to clause 9 to revise the tariff and the appellant was not entitled to any relief.
It was further urged that the payments were made after coming into operation of the , under protest.
In respect of these contentions the learned Umpire held that the plea was that even if the agreement was in existence, it was not binding on the opposite party and that the opposite party was competent under section 49 of the Electricity Supply Act, to fix revised charges w.e.f.
12.10.1974 and had not violated any terms of the agreement.
The appellant had also relied on the alternative provisions of section 49(3) of the Act, set out hereinbefore.
The said sub section (3) provides that nothing contained in sub sections (1) & (2) of section 49 shall derogate from the power of the Board, if it happens to enter into an agreement at different rates of tariff with any person other than a licensee.
It appears that when the Supply Company was taken over on l7/18.12.1973, the resident Engineer wrote a letter on 16.1.1974 in which he informed the appellant that the licence of M/s. Agra Electric Supply Co. Ltd. having expired and the U.P. State Electricity Board having taken over the supply, it was to supply energy to the appellant at the aforesaid date.
Their further contention was that the bulk supply agreement which the appellant had with M/s. Agra Electric Supply Co. Ltd., would continue to be in force with the State Electricity Board until such time as the agreement was determined in accordance with the relevant provisions thereof.
The learned Umpire held that the letter clearly laid down that the U.P. Electricity Board had accepted the agreement which was in existence between the Supply Company and the appellant, and the Umpire proceeded on that basis.
The learned Umpire further stated as follows: "The Board thus having accepted the agreement with the claimant, it became binding on the Board and under sub section (3) of section 49 of the Electric Supply Act nothing contained in sub sections (1) & (2) of section 49 of the Act could have any bearing on the terms of the agreement.
The result was that the uniform tariff fixed by the Board with effect from 12th October, 1974 did not apply to the claimant and the claimant had to be granted the various rebates laid down in the agreement.
The decision of the Supreme Court in Indian Aluminium Co. Ltd. vs Kerala Electricity Board, PG NO 681 [1976] 1 SCR pa.
70 fully covers the case and supports the claim of the claimant.
In the case before the Supreme Court an agreement had been entered into by the State Government and it was held that under section 60 of the Electricity Supply Act, 1940 it became binding on the Kerala State Electricity Board and further that that agreement was enforceable under sub section (3) of s 49 irrespective of the fixation of uniform tariff under sub sections (I) and (2) of section 49.
In the present case the only difference is that instead of the agreement being first binding between the consumer and the State Government, the agreement became binding on the Electricity Board, because it accepted the agreement and became a party to it by letter dated 16th January 1974 (exhibit R).
" The aforesaid basis of the decision, it was contended, was the error of law which vitiated the award.
This question will require further consideration later.
It was held that the decision in Indian Aluminium Co., (supra) fully covered the dispute on this aspect in the instant case.
The learned Umpire further held as follows: "Once the agreement was binding on the Board its terms under sub section (3) of section 49 could not be varied by fixation of uniform tariff under sub sections (1) and (2) of section 49.
The opposite party in these circumstances must be held to have failed to fulfil its obligations under the agreement".
On 1st July, 1983.
an application was made under section 12 [2] of the before the learned District Judge, Lucknow, for filing of the award and making the same Rule of the Court.
Objections were filed by the respondent against the said award.
The learned kind Addl.
Distt.
Judge, Lucknow, held that the award was legal, valid and binding on the parties and the alleged grounds of misconduct were not maintainable.
The award was.
however, set aside on the ground that the reference made to arbitration was unilateral.
The appellant filed an appeal.
The Lucknow Bench of the Allahahad High Court held against the finding of the Ilnd Additional Distt.
Judge Lucknow that the reference was unilateral.
but set aside the award on the ground that there was an error of law apparent on the face of it in view of the agreement dated 20.10. 1962 and the ratio of the decision of this Court in Indian Aluminium Co., (supra).
The revision filed by the respondent against the judgment of the Vth Addl.
Distt Judge, Lucknow was also rejected.
This appeal is from the aforesaid decision of the High Court by special leave.
PG NO 682 The two learned Judges of the High Court gave separate judgments.
The High Court was of the view that the instant case was distinct from the facts in the case of Indian Aluminium Co., (supra).
There it was held that where a stipulation in a contract is entered into by a public authority in exercise of a statutory power then, even though such stipulation fetters subsequent exercise of the same statutory power, it would be valid and the exercise of such statutory power would pro tanto stand restricted.
Mr Justice Loomba was of the view that in the instant case even if the stipulation as to the tariff structure in the agreement by taken to have been continued to be in existence in view of sub section (3) of section 49 of the Act, the same was not unrestricted.
The stipulation was expressly made subject to certain reservations as would be clear from the opening sentence of clause 9 of the agreement, the main clause was "subject to the provisions hereinafter contained".
Mr Justice Loomba was of the view that the decision of the Indian Aluminium Co., (supra) case was inapplicable to the present case.
According to the learned Judge, the mistake committed by the Umpire was a manifest error.
It was further stated that it is well settled proposition of law that if the reasons are stated on the basis of which the award was made and such reasons are found to be erroneous, the errors become apparent on the face of the award and constitute legal misconduct on the part of the Umpire vitiating the award.
The other learned Judge Mr Justice Mathur also held that there was error of law apparent on the face of the award of the Umpire.
He was of the opinion that the expression "sum payable by the consumer under the foregoing provision of this present clause 9" was subject to the discounts mentioned in the subsequent clauses of the agreement.
In view of the discounts, the sum payable under clause 9 was altered and the altered amount becomes the sum payable under clause 9.
According to the learned Judge, since the amount determined after allowing discounts is also sum payable under clause 9, it followed that in exercise of the power conferred under the third proviso, the discount could only be tampered with in the same way the unit charge could be tampered with.
Beyond this it was not permissible.
In permitting this the Umpire committed an error in drawing distinction between 'rates ' and 'discount ' and upholding the right of the Board to tamper with the former and negating similar right in respect of the latter.
According to the learned Judge, this was a wrong understanding of the decision of the Indian Aluminium 's case (supra).
In the aforesaid view of the matter, the learned Judge agreed with the other learned Judge and held that the award was vitiated.
PG NO 683 It appears that the main question that arises is: whether the decision of this Court in Indian Aluminium 's case (supra) was properly understood and appreciated by the learned Umpire and whether he properly applied the agreement between the parties in the light of the aforesaid decision.
It was contended that the question was whether the sums payable under clause 9 included discounts.
On the aforesaid basis it was contended that there was an error of law and such error was manifest on the face of the award.
Even assuming, however, that there was an error of construction of the agreement or even that there was an error of law in arriving at a conclusion, such an error is not an error which is amenable to correction even in a reasoned award under the law.
Reference may be made to the observations of this Court in Coimbatore Distt.
P.T. Sangam vs Bala Subramania Foundry, AlR , where it was reiterated that an award can only be set aside if there is an error on its face.
Further, it is an error of law and not mistake of fact committed by the arbitrator which is justiciable in the application before the Court.
Where the alleged mistakes or errors, if any, of which grievances were made were mistakes of facts if at all, and did not amount to error of law apparent on the face of the record, the objections were not sustainable and the award could not be set aside.
See also the observations of this Court in Delhi Municipal Corpn.
vs M/S. Jagan Nath Ashok Kumar, ; , where this Court reiterated that reasonableness of the reasons given by an arbitrator in making his award cannot be challenged.
In that case before this Court, there was no evidence of violation of any principle of natural justice, and in this case also there is no violation of the principles of natural justice.
It may be possible that on the same evidence some court might have arrived at some different conclusion than the one arrived at by the arbitrator but that by itself is no ground for setting aside the award of an arbitrator.
Also see the observations of Halsbury 's Laws of England, 4th Edn., Vol. 2, at pages 334 & 335, para 624, where it was reiterated that an arbitrator 's award may be set aside for error of law appearing on the face of it, though that jurisdiction is not lightly to be exercised.
If a specific question of law is submitted to the arbitrator for his decision and he decides it, the fact that the decision is erroneous does not make the award bad on its face so as to permit it being set aside; and where the question referred for arbitration is a question of construction, which is, generally speaking, a question of law, the arbitrator 's decision cannot be set aside only because the court would itself have come to a different conclusion; but if it appears on the face of the award that the arbitrator has proceeded illegally, as, for instance, by deciding on evidence which was not admissible, or on principles of construction which the law does not PG NO 684 countenance, there is error in law which may be ground for setting aside the award.
It was contended by Mr F.S. Nariman, counsel for the appellant, that a specific question of law being a question of construction had been referred to the Umpire and, hence, his decision, right or wrong, had to be accepted.
In view of clause 18, it was submitted that in this case a specific reference had been made in the interpretation of the agreement between the parties, hence, the parties were bound by the decision of the Umpire.
Our attention was drawn to the observations of this Court in M/s. Hindustan Tea Co. vs M/s. K. Sashikant & Co., AIR 1987 SC 81, where this Court held that under the law, the arbitrator is made the final arbiter of the dispute between the parties, referred to him.
The award is not open to challenge on the ground that the arbitrator has reached a wrong conclusion or has failed to appreciate facts.
Where the award which was a reasoned one was challenged on the ground that the arbitrator had acted contrary to the provisions of section 70 of the Contract Act, it was held that the same could not be set aside.
In order to set aside an award, there must be a wrong proposition of law laid down in the award as the basis of the award.
For this see the observations of this Court in Kanpur Nagar Mahapalika vs M/s.
Narain Das Haribansh, In that case the appellant had entered into a contract with the respondent for certain construction work.
The contract contained an arbitration agreement between the parties.
The respondent filed a suit in 1946 claiming certain moneys due against its final bills but, at the instance of the appellant, the suit was stayed and the matter referred to arbitration.
The arbitrator made an award in March 1960 in favour of the plaintiffs determining the amount payable by the appellant.
Thereafter the appellant made an application for setting aside the award on the ground that the arbitrator had misconducted himself in not properly considering that the claim of the respondent was barred by limitation under section 326 of the U.P. Act 2 of 1916.
Although the trial court set aside the award, the High Court, in appeal, reversed this decision.
In appeal to this Court it was contended for the appellant that the award was bad by reason of an error apparent on its face.
Dismissing the appeal, it was held that there could not be predicated of the award that there was any proposition of law forming the basis of the award, and, therefore, it could not be said that there was any error apparent on the face of the award.
PG NO 685 The Judicial Committee in the famous decision of Champsey Bhara & Co. vs Jivraj Balloo Spinning & Weaving Co. Ltd., [ held that the error of law on the face of the award means that one can find in the award or in document incorporated thereto as, for instance, a note appended by the arbitrator stating the reasons for his judgment, some legal proposition which is the basis of the award and which is erroneous.
The same view was reiterated by this Court in Dr. S.B. Dutt vs University of Delhi, ; In this case.
Mr. Nariman appearing for the appellant contended that there was no proposition of law as such stated by the Umpire which could be said to be the basis of his decision.
Hence, the award was not amenable to corrections on the ground that there was an error of law apparent on its face.
Mr. Nariman further submitted that the Umpire had decided the specific question of law and such a decision, right or wrong, is binding on the parties.
In aid of his submission Mr. Nariman referred to the decision of this Court in M/s. Kapoor Nilokheri Co op.
Dairy Farm Society Ltd. vs Union of India & Ors., [ , where it was held that in a case of arbitration where the appellants had sepcifically stated that their claims were based on the agreement and on nothing else and all that the arbitrator had to decide was as to the effect of an agreement between the appellant and the respondent, the arbitrator had really to decide a question of law i.e. of interpreting the document, the agreement.
Such a decision his, is not open to challenge.
Our attention was drawn to the observations of this Court in Tarapore & Co. vs Cochin Shipyard Lld.
Cochin & Anr., [l984] 3 SCR 118, where Desai J., spoke for the Court and Justice Chinnappa Reddy agreed with him.
It was stated that a question of law might figure before an arbitrator in two ways.
It may arise as an incidental point while deciding the main dispute referred to the arbitrator or in a given case parties may refer a specific question of law to the arbitrator for his decision.
This Court reiterated that the arbitration has been considered a civilised way of resolving disputes avoiding court proceedings.
There was no reason why the parties should be precluded from referring a specific question of law to an arbitrator for his decision and agree to be bound by the same.
This approach manifests faith of parties in the capacity of the tribunal of their choice to decide even a pure question of law.
If they do so, with eyes wide open, there is nothing to preclude the parties from doing so.
If a question of law is specifically referred and it becomes evident that the parties desired to have a decision on the specific question from the arbitrator rather than one from the Court, then the court will not interfere PG NO 686 with the award of the arbitrator on the ground that there was an error or law apparent on the face of the award even if the view of law taken by the arbitrator did not accord with the view of the court.
A long line of decisions was relied upon by this Court for that proposition.
Mr. B. Sen, learned counsel for the respondent, however, contended that in the present case, there was no specific question of law referred to the Umpire.
He submitted that it was a general reference in which a question of law arose.
It was any question in the proceedings and the question of law, as such, did not arise.
According to Mr. Sen, the mistake that the Umpire, has committed is clear from his following statement: "The Board thus having accepted the agreement with the claimant, it became binding on the Board and under sub section [3] of section 49 of the Electricity Supply Act nothing contained in sub section ( 1) & (2) of section 49 of the Act could have any bearing on the terms of the agreement.
The result was that the uniform tariff fixed by the Board with effect from 12th October, 1974 did not apply".
It was stated that no specific question having been referred to, this mistake was fatal.
We are unable to accept this submission.
Our attention was drawn by Mr. Nariman to the observations of Justice Macnaghten in Hitchins & Anr.
vs British Coal Refining Processes Ltd., [1936] 2 A.E.R. Reprint 191.
Ihere, by an agreement the applicants were to act as consulting Engineers in connection with a certain coal refining process owned by the respondents.
While the plant for the working of the process was being erected, a dispute arose.
the respondents wanting the applicants to attend every day at the site of the plant and the applicants considering this to be no part of their duty.
The respondents thereupon terminated the agreement and the matter was referred to arbitration.
The applicants pleaded that the termination of the agreement was unjustified; the respondents pleaded that the applicants should have attended every day and that they had been quilty of negligence in respect of certain matters set out in the counterclaim.
The arbitrator found the termination of the agreement to be unjustified and also negligence on the part of the appellants in respect of the matters set out in the counterclaim, and he awarded the appellants damages after setting off an unspecified amount for damages for negligence.
The respondents moved to set aside the award on PG NO 687 the ground of error of law apparent on the face of it.
At the hearing the respondents contended that the whole of the pleadings in the arbitration were admissible.
The respondents contended that for the purpose of deciding whether there was an error of law apparent on the face of the award, the court could not look at any document except the award itself.
The respondents further contended that the arbitrator had committed an error of law in deciding that the negligence found did not afford sufficient ground for the termination of the agreement, and further that on the true consideration of the agreement, the refusal to attend daily was as a matter of law a sufficient ground for the termination of the agreement.
It was held that inasmuch as the arbitrator in his award referred to certain paragraphs in the counterclaim, such paras ought, in considering whether there was an error on the face of the award, to be regarded as forming part of the award.
Whether misconduct justifies dismissal is a question of fact, and the arbitrator 's decision was final.
It was further held that the light to terminate the agreement because the applicants refused to attend daily was a question specifically submitted to the arbitrator and the court could not interfere with his decision, even if the question was a question of law.
Mr. Justice Macnaghten at page 195 of the report observed that it was permissible to look at the whole of the pleadings delivered in the arbitration, and it appears therein that the respondents affirmed and the applicants denied that the respondents were entitled to terminate the agreement as the applicants refused to attend daily at the site, and that this was a specific question submitted to the decision of the arbitrator.
Our attention was also drawn to the observations of House of Lords in Pioneer Shipping Ltd. and Ors.
vs ETP Tioxide Ltd., In that case by a charterparty dated 2nd November, 197 the owners of a vessel chartered her to the charterers.
It was held by the House of Lords that having regard to the purpose the Arbitration Act, 1970 of England which was to promote greater finality in arbitration awards then had been the case under the special case procedure judicial interference with the arbitrator 's award was only justified if it was shown that the arbitrator had misdirected himself in law or had reached a decision which no reasonable arbitrator could have.
In the instant case, the view taken by the Umpire on the interpretation of the agreement between the parties in the light of the observations of this Court in Indian Aluminium Co. 's case (supra) was at best a possible view to take, if not the correct view.
If that was the position then such a view, even if wrong, cannot be corrected by this Court on the basis6is of long line of decisions of this Court.
In the PG NO 688 aforesaid view of the matter it is necessary to examine the aforesaid decision in the Indian Aluminium Co 's case (supra).
There under section 49(1) & (2) of the Electricity Supply Act, 1948, the Legislature had empowered the State Electricity Board to frame uniform tariffs and had also indicated the factors to be taken into account in fixing uniform tariffs.
Under sub section (3), the Board was empowered, in the special circumstances mentioned therein, to fix different tariffs for the supply of electricity, but in doing so, sub section (4) directed that the Board was not to show undue preference to any person.
Under section 59 it was stipulated that the Board shall not, as far as practicable, carry on its operations at a loss and shall adjust its charges accordingly from time to time.
Certain consumers of electricity had entered into agreements for the supply of electricity for their manufacturing purposes at specified rates for specified period.
Some of the agreements were entered into with the State Governments and the others with the State Electricity Boards.
In one of the agreements there was an arbitration clause.
On account of the increase in the operation and maintenance cost, due to various causes which caused loss to the State Electricity Boards, the Boards wanted to increase the charges in all the cases.
The consumers challenged the competency of the Boards to do so by petitions in the respective High Courts.
The High Court sustained the Board 's claim, in some cases, under sections 49 & 59, and in others, held that the Board was incompetent to do so.
In the case of the consumer where there was the arbitration clause.
the High Court refused to entertain the petition on account of the clause.
This Court held that fixation of special tariffs under section 49 (3) can be a unilateral Act on the part of the Board but more often it is the result of negotiations between the Board and the consumer and hence a matter of agreement between them.
Therefore, the Board can, in exercise of the power conferred under the sub section, enter into an agreement with a consumer stipulating for special tariff for supply of electricity for a specific period of time.
The agreements for supply of electricity to the consumers must therefore he regarded as having been entered into by the Boards in exercise of the statutory power conferred under section 49(3).
The Umpire in his award stated that the decision of this Court covered and supported the claim of the claimant.
In the present case the only difference is that there was only an agreement by which the Electricity Board accepted the agreement which was held by the Umpire to have become operative.
Once that agreement was binding on the Board, its terms could not be varied from the uniform rate under sub sections (1) and (2) of section 49.
The Umpire was right.
In our opinion, the Umpire committed no error in arriving at such conclusion.
Furthermore, such a conclusion is certainly a possible view of the interpretation of the decision of this PG NO 689 Court in Indian Aluminium Co 's case, if not the only view.
We need go no further than that.
We, are, therefore, of the opinion that the view taken by the Umpire on section 49 was a possible view in the light of the decision of this Court in Indian Aluminium 's case.
In the premises, a question of law arose certainly during the course of the proceedings.
Such a question has been decided by the Umpire on a view which is a possible one to take.
Even if there was no specific reference of a question of law referred to the Umpire, there was a question of law involved.
Even on the assumption that such a view is not right, the award is not amenable to interference or correction by the courts of law as there is no proposition of law which could be said to be the basis of the award of the Umpire, and which is erroneous.
In the premises, we are of the opinion that the High Court and the learned IInd Additional District Judge were in error in the view they took of the award of the Umpire.
The appeal must, therefore, be allowed and the decision of the High Court, dated 21st July, 1987 as well as the order of the IInd Additional Judge, Lucknow, dated 30th May, 1984 are set aside.
No other point was urged challenging the award of the Umpire.
The award of the Umpire is confirmed and let the award be made Rule of the Court under section 14(2) of the Act.
The appeal is allowed with costs.
R.S.S. Appeal allowed. | On taking over the Agra Electric Supply Co. in December 1973, the respondent U.P. State Electricity Board intimated to the appellant U.P. Hotels that the Bulk Supply Agreement between the appellant and the Agra Electric Supply Co. would continue to be in force until such time the agreement was determined in accordance with its relevant provisions.
The agreement contained terms of rates, discounts, minimum sum payable and increase in the rates and sums payable once a year on account of increase in cost of production and distribution of electrical energy (clause 9) and also contained an arbitration clause (clause 18).
In November 1976, the appellant received a communication from the respondent informing that the uniform tariff rates issued under section 49 of the Electricity Supply Act, 1949 would be applicable to them.
The Board also withdrew the contractual discount and rebates.
While sub sections (1) and (2) of section 49, stipulate a uniform tariff for electric supply, sub section (3) authorises the Board to fix different tariffs for the supply of electricity.
The appellant protested against this unilateral increases and withdrawal, but without success.
The appellant then informed the respondent that it was referring the disputes for decision by the arbitrator and appointed a retired High Court Judge as its arbitrator.
The respondent in turn appointed another retired High Court Judge as a joint arbitrator.
The joint arbitrators appointed Justice V. Bhargava, a retired Judge of the Supreme Court, as the Umpire.
The arbitrators having failed, the proceedings started before the Umpire.
The Umpire gave his award in June 1983 and held that the Board having accepted the agreement, it became binding on the Board and once the agreement was binding, its terms under sub section (3) of section 49 could not be varied by PG NO 670 PG NO 671 fixation of uniform tariff under sub sections (1) and (2).
The Umpire further held that the present case was fully covered by the decision of the Supreme Court in Indian Aluminium Co. wherein it was held that where a stipulation in a contract was entered into by a public authority in exercise of a statutory power then, even though such stipulation fettered subsequent exercise of the same statutory power, it would be valid and the exercise of such statutory power would pro tanto stand restricted.
In that view of the matter the Umpire held that in terms of clause 9 the increase in unit rate was permissible and the fuel cost variation charges which were variable every month was contrary to clause 9 as increase was permitted only once in a year of accounts, and further that the appellant was entitled to discount of 50% of the charges for electricity and also to discount for prompt payment of bills.
Objections were filed by the respondent before the IInd Additional District Judge during the proceedings initiated for making the award the Rule of the Court.
The IInd Additional Distt.
Judge set aside the award on the ground that the reference made to arbitration was unilateral.
In appeal, the High Court, while holding against the above finding of the IInd Addl.
Judge, set aside the award on the ground that the Indian Aluminium Co. case was inapplicable to the present case, and the mistake committed by the Umpire in this regard was error of law apparent on the face of the award.
The High Court held that even if the stipulation as to the tariff structure in the agreement be taken to have been Continued in existence in view of sub section (3) of section 49 of the Act, the same was not unrestricted, and that the stipulation was expressly made subject to certain reservations as would be clear from the opening sentence of clause 9 of the agreement the main clause was "subject to the provisions hereinafter contained".
It was further held that in drawing distinction between `rates ' and `discount ' and upholding the right of the Board to tamper with the former and negating similar right in respect of the latter, the Umpire had committed an error.
Before this Court it was contended on behalf of the appellant that a specific question of law being a question of construction had been referred to the Umpire and hence, his decision, right or wrong, had to be accepted.
On behalf of the respondent it was contended that there was no specific question of law referred to the Umpire but it was a general reference in which a question of law arose, and that it was a question in the proceedings and the question of law, as such, did not arise.
PG NO. 672 Allowing the appeal, it was, HELD: (1) Even assuming that there was an error of construction of the agreement or even that there was an error of a law in arriving at a conclusion, such an error was not an error which was amenable to correction even in a reasoned award under the law.
[683B] (2) Where the question referred for arbitration is a question of construction, which is, generally speaking a question of law, the arbitrator 's decision can not be set aside only because the court would itself have come to a different conclusion, but if it appears on the face of the award that the arbitrator has proceeded illegally, as, for instance, by deciding on evidence which was not admissible, or on principles of construction which the law does not countenance, there is error in law which may be ground for setting aside the award.
[683G H; 684A] (3) In order to set aside an award, there must be a wrong proposition of law laid down in the award as the basis of the award.
[684D] (4) In the instant case, a question of law arose certainly during the course of the proceedings.
Such a question has been decided by the Umpire on a view which is a possible one to take.
Even if there was no specific reference of a question referred to the Umpire, there was a question of law involved.
Even on the assumption that such a view is not right, the award is not amenable to interference or correction by the Courts of law as there was no proposition of law which could be said to be the basis of the award of the Umpire, and which was erroneous.
[689B Cl (5) The Umpire in his award stated that the decision of this Court covered and supported the claim of the claimant.
In the present case the only difference was that there was only an agreement which was held by the Umpire to have become operative.
Once that agreement was binding on the Board, its terms could not be vaired from the uniform rate under sub sections (1) and (2) of section 49.
The Umpire was right.
The Umpire committed no error in arriving at such conclusion.
Further more, such a conclusion was certainly a possible view of the interpretation of the decision of this Court in Indian Aluminium Co. 's case, if not the only view.
[688G H; 689A] Indian Aluminium Co. Ltd. vs Kerala Electricity Board, ; ; Coimbatore Distt.
P.T. Sangam vs Bala PG NO 673 Subramania Foundry; , ; Delhi Municipal corpn.
vs M/s Jagan Nath Ashok Kumar; , ; M/s. Hindustan Tea Co. vs M/s. K. Sashikant & Co., AIR 1987 SC 81; Kanpur Nagar Mahapalika vs M/s.
Narain Das Haribansh, ; Champsey Bhara & Co. vs Jivraj Balloo Spinning & Weaving Co. Ltd., ; Dr. S.B. Dutt vs University of Delhi; , ; M/s. Kapoor Nilokheri Co op.
Dairy Farm Society Ltd. vs Union of lndia, ; Tarapore & Co. vs Cochin Shipyard Ltd. Cochin, ; ; Hitchins & Anr.
vs British Coal Refining, [1936] 2 A.E.R. Reprint 191; Pioneer Shipping Ltd. & Ors.
vs ETP Tioxide Ltd., , referred to. |
ial Leave Petition (C) Nos.
4304 06 of 1993.
From the Judgment and Order dated 18.12.1992 of the Calcutta High Court in Appeal from Original Order Nos.
and 106 of 1991.
Panchugopal Bose in person for the Petitioner.
D.P. Gupta, Solicitor General, A.K Sil and G. joshi for the Respondent.
The Judgment of Court was delivered by K. RAMASWAMY.
J.: These three Special Leave Petitions arise out of Arbitration Agreement said to be executed by the petitioner on May 27, 1978 which provided that the petitioner had to execute the work within 9 months.
It is 363 his claim that while executing the work he sent the bills on July 12, 1979 but payment was not made.
For the first time he sent notice on Nov. 28, 1989 to the respondent for reference to the arbitration.
On receipt thereof, the respondent filed an arbitration suits in the Calcutta High Court under sections 5, 12 and 33 of the for short the Act.
The learned Single Judge held that the claim was hopelessly barred by limitations There was no proof that the petitioner had sent any claim in July, 1979.
Since the Claim was made long after 10 years the arbitration cannot be proceeded with.
Accordingly finding that it to be an exceptional case for interference, the learned Single Judge cancelled the arbitration clause 68 of the contract in matter Nos. 1326, 1364 and 1365/90 dated November 23. 1990.
On further appeals the division bench by its order dated December 18, 1992 in Appeal Nos 104/90 etc.
dismissed the appeals.
Thus these special leave petitions.
The contention of the petitioner appearing in person is that Clause 68 of the Contract provides for appointment of an arbitrator and when the petitioner has legally invoked clause 68 and issued notice to the respondent, the respondent is duty bound to appoint an arbitrator and on its failure it is open to him to approach the Court for appropriate remedy under section 8 of the Act for appointment of an arbitrator.
The High Court scuttled this procedure in exercising the power under section 5 of the Act which is illegal and ultra vires.
He further contented that Section 5 has no application to the facts of this case.
We have heard also Shri D.P. Gupta, the learned Solicitor General for the respondent.
The question for consideration is whether the High Court was justified in permitting the respondent to rescind the contract of Arbitration provided in Clause 68 of the Contract.
Undoubtedly, Clause 68 provides reference to arbitration of all or any of the disputes or differences enumerated therein that have arisen between the parties, at the instance of either party to the contract.
It empowers either party to issue notice calling upon the Engineer to refer the dispute or difference for arbitration.
In this case, as found by the High Court that though the petitioner was said to have made the claim for payment for the first time in July 12, 1979.
Though there is no proof in that behalf, and the respondent claimed that the petitioner had abandoned the contract, even assuming that any claim was as a fact made in July.
1979 and payment was not made, the petitioner had not taken follow up action thereafter for well over 10 years.
It was open to him to avail Clause 68 of the contract seeking reference to the arbitration.
No such action was taken till November 28, 1989 Immediately on receipt of the notice, the respondent invoked the jurisdiction of the Calcutta High Court under sections 5 and 12 at 330 of the Act.
Section 5 provides thus: 364 "The authority of an appointed arbitrator or umpire shall not be revocable except with the leave of the Court, unless a contrary intention is expressed in the arbitration agreement".
Therefore, Section 5 postulates that there must be an order of appointing an arbitrator or umpire and thereafter the same cannot be revoked except with the leave of the Court, unless a contrary intention is expressed in the agreement.
Exfacie it would appear that appointment of an arbitrator is a condition to avail the remedy under s.5.
Section 12 accords consequential power which postulates that the power of the Court where Arbitrator is removed or his authority revoked.
Subsection (2) says that: "Where the authority of an arbitrator or arbitrators or an umpire is revoked by leave of the Court, or where the Court removes an umpire who has entered on the reference or a sole arbitrator or all the arbitrators, the Court may, on the application of any party to the arbitration agreement, either (b)order that the arbitration agreement shall cease to have effect with respect to the difference referred." Therefore, by a conjoint reading of sections 5 and 12 (2) (b) it is clear that the court has been given power in given circumstances to grant leave to a contracting party to have the arbitrator or umpire removed and the arbitration agreement entered into with other contracting part revoked.
Where the Court grants such authority consequentially arbitration agreement shall cease to have effect with respect to the difference or dispute.
It flows therefrom that there exist implied power vested in the court permitting a party to avail the remedy under sections 5 & 12 to rescind the arbitration agreement.
In all cases it is not a condition precedent that there should in the first instance be an order appointing an arbitrator or he should enter upon reference for adjudication.
In given circumstances and the factual background the court may be justified to exercise the power under ss.5 and 12.
The question then is under what circumstances such power would be exercised.
This Court in M/s Amarch and Lalit Kumar vs Shree Ambica Jute Mills Ltd. ; at 969 held thus: "In exercising its discretion cautiously and sparingly the Court has no doubt (kept) these circumstances in view, and consider that the parties should not be relieved from a tribunal they have chosen because they fear that the arbitrator 's decision may go against them.
The grounds on which leave to revoke may be given have been put under five heads: 365 1.
Excess or refusal of jurisdiction by arbitrator; 2.
Misconduct of arbitrator; 3.
Disqualification of arbitrator; 4.
Charges of Fraud; and 5.
Exceptional cases.
Thus it could be seen that the Court has the power and jurisdiction under sections 5 and 12 to grant leave to the applicant in exceptional circumstances to revoke the contract of arbitration.
The court should exercise the power sparingly, cautiously and with circumspection to permit a party to the contract of a arbitration voluntarily entered into to relieve the party from dispute or difference and to order that the arbitration agreement shall cease to have effect in respect of the dispute or difference.
In this case we have seen that even assuming that the petitioner had putforward his claim in July, 1979 and the respondent had not acted thereon till November 28, 1989 for long 10 years he did not move his little finger to approach the Engineer and later the Court.
For the first time on November 28, 1989 he issued notice to the respondent to refer the case for arbitration.
Clause 68 of the Contract provides that when any disputes or differences has arisen he should approach the Engineer in the first instance seeking reference of it to an arbitration and if the Engineer refuses to act upon or omits to refer the dispute to the arbitration within 15 days from the date of the receipt of notice, then it is open to him to approach a Civil Court for reference to the arbitration.
On his own showing cause of arbitration has arisen in July, 1979, the petitioner did not take any action from then.
On the other hand when notice was issued in November, 1989 the respondent immediately approached the Court and sought its leave to rescind the agreement explaining the circumstances.
The Court exercised the jurisdiction in permitting the respondent to revoke the arbitration agreement.
The question then is whether it is justified? Section 37 (1) of the Act provides that all the provisions of the Indian Limitation Act, 1908 (since amended Act came into force in 1963) shall apply to arbitrations as they apply to the proceedings in court.
Sub section (2), employing non obstenti clause, says that notwithstanding any term in an arbitration agreement to the effect that no cause of action shall accrue in respect of any matter required by the agreement to be referred until an award is made under the agreement, a cause of action shall, for the purpose of limitation, be deemed to have accrued in respect of any such matter at the time when it would have accrued but for that term in the agreement.
Sub section (3) thereof states that for the purposes of this section and of the Indian Limitation Act, 1908 an arbitration shall be 366 deemed to be commenced when one party to the arbitration agreement serves on the other party thereto a notice requiring the appointment of an arbitrator, or where the arbitration agreement provides that the reference shall be to a person named or designated in the agreement, requiring that the difference be submitted to the person so named or designated.
Sub sections (4) and (5) are omitted as being not material.
It would, therefore, be clear that the provisions of the Limitation Act would apply to arbitrations and notwithstanding any term in the contract to the contrary, cause of arbitration for the purpose of limitation shall be deemed to have accrued to the party in respect of any such matter at the time when it should have accrued but for the. contract.
Cause of arbitration shall be deemed to have commenced when one party serves the notice on the other party requiring the appointment of an arbitrator.
The question is when the cause of arbitration arises in the absence of issuance of a notice or omits to issue for long time or contract to the contrary? It is stated in Robertson 's History that honest men dread arbitration more than they dread law suits.
The arbitrations differ from legal proceedings proper only in the choice of tribunal and all ordinary defences legally permissible are available to the Parties.
Parties to an arbitration may voluntarily determine among themselves the procedure to be followed including the constitution of the arbitral tribunal to adjudicate the dispute or differences arising from the contract including the power of the arbitrator.
They could also contract restricting the limitation for adjudication.
Subject to the above section 37 of the Act regulates the limitation for the arbitration proceedings.
In Ram Dutt Ramkissendass vs Sassoon (E.D) & Co. 1929 (56) Indian Appeals 128, the Privy Council held that although, it is indisputable that, in a modern arbitration, the principles of equity must be applied just as they would now be applied in a court of law, since upon a special case for the opinion of the court under Sec. 7 if the or the Judicature Act, 1925, s.94 (replacing sec.
19 of the ), the court is, and has long been, bound to apply equitable rules and relief.
It is difficult to see how the equitable view of the applicability of Limitation Act, 1908, to a case of debt can be excluded in a legal arbitration.
Although the Limitation Act does not in terms apply to arbitrations, they (their Lordships of the Judicial Committee) think that in mercantile reference of the kind in question it is an implied term of the contract that the arbitrator must decide the dispute according to the existing law of contract, and that every defence which would have been open in a court of law can be equally proponed for the arbitrator 's decision unless the parties have agreed which is not suggested here to exclude that defence.
Were it otherwise, a claim for breach of contract containing a reference cause could be brought at any time, it might be 20 or 30 years after the cause of action had arisen, although the legislature has prescribed a limit of three years for the enforcement of such a claim in any application that 367 might be made to the law courts.
This ratio was approved by House of Lords in Naamlooze Vennootschap Handels En Transport Maatschappij "Vulcaan ' vs A/S J. Ludwig Mowinckels Rederi [1938]2 All E.R. 152, Lord Maugham, L.C. speaking for the unanimous Court held that in considering whether the Limitation Act would apply to arbitration (pre statutory arbitrations), it was held that this seems to be a good reason for holding that there may well be cases where the object of both parties to the arbitration might be to determine whether a sum was due, though possible or certainly not recoverable by legal Proceedings.
We are, however, here concerned with an arbitration in which legal rights are being advanced or denied If the defence of the statute is to be deemed in admissible, it would seem that the claims of one party or the other might be put forward long after the persons who could give useful evidence had died and the most relevant documents had been destroyed If the legal defence were to be excluded, it was in this agreement that one would expect to find such a provision The matter does not rest cause we have to consider how far the suggested elimination of defences available at law or in equity must logically be held to extent in other arbitrations.
If the party defending may not rely on the Statute of Limitations, can he rely on the Statute of Frauds, or the Act partially replacing it? Could he rely in a commercial arbitration on the Garming Act? A number of like questions might be asked It is indisputable that, in a modem arbitration, the principles of equity must be applied just as they would now be applied in a court of law.
In the concluding findings it is said thus: "In the circumstances of this case as above stated, it is, I think, impossible to come to the conclusion that there was an implied agreement between the parties to exclude any defence under any Statute of Limitations.
In the absence of such an implied agreement, the Limitation Act was open to the respondents, and the consequence must follow that the arbitrator was acting rightly in admitting the defence under the statute".
In Pegler vs Railway Executive 1948 Appeal Cases 332 at 338, House of Lords held that just as in the case of actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not, to be put forward after the expiration of the specified number of years from the date when the claim accrued.
While accepting the interpretation put up by Atkinson, J. as he then was in the judgment under appeal, learned Law Lords accepted the conclusion of Atkinson, in the Language thus: "the cause of arbitration" corresponding to "the cause of action" in litigation "treating a ' cause of arbitration in the same way as a cause of action would be treated if the proceeding were in a court of law.
368 In West Riding of Yorkshirs Country Council vs Huddersfield Corporation , the Queens Bench Division, Lord Goddard, C. J. (as he then was) held that the Limitation Act applies to arbitrations as it applies to actions in the High Court and the making, after a claim has become statute barred, of a submission of it to arbitration, does not prevent the statute of limitation being pleaded.
Russell on Arbitration, 19th Edition, reiterates the above proposition.
At page 4 it was further stated that the parties to an arbitration agreement may provide therein, if they wish, that an arbitration must be commenced within a shorter period than that allowed by statute; but the court then has power to enlarge the time so agreed.
The period of limitation for commencing an arbitration runs from the date on which the cause of arbitration accrued, that is to say, from the date when the claimant first acquired either a right of action or a right to require that an arbitration takes place upon the dispute concerned.
Therefore, the period of limitation for the commencement of an arbitration runs from the date on which, had there been no arbitration clause, the cause of action would have accrued.
Just as in the case of civil actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued.
In Russell on Arbitration, at pages 72 and 73 it is stated thus: "Disputes under a contract may also be removed, in effect, from the jurisdiction of the court, by including an arbitration clause in the contract, providing that any arbitration under it must be commenced within a certain time or not at all, and going on to provide that if an arbitration is not so commenced the claim concerned shall be barred.
Such provisions are not necessarily found together.
Thus the contract may limit the time for arbitration without barring the claim depriving a party who is out of time of his right to claim arbitration but leaving open a right of action in the courts.
Or it may make compliance with a time limit a condition of any claim without limiting the operation of the arbitration clause, leaving aparty who is out of time with the right to claim arbitration but so that it is a defence in the arbitration that the claim is out of time and barred.
369 Nor, since the provisions concerned are essentially separate, is there anything to prevent the party relying on the limitation clause waiving his objection to arbitration whilst still relying on the clause as barring the claim.
" At page 80 it is stated thus: "An extension of time is not automatic and it is only granted if "undue hardship" would otherwise be caused.
Not all hardship, however, is "undue hardship," , it may be proper that hardship caused to aparty by his own default should be borne by him and not transferred to the other party by allowing a claim to be reopened after it has become barred.
The mere fact that a claim was barred could not be held to be "undue hardship.
" The Law of Arbitration by Justice Bachawat in Chapter XXXVII at p.549 it is stated that just as in the case of actions the claim is not to be brought after the expiration of a specified number of years from the date when the claim accrues, as also in the case of arbitrations, the claim is not to be put forward after the expiration of a specified number of years from the date when the claim accrues.
For the purpose of section 37 (1) 'action ' and cause of action ' in the Limitation Act should be construed as arbitration and cause of arbitration.
The cause of arbitration, therefore, arises when the claimant becomes entitled to raise the question, i.e. when the claimant acquires the right to require arbitration.
The limitation would run from the date when cause of arbitration would have accrued, but for the agreement.
Arbitration implies to charter out timous commencement of arbitration availing the arbitral agreement, as soon as difference or dispute has arisen.
Delay defeats justice and equity aid the promptitude and resultant consequences.
Defaulting party should bear the hardship and should not transmit the hardship to the other party, after the claim in the cause of arbitration was allowed to be barred.
The question, therefore, as posed earlier is whether the court would be justified to permit a contracting party to rescind the contract or the court can revoke, the authority to refer the disputes or differences to arbitration.
Justice Bachawat in his Law of Arbitration, at p. 552 stated that "in an appropriate case leave should be given to revoke the authority of the arbitrator '.
It was also stated that an ordinary submission without special stipulation limiting or conditioning the functions of the arbitrator carried with it the implication that the arbitrator should give effect to all legal defences such as that of limitation.
Accordingly the arbitrator was entitled 370 and bound to apply the law of limitation.
Section 3 of the Limitation Act applied by way of analogy to arbitration proceedings, and like interpretation was given to section 14 of the Limitation Act, The Proceedings before the arbitration are like civil proceedings before the court within the meaning of section 14 of the Limitation Act, By consent the parties have substituted the arbitrator for a court of law to arbiter their disputes or differences.
It is, therefore, open to the parties to plead in the proceedings before him of limitation as a defence.
In Mustiu and Boyd 's Commercial Arbitration (1982 Edition) under the heading "Hopeless Claim" in Chapter 31 at page 436 it is stated thus: "There is no undoubtedly jurisdiction to interfere by way of injunction to prevent the respondent from being harassed by claim which can never lead to valid award for example in cases where claim is brought in respect of the alleged Arbitration agreement which does not really exist or which has ceased to exist.
So also where the dispute lies outside the scope of Arbitration agreement".
The case on hand is clearly and undoubtedly hopelessly barred claim as the petitioner by his conduct slept over his right for more than 10 years.
Statutory arbitrations stand apart.
In these circumstances it is an exceptional case and the courts below have justifiably exercised their discretionary power, and jurisdiction under sections 5 and 12(2) (b) to permit the respondent to rescind the arbitration agreement and declared that the arbitration agreement shall cease to have effect with respect to the difference or dispute referred to in the notice of the petitioner and relieved the parties from the arbitration agreement.
The Special Leave Petitions are accordingly dismissed without costs.
U.R Appeal dismissed. | On May 27, 1978, the petitioner entered into an arbitration agreement under which he had to execute a certain work within 9 months.
He averred that he had sent his bills on July 12, 1979, but payment was not made.
On November 28, 1989, for the first time he sent a notice to the respondent for reference to arbitration.
The respondent approached the High Court under Ss. 5,12 and 33 of the .
A learned Single Judge held that the claim was hopelessly barred by limitation, and cancelled the arbitration agreement.
A Division Bench dismissed the Appeal.
On appeal, this Court addressed itself to 2 questions: Whether the High Court could permit a party to rescind an arbitration agreement; and whether delay can be a ground for rescinding such agreement.
Dismissing the appeal, this Court, HELD:1.
The Court has the power and jurisdiction under Ss. 5 and 12 to grant leave to the applicant in exceptional circumstances to revoke the contract of arbitration.
The Court should exercise the power sparingly, cautiously and with circumspection in permitting a party to rescind an arbitration agreement he had entered into voluntarily.
(365 B) 2.By virtue of section 37 of the , the provisions of the Limitation Act would apply to arbitrations, notwithstanding any term in the contract to the contrary.
(366 B) 3.The period of limitation for the commencement of an arbitration runs from the date on which, had there been no arbitration clause, the cause of 362 action would have accrued, just as in the case of actions the claim is not to be brought after the expiration of a specified number of years from the date on which the cause of action accrued, so in the case of arbitrations, the claim is not to be put forward after the expiration of the specified number of years from the date when the claim accrued.
(368 D E) Ram Dutt Ramkissen dass vs
Sassoon(E.D.)&Co.(1929)(56)1A 128(PC); Naamlooze Vennootschap Handels En Transport Maatschappij ' Vulcan ' vs A/S J. Ludwig Mowinckels Rederi [1 938] 2 All ER 152; Pegler vs Railway Executive at 338 and; West Riding of Yorkshire Country Council Huddersfield Corporation [1957] 1 AR ER 669 and Russell on Arbitrations; Justice Bachawat Law of Arbitration, applied.
Delay defeats justice: Defaulting party should hear the hardship and should not transmit the hardship to the other party, after the claim in the cause of arbitration was allowed to he barred.
(369 F ) Mustiu and Boyd 's Commercial Arbitration (1982 edn.), referred to.
The claim in the case on hand is undoubtedly hope lessly barred by limitation as the petitioner by his conduct slept over his right for more than 10 years.
The High Court justifiably exercised the discretionary power and jurisdiction under Ss. 5 and 12 (2) (b) in permitting the respondent to rescind the agreement.
(370 E) |
Civil Appeal No. 258 of 1958.
Appeal by special leave from the Award dated August 17, 1957, of the Industrial Tribunal, Bombay, in Reference (IT) No. 15 of 1957.
I.M. Nanavati, section N. Andley, J.B. Dadachanji and Rameshwar Nath, for the appellant.
907 B.K.B. Naidu and I. N. Shroff for respondent No. 1.
I. N. Shroff for interveners Nos. 1 and 2. 1960, February 3.
The Judgment of the Court was delivered by DAS GUPTA, J.
The only point raised in this appeal by the employer, Petlad Turkey Red Dye Works Ltd., Petlad, against the award of an industrial Tribunal of a sum of Rs. 9,839 equivalent to one month 's basic wages is as regards the correctness of the disallowance, in the process of ascertaining the available surplus, of a claim of 4% interest on Rs. 2,27,000 standing in the depreciation fund said to .have been used as working capital.
If this claim was allowed and the amount claimed deducted as a prior charge no surplus would remain so that the employees would not be entitled to any bonus.
The Industrial Tribunal was of opinion that even if the depreciation reserve was utilized as working capital no return thereon was allowable for the purposes of deciding on the amount to be deducted as prior charges in applying the Full Bench Formula.
In this view it was clearly wrong.
Numerous decisions of this Court make it abundantly clear that any portion of the reserve actually utilized as working capital in the year under consideration should be treated as entitled to a reasonable rate of return and the amount thus ascertained deducted as a prior charge in ascertaining the available surplus.
There is no reason whatsoever for making an exception in this respect as regards depreciation reserves.
The question remains, however, whether this amount of Rs. 2,27,000 in the depreciation fund was actually used as working capital.
The Tribunal did not think it necessary to consider this question, as in its view even if this entire amount has been utilised as working capital no return was allowable.
If on the materials on the record it was possible to reach a conclusion that any reserve or any portion of it was used as working capital during the period under consideration we would have thought fit to calculate the amount allowable as return thereupon and deducted it from the amount ascertained as surplus 908 by the Industrial Tribunal.
On an examination of the record, however, we cannot discover any such material.
All that we have is that the employer Company in its written statement claimed interest on reserves as working capital at Rs. 32, 000 the rate of return being mentioned as 4%.
It ",as not mentioned therein in so many words that the depreciation fund was part of the reserves employed as working capital.
It is claimed however that such an averment was implicit in the claim of Rs. 32,000 as the amount allowable as return on reserves employed as working capital.
Assuming that this is so it still remained the duty of the Company to prove that any portion of the depreciation fund was actually utilised as working capital.
It was suggested before us that this averment by implication that the depreciation fund was also used as working capital was not challenged by the workers.
This suggestion is obviously incorrect.
We find that in Exhibit U/I a statement submitted on behalf of the workers containing calculations for the available surplus Rs. 3,000 was shown as the amount deductible on working capital at 2%.
That is, a sum of Rs. 1,50,000 out of the reserves was stated to have been used as working capital.
The employer 's statement in Exhibit C/3 dated July 12, 1957, shows a deduction of "Interest at 4% on Reserves employed as working capital Rs.
32,000".
A similar claim is made in exhibit C/4, an alternative statement filed on behalf of the employer on July, 12,1957.
The workmen also filed a statement showing calculations of bonus made by them on the same date i.e., July, 12, 1957.
This is marked as exhibit U/3.
According to this, return at the rate of 4% on working capital of Rs. 1,66,000 was allowable as deduction.
Thus, according to workmen, the reserves used as working capital was stated to be Rs. 1,66,000 while according to the employer this amount was no less than 8 lakhs.
It is quite clear therefore that the workmen had at no stage admitted either expressly or by implication the employer 's claim that any portion of the depreciation fund was utilized as working reserve.
On behalf of the appellant it was strenuously contended, however, that the balance sheet of the 909 Company which was placed before the Industrial Tribunal will itself show that the entire sum of depreciation fund of Rs. 2,27,000 was used as working capital.
The balance sheet does show a sum of Rs. 2,27,000 as the depreciation fund.
Assuming for the purposes of the present case that this was the actual sum standing in the depreciation reserve the further question is whether the balance sheet proves that this sum was utilized as working capital.
Assuming further for the purposes of this case that the analysis of the statement made in the balance sheet might indicate that this sum could not but have been utilised as working capital, it has to be remembered that no such conclusion is possible unless it is known as a fact that the statements made in the balancesheets under the different heads are correct statements.
On that there is absolutely no evidence.
All that the balance sheet, as submitted, shows is that certain statements were made.
The mere fact that the statements were made can never be taken as proving that the statements were correct.
That is a distinction which the courts of law have always been careful to make.
Thus, if a person is to prove that he was ill on a particular date, the mere filing of a certificate of a medical man that he was ill on that date is not accepted as evidence to show that he was ill.
The correctness of the statement made in the certificate has to be proved by an affidavit or oral testimony in court by the Doctor concerned or by some other evidence.
There is no reason why an exception should be made in the case of balance sheets prepared by Companies for themselves.
It has to be borne in mind that in many cases the Directors of the Companies may feel inclined to make incorrect statements in these balance sheets for ulterior purposes.
While that is no reason to suspect every statement made in these balance sheets, the position is clear that we cannot presume the statements made therein to be always correct.
The burden is on the party who asserts a statement to be correct to prove the same by relevant and acceptable evidence.
The mere statement of the, balance sheet is of no assistance 910 to show therefore that any portion of the reserve was actually utilized as working capital.
The question whether a balance sheet can be taken as proof of a claim of what portion of reserve has actually been used as working capital was very recently considered by us in Khandesh Spg.
& Weaving Mill Co., Ltd. vs The Rashtriya Girni Kamgar Sangh.
Jalgaon (Civil Appeal No. 257 of 1958).
As was pointed out by Subba Rao, J. in that case the balancesheet of a Company is prepared by the Company 's own officers and when so much depends on the ascertainment of what portion of the reserve was utilized as working capital, the principles of equity and justice demand that an Industrial Court should insist upon a clear proof of the same and also give a real and adequate opportunity to the labour to canvass the correctness of the particulars furnished by the employer.
In that case we also considered an observation in Indian Hume Pipe Company Ltd. vs Their Workmen (1) which was relied upon for an argument that the balance sheet was good evidence to prove that amounts were actually used as working capital.
As was pointed out in Khandesh Spg. @ Weaving Mills Case (Supra) this observation was not intended to lay down the law that a balance sheet by itself was good evidence to prove any fact as regards the actual utilisation of reserves as working capital.
The observation relied on was a sentence at page 362 : "Moreover, no objection was urged in this behalf, nor was any finding to the contrary recorded by the Tribunal.
" If it had been intended to state as a matter of law that the balance sheet itself was good evidence to prove the fact of utilisation of a portion of the reserve as working, capital it would have been unnecessary to add such a sentence.
This question as regards the sufficiency of the balance sheet itself to prove the fact of utilization of any reserve as working capital was also considered by us in Management of Trichinopoly Mills Ltd. vs National Cotton Textile Mills Workers Union (Civil Appeal No. 309 of 1957) and it was held that the balance sheet does not by itself prove any such fact and that the law requires that such an important (1) [1959] II L.L.J 357.
911 fact as the utilisation of a portion of the reserve as working capital has to be proved by the employer by evidence given on affidavit or otherwise and after giving an opportunity to the workmen to contest the correctness of such evidence by cross examination.
We must therefore reject the contention urged on behalf of the employer appellant that the balancesheet that has been filed is sufficient to prove that Rs. 2,27,000 of the depreciation fund was actually used as working capital.
There is, as we have already stated, no material on the record from which any conclusion can be reached as regards the utilisation of the whole or any portion of this sum lying in depreciation fund as working capital.
The appellant 's counsel finally asked that the matter may be sent back to the Industrial Tribunal and an opportunity given to him to adduce proper evidence on this point.
We do not see any circumstance that will justify us in making an order of remand in a case of this nature.
The appeal is accordingly dismissed with costs.
Appeal dismissed. | The Industrial Tribunal, in the process of ascertaining the available surplus, disallowed a claim of the appellant employer for interest on a certain sum of money standing in the depreciation fund and alleged to have been used as working capital.
If this claim was allowed and the amount claimed deducted as a prior charge, the employees would not be entitled to any bonus as there would be no surplus.
The Industrial Tribunal was of opinion that even if the depreciation reserve was utilised as working capital no return thereon was allowable in deciding what amount was to be deducted as prior charge.
On appeal the appellant contended, inter alia, that the balance sheet of the employer company placed before the Industrial Tribunal itself showed that.
,the entire sum of depreciation fund was used as working capital.
Held, that any portion of the reserve fund actually utilised as working capital in the year under consideration should be treated as entitled to a reasonable rate of return and the amount thus ascertained deducted as a prior charge in ascertaining the available surplus.
The balance sheet did not by itself prove the fact of utilisation of any reserve as working capital and the law required that such an important fact as the utilisation of the reserve as working capital had to be proved by the employer by evidence on affidavit or otherwise after giving opportunity to the workmen to contest the correctness of such evidence by cross examination.
Management of Trichinopoly Mills Ltd. vs National Cotton Textile Mills Workers Union, C.A. NO.
309 Of 1957, and Khandesh Spg.
& Weaving Mills Co. Ltd. vs The Rashtriya Girni Kamgar Sangh, jalgaon, C.A. No. 257 Of 1958, followed.
Indian Hume Pipe Co. Ltd. vs Their Workmen.
(1959) 11 L.L.J. 357, explained. |
Appeal No. 24 of 1956.
Appeal by special leave from the judgment and order dated March 31, 1954, of the former Madhya Bharat High Court in Civil Revision No. 183 of 1952.
I. M. Lal and A. G. Ratnaparkhi, for the appellant.
Rameshwar Nath and section N. Andley, for the respondent.
September 12.
The Judgment of the Court was delivered by KAPUR J.
This is an appeal against the judgment and order of the High Court of Madhya Bharat at Gwalior and arises out of proceedings between a landlord and his tenant taken under the Accommodation 666 Control Act (XV of 1950) which, for the sake of brevity, will be termed the Act.
On March 14,1948, the appellant took two houses in Morar from the respondent at a monthly rental of Rs. 80 plus other charges at Rs. 5 per month.
On October 20, 1948, the appellant brought a suit for fixation of rent in the court of the Cantonment Magistrate at Morar under the provisions of Accommodation Control Ordinance (Ordinance XX of 2004 section).
The Act was passed on January 25, 1950, and came into force on February 10, 1950.
Because of the passing of the Act the plaint was returned on March 20, 1950, for want of jurisdiction.
Thereupon on April 28, 1950, the appellant filed the suit before the Rent Controller out of which this appeal has arisen.
In the suit he prayed for the fixation of fair rent at Rs. 20 per month.
The respondent pleaded inter alia that the suit could not be instituted before the Rent Controller and that the suit was incompetent because no notice under section 7(2) of the Act had been given.
Both the pleas of the respondent were overruled and the Rent Controller held that the notice which the appellant had given prior to the institution of the first suit was a proper notice and he decreed the suit and fixed the fair rent at Rs. 483 per annum.
The respondent took an appeal to the District Judge who upheld the order of the Rent Controller but the question of notice under section 7 was not raised in that court.
The respondent then filed a Revision Petition in the High Court under section 115 of the Code of Civil Procedure and under article 227 of the Constitution.
The High Court held that notice under section 7 was a condition precedent to the institution of the suit; that as no such notice was given the Rent Controller had no jurisdiction to make the order.
The High Court also held that the Rent Controller had passed a decree which operated retrospectively from the date of the execution of the lease deed which the Controller had no authority to decree.
It was further held that the original suit was properly instituted in the civil court and the passing of the Act did not take away the jurisdiction of that court and therefore the civil court should not have returned the plaint of the appellant.
667 The principal question for decision is whether a suit could be instituted without a fresh notice because of section 7(2) of the Act ? That section provides: "Where no rent for any such accommodation has been agreed upon or where the landlord wishes to enhance, or the tenant wishes to reduce the rent agreed upon, the landlord or the tenant, as the case may be, by giving notice in writing to the other party shall proceed for having the rent fixed under subsection (4) All that this section contemplates is that a notice should be given.
There are no words which make it obligatory that the notice should be issued in terms as under the Act and be given after the Act came into force nor has it prescribed any particular form.
The trial court held that a proper notice had been given and therefore section 7 was applicable.
No such question was raised in appeal before the District Judge ' and therefore it was not adjudicated upon.
The question however was raised before the High Court.
In our opinion it cannot be said that the notice which was given by the appellant was not a proper notice nor does the section mean, as contended by the respondent, that the notice had to be given as under and after the Act came into force.
As we have said above it is significant that this point was never taken before the District Judge.
Lastly the High Court held that the plaint should not have been returned by the civil court because the suit for fixation of fair rent related also to a period prior to the Act.
Fairly construed the order of the Rent Controller does not operate retrospectively from the date of the beginning of the lease but appears to us to be prospective and after the coming into operation of the Act the jurisdiction was vested in the Rent Controller and not in the civil court.
This point therefore has no substance.
In the result this appeal is allowed and the judgment and order of the High Court are set aside and that of the trial court restored.
The appellant will have his costs throughout.
Appeal allowed. | The appellant, after due notice to the respondent, had filed a suit for fixation of rent under the provisions of the Accommodation Control Ordinance Madhya Bharat.
In the meantime the Accommodation Control Act (M. P. 15 of 1950) came into force and the plaint filed by the appellant was returned.
The appellant without serving a second notice filed a fresh suit under the Act,, which was decreed.
The respondent contended that a suit could not be instituted under the Act without a fresh notice, because of section 7(2) of the Act.
Held, that section 7(2) of the Accommodation Control Act (M. P. 15 of 1950) contemplates that a notice should be given but there are no words in the section which made it obligatory that the notice should be issued in terms as under the Act and be given after the Act came into force.
In the instant case it cannot be said that the notice which was given by the appellant was not a proper notice. |
Appeal No. 287 of 1958.
Appeal from the Judgment and Order dated the 10th September, 1956, of the former Travancore Cochin in Original Petition No. 191 of 1955.
Sardar Bahadur, for the Appellants.
K. P. Abraham, P. George, and M.R. Krishna Pillai, for the Respondent. 1960.
October 31.
The Judgment of the Court was delivered by AYYANGAR J.
This is an appeal from the judgment of the High Court of Travancore Cochin on a certificate of fitness granted by it under article 133(1) of the Constitution and raises for consideration the liability of the respondent The Cochin Coal Company Ltd.to sales ,tax under the United State of Travancore and Cochin General Sales Tax Act, 1125 (1950).
The following are briefly the facts which it is necessary to state in order to appreciate the points in controversy in the appeal.
The Cochin Coal Company Ltd. which will be referred to as the respondent Company are, as their name indicates, dealers in coal.
The commodity, the sales of which have given rise to the dispute in this appeal is what is known as ' Bunker coal '.
The company have their offices at a place called Fort Cochin which was formerly within the State of Madras.
They import and keep stocks of " bunker coal " stacked at a place called Candle Island which at the date relevant to these proceedings was also within the State of Madras.
Part of the activities of the respondent company consist in the supply of " bunker coal " from their depots in Candle Island to steamers arriving in or calling at, the port of Cochin (in the State of Travancore Cochin) for the outward voyage of the steamers from the said port.
The usual procedure by which bunker coal was thus supplied by the respondent company was briefly 221 this: Before the arrival of the steamers, the steamer agents would enter into contracts with the respondent company for trimming coal into the bunker of the steamer.
As soon as a steamer arrived in Cochin port, the steamer agents would inform the respondent company and these agents after securing the necessary papers from the customs and the port authorities for the loading of the coal into the steamer, would take these papers to the respondent company 's office in Fort Cochin for enabling the latter to perform their part of the contract.
The respondent company would thereupon send the goods ordered to the steamer through their transport contractor.
Delivery orders would be issued to the transport contractor on the strength of which goods would be released from their stock in Candle Island.
Coal would then be taken to the steamer berthed in the port in Travancore Cochin State waters.
The Chief Engineer of the steamer would inspect the coal and when the same was to his satisfaction as regards quality, the coal would be per mitted to be trimmed into the bunkers of the ships.
The price of the coal would thereafter be paid to the respondent company on bills drawn on the steamer agent.
The above being the nature of the transactions conducted by the respondent company, sales tax was claimed on the sales of bunker coal by the Travancore Cochin State.
The assessment years with which this appeal is concerned are 1951 52 and 1952 53, and the assessment therefore was completed on February 2, 1954, by the sales tax officer, Circle, Mattancherry.
The respondent company 's contention that no sales tax could be levied on the value of the " bunker coal " supplied, since the sale was either " in the course of export ", or " in the course of inter State trade " and therefore exempted from taxation by the State under sub cl.
(1)(b) or (2) of article 286 was rejected by the assessing officer for the reason that the sales in question fell within the Explanation to article 286 (1)(a) and were therefore " inside " the State of Travancore Cochin, since the delivery in pursuance of the sale took place within the State and the goods were delivered for the purpose of consumption within 222 the State and that notwithstanding that there was an inter State element involved in the sale, by the goods being moved from Candle Island, the same did not affect the power of the delivery State to levy the tax.
The point urged by the company, that the same sales had been assessed to tax in Madras State as sales actually taking place there, was also rejected as irrelevant The respondent company thereafter filed an appeal to the Appellate Assistant Commissioner who allowed the appeal of the company holding that the sales were " in the course of export " within article 286(1)(b), and that even if they were not such but were ',inside" sales falling within the Explanation to article 286(1)(a) of the Constitution, still a notification by the State Government dated February 5, 1954, exempting such sales from tax, operated for the benefit of the assessee.
Thereafter the Deputy Commissioner of sales tax who was the Revisional authority took up the matter suo motu, called upon the assessee to show cause why the appellate order should not be set aside and the entire turnover assessed to sales tax as the sales had taken place inside the State only.
After hearing the assessee company the order of the appellate Assistant Commissioner was set aside and that of the Sales Tax Officer restored.
The respondent company then moved the High Court of Travancore Cochin under articles 226 and 227 of the Constitution to set aside the order in revision and the learned Judges of the High Court ordered accordingly.
They, however, granted a certificate under article 133(1) of the Constitution to enable the State Government to file an appeal to this Court and that is how the matter is now before us.
Though the respondent company appear to have presented before the High Court several lines of argument in support of their contention that they were entitled to exemption from sales tax in respect of bunker coal " trimmed by them into steamers in the waters of Travancore Cochin, the learned Judges rested their decision in favour of the respondent company on practically a single ground.
Their reasoning was briefly as follows: Following the Bengal Immunity case (1), the learned Judges held that, the bans (1) 223 imposed by cls.
1(a) and 2 of article 286 were independent and that the sale of the coal by the respondent company which was in the course of inter State trade was covered by the ban contained in article 286(2) of the, Constitution notwithstanding that the sale might satisfy the terms of the Explanation to sub cl. 1(a).
The learned Government Pleader, however, had submitted that if the exemption was derived, from article 286(2), the, same would not assist the assessee, since the validity of the tax was saved by the Sales tax Law Validation Act, 1956.
The learned Judges how ever held that the validation Act could not avail the State because on their construction of section 26 of the Travancore Cochin General Sales Tax Act, 1125 (corresponding to section 22 of the Madras Sales Tax Act, 1939) no tax had been levied or was leviable on sales in the course of inter State trade or commerce and that the Validation Act having validated only taxes already levied could not enable the State to levy a tax which had not been imposed by the State 's Sales tax Act.
There is no doubt that the transaction of sale in the present case was in the course of inter State trade and would be covered by the ban on taxation imposed by article 286(2).
But the view of the learned Judges of the High Court regarding the construction of section 26 of the Travancore Cochin General Sales Tax Act must now be held to be incorrect in view of the decision of this Court in M. P. V. Sundararamier & Co. vs The State of Andhra Pradesh (1).
If therefore the assessee company could rely only on article 286(2) for claiming relief, it must be held to be not available to them since the Sales Tax Validation Act, 1956, would have validated the levy.
Before us, however, learned Counsel for the respondent company urged two grounds to sustain the decree of the High Court in its favour.
, The first was that as the coal trimmed into the steam ships were.
meant to be carried outside the territory of India, the sale was " in the course of export " within article 286 (1)(b) of the Constitution and was therefore exempt from the levy of sales tax by the State.
This contention however has to be rejected in view of the decision (1) ; 224 of this Court in Burmah Shell Oil Storage & Distributing Co., of India, Ltd. vs The Commercial Tax Officer (1) in which it was held that in the context and setting in which the expression " export out of the territory of India " occurs in Part XIII of the Constitution, it was not sufficient that goods were merely moved out of the territory ' of India but that it was further necessary that the goods should be intended to be transported to a destination beyond India, so that they were in the course of " import " into some other locality outside India and accordingly that aviation spirit sold to an aircraft for enabling it to fly out of the country was not " exported " out of the country.
The reason was that there was no destination at which it could be said that the spirit was imported and that a mere movement of the goods out of the country following a sale would not render the sale one " in the course of export " within article 286 (1)(b) of the Constitution.
In other words, the concept of export in article 286 postulates just as the word import, the existence of two termini as those between which the goods are intended to move or between which they are intended to be transported, and not a mere movement of goods out of the country without any intention of their being landed in specie in some fore ign port.
The other point urged by learned Counsel was that, in any event, the sale fell within the Explanation to article 286(1)(a) inasmuch as the delivery of the coal was effected in the State of Travancore Cochin for the purpose of consumption in that State.
There is no doubt that the goods having originally been located in Candle Island in Madras State were moved out of that State by reason of the contract of sale into the territory of Travancore Cochin.
It had therefore an interState element which rendered the Explanation applicable.
The delivery was admittedly effected in the State of Travanoore Cochin as a direct result of that sale and was trimmed into the steam ships in the Cochin waters.
If the purpose of the delivery was (1) C.A. 751 of 1957 & C.A. 10 of 1958 (Unreported).
225 not export as we have held earlier, it must follow that in the circumstances of this case it was for the purpose of consumption in the State since the delivery was to the ultimate consumer who was to use the goods for his own purposes and not for the purpose of re export or with a view to other transactions of a commercial character in the goods.
It would be noticed that the ultimate buyer the steam ship company could, if it desired, consume the goods in the sense of exhaust the goods by consumption within the State or it could take it outside the State and consume it there, but that was a matter of its choice, dependent on its will and pleasure.
This would not therefore detract from the delivery to it being for consumption within the State.
Goods might be consumed either by destruction or by way of use depending on the nature of the goods.
Thus edible articles are generally consumed in a literal sense while other articles like clothing or furniture etc.
are consumed by being used, though they are not destroyed by such use.
If edible articles are sold and delivered to an ultimate consumer within a State, it is delivered for the purpose of consumption within the State, notwithstanding, that the buyer may not choose to consume the whole of his purchase within the State but takes part of it outside the State and consumes it there.
If, for instance, a vehicle is sold to the actual user and the sale is not in the course of export or with a view to further commercial transactions in it by the purchaser by way of resale etc.
, the delivery to the user is for the purpose of his consumption within the State.
The fact that such a purchaser might in the exercise of the enjoyment of his property by way of use or " consumption " drive the vehicle to other States does not detract from the original delivery to him falling within the Explanation to article 286(1)(a).
In the present case, the coal having been delivered into the ship for being consumed by it, it was open to the master of the vessel to use the coal while the ship was in the waters of Travancore Cochin, or if he so chose take it outside those limits.
The position might be 29 226 different if the buyer were obliged by contract or by law not to use or consume the goods sold within the State of delivery, i.e., where he has no choice to consume it there.
In the case on hand, part of the coal delivered could and would certainly have been used by the ship during the period of her stay in the harbour for loading and if such stay were prolonged owing to unforeseen causes even the entire coal might have been exhausted and of course it would have to be used till the ship left the limits of the port and the limits of State territory.
The crucial fact therefore was that the coal was delivered to the actual consumer who was at liberty to consume it wherever he desired the choice depending on his convenience and necessity.
In the circumstances, therefore, learned Counsel for the respondent was right in his submission that the sale of the "bunker coal" by the assessee company fell within the Explanation to article 286(1)(a).
If there were nothing more and the liability of the assessee had to be judged with reference to the charge imposed by the Sales tax Act of the State, read in the light of the Constitution, the tax liability of the respondent company would not have been open to doubt or dispute.
But the submission of learned Counsel was that the State Government had power to exempt sales of any particular designated type from tax liability under section 6 of the Sales Tax Act, and that the Government had by a notification dated February 5, 1954, and published in the official Gazette, exempted sales such as by the respondent company in the present case from the levy of sales tax during the assessment years now in question.
The exemption under this notification was no doubt not referred to by the learned Judges of the High Court but had been one of the grounds on which the sales tax appellate authority had set aside the tax imposition by the Sales tax Officer and the point had been specifically urged in the petition filed in the High Court under article 226, and the respondent cannot, therefore, be denied the benefit of the notification if it applied.
Section 6 of the Travancore Cochin Sales tax Act enacts: 227 "The Government may, by notification in the Gazette, make an exemption. . . in respect of any tax payable under this Act : (i) on the sale of any specified class of goods at all points or at any specified point or points in the series of sales by successive dealers ; or (ii) of any specified class of persons " in regard to the whole or any part of their turnover".
It is not necessary to set out the rest of the section.
In the Travancore Cochin Gazette dated February 16, 1954, the following notification dated February 5, 1954, appeared: " According to the interpretation given by the Supreme Court to article 286(1) of the Constitution in their judgment in the State of Bombay vs United Motors India Ltd. certain categories of inter State transactions come within the taxing powers of the State Government.
While the judgment enables the Government of Travancore Cochin to levy sales tax on certain categories of non resident dealers selling goods for delivery and consumption in Travancore.
Cochin State from the 1st April 1951, the Government have, after due consideration, decided to levy sales tax on such transactions only from the 1st April 1953 the date immediately following that on which the Supreme Court delivered its judgment and to forego the levy prior to that date ".
Then followed provisions detailing the interim arrangements for submission of returns, of declarations to be filed and the manner in which the tax should be assessed and paid.
Though the learned counsel for the appellant State urged that the notification could not have the statutory effect of granting exemption, we are clearly of the opinion that this was and must be deemed to be one issued in exercise of the power conferred on the State Government by section 6(1) whose relevant terms we have already extracted.
Besides, this is rather a curious submission to make in view of what had transpired earlier.
The appellate Assistant Commissioner who set aside the assessment of the respondent company stated in his order " Even if it is considered that the sale is for 228 consumption in this State, the company need not pay tax on the turnover since Government have exempted from payment of tax on the sales which took place before April 1, 1953 ".
When this appellate order was set aside by the Deputy Commissioner acting suo motu in revision, there is no reference made to the notification in the order and it was not stated that it had no statutory effect.
In its petition to the High Court under article 226, the respondent company claimed the benefit of the exemption granted by the notification dated February 5, 1954, and published in the Gazette of February 16, 1954, relating to the assessment for the period April 1, 1951 to April 1, 1953 and it added that the assessment in question came within the exemption contained in the Gazette notification.
In answer to this a counter affidavit was filed by the sales tax officer who said : " The notification referred to in the petitioner 's affidavit has no application to the case as the sales in question did not come within their orbit ".
In other words, the objection was not that the notification was not a statutory exercise of the power under section 6(1) and effective to grant an exemption to the cases covered by it, but that the transactions of the respondent company were not covered by the notification.
The extract we have quoted from the notification shows that it is specially designed to afford relief to cases of non resident dealers engaged in inter State transactions which were held to be intra State transactions by reason of the application of the Explanation to article 286(1)(a) to such sales by the decision of this Court in the United Motors Case.
As the respondent company 's transactions in question clearly fall within the notification by reason of their nature as well as the assessment years concerned, the respondent company would be entitled to the benefit of the tax exemption conferred by the notification.
The result is that the appeal fails and is dismissed with costs.
Appeal dismissed. | The respondent stocked 'bunker coal ' at Candle Island in the State of Madras.
They sold the coal to steamers calling at the port of Cochin in the State of Travancore Cochin and delivered it there.
The respondent was assessed to sales tax on such sales for the year 1951 52 and 1952 53.
, The respondent contended that no sales tax could be levied on these sales since they were either sales ' in the course of export ' or in the course of inter State trade exempt from sales tax under sub cl.
(1) (b) or cl.
(2) of article 286 of the Constitution and in the alternative that they were exempt from tax under a notification dated February 5, 1954, issued by the appellant State under which sales failing within the Explanation to article 286(1)(a) made during the period 4 1 1951 to 31 3 1953 were exempted from liability to pay tax.
Held that the sales were exempt from tax under the Government Notification.
The coal was delivered to the actual consumer, i. e., the steamships in Travancore Cochin and they were at liberty to consume it :wherever they desired, either within the State or outside the choice depending on its convenience and necessity.
The delivery was for consumption within the State and the sales fell within the Explanation to Aft. 286(1)(a).
Though the sales were in the course of inter State trade which were covered by the ban on taxation imposed by article 286(2) the levy was validated by the Sales Tax Validation Act, 1956.
M. P. V. Sundararamier & Co. vs The State of Andhra Pra desh; , , relied on.
The sales were not made 'in the course of export and were not covered by the ban imposed by article 286(1)(b).
For article 286(1)(b) to apply it was not sufficient that the goods merely moved out of the territory of India, but it was further necessary that the goods should be intended to be transported to a destination beyond India.
The concept of 'export ' in article 286 postulated the existence of two termini between which the goods were intended to be transported.
220 Burmah Shell Oil Storage & Distributing Co. of India Ltd. vs The Commercial Tax Officer, C.A. 751 of 957 & C.A. 10 of 1958 (Unreported) followed. |
Appeals Nos. 601 and 602 of 1963.
Appeals from the judgment and decree dated December 9, 1958, of the Allahabad High Court in First Appeals Nos.
373 of 1945 and 92 of 1946.
582 Civil Appeal No. 603 of 1963.
Appeal by special leave from the judgment and decree dated December 9, 1958 of the Allahabad High Court in First Appeal No. 374 of 1945.
N. D. Karkhanis and R. N. Sachthey, for the appellant (in all the three appeals).
G. section Pathak, Rameswar Nath, section N. Andley and P. I. Vohra, for the respondents (in all the three appeals).
Wanchoo, J. These three appeals raise common questions and will be dealt with together.
They arise out of two suits filed against the Government of India claiming damages for loss of goods which were destroyed by fire on the railway platform at Morar Road Railway Station.
One of the suits was filed by Birla Cotton Factory Limited, now represented by the West Punjab Factories Limited (hereinafter referred to as the Factory).
It related to six consignments of cotton bales booked from six stations on various dates in February and March 1943 by the Factory to Morar Road Railway Station.
In five of the cases, the consignment was con Signed to J. C. Mills while in one it was consigned to self.
The consignments arrived at Morar Road Railway Station or.
various dates in March Delivery was given of a part of one consignment on March 7, 1943 while the remaining goods were still in the custody and possession of the railway.
On March 8, 1943, a fire broke out at the Morar Road Railway Station and these goods were involved in the fire and severe damage was caused to them.
It is not necessary to refer to the details of the damage for that matter is not in dispute between the parties.
The case of the Factory was that the damage and loss was caused while the goods were in the custody and control of the railway administration and it was due to misconduct, negligence and carelessness on the part of the railway administration.
Consequently, the suit was filed for Rs. 77,000 and odd along with interest upto the date of the suit and interest pendente lite and future interest.
In the other suit there was one consignment of 45 bales of cotton yarn.
This consignment was booked from Belangunj to Morar Road Railway Station on February 22, 1943 and the railway receipt relating to this consignment was endorsed in favour of Ishwara Nand Sarswat who filed the suit.
This consignment arrived at 583 Morar Road Railway Station on February 23, 1943.
Ishwara Nand Sarswat went to take delivery of this consignment on March 10, 1943, his case being that be had received the railway receipt on March 9, 1943.
He then came to know that the consignment was involved in a fire which had taken place on March 8, 1943 and severe damage had been done to the consignment.
Ishwara Nand Sarswat therefore filed the suit on the ground that damage and loss was due entirely to the gross negligence of the railway administration.
He claimed Rs. 72,000,/ and odd as damages and also claimed interest upto the date of the suit and pendente lite and future interest.
The suits were resisted by the Government of India.
In the first suit by the Factory, it was pleaded that the Factory could not sue as , the goods in five of the receipts had been consigned to the J. C. Mills; secondly, it was pleaded that delivery had been given of atleast five of the consignments to the J.C. Mills before the fire broke out and the railway administration was not therefore responsible for the damage done by the fire, for it was the fault of the J. C. Mills not to have removed the goods immediately after the delivery; thirdly, it was pleaded that damages should have been granted at the rate of Rs. 38/ per bale, which was the price contracted for between the buyer and the seller and not at the market rate on the date of the damage as was done by the courts below , fourthly, it was pleaded that no interest should have been allowed for the period before the suit; and lastly, it was pleaded that the conduct of the railway administration was not negligent and there fore the railway was not bound to make good the loss.
On these pleas, five main issues relating to each of them were framed by the trial court.
The trial court found that the Factory could maintain the suit and decided accordingly.
It also found that in the case of five consignments by the Factory, delivery had been given before the fire broke Out and therefore the railway was not responsible; in the case of the sixth consignment it held that there was no proof that delivery bad been given before the fire broke out and that the railway would be responsible if negligence was proved.
On the quantum of damages, the trial court held that the damages had to be calculated at the market price on the date of the fire and not at the contract price between the buyer and seller.
On the question of interest, the trial court held that interest before the date of the suit should be allowed on equitable , rounds.
Finally, on the question of negligence, the trial court held that there was negligence by the railway and it was therefore liable for loss and damage caused by the fire which broke out on L7Sup./65 9 584 March 8, 1943.
As however, the trial court had held that delivery had been given in the case of five consignments, though the goods had not been removed, the railway was not responsible for the loss.
It therefore decreed the suit in part with respect to the sixth consignment about which it had found that there had been no delivery.
The same issues were raised in the suit by Ishwara Nand Saraswat.
But there was one additional issue in that suit based on the contention of the Government of India that it had given notice to Ishwara Nand that the consignment had arrived on February 23, 1943, Ishwara Nand however did not come to remove the goods till March 8, 1943 when the fire broke out; therefore it was urged that the liability of the railway administration as carrier had ceased after the lapse of reasonable time after arrival of the consignment at the railway station.
This reasonable time could not be beyond three days in any case and therefore the railway administration was not bound to make good the loss even if it had been occasioned on account of the negligence of the administration.
As Ishwara Nand should have removed the consignment within three days of February 23, it was his failure to do so which resulted in the damage and loss.
The issues which were common to this suit and the suit by the Factory were decided on the same lines by the trial court as in the suit by the Factory.
On the further issue which arose in this suit as to the delay in the removal of goods after notice to Ishwara Nand, the trial court held after reference to certain rules made by the railway administration that even if the railway administration 's responsibility as carrier had ceased after the lapse of reasonable time, it was still liable as a bailee either as a warehouseman or as a gratuitous bailee.
It therefore gave a decree for Rs. 76,000 and odd to Ishwara Nand.
Then followed three appeals to the High Court two in the suit by the Factory and one in the suit of Ishwara Nand.
The appeal in the suit by Ishwara Nand was by the Government of India; one appeal in the suit by the Factory was by the factory with respect to that part of the claim which had been dismissed, and the case of the Factory was that in fact no delivery had been made to it and it was entitled to the entire sum claimed as damages.
The other appeal was by the Government of India with respect to the amount decreed by the trial court and it raised all the contentions which had been raised before the trial court.
The High Court dealt with the three appeals together.
In all appeals the High Court confirmed the finding of the trial court that there had been negligence on the part of the railway which 585 resulted in damage to the goods.
On the question whether the suit could be maintained by the plaintiffs, the High Court affirmed the finding of the trial court that both the suits were maintainable.
The High Court also affirmed the finding of the trial court with respect to the rate at which damages should be calculated and on the question of interest before the date of the suit.
Further in the suit by Ishwara Nand, the High Court held that even if the railway administration ceased to be responsible as a carrier after a reasonable time had elapsed after the arrival of the goods at Morar Road Railway Station, it was still responsible as a warehouseman.
The appeal therefore of the Government of India in Ishwara Nand 's suit was dismissed.
On the question of delivery in the Factory '& suit the High Court disagreed with the finding of the trial court that there had been delivery of five consignments.
It held that there was no effective delivery even of these five consignments.
In consequence, the appeal of the Factory was allowed while that of the Government of India was dismissed.
Then followed applications to the High Court for leave to appeal to this Court in the Factory 's suit. 'Me High Court granted the certificate as the judgment was one of variance and the amount involved was over rupees twenty thousand.
However, in the suit of Ishwara Nand, the High Court refused to grant a certificate as the judgment was one of affirmance and no substantial question of law arose.
Thereupon the Government of India applied to this Court for special leave in Ishwara Nand 's suit and that was granted.
The three appeals have been consolidated in this Court for as will be seen from what we have said above, the principal points in volved in them are common.
Learned counsel for the appellant has not and could not challenge the concurrent finding of the trial court and of the High Court that the fire which caused the damage was due to the negligence of the railway administration.
But the learned counsel has pressed the other four points which were raised in the courts below.
He contends (i) that the suits as filed were not maintainable, (ii) that the High Court was in error in reversing the finding of the trial court that the delivery had been given with respect to five of the consignments in the Factory 's suit, (iii) that damages should have been awarded at Rs. 38/ per bale which was the contract price between the buyer and seller and not at the market price on the date on which the damage took place, and (iv) that interest could not be awarded for the period before the suit on the amount of damages decreed.
586 Re.
The contention of the appellant with respect to five of the consignments in the suit of the Factory was that as the consignee of the five railway receipts was the J.C. Mills, the consignor (namely, the Factory) could not bring the suit with respect thereto and only the J.C. Mills could maintain the suit.
Ordinarily, it is the consignor who can sue if there is damage to the consignment, for the contract of carriage is between the consignor and the railway administration.
Where the property in the goods carried has passed from the consignor to some one else, that other person may be able to sue.
Whether in such a case the consignor can also sue does not arise on the facts in the present case and as to that we say nothing.
The argument on behalf of the appellant is that the railway receipt is a document of title to goods [see section 2(4)] of the Indian Sale of Goods Act, No. 3 of 1930), and as such it is the consignee who has title to the goods where the consignor and consignee are different.
It is true that a railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of goods and the consignor in such circumstances can never be the owner of the goods.
The mere fact that the consignee is different from the consignor does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title to goods has passed to the consignee will have to be decided on other evidence.
It is quite possible for the consignor to retain title in the goods, himself while the consignment is booked in the name of another person.
Take a simple case where a consignment is booked by the owner and the consignee is the owner 's servant, the intention being that the servant will take delivery at the place of destination.
In such a case the title to the goods would not pass from the owner to the consignee and would still remain.
with the owner, the consignee being merely a servant or agent of the owner or consignor for purposes of taking delivery at the place of destination.
It cannot therefore be accepted simply because a consignee in a railway receipt is different from a consignor that the consignee must be held to be the owner of the goods and he alone can sue and not the consignor.
As we have said already, ordinarily, the consignor is the person who has contracted with the railway for the carriage of goods and he can sue; and it is only where title to the goods has passed that the consignee may be able to sue.
Whether title to goods has passed from the consignor to the consignee will depend upon the facts of each case and so we have to look at the evidence produced in this case to decide whether in the case of five con 587 signments booked to the J.C. Mills, the title to the goods had passed to the Mills before the fire broke out on March 8, 1943.
We may add that both the courts have found that title to the goods had not passed to the J. C. Mills by that date and that it was still in the consignor and therefore the Factory was entitled to sue.
We may in this connection refer briefly to the evidence on this point.
The contract between the Factory and the J. C. Mills was that delivery would be made by the seller at the godowns of the J. C. Mills.
The contract also provided that the goods would be dispatched by railway on the seller 's risk up to the point named above (namely, the godowns of the J. C. Mills).
Therefore the property in the goods would only pass to the J. C. Mills when delivery was made at the godown and till then the consignor would be the owner of the goods and the goods would be at its risk.
Ordinarily, the consignments would have been booked in the name of "self" but it seems that there was some legal difficulty in booking the consignments in the name of self and therefore the J. C. Mills agreed that the consignments might be booked in the Mills ' name as consignee; but it was made clear by the J. C. Mills that the contract would stand unaffected by this method of consignment and all risk, responsibility and liability regarding these cotton consignments would be of the Factory till they were delivered to the J. C. Mills in its godowns as already agreed upon under the contract and all losses arising from whatever cause to the cotton thus consigned would be borne by the Factory till its delivery as indicated above.
This being, the nature of the contract between the consignor and the consignee in the present case we have no hesitation in agreeing with the courts below that the property in the goods was still with the Factory when the fire broke out on March 8, 1943.
Therefore the ordinary rule that it is the consignor who can sue will prevail here because it is not proved that the consignor had parted with the property in the goods, even though the consignments were booked in the name of the J. C. Mills.
We are therefore of opinion that the suit of the Factory was in view of these circumstances maintainable.
As to the suit by Ishwara Nand, he relies on two circumstances in support of his right to maintain the suit.
In the first place, he contended that he was the owner of the goods and that was why the railway receipt was endorsed in his favour by the consignor though it was booked to "self".
In the second place, it was contended that as an endorse to a document of title he was in any case entitled to maintain the suit.
The trial court found on the evidence that it had been proved satisfactorily that Ishwara Nand 588 was the owner of the goods.
It also held that as an endorse of a document of title he was entitled to sue.
These findings of the trial court on the evidence were accepted by the High Court in these words : "It was not contended before us that the finding arrived at by the learned court below that the plaintiff had the right to sue was wrong, nor could, in view of the overwhelming evidence, such an issue be raised.
The evidence on the point has already been carefully analysed by the court below.
We accept the finding and confirm it.
It was also pointed out that Ishwara Nand was the endorsed consignee and in that capacity he had in any case a right to bring the suit.
The correctness of this statement was not challenged before us.
" Thus there are concurrent findings of the two courts below that Ishwara Nand was the owner of the goods and that was why the railway receipt was endorsed in his favour.
In these circumstances he is certainly entitled to maintain the suit.
The contention that the plaintiffs in the two suits could not maintain them.
must therefore be rejected.
The contention under this head is that five of the consignments had been delivered to the J. C. Mills before March 8, 1943 and therefore the railway was not responsible for any loss caused by the fire which broke out after the consignments had been delivered on March 6 and 7, 1943.
It was urged that it was the fault of the J. C. Mills that it did not remove the consignments from the railway station by March 7 and the liability for the loss due to fire on March 8 must remain on the J. C. Mills.
The trial court had held in favour of the appellant with respect to these five consignments.
But the High Court reversed that finding holding that there was no real delivery on March 6 and 7, though the delivery book had been signed on behalf of the J. C. Mills and the railway receipts had been handed over to the railway in token of delivery having been taken.
It was not disputed that the delivery book had been signed and the railway receipts had been delivered to the railway; but the evidence was that it was the practice at that railway station, so far as the J. C. Mills was concerned, to sign the delivery book and hand over the railway receipts and give credit vouchers in respect of the freight of the consignment even before the goods had been unloaded from wagons.
It appeared from the evidence that what used to happen was that as soon the wagons 589 arrived and they were identified as being wagons containing consignments in favour of the J. C. Mills, the consignee, namely, the J. C. Mills, used to surrender the railway receipts.
, sign the delivery book and give credit vouchers in respect of the receipt of freight due even before the goods were unloaded from wagons.
This practice was proved from the evidence of Har Prashad (D.W. 6) who was the Assistant Goods Clerk at Morar Road at the relevant time.
He was in charge of making delivery of such goods, there being no Goods Clerk there.
He admitted that signature of Ishwara Nand as agent of the J. C. Mills was taken as soon as the consignments were received and identified by Ishwara Nand without being unloaded.
He further admitted that there had been no actual delivery to Ishwara Nand of the consignments and this happened with respect to all the five consignments.
Ishwara Nand signed the delivery book in token of having received the delivery and surrendered the railway receipts though when he did so the wagons were not even unloaded.
On this evidence the High Court held that it could not be said that there was any effective delivery of the goods to the J. C. Mills through Ishwara Nand, though token delivery was made inasmuch as the delivery book had been signed and the railway receipts surrendered.
It also appears from the evidence of Har Prashad that before the goods were actually removed, Ishwara Nand used to take the permission of Har Prashad to remove them.
This shows that though there might be token delivery in the form of signing the delivery book and surrendering the railway receipts, actual delivery used to take place later and the removal of goods took place with the permission of Har Prashad.
On this state of evidence the High Court was of the view that the so called delivery by signing delivery book and sur rendering the railway receipts was no delivery at all for till then the goods had not been unloaded.
The unloading of goods is the duty of the railway and there can be no delivery by the railway till the railway has unloaded the goods.
It is also clear from the evidence that even after token delivery had been made in the manner indicated above, the consignee was not authorised to remove the goods from the wagons and that it was the railway which unloaded the wagons and it was thereafter that the consignee was permitted to remove such goods with his permission as stated by Har Prashad in his evidence.
The High Court therefore held that there was no clear evidence that delivery of goods had been made over to the consignee in these cases.
Further there was no evidence to show that the consignee could remove the goods from the wagons without further reference to the railway, on the other hand it appeared that after such token delivery permission 590 of Har Prashad was taken for actual removal of goods.
There fore, the High Court came to the conclusion that real delivery had not been made when the fire took place on March 8, for the goods were till then in wagons and the railway was the only authority entitled to unload the same.
Till they were unloaded by the railway, they must be in the custody of the railway and no delivery could be said to have taken place merely by signing the delivery book and surrendering the railway receipts.
We are of opinion that on the evidence the view taken by the High Court is correct.
Though there was a token delivery as appears from the fact that railway receipts had been surrendered and the delivery book had been signed, there was no real delivery by the railway to the consignee, for the goods had not been unloaded and were still under the control and custody of the railway and Har Prashad 's evidence is that his permission had still to be taken before the goods could be actually removed by the consignee.
The contention that the delivery had been made to the consignee before March 8, 1943 must therefore in the peculiar circumstances of this case fail.
(iii).
It is next contended that damages should have been awarded at the rate of Rs. 38/ per bale which was tile contract price between the factory and the J. C. Mills.
This contract was made in November 1942.
The contract price is in our opinion no measure of damages to be awarded in a case like the present.
It is well settled that it is the market price at the time the damage occurred which is the measure of damages to be awarded.
It is not in dispute that the trial court has calculated damages on the basis of the market price prevalent on March 8.
In these circumstances this contention must also be rejected.
The next contention is that no interest could be awarded for the period before the suit on the amount of damages decreed.
Legal position with respect to this is well settled : (see Bengal Nagpur Railway Co. Limited vs Ruttanki Ramji and Others) (1).
That decision of the Judicial Committee was relied upon by this Court in Seth Thawardas Pherumal vs The Union of India(2).
The same view was expressed by this Court in Union of India vs A. L. Rallia Ram(3).
In the absence of any usage or contract, express or implied, or of any provision of law to justify the award of interest, it is not possible to award interest by way of damages.
Also see (1) 65 I.A. 66.
(2) (3) ; 591 recent decision of this Court in Union of India vs Watkins Mayer & Company(1).
In view of these decisions no interest could be awarded for the period upto the date of the suit and the decretal amount in the two suits will have to be reduced by the amount of such interest awarded.
We now come to the additional point raised in Ishwara Nand 's suit.
It is urged that Ishwara Nand 's consignment had reached Morar Road Railway Station on February 23, 1943 and Ishwara Nand should have taken delivery within three days which is the period during which under the rules no wharfage is charged.
The responsibility of the railway is Linder section 72 of the Indian Railways Act (No. 9 of 1890) and that responsibility cannot be cut down by any rule.
It may be that the railway may not charge wharfage for three days and it is expected that a consignee would take away the goods within three days.
It is however urged that the railway is a carrier and its responsibility as a carrier must come to an end within a reasonable time after the arrival of goods at the destination, and thereafter there can be no responsibility whatsoever of the railway.
It is further urged that three days during which the railway keeps goods without charging wharfage should be taken as reasonable time when its responsibility as a carrier ends; thereafter it has no responsibility whatsoever.
Under section 7 2 of the Indian Railways Act, the responsibility of the railway administra tion for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway is, subject to the other provisions of the Act, that of a bailee under sections 151, 152 and 161 of the Indian Contract Act, (No. 9 of 1872).
This responsibility in our opinion continues until terminated in accordance with sections 55 and 56 of the Railways Act.
The railway has framed rules in this connection which lay down that unclaimed goods are kept at the railway station to which they are booked for a period of not less than one month during which time the notice prescribed under section 56 of the Railways Act is issued if the owner of the goods or person entitled thereto is known.
If delivery is not taken within this period, the unclaimed goods are sent to the unclaimed goods office where if they are not of dangerous, perishable or offensive character they are retained in the possession of the railway.
Thereafter public sales by auction can be held of unclaimed goods which remain with the railway for over six months.
This being the position under the rules so far as the application of sections 55 and 56 is concerned, it follows that even though the res ponsibility of the railway as a carrier may come to an end within (1) C. As.
43 & 44 of 1963 decided on March 10, 1965.
592 a reasonable time after the goods have reached the destinationstation, its responsibility as a warehouseman continues and that responsibility is also the same as that of a bailee.
Reference in this connection is made to Chapman vs The Great Western Railway Company(1).
In that case what had happened was that certain goods had arrived on March 24 and 25.
On the morning of March 27, a fire accidentally broke out and the goods were consumed by the fire.
The consignor then sued the railway as common carrier on the ground that liability still subsisted when the goods were destroyed.
The question in that case was whether the liability of the railways was still as common carrier, on March 27 or was that of warehousemen.
The question was of importance in English law, for a common carrier under the English law is an insurer and is liable for the loss even though not arising from any default on his part while a warehouseman was only liable where there was want of proper care.
It was held that the liability as a common carrier would come to end not immediately on the arrival of the goods at the destination but sometime must elapse between the arrival of goods and its delivery.
This interval how ever must be reasonable and it was held in that case that reasonable time had elapsed when the fire broke out on March 27 and therefore the railway 's responsibility was not that of a carrier but only as warehouseman.
The position of law in India is slightly different from that in England, for here the railway is only a bailee in the absence of any special contract and it is only when it is proved that the railway did not take such care of the goods as a man of ordinary prudence would under similar circumstance take of his own goods of the same bulk, quality and value as the goods bailed, that the railway 's responsibility arises.
A warehouseman is also a bailee and therefore the railway will continue to be a warehouseman under the bailment, even if its responsibility as a carrier after the lapse of a reasonable time after arrival of goods at the destination comes to an end.
But in both cases the responsibility in India is the same, namely, that of a bailee, and negligence has to be proved.
In view of the rules to which we have already referred it is clear that the railway 's responsibility as a warehouseman continues even if its responsibility as a carrier comes to end after the lapse of a reasonable time after the arrival of goods at the destination.
The responsibility as a warehouseman can only come to end in the manner provided by sections 55 and 56 of the Railways Act and the Rules which have been framed and to which we have already referred as to the disposal of unclaimed goods.
In the present case under the Rules the goods had to remain at Morar (1) (1880) 5Q.B.D.278.
593 Road Railway Station for a period of one month after their arrival there and Ishwara Nand came to take delivery of them on March 10 well within that period.
It may be that as he did not come within three days he has to pay wharfage or what is called demurrage in railway parlance, but the responsibility of the railway as a warehouseman certainly continued till March 10 when Ishwara Nand went to take delivery of the goods.
As it has been found that there had been negligence within the meaning of sections 151 and 152 of the Indian Contract Act, the railway would be liable to make good the loss caused by the fire.
The appeals therefore fail with this modification that the decretal amount would be reduced by the amount of interest awarded for the period before the date of each suit.
The rest of the decree will stand.
The appellant will pay the respondents ' costs one set of hearing fee.
In CA 603/63 interest will be calculated from 6 8 62 in accordance with that order.
Appeal dismissed and decree modified. | There was a fire at a railway station in which certain goods& were destroyed.
Two suits were filed claiming damage for loss of goods by 'the said fire.
The first suit was filed by a factory which claimed to be owner of the goods as consignor.
The other suit was filed by a consignee in whose favour the relevant documents were endorsed.
The Union of India resisted both the suits.
The trial court and the High Court concurrently held that the loss was due to the negligence of the Railways.
The1 Union of India appealed to this Court.
It was contended on behalf of the appellant : (1) The suits, as filed, were not maintainable.
(2) In the first suit delivery of the goods had been made to the consignee and the High Court 's finding to the contrary was wrong.
(3) Damages should have been awarded at the contract rat .
and not the market rate (4) Interest could not be awarded for the period before the suit on the amount of damages decreed.
(5) In the second suit notice had been given to the consignee that the consignment had arrived on February 23, 1943.
The consignee did not come to remove the goods till March 8, 1943 when the fire broke out, and the liability of the railway administration ceased after the lapse of reasonable time after arrival of the consignment at the railway administration.
HELD: (i) A railway receipt is a document of title to goods covered by it, but from that alone it does not follow, where the consignor and consignee are different, that the consignee is necessarily the owner of the goods and the consignor in such circumstances can never he the owner of the goods.
It is quite possible for the consignor to retain title in the goods himself while the consignment is booked in the name of another person.
In the first of the present suits the risk remained with the consignor according to the agreement of the parties, and it had not been proved that the consignor had parted with the property in the goods.
Therefore the suit by he consignor was maintainable.
[586 D H] In the second suit the railway receipt was endorsed in the consignees favour and the courts below had concurrently found that the consignee was the owner of the goods.
There could therefore be no dispute about the maintainability of the second suit also.
[588 D] (ii) Though there was a token delivery to the consignee in the first suit as appeared from the fact that the railway receipt had been sur 581 rendered and the delivery book had been signed, there was no redelivery by the railway to the consignee.
The goods had not been unloaded and were still under the control and custody of the railway and the evidence of the Assistant Goods Clerk was that his permission had still to be taken before the goods could be actually removed by the consignee.
The contention in the first suit that the delivery had been made to the consignee before March 8, 1943 therefore, in the peculiar circumstances of the case had to fail.
[590 C D] (iii) The High Court rightly calculated the damages on the basis of the on March 8 as it is well settled that it is the market price at lest be damage occurred which is the measure of the damages to be awarded.
[590 E F] (iv) In the absence of any usage or contract, express or implied, or of any provision of law to justify the award of interest it is not possible to award interest by way of damages and therefore no interest should have been awarded in the present two suits up to the date of filing of either suit.
[591 A] Bengal Nagpur Railway Co. Ltd. vs Ruttanji Rant, & Ors. 65 I.A. 66, Seth Thawardas Pherumal vs Union of India , Union of India v, A. L. Rallia Ram; , and Union of India V. Watkins Mayer & Co. C. As.
Nos. 43 and 44 of 1963 dt.
10 3 65, relied on.
(v) Under section 72 of the Indian Railways Act, the responsibility of the railway administration for the loss, destruction or deterioration of animals or goods delivered to the administration to be carried by railway is, subject to the other provisions of the Act, that of a bailee under sections 151, 152 and 161 of the Indian Contract Act.
The responsibility continues until terminated in accordance with sq. 55 and 56 of the Railways Act.
[591 E] It may be that under the Rules framed by the Railways goods are kept at the railway station of destination only for one month, and that demurrage has to be paid after three days of reaching the destination.
But the responsibility of the railway is under section 72 of the Indian Railways Act and it cannot be cut down by any rule.
Even if owing to the said Rules the responsibility of the railway as a carrier ends within a reasonable time after the goods have reached their destination station, its responsibility as a warehouseman continues and that responsibility L. the same at that of a bailee.
[592 E H] Chapman vs The Great Western Railway Company, (1880)5 Q.B.D. 278, distinguished.
In the present case the consignee (in the second suit) claimed the goods well within the period of one month mentioned in the rules.
The fact that he was liable to pay demurrage because he did not take delivery of the goods within three days did not relieve the railway of its respon sibility as warehouseman.
As it had been concurrently found by the courts below that there had been negligence by the railway within the meaning of sections 151 and 152 of the Indian Contract Act, the railway war, liable to make good the loss caused by the fire.
[593 A B] |
Appeals Nos. 1008 and 1009 of 1965.
Appeals by special leave from the orders dated April 1, 1965 of the Central Government Labour Court, Jullundur, in cases Nos. 409 of 1963 respectively.
C. K. Daphtary, Attorney General, section V. Gupte, Solicitor General, Niren De, Addl.
Solicitor General, K. B. Mehta, V. Sagar, H. L. Anand and B. C. Das Gupta, for the appellants.
M. K. Ramamurthi, for the respondents.
The Judgment of the Court was delivered by Wanchoo, J.
These two appeals by special leave raise a common question as to the interpretation of paragraph 5.356 of the National Industrial Tribunal (Bank Disputes) Award of June 1962 (popularly known as the Desai award) and will be dealt with together.
It is unnecessary to set out the facts of the two appeals at this stage.
It is sufficient to say that the respondents made applications under section 33 C(2) of the Industrial Disputes Act, No. 14 of 1947, praying for determination and computation of the benefit to which they were entitled under the Desai award as they were not satisfied with the fixation of their pay by the appellant bank under para 5.356.
The Desai award dealt with the method of adjustment in the scales of pay fixed by it from para 5.329 onwards.
It divided the employees of the banks with which it was concerned in two groups.
The first group consisted of workmen who were drawing basic pay on January 1, 1962 according to scales of pay provided by the ALL India Industrial Tribunal (Bank Disputes) Award, 1953 (popularly known as the Sastry award) as modified by the Labour Appellate Tribunal Decision (Bank Disputes).
The second group 900 consisted of workmen who on January 1, 1962 were employed in banks which were not governed by the provisions of the Sastry award as modified and were not thus drawing basic pay on the footing of scales of pay provided by that award.
In the first case the Desai award provided that the workmen would be fitted in the new scales of pay from January 1, 1962 on stage to stage adjustment basis, i.e., workmen who were drawing basic pay at a particular stage in the time scale of the Sastry award as modified would draw basic pay at the same stage in the new scale applicable to them under the Desai award.
Examples of how this would be done were given in para.
5.348 of the Desai award.
As to the second group, the Desai award provided that these employees would first be fitted in the appropriate scales provided in the Sastry award as modified as on January 1, 1962 and thereafter they would be fitted in the new scales of pay provided by the Desai award as laid down in para.
5.348.
Paragraph 5.356 then went on to provide how these workmen would be fitted in the Sastry award.
Here again the workmen were divided into two groups, namely, those who entered service before January 1, 1959 and those who entered service on or after January 1, 1959.
In the present appeals we are concerned with workmen who entered service before January 1, 1959, and the fitment of these workmen was dealt with in para.
5.356 of the Desai award, and it is this paragraph which calls for interpretation in the present appeals.
We may at this stage mention that a similar question of fit ment was considered by the Sastry award in para.
292 and certain provisions were made thereunder.
This paragraph was considered by the Labour Appellate Tribunal in appeal from the Sastry award and certain modifications were made thereunder by paras 164 and 166 of the Labour Appellate Tribunal decision in appeal.
Paragraph 292 as modified by the Labour Appellate Tribunal decision came up for interpretation before this Court in State Bank of India vs Prakash Chand Mehra.
(1) As the words of para 292 of the Sastry award as modified by the Labour Appellate Decision are almost the same as the words of para.
5.356 of the Desai award, we may set out the two paragraphs in parallel columns for comparison: Sastry award as modified by the Labour Appellate decision For workmen who enterd service of the bank before 31st January, 1950 1.
The workman 's basic pay as on 31st January 1960 shall not be reduced in any case.
(1) Desai award For workmen who entered service of the bank before 1st January 1959 (i) The workman 's basic pay as on January 1, 1959 shall not be reduced in any case.
Subject to rule (1) the adjusted basic pay in the new scale shall not exceed what point to point adjustment would give him or the maximum in the new scale.
3.In the matter of adjustment all efficiency bars, whether in the previously existing or in the scales fixed by us should be ignored.
4.Subject to rules (1) to (3) a workman 's basic pay in the new scales shall be fixed in the following manner (a) A workman shall first be fitted into the scale of pay fixed by our award (herein called the new scale) by placing him at the stage in the new scale equal to, or next above his basic pay as on 31st January 1950 in the pre Sen scale then in force (herein called the existing scale).
(b) To the basic pay into which he is fitted under cl.
(a) the annual increments in the new scale as from that stage onwards should be added at the rate of one increment for every completed three years of service in the same cadre as on 31st January 1950, up to a limit of 12 years ' service; hereafter one increment for every four years of service up to another 8 years service, and after that one increment for every five years of service.
(c) Such increments shall not however exceed four in number.
[NOTE : Omitted by the Labour Appellate Tribunal in view of change in cl.
(b).] 4 A.
After adjustments are made in accordance with clauses (a), (b) and (c) supra two further increments in the new scale will be added thereto for service for the two years 1951 and 1952.
In addition the workman will be entitled to draw his normal increment for 1953on 1st April 1963.
Thereafter each succeeding year 's annual increment shall take effect as and from 1st April of that year.
901 (ii) Subject to rule (i), the adjusted basic pay in the scale provided in the Sastry award as modified shall not exceed what point to point adjustment would give him or the maximum in the scale provided by the Sastry award as modified.
(iii) In the matter of adjustment, all efficiency bars, whether in the previously existing scales or in the scales provided by the Sastry award as modified should be ignored.
(iv)Subject to rules (i) to (iii) a workman 's basic pay in the scale provided by the Sastry award as modified shall be fixed in the following manner (a)A workman shall first be fitted into the scale of pay of Sastry award as modified by placing him at the stage in the Sastry award scale as modified equal to, or next above his basic pay as on 1st January, 1959 in the scale then in force in the bank concerned (hereinafter called the Bank 's scale).
(b)To the basic pay into which he is fitted under clause (a) annual increment or increment& in scale provided by the Sastry award as modified as from that stage onwards should be added at the rate of one increment for every completed three years of his service in the same cadre as on 1st January 1959.
(c) Such increments shall not however exceed four in number.
(d) After adjustments are made in, accordance with clauses (a),(b) and (c) supra, two further annual increments.
in the scale provided by the Sastry award as modified will be added thereto for service for the two years of 1960 and 1961.
902 We are not concerned with clauses (5) and (6) of para 292 of the Sastry award or with clauses (v) and (vi) of para 5.356 of the Desai award for purposes of the dispute between the parties and have not therefore set them out.
It will be seen from the above comparison of the provisions in the two awards that the substantial provisions of the Desai award are exactly the same as the provisions of the Sastry award as modified except (i) for changes necessitated by the fact that the Desai award was being given in 1962 and (ii) the provision in the Sastry award corresponding to sub cl.
(d) of cl.
(iv) of para 5.356 of the Desai award was separated by the Labour Appellate Tribunal Decision from cl.
(4) and made clause (4 A).
"We have already referred to the fact that para.
292 of the Sastry award as modified came up for consideration before this Court in the case of Prakash Chand Mehra( ') and this Court interpreted clauses (1) to (4 A) of the Sastry Award as modified thus :"We have therefore first to fix the basic pay in accordance with rule 4(a), and then allow annual increments in accordance with rule 4 (b).
But this is subject to rules 1 and 2 above.
We are unable to accept the contention raised on behalf of the respondent that the words "subject to" have not the effect of making what would otherwise follow from the application of rules 4(a) and 4(b) subject to "both the lim its" laid down in rule 2.
Giving as we must natural meaning to the words used in rules 2 and 4, we are of opinion that in no case can the basic pay be fixed at a higher figure than what the point to point adjustment would give to the workman or the maximum in the new scale.
" The dispute between the bank and the workmen in the present ,case was this.
The bank claimed that under cl.
(ii) of the Desai award, the adjusted basic pay in the new scale was not to exceed what point to point adjustment would give an employee on January 1, 1962.
The bank further claimed that this being the maximum permissible under cl.
(ii) and cl.
(iv) being subject to cl.
(ii) the method of fitment provided in cl.
(iv) could not give to an employee more than the maximum arrived at under cl.
Thus the bank 's case was that once the maximum arrived at by point to point adjustment as on January 1, 1962, was reached under cl.
(ii), no further increments even under sub cl.
(1) 903 (d) of cl.
(iv) could be allowed.
The, workmen on the other hand claimed that they were entitled to what was provided by sub cls.
(a), (b) and (c) of cl.
(iv) and the two increments under sub cl.
(d) and that it did not matter whether what was thus arrived at exceeded the maximum provided under cl.
The labour court has partially accepted the workmen 's contention and fixed the pay of the two workmen concerned accordingly.
The bank contests the correctness of this view.
We are of opinion that neither the stand taken by the bank nor the stand taken by the workmen is correct, and that the relevant clauses in para.
5.356 of the Desai award must be interpreted in the same manner as the relevant provisions in the Sastry award as modified were interpreted in Prakash Chand Mehra 's case(1).
In this connection it is brought to our notice that in para.
5.356 of the Desai award it was stated that the award was giving directions similar to those provided under the Sastry award as modified subject to certain changes which were considered necessary having regard to the lapse of time after coming into force of the provisions of the Sastry award as modified.
It is urged on behalf of the appellant that the Desai award made certain changes and therefore need not be interpreted in the same way as was done in Prakash Chand Mehra 's case(1).
We see no force in this submission.
It is true that the Desai award said that certain changes were being made; but these changes were considered necessary having regard to the lapse of time.
However, the main intention of the Desai award was also to give directions similar to those provided in the Sastry award as modified.
It is true that there are some verbal changes in the Desai award; but these verbal changes are only due to lapse of time and do not affect the substance of what was provided by the Sastry award as modified.
We do not agree with the case of the appellant bank that in cl.
(ii) the adjusted basic pay is to be as on January 1, 1962.
We are of opinion that the adjusted basic pay in cl.
(ii) has to be taken as on January 1, 1959.
This follows from the fact that the workman 's basic pay as on January 1, 1959 cannot be reduced and therefore when cl.
(ii) speaks of adjusted basic pay it must refer to the same date as in cl.
Further cl.
(iv) which provides for actual calculations starts with the words "subject to rules (i) to (iii)" and therefore the actual calculations made under cl.
(iv) must be subject to clauses (i) and (ii).
This means in (1) L8Sup.
CI/66 11 904 effect that the actual fixation.
under sub cls.
(a), (b) and (c) of cl.
(iv) will be subject to cl.
(i) and cl.
Under sub cl.
(a) of cl.
(iv) a workman will be placed in the Sastry award as modified by placing him at the stage in the Sastry award scale equal to or next above his basic pay as on January 1, 1959, in the scale then in force in the bank concerned.
But in view of cl.
(i) this cannot be less than the actual basic pay of the workman as on January 1, 1959.
Where under cl.
(i) the actual basic pay as on January 1, 1959, is more than what point to point adjustment will give under cl.
(ii), it cannot be reduced for cl.
(ii) is subject to cl.
After this has been done the workman would be entitled to increments as provided in sub cl.
(b) read with sub cl.
(c) of cl.
(iv), but this will be subject to cls.
(i) and (ii) and the adjusted basic pay arrived at by giving the increments under sub cls.
(b) and (c) cannot exceed the adjusted basic pay as arrived at by point to point adjustment in the Sastry award as modified or the maximum of that scale or the actual basic pay as on 1st January 1959, as the case may be.
Thus sub cl.
(a) is subject to cl.
(i) and the basic pay to be fixed on January 1, 1959, has to be fixed by reading sub cls.
(a) of cl.
(iv) and cl.
(i) together.
Then increments under sub cl.
(b) read with sub cl.
(c) of cl.
(iv) have to be added, but this is again subject to the provisions of cls.
(i) and (ii).
After this has been worked out, then comes sub cl.
(d) of cl.
(iv), and the main dispute in the present case is about this subclause.
The appellant bank 's contention is that two further annual increments allowed under sub cl.
(d) cannot be permitted in view of cl.
(ii) as interpreted by the appellant.
But as we, have held that in cl.
(ii) the adjusted basic pay has to be fixed as on January 1, 1959, sub cl.
(d) of cl.
(iv) will take effect and give two annual increments for 1960 and 1961 which are beyond the date which we have accepted as the right date for purposes of cl.
It is however urged on behalf of the appellant that sub cl.
(d) is also subject to cls.
(i) to (iii) and therefore these increments if they go beyond what cl.
(ii) provides cannot be given.
This argument has arisen because the Desai award did not separate sub cl.
(d) as was done by the Labour Appellate Tribunal in its modification of the Sastry award.
But as stated by the Labour Appellate Tribunal when dealing with the Sastry award, it was inherent in the Sastry award that increments for 1951 and 1952 should be provided after the basic pay was worked out as on January 31, 1950.
The same applies to the Desai award.
Once it is held and that we hold that basic pay under cl.
(ii) has to be worked out as on January 1, 1959, the two increments provided by sub cl.
(d) of cl.
(iv) which are beyond that date must 905 be given over and above what has been worked out under sub cls.
(a), (b) and (c) of el.
(iv) of the Desai award.
The fact that by oversight sub cl.
(d) of el.
(iv) was not made a separate clause would make no difference for sub cl.
(d) provides for a period after the date up to which el.
(ii) works.
Therefore, two increments under sub cl.
(d) have to be given after adjustments have been made under sub cls.
(a), (b) and (c) of el.
(iv) in accordance with what we have interpreted these sub clauses as well as cls.
(i) and (ii) to mean.
In effect the two increments provided in sub el.
(d) must always be given.
But it may happen that increments provided in sub cl.
(b) read with sub cl.
(c) may in some cases be not available where the actual pay as on January 1, 1959 which will not be reduced under el.
(i) happened to coincide with or was more than the adjusted basic pay under el.
This interpretation is in accord with what was decided by this Court in Prakash Chand Mehra 's case(1), and that decision in our opinion would govern the interpretation of para.
5.356 of the Desai award also, which as we have indicated, is in substance the same as para.
292 of the Sastry award as modified by the Labour Appellate decision.
We now turn to the actual fixation of pay in each case.
We shall first take the case of Ram Parkash (i.e. C.A. 1008).
I le joined service on April 11, 1949.
His basic pay as on January 1,1959 was Rs. 106.
His place of posting was Phagwara in area ITT.
Point to point adjustment as on January 1, 1959, would give him Rs. 106 in the Sastry award scale as modified.
This is equal to his actual salary as on January 1, 1959.
Therefore under sub cl.
(a) of el.
(iv) his salary has to be fixed as on January 1, 1959 at Rs. 106.
He would not be entitled to any increments under sub cls.
(b) and (c), because his actual salary coincided with the adjusted basic pay in the Sastry award scale as modified as on January 1, 1959.
He would however be entitled to two increments under sub cl.
(d) for the years 1960 and 1961 and his salary therefore as on January 1, 1962 under the Sastry award would come to Rs. 119.
As Rs. 119 is the eleventh stage in the Sastry scale, Ram Parkash would be entitled to the eleventh stage in the Desai scale, which would be Rs. 170.
The bank actually fixed him at Rs. 176 on its own interpretation of the award.
In the circumstances, Ram Parkash was not entitled to any relief from the labour court.
Tek Chand Sharma respondent in C.A. 1009 was appointed on November 15, 1950.
His salary as on January 1, 1959 was Rs. 100 and his place of posting was Nakodar in area IV of the (1) 906 Sastry award.
His salary according to point to point adjustment would come to Rs. 85.
But under cl.
(i) his salary cannot be fixed below Rs. 100, which he was actually getting.
Under subcl.
(a) of cl.
(iv) his salary will be fixed at Rs. 100.
He would not be entitled to any increments under sub cls.
(b) and (c) of cl.
(iv) because he was getting more than what would be his adjusted basic pay under cl.
Therefore, for purposes of sub cl.
(a) of cl.
(iv) he would be fixed at Rs. 100 as on January 1, 1959, and would be entitled to increments under sub cl.
(d) which will bring his salary to Rs. 112 as on January 1, 1962.
This is the thirteenth stage in the Sastry scale.
Nakodar is now in area III in the Desai award.
The thirteenth stage in the Desai award scale is Rs. 182 for that area.
So his salary as on January 1, 1962 would be fixed at Rs. 182.
In addition he is entitled to two increments on account of being a graduate and one increment on account of his having passed the Indian Institute of Bankers ' examination.
His actual salary in the Desai scale on January 1, 1962 will be Rs. 182 plus Rs. 33, i.e., Rs. 215.
The bank fitted him on Rs. 193.
The award of the labour court therefore in the case of Tek Chand Sharma is correct.
We therefore allow C.A. 1008 and set aside the order of the labour court and dismiss the application of Ram Parkash.
We make no order as to costs in the circumstances.
C.A. 1009 is hereby dismissed.
We make no order as to costs in the circumstances.
C.A. 1008 allowed.
C.A. 1009 dismissed. | The respondent employees made applications under section 33C(2) of the Industrial Disputes Act for determination and computation of the benefit to which they were entitled under the National Industrial Tribunal (Bank Disputes) Award (Desai Award) as they were not satisfied with the fixation of their pay by the appellant bank under para 5.356 of the Desai Award.
The Bank claimed that under clause (ii) of para 5.356 of the Desai Award, the adjusted basic pay in,the new scale was not to exceed what point to point adjustment would give an employee on January 1, 1962 and that this being the maximum permissible under cl.
(ii), cl.
(iv) could not give an employee more than the maximum arrived at under cl. (ii).
The employees on the other hand claimed that they were entitled to what was provided by sub cls.
(a), (b) and (c) of cl.
(iv) and the two increments under sub cl.
(d) and that it did not matter whether what was thus arrived at exceeded the maximum provided under cl.
The Labour Court partially accepted the employees ' contention and fixed their pay accordingly.
In appeal.
HELD:The decision of this Court in Prakash Chand Mehra 's case would govern the interpretation of para 5.356 of the Desai Award also, which is in substance the same as para 292 of the Sastry Award as modified by the Labour Appellate decision.
The adjusted basic pay in cl.
(ii) has to be taken as on January 1, 1959.
This follows from the fact that the workman basic pay as on January 1, 1959 cannot be reduced and therefore when cl.
(ii) speaks of adjusted basic pay it must refer to the same date as in cl.
Further cl (iv) which provides for actual calculations starts with words "subject to rules (i) to (iii)" and therefore the actual calculations made under cl.
(iv) must be subject to cls.
(i) and (ii).
This means in effect that the actual fixation under sub cls.
(a), (b) and (c) of cl.
(iv) will be subject to cl.
(i) and cl.
Under sub cl.
(a) of cl.
(iv) a workman will be placed in the Sastry Award as modified by placing him at the stage in the Sastry Award scale equal to or next above his basic pay as on January 1, 1959 in the scale then in force in the bank concerned.
But in view of cl.
(i) this cannot be less than the actual basic pay of the workman as on January 1, 1959.
Where under cl.
(i) the actual basic pay as on January 1, 1959 is more than what point to point adjustment will give under cl.
(ii), it cannot be reduced for cl.
(ii) is subject to cl.
After this has been done the workman would be entitled to increments as provided in sub cl.
(b) read with sub cl.
(c) of cl.
(iv), but this will be subject to cl.
(i) and (ii) and the adjusted basic pay arrived at by giving the increments under sub cls.
(b) and (c) cannot exceed the adjusted basic pay as arrived at by point to point adjustment in the Sastry Award as modified or the maximum of that scale or the 899 actual basic pay as on 1st January 1959, as the case may be.
Thus sub cl.
(a) is subject to cl.
(i) and the basic pay to be fixed on January 1, 1959 hag to be fixed by reading sub cl.
(a) of cl.
(iv) and cl.
(i) together.
Then increments under sub cl.
(b) read with sub cl.
(c) of cl.
(iv) have to be added, but this is again subject to the provisions of cls.
(i) and (ii).
[903 E; 903 G 904 E] Once it is held that basic pay under cl.
(ii) has to be worked out as on January 1, 1959 the two increments provided by sub cl.
(d) of cl.
(iv) which are beyond that date must be given over and above what has been worked out under sub cls.
(a), (b) and (c) of cl.
(iv) of the Desai Award.
The fact that by oversight sub cl.
(d) of cl.
(iv) was not made a separate clause would make no difference for sub cl.
(d) provides for a period after the date up to which cl.
(i) works.
[904 H 905 B] State Bank of India Prakash Chand Mehra, [1961] 11 L.L.J. 383, relied on. |
Appeal No. 804 of 1963.
Appeal by special leave from the judgment and decree, dated January 3, 1961 of the Orissa High Court in Appeal under Orissa High Court Order No. 3 of 1959.
25 K. R. Chaudhuri, for the appellant.
C. B. Aggarwala, B. Parthasarathy, J. B. Dadachanji, O.C. Mathur, and Ravinder Narain, for respondent No. 1.
The Judgment of the Court was delivered by Ramaswami, J.
This appeal is brought by special leave on behalf of the judgment debtor against the judgment of the Orissa High Court, dated January 3, 1961 in Letters Patent Appeal No. 3 of 1959.
The deceased plaintiff filed Original Suit No. 500 of 1941 against the appellant defendant in the Court of the Additional Munsif, Aska claiming Rs. 970 on the basis of a promissory note.
The suit was dismissed on August 17, 1942.
The plaintiff preferred an appeal No. 178 of 1942 before the District Judge who allowed the appeal and set aside the decree of the Munsif and decreed the suit ex parte on March 9, 1943.
Against this decree of the appellate Court, the appellant filed Second Appeal No. 100 of 1943 in the Orissa High Court which set aside the decree of the District Judge on November 11, 1946 and remanded the suit to the lower appellate court for disposal.
The lower appellate court in its turn remanded the suit to the trial court by its judgment, dated April 11, 1947.
In the meantime the original plaintiff died and the present respondents were brought on record as his legal representatives.
The suit was again dismissed by the trial court on November 29, 1947 but on appeal the Additional Subordinate Judge set aside the judgment and decree of the Munsif on November 30, 1948.
The appellant carried the matter in Second Appeal No. 12 of 1949 to the Orissa High Court which dismissed the appeal on August 27, 1954.
After the ex parte decree was passed inappeal No. 178 of 1942 by the District Judge on March 9,1943, the plaintiff executed the decree, attached the propertiesin dispute and himself purchased the properties in Court auction.
The plaintiff also took delivery of the properties on May 17, 1946 and since that date the respondents have been in possession of the properties and enjoying the usufruct.
After the decree of the High Court, dated November 11.
1946 in Second Appeal No. 100 of 1943 the appellant made an application for restitution in the Court of the Additional Munsif in Miscellaneous Judicial Case No. 34 of 1947.
The plaintiff obtained a stay of the hearing of the Miscellaneous Judicial Case from the Court of the Additional District Judge but on March 30, 1948 the order of stay was discharged.
In Civil Revision No. 75 sup, Cl/66 3 2 6 of 1948 the High Court also granted interim stay in the proceedings in the Miscellaneous Judicial Case at the instance of the plaintiff but the order of stay was vacated by the High Court on April 28, 1949.
Thereafter the present appellant got the Miscellaneous Judicial Case stayed till disposal of his Second Appeal after remand.
On July 12, 1956 the Miscellaneous Judicial case was allowed by the Munsif and an order of restitution was made in favour of the appellant.
The respondents filed an appeal before the Subordinate Judge of Berhampur who allowed the appeal and set aside the order of restitution.
The appellant took the matter before the High Court in Miscellaneous Appeal No. 24 of 1958 which was allowed by P. V. Balakrishna Rao, J. on October 3, 1958 and it was ordered that the restitution of the properties should be made to the appellant subject to the condition that he must deposit the amount decreed in favour of the plaintiff decree holder.
The order of the learned Single Judge was, however, set aside in Letters Patent appeal by a Division Bench which held that the appellant was not entitled to restitution of properties sold in the execution case.
The question presented for determination in this case is whether the appellant was entitled to restitution of his properties purchased by judgment debtor in execution of the decree passed by the District Judge on the ground that the decree was set aside by the High Court and the suit was remanded for rehearing and fresh disposal under the provisions of section 144 of the Civil Procedure Code which states as follows 144 (1) Where and in so far as a decree or order is varied or reversed, the Court of first instance shall, on the application of any party entitled to any benefit by way of restitution or otherwise, cause such restitution to be made as will, so far as may be, place the parties in the position which they would have occupied but for such decree or such part thereof as has been varied or reversed; and, for this purpose, the Court may make any orders, including orders for the refund of costs and for the payment of interest, damages, compensation and mesne profits, which are properly consequential on such variation or reversal.
" On behalf of the responds Mr. aggarwala made the submission that after the suit was re heard a decree was passed in favour of the respondents and that decree was eventually affirmed by the High Court., and the appellant was, therefore, not entitled to 27 restitution under the provisions of this section.
We are unable to accept this argument as correct.
The properties of the appellant were sold in execution at the instance of the respondents who were executing the ex parte decree passed by the District Judge on March 9, 1943.
In this execution case, the properties of the appellant were sold and the respondents got delivery of possession on May 17, 1946.
It is true that the suit was eventually decreed after remand on August 27, 1954 by judgment of the High Court, but we are unable to accept the argument of the respondents that the execution sale held under the previous ex parte decree which was set aside by the High Court, is validated by the passing of the subsequent decree and therefore the appellant is not entitled to, any restitution.
It is evident that the application for restitution was filed by the appellant in 1947 in Miscellaneous Judicial Case, No. 34 of 1947 before the passing of a fresh decree by the High Court in the Second Appeal.
At the time of the application for restitution, therefore, the appellant was entitled to restitution,.
because on that date the decree in execution of which the properties.
were sold had been set aside.
We are of the opinion that the appellant is entitled to restitution notwithstanding anything which happened subsequently as the right to claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff ' at the time when the application for restitution was made.
The principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost.
This obligation arises automatically on the reversal or modification of the decree and ' necessarily carries with it the right to restitution of all that has been done under the erroneous decree; and the Court in making restitution is bound to restore the parties, so far as they can berestored, to the same position they were in at the time when the Court by its erroneous action had displaced them from.
It should be noticed, in the present case, that the properties were purchased ' by the decree holder himself in execution of the ex parte decree and not by a stranger auction purchaser.
After the ex parte decree was set aside in appeal and after a fresh decree was passed on remand, the sale held in execution of the ex parte decree becomes invalid and the decree holder who purchased the properties in executions of the invalid decree is bound to restore to the judgment debtor what he had gained under the decree which was subsequently set aside.
The view that we have expressed is borne out by the decision of the Judicial Committee in Zain Ul Abdin Khan vs 28 Muhammad Asghar Ali Khan(1) in which a suit was brought by the judgment debtor to set aside the sale of his property in execution of the decree against him in force at the time of the sales, but afterwards so modified, as the result of an appeal to Her Majesty in Council, that, as it finally stood, it would have been satisfied without the sales in question having taken place.
The judgmentdebtor sued both those who were purchasers at some of the sales, being also holders of the decree to satisfy which the sales took place, and those who were bona fide purchasers at other sales, under the same decree, who were no parties to it.
The Judicial Committee held that, as against the latter purchasers, whose position was different from that of the decree holding purchasers, the suit must be dismissed.
At page 172 of the Report, Sir B. Peacock observed as follows "It appears to their Lordships that there is a great distinction between the decree holders who came in and purchased under their own decree, which was afterwards reversed on appeal, and the bona fide purchasers who came in and bought at the sale in execution of the decree to which they were no parties, and at a time when that decree was a valid decree, and when the order for the sale was a valid order." The same principle has been laid down by the Calcutta High Court in Set Umedmal and another vs Srinath Ray and another (2 ) where certain immovable properties were sold in execution of an exparte decree and were purchased by the decree holder himself.
After the confirmation of the sale, the decree was set aside under section 108 of the Civil Procedure Code, 1882 at the instance of some of the defendants in the original suit.
On an application unders.
244 of the Civil Procedure Code, 1882 having been made by adecree, to set aside the sale held in execution of the ex parte decree the defence was that the application could not come under section 244 of the Civil Procedure Code, 1882, and that the sale could not be set aside, as it had been confirmed.
It was held by the Calcutta High Court that the ex parte decree having been set aside the sale could not stand, inasmuch as the decree holder himself was the purchaser.
At page 813 Maclean, C.J. stated : "As regards the second point, viz., whether, notwithstanding the confirmation, the sale ought to be set aside, (1) I.L,R. 10 All, 166.
(2) I.L.R. 29 the fact that the decree holder is himself the auction purchaser is an element of considerable importance.
The distinction between the case of the decree holder and of a third party being the auction purchaser is pointed out by their Lordships of the Judicial Committee in the case of Nawab Zainal abdin Khan vs Mahommed Asghar Ali (I.L.R. 10 All., 166), and also in the case of Mina Kumari Bibee vs Jagat Sattani Bibee (I.L.R. , which is a clear authority for the proposition that where the decree holder is himself the auction purchaser, the sale cannot stand, if the decree be subsequently set aside.
I am not aware that this decision, which was given in 1883, has since been impugned.
" The same view has been expressed in Raghu Nandan Singh vs Jagdish Singh(1) where it was held that if an ex parte decree has been set aside, it cannot by any subsequent proceeding be revived and if a decree is passed against judgment debtors on re hearing, it is a new decree and does not revive the former decree.
The same opinion has been expressed in Abdul Rahaman vs Sarafat Ali(2) in which it was pointed out that as soon as an ex parte decree was set aside, the sale, where the decree holder was the purchaser, falls through and was not validated by a fresh decree subsequently made.
The same principle was reiterated by the Bombay High Court in Shivbai Kom Babya Swami vs Yesoo.(3).
In that case, an ex parte decree was passed against the defendant, in execution of which the defendant 's house was sold and purchased by the plaintiff decree holder.
The ex parte decree was subsequently set aside; but at the retrial, a decree was again passed in plaintiffs favour.
In the meanwhile, the defendant applied to have the sale of the house set aside.
It was held, in these circumstances, by the Bombay High Court that the previous sale of the house in execution under the previous decree which had been set aside should itself be set aside as being no longer based on any solid foundation; but subject in all the circumstances to the condition that the defendant should pay up the amount due under the second decree within a specified time.
On behalf of the respondents reference was made to the decision of this Court in Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das.
(4 ) But the ratio of that case has no application to the present case.
It should be noticed that the decree in that case was affirmed at all stages of the litigation except that the amount of (1) 14 Calcutta Weekly Notes, 182.
(3) I.L.R. (2) 20 Calcutta Weekly Notes, 667.
(4) 30 the decree was slightly altered from Rs. 3,38,300 and odd to Rs. 3,76,790 and odd which amount was ultimately decreed by the Privy Council in the appeal which the judgment debtor preferred from the decision of the Oudh Chief Court which restored the decree of the trial Judge who decreed a sum of Rs. 3,88,300.
It was held by this Court that the Privy Council had merely restored the amended decree without altering the provisions as to payment by instalments or extending the time for payment by instalments and its decree did not in any way alter the position of the parties as it stood under the amended decree, and, the sale was not in consequence of any error in a decree which was reversed on appeal by the Privy Council and so the judgment debtor was not entitled to restitution.
In the present case the material.facts are manifestly very different.
For the reasons expressed, we are satisfied that the appellant is entitled to restitution of the properties sold in execution of the export decree subject to equities to be adjusted in favour of the respondent decree holders.
We order that the appellant should be restored back to possession of the properties sold in the execution case subject to the condition that he deposits the amount of Rs. 970 in the Court of the Munsif, Aska within two months from this date.
If no deposit is made within this time this appeal will stand dismissed with costs.
But if the appellant makes the deposit within the time allowed the sale of the properties in the execution case will be set aside and the respondents will make over the possession of the properties sold to the appellant.
The appellant will not be entitled to any past mesne profits but if the respondents do not deliver the possession of the properties the appellant will be entitled to the future mesne profits from the respondents from the date of deposit till the actual date of delivery of possession.
Learned Counsel for the appellant has informed us that the deposit has already been made by the appellant in pursuance of the order of the learned Single Judge of the High Court, dated October 3, 1958.
If the deposit has already been made the appellant will be entitled to take possession of the properties through the executing court and to future mesne profits from the date of this judgment till the actual date of delivery of possession.
We accordingly allow the appeal to the extent indicated above.
In the circumstances of the case we do not propose to make any order as to costs.
Appeal allowed in part. | A money suit against the appellant was dismissed by the trial court but the first appellate court passed an ex parte decree against him.
The appellant 's property was sold in execution and purchased by the decreeholder.
The appellant went to the High Court which set aside the exparte decree and remanded the suit.
The appellant then filed an appli cation for restitution under section 144 of the Code of Civil Procedure.
It was stayed pending proceedings in the main suit. 'Me suit was finally decided against the applicant, by the High Court.
Thereafter the trial court allowed the appellant 's application for restitution.
After intermediate proceedings the High Court decided in Letters Patent Appeal that the appellant was not entitled to restitution.
He appealed to this Court by special leave.
HELD: The application for restitution was filed by the appellant before the passing of a fresh decree by the High Court in second appeal.
At the time of the application therefore the appellant was entitled to restitution because on that date the decree in execution of which the properties were sold had been set aside.
The appellant was therefore entitled to restitution notwithstanding anything which happened subsequently.
[27 C E] The principle of the doctrine of restitution is that on the reverse of a decree the law imposes an obligation on the party to the suit who received the benefit of the erroneous decree to make restitution to the other party for what he has lost.
The Court in making restitution is bound to restore the parties so far as they can be restored to the same position they were in at the time when the Court by its erroneous action had displaced them from.
[27 E F] Zainal Abdin Khan vs Muhammad Asghar All Khan, I.L.R. 10 All 166, relied on.
Set Umedmal & Anr.
vs Srinath Ray & Anr.
I.L.R. 27 Cal.
810, Raghu Nandan Singh vs Jagdish Singh, , Abdul Rahaman vs Sarafat Ali, and Shivbai Kom Babya Swam vs Yesoo, I.L.R. , referred to.
Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das, , distinguished. |
Civil Appeal No. 767 of Appeal by special leave from the judgment and order dated August 14, 1961 of the Rajasthan High Court in D.P. Civil Misc.
Application No. 128 of 1960.
Gopi Nath Kunzru, W.S. Barlingay and Ganpat Rai, for the appellant.
C.B Agarwala, K.K. Jain, H.K. Puri and Uma Mehta, for respondents Nos. 3, 4, 5, 7, 12, 13, 15 18, 21, 23 and 24.
The Judgment of the Court was delivered by Bachawat, J.
On September 10, 1955, Narain Lal, Mool Chand, Mangilal and Kesharichand obtained the consent in writing of the Advocate General, Rajasthan to institute a suit against 917 the respondents under section 92 of the Code of Civil Procedure.
The consent was in these terms : "For the reasons detailed above I grant permission to the applicants Sarvashri (1) Narainlal, (2) Mool Chand, (3) Mangilal and (4) Seth Kesharichand for filing suit against the opposite parties Shri Malilal Kasliwal and 27 other members and office holders of the executive committee Jain Atishaya Kshetra Shri Mahabir Swami Temple Chandangaon, for the reliefs detailed in para 28 sub paras I to 5 and 7 of the draft plaint filed by them before me.
" Shortly thereafter Mangi Lal died.
On March 6, 1956, Narain.
Lal Mool Chand and Kesari Chand instituted a suit against the respondents under section 92 of the Code of Civil Procedure, claiming a declaration that the temple of Shri Mahabirji at Naurangabad and the appertaining properties were a public charitable trust for the benefit of the Shwetambar Sangh of the Jain community or of the Jain community as a whole and for other reliefs.
On March 9, 1958, Kesari Chand died.
The trial court raised and tried the following preliminary issue "Whether the suit is not maintainable on the strength of the permission obtained by the plaintiffs along with Mangi Lai who died prior to the institution of the suit ?" The trial court held that the suit was maintainable.
The High Court in its revisional jurisdiction set aside the order of the trial ' court and held that the suit was not maintainable.
The present appeal has been tiled from the order of the High Court by special leave.
A suit claiming any of the reliefs specified in sub section
(1) of section 92 of the Code of Civil Procedure in respect of a trust for public purposes of a charitable or religious nature may be instituted by the Advocate General or "two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General", and save as provided by the and certain other laws, no suit claiming Such reliefs in respect of any such trust can be instituted except in conformity with sub section
(1) of section 92.
In the present case, fourpersons obtained the necessary sanction of the Advocate General.
one of them died before the suit was filed, and the remaining three, instituted the suit.
The question is whether the suit is brought in conformity with section 92(1).
The decided cases show that a suit under section 92 must be, brought by all the persons to whom the sanction of the Advocate General has been given, and a suit instituted by some of them 918 only is not maintainable.
In Muddala Bhagayannarayana V. Vadapalli Perumallacharyulu(1) where the, sanction was given to four persons and two of them alone brought the suit alleging that the other two had been won over by the defendants and hall refused to join as plaintiffs, it was held that the suit was not maintainable.
In Pitchayya and another vs Venkatakrishnamacharlu and eleven others(2), where the sanction was given to three persons, the court held that the suit instituted by two of them.
was invalidly brought and the defect could not be cured by impleading the other person as a defendant.
In Sibte Rasul vs Sibte Nabi and others(1), where four persons obtained the sanction and the suit was instituted by three of them, it was held that the suit was incompetent and the defect could not be cured by impleading the fourth as a plaintiff at the date of the delivery of the judgment.
We may add that in Venkatesha Malia vs B. Ramaya Hegade and twelve others(1) where the sanction to sue under section 18 of the was given by the district judge to two persons, it was held that only one of them could not institute the suit.
We hold that an authority to sue given to several persons without more is a joint authority and must be acted upon by all jointly, and a suit by some of them only is not competent.
As Sir George Rankin said in Musammat Ali Begam vs Badr ul Islam Ali Khan(1), "where the consent in writing of the Advocate General or Collector is given to a suit by three persons as plaintiffs, the suit cannot be validly instituted by two only.
The suit as instituted must conform to the consent.
Once the representative suit is validly instituted, it is subject to all the incidents of such a suit; the subsequent death of a plaintiff will not render the suit incompetent, see Raja Anand Rao vs Ramdas Daduram(6), and an appeal by some of the plaintiffs impleading the remaining plaintiff as a respondent is not incompetent because all did not join as appellants, see Musammat Ali Begam vs Badr ul Islam Ali Khan (5).
In Shea Ram vs Rain Chand and others ( 7 the sanction of the Collector to bring a suit under section 92 was given to twenty persons.
One of them died before the suit was brought and the remaining nineteen instituted the suit.
Skempg, J. held that in view of tile two Privy Council rulings the suit was validly instituted.
But he erroneously assumed that in Musammat Ali Begam vs Badr ul Islam Ali Khan(5) it was held that where the sanction had been given to three persons, a suit by two of them only was validly (1) (2) I.L.R. (3) I.L.R. (1943) All. 112.
(4) 1.L.R. 38 Mad.
(5) I.L.R. 65 1.
A. 198.
(6) L.R. 48 I.A. 12.
(7) A.I.R. 1940 Lah.
919 instituted.
From the report of Raja Anand Rao vs Ramdas Daduram(1), it is not clear whether all the persons to whom the sanction was given brought the suit, and the point raised and decided was that the death of one of the plaintiffs after the institution of the suit did not render the suit incompetent.
We are unable to agree with the Lahore ruling.
Where sanction is given to four persons and one of them dies before the institution of the suit, a suit by the remaining three is incompetent.
Fresh sanction must be obtained by the survivors for the institution of the suit.
We must hold that the suit brought by the appellants was competent.
The High Court rightly held that the suit was not maintainable.
This judgment will not bar the institution of a fresh suit in conformity with a fresh consent obtained from the Advocate General or Collector.
In the result, the appeal is dismissed without costs.
G.C. Appeal dismissed (1) L. R. 48 I.A. 12. | Four persons obtained.
the consent of the Advocate General of Rajasthan to institute a suit against the respondents under section 92 of the Code o,f Civil Procedure.
Shortly thereafter one of the said four persons died and the suit was instituted by the three survivors.
On the preliminary issue whether the suit filed by three persons, when the permission had been given to.
four, was maintainable, the trial court held that it was.
The High COurt, however, in revision held the suit not to.
be maintainable.
Appeal was filed in this Court by special leave.
HELD: An authority to sue given to several persons without more is a joint authority and must be exercised by all jointly, and a suit by some of them only is not competent.
When sanction in the present case was given to.
four persons and one of them died before the institution of the suit, a suit by the remaining three was incompetent.
Fresh sanction must be obtained by the survivors for the institution of the suit.
[918D E, 919B ] Muddala Bhagavannarayana vs Vadapalli Perumallacharyuht, , Pitchayya & Anr.
vs Venkatakrishnamacharlu & eleven Ors.
I.L.R. , Sibte Rasid vs Sibte Nabi & Ors.
I.L.R. (1943) All 112 Venkatesha Mafia vs B. Ramaya Hegade and twelve Ors.
I.L.R. 38 Mad.
1192, Musammat Ali Begam vs Badr ul Islam Ali Khan, L.R. 65 I.A. 198, Raja Anand Rao vs Ramdas Daduram.
L.R. 48 I.A. 12 and Sheo Ram vs Rama Chand & Ors., A.I.R. 1940 Lab. 356, referred to. |
Appeal No. 157 of 1967.
Appeal from the judgment and decree dated January 7, 1960 of the Patna High Court in Misc.
Judicial Case No. 693 of 1958.
C. K. Daphtary, Attorney General, D. P. Singh, R. K. Garg, section C. Agarawala, K. M. K. Nair and section P. Singh, for the appellants.
Sarjoo Prasad and D. Goburdhun, for the respondent.
The Judgment of the Court was delivered by Bachawat, J.
This appeal is directed against an order allow ing a writ petition under article 226 of the Constitution.
Maharaja Pratap Singh Bahadur was the proprietor of the estates collectively known as the Gidhaur estate, in Monghyr district.
On the publication of a notification under section 3 of the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) on July 24, 1953 the Gidhaur estate and the interests of the Maharaja therein vested in the State of Bihar.
The Maharaja was receiving a permanent malikana allowance of Rs. 5743/14/6 annually in two equal six monthly instalments as shown in annexure "A" to the writ application.
The registers and rolls of the recipients of the malikana maintained by the Collector of the district since a long time past show that the successive proprietors of the Gidhaur estate were receiving the malikana for a long time past.
The State of Bihar stopped payment of the malikana allowance from April 1, 1958 on the ground that the proprietary interests of the Maharaja in the Gidhaur estate vested in the State and consequently his right to the malikana was extinguished.
The Maharaja alleged in 'the writ petition that the permanent malikana was payable irrespective of his proprietary rights in his estates notified under sec.
3 and was not income or rent from those estates nor a charge or encumbrance on them.
He alleged that 'the stoppage of the payment of the malikana was illegal and asked for a writ directing the State to make payment of the malikana. ' The State did not file any return to the petition.
The High Court held that the Maharaja 's right to the malikana was not an intermediary interest in the Gidhaur estate and did not cease with the extinction of his proprietary right in the estate.
Accordingly, the High Court issued a writ in the nature of mandamus commanding the State of Bihar to pay the malikana due to the Maharaja from April 1, 1958.
The State of Bihar has filed this appeal on a certificate granted by the High Court.
Section 2 of the Bihar Land Reforms Act is the definition section.
Section 2(i) defines an estate to mean any land included under one entry in any of the general registers of revenue paying 736 and revenue free lands and includes a share of or in any estate.
Section 2(jj) defines an "intermediary" in relation to any estate or tenure to mean a proprietor, tenure holder, under tenure holder and trustee.
Section 2(jjj) defines an "intermediary interest" as meaning the interest of an intermediary in an estate or tenure.
Section 2(o) defines "proprietor" to mean a person holding in trust or owning for his own benefit an estate or part of an estate.
Section 2(r) defines a "tenure holder" to mean a person who has acquired from a proprietor or another tenure holder the right to hold land for the purpose of collecting rent or bringing it under cultivation by establishing tenants on it and includes inter alia the holder of a tenure created for maintenance of any person.
Section 2(q) defines tenure to mean the interest of a tenure holder or under tenure holder.
Under section 2A the expressions "proprietor or tenure holder" and "estate or tenure" mean and include "intermediary" and the "intermediary interest" respectively.
Section 3(1) states that the State Government may, from time to time, by notification declare that the estates or tenures of a proprietor or tenure holder, specified in the notification, have passed to and become vested in the State.
Sections 4(a) and 23(1) are as follows : " 4.
(a) Consequences of the vesting of an estate or tenure in the State.
Notwithstanding anything contained in any other law for the time being in force or in any contract, on the publication of the notification under sub section (1) of section 3, or sub section (1) or 2 of section 3A the following consequences shall ensue, na mely (a) Such estate or tenure including the interests of the proprietor or tenure holder in any building or part of a building comprised in such estate or tenure and used primarily as office or cutchery for the collection of rent of such estate or tenure, and his interests in trees, forests, fisheries, jalkars hats, bazars mela and ferries and all other sairati interests as also his interest in all sub soil including any rights in mines and minerals whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interests in such estate or tenure other than the interests expressly saved by or under the provisions of this Act.
" 737 .lm15 Section 24A(1) Determination of compensation of any intermediary of temporarily settled estate (1) In the case of such intermediary of a temporarily settled estate, the Compensation Officer shall determine the compensation payable in respect of the transference to the State of the interest of the intermediary in such temporarily settled estate, whether let in farm or held in khas, at a sum equal to twenty times of the malikana payable to him during the previous agricultural year and, where the intermediary has taken out the engagement of the lands comprised in such estate for a fixed period on the payment of a fixed jama, also a sum equal to the pro rata refund of the fixed jama paid by him for the unexpired period of the engagement.
" It may be noted that sections 2(ii), 2(iii), 2A and 24A were in serted in the parent Act by the Bihar Land Reforms (Amendment) Act, 1953 (Bihar Act XX of 1954).
Section 4 was also amended by the same Act.
Learned Attorney General contended (1) that the right to the malikana was an interest in the estates called the Gidhaur estate specified in the notification of July 24, 1953 and on the issue of the notification the right to malikana stood extinguished and (2) alternatively, the Maharaja was an intermediary of temporary settled estates in respect of which the malikana was payable and on the transference of his intermediary interests in those estates, his right to the malikana stood extinguished and he became entitled only to the compensation payable under see.
24A. Regulation VIII of 1793 (sec.
43) described malikana as an allowance to proprietors in consideration of their proprietary rights.
Baden Powell 's Lands Systems of British India, Vol.
p. 717 said that malikana in Bengal and places other than the Punjab usually means an allowance to an ex proprietor by way of solatium for a lost right.
The custom of 'Paying malikana allowance to displaced pro prietors may be traced back to the Moghul period.
"The claims of the ancient zemindars and village headmen, when thus displaced were usually recognised to the extent of giving them an allowance for subsistence, and sometimes they continued to receive this allowance in the shape of payments from the new occupants called russoomi zemindaree." (See Phillips on Law Relating to the Land.
Tenures of Lower Bengal, p. 126).
It was said that "Malikana is the unalienable right of proprietorship." (see the answer of Ghulam Hosein Khan, Appendix No. 16 to Mr. Shore 's Minutes of 2nd April 1788 quoted in C.D. Field 's Regulations of the Bengal Code p. 717).
The Regulations from 1788 onwards recognised this custom/. Regulation VIII of 1793, secs.
43 to 738 47 provided that in the event of the proprietor refusing to accept a reasonable settlement his lands were to be let in farm or held khas.
When the lands were let in farm, the farmer was to engage to pay 10% of the jama as malikana to the excluded proprietors in addition to the jama and the Government was to be considered ,as guarantees for the payment.
The malikana was realisable from the farmer as arrears of revenue.
When the lands were held in khas 10% of the net collections was to be paid as malikana from the treasury.
Section 5 of Regulation VII of 1822 repealed the existing regulations regarding malikana and substituted fresh provisions for such allowance.
The new provisions were declared by section 11 of Regulation IX of 1833 to be prospective only and to be applicable solely to the settlements made under them.
(see Clarke, Regulations Vol.
I p. 71).
Regulation VII of 1822 was ,originally enacted for the ceded and conquered Provinces, Cuttack, Pataspur and its dependencies.
It was extended to other Provinces by sec.
2 of Reg.
IX of 1825.
Later it was repealed as regards the North Western Provinces by Act XIX of 1873 and fresh provisions for allowance to displaced proprietors were substituted.
The malikana was for a term of years when the proprietors were dispossessed from management temporarily.
It was a permanent grant when the proprietors ' rights in their lands were ,completely extinguished.
The decisions under the Limitation Acts relating to the malikana turned on the particular language of those Acts.
Clause 12 of section 1 of the Limitation Act of 1859 seemed to make it imperative on the courts to deal with malikana as an interest in land and to treat a claim for it as barred if not made within a period of 12 years after the last receipt by the proprietor.
(see Herranund Shoo vs Mst.
Ozeerun & Ors.
(1),, Govinda Chunder Roy Choudhuri vs Ram Chunder Chowdhury(2).
But under the Limitation Act of 1877 the non receipt of malikana for 12 years did not extinguish the right and malikana could be sued for within twelve years from the time when it became due.
(see Hurmuzi Begum vs Hirday Narayan(3).
In Jaggo Bai vs Utsava Lal(1) the courts below treated malikana as immovable property and since the point as to its not being immovable property was not taken earlier, the Privy Council did not allow the point to be taken before it for the first time.
Nevertheless the Privy Council held that a suit to establish a right as to malikana was not a suit for possession within the meaning of article 141 and was governed by article 120 ,of the Limitation Act of 1908.
Though malikana is not a charge ,on immovable property the explanation to article 132 of that Act declared that for the purposes of that article, it was "deemed" to be money charged on immovable property.
(1) (2) (3) 1.
(4) 51 Allahabad 439.
739 Malikana is not rent.
(see Bhoalee Singh vs Mst.
Neemoo Behool(1) and Syed Shah Najamuddin Hyder vs Syed Zahid Hos sein(1).
It is not rent or revenue derived from land and not assessable as agricultural income.
(Maharaja P. section Bahadur vs State of Bihar(3).
In Deo Kuar vs Man Kuar (4) malikana was described as a grant of a portion of a land revenue.
For purposes of the because sec.
3 of the Act interpreted the expression "grant of money or land revenue" to include anything payable on the part of the Government in respect of a right.
The Privy Council held that malikana was something payable on the part of Government in respect of a right and therefore a suit relating to malikana was not cognizable by the court without a certificate from the Collector.
The plea of bar under the Pensions, Act is not taken in the present appeal.
Malikana is not an incumbrance on the estate of the proprie tor liable to pay it and is not extinguished on the sale of that estate for recovery of arrears of land revenue under Act XI of 1859.
(see Mahendra Narayan Roy Chowdhuri vs Abdul Gafur Choudhury (5) .
The person in receipt of a permanent malikana is, not a proprietor of the estate for which malikana is payable and has no title to the alluvial accretion to the estate, (see Soudamini Dassya vs Secretary of State for India (6) The proprietors of the Gidhaur estate in Bihar are in receipt of a permanent malikana for over a century.
The origin of this malikana allowance is not known.
From time immemorial it has been customary in Bihar to pay a permanent malikana allowance to ex proprietors in lieu of their lost proprietary right.
Phillips in his Law Relating to the Land Tenures of Lower Bengal, pp. 144, 147, 269, said that the proprietors of the soil in Biharuniversally claimed and possessed a right of malikana and he endeavoured in vain to trace its origin in Bihar.
The malikana right of the excluded proprietors in Bihar was acknowledged in the Regulations passed on August 8, 1788.
At the time of Per manent Settlement, the new grantees were forced to acknowledge this right.
(see Baden Powell, Land System of British India, Vol.
516, 517).
The Bihar Board of Revenue Misc.
Rules 1939, article 342 p. 166 divides ' malikana into two classes.
Malikana of the first class is for a term of Years only, that is, during the currency of a settlement.
Malikana of the second class is permanent.
It states that "the Bihar malikana falls under this class and is a compensation permanently granted to the proprietors .
It is of a pensionary nature and does not depend upon col lections.
" The permanent malikana is payable at the treasury on (1) 12 W. (2) 8 C. L. J. 300 at 450.
(3) 18 Patna, 101 8.
(4) 21 1.
A. 148,160,161.
(5) (6) ,538, 545.
740 April 1, and October 1, every year on presentation of pay orders issued by the Collector accompanied by a life certificate of the recipient.
There can be no doubt that the malikana payable to the pro prietors of the Gidhaur estate is a permanent grant of money in lieu of their proprietary rights in lands originally held by them.
The proprietors retained certain estates.
On the publication of the notification under section 3 of the Bihar Land Reforms Act, 1950 the interest of the Maharaja in those estates was extinguished.
But the malikana payable to him is not an interest in those estates and did not cease on the issue of the notification.
Annexure A to the writ application shows that cess was deducted from the malikana.
Under secs.
5 and 421 of the Cess Act.
, 1880 cess is charged on immovable property and is payable by the holder of an estate or tenure or chaukidari chakran lands and by a cultivating raiyat.
It is not known under what circumstances cess used to be deducted from the malikana.
From the fact that cess was so deducted it is not possible to hold that malikana is an interest in the estates held by the Maharaja.
In this Court the appellant raised the second contention for the first time.
The learned Attorney General contended that the malikana was payable in respect of certain other estates, that the Maharaja should be regarded as an intermediary of those estates, and that on the vesting of those estates in the Government the right to malikana ceased and the Maharaja 'became entitled to compensation only under sec.
24A of the Bihar Land Reforms Act, 1950.
The State of Bihar has filed a petition asking for an ,order admitting certain documents as additional evidence.
We have allowed this petition.
The first document is a letter of the Collector, Monghyr, stating that the Gidhaur estate was getting malikana in respect of 17 tauzis noted in the margin.
The second document is the khewat of those tauzis.
They show that various persons other than the Maharaja were the proprietors of the estates comprised in the tauzis.
The petition states that all these estates have been notified under sec.
3 and have now vested in the State Government.
The third document is the notification published on July 24, 1953 showing the estates of which the Maharaja was the proprietor and which have now vested in the State Govern ment.
On the publication of the notification under sec.
3, all the estates in respect of which the malikana is payable including the interest of any intermediary therein vested in the Government free from all incumbrances.
But the Maharaja is not a proprietor, tenure holder or an intermediary of those estates.
The malikana is not rent or income derived from the estates.
Nor is his Tight to the malikana an incumbrance on them.
The Maharaja 's right to the malikana is not an intermediary interest in the estates 741 and did not vest in the Government.
Consequently he has no right to claim compensation for the malikana under section 24A.
That section provides for determination of compensation payable to the intermediary of a temporarily settled estate is respect of the transference to the Government of the interest of the intermediary in such estate.
The Maharaja had no intermediary interest in the estates for the transference of which he could claim any compensation under sec.
In State of Uttar Pradesh vs Kunwar Sri Trivikram Narain Singh (1) this Court held that an allowance of a fixed sum of money computed on the basis of 1/4th share of the net revenue of certain estates payable by the Government to the ex jagirdars as compensation for abandonment of their right in those estates was not a right or privilege in respect of land in any estate or its land revenue within the meaning of section 6 (b) of the Uttar Pradesh Zemindari Abolition and Land Reforms Act, 1951, and on the issue of a notification vesting those estates in the Government the right to the allowance did not cease.
The allowance in that case was described as a pension.
It may be that the allowance was not strictly a malikana.
Nevertheless the case is instructive.
It shows that an allowance paid to ex jagirdars in consideration of the extinction of their rights in land is not an interest in the land.
The permanent malikana stands on the same footing.
It is an allowance paid to ex proprietors for extinguishment of their right to the estate formerly held 'by them.
It is not an interest in that estate, nor an incumbrance on it, and does not cease on the vesting of the estate in the Government.
In the result, the appeal is dismissed with costs.
G.C. Appeal dismissed.
(1) ; , 226 228. | The respondent was the proprietor of certain estates in Bihar.
He was also in receipt of a permanent malikana allowance from the Government.
After the passing of the Bihar Land Reforms Act 1950 followed by a notification under section 3 thereof the estates of the respondent vested in the State of Bihar.
In 1958 the State of Bihar stopped payment of the malikana allowance on the ground that it was a proprietary interest which had vested in the State.
The respondent thereupon filed a petition under article 226 ,of the Constitution.
The High Court held that the respondent 's right to the malikana was not an intermediary interest and did not cease with the extinction of his proprietary rights in the estate.
The State of Bihar appealed to this Court.
The contentions raised on behalf of the appellant were : (i) that the right to malikana was an interest in the estates belonging to the respondent which on the issue of the notification under section 3 became extinguished and (ii) alternatively, the respondent was an intermediary of temporary settled estates in respect of which malikana was payable and on the transference of his intermediary interests in those estates, his right to the malikana stood extinguished and he became entitled only to the compensation payable under section 24A.
HELD : (i) The history of the malikana allowance showed that it was a permanent grant of money in lieu of the proprietor 's rights in lands originally held by him.
The proprietors retained certain estates and it was only the interest in these estates that was lost on the publication of the notification under section 3.
The malikana payable to the respondent in the present case was not an interest in such estates and did not cease on the issue of the notification.
[740 B] (ii) The respondent was not a proprietor, tenure holder or an intermediary of the estates in respect of which malikana was paid to him.
The malikana was not rent or income derived from those estates.
Nor was the malikana an incumbrance on them.
The respondent 's right to the malikana was not an intermediary interest in the estates for which compensation was payable under section 24A and it did not therefore vest in the Government.
[740 H] Herranund Shoo vs Mst.
Ozeerun & Ors., , Gobinda Chunder Roy Choudhuri vs Ram Chunder Chowdhury, , Hurmuzi Begum vs Hirday Narayan, and Jaggo Bai vs Utsava Lal, 51 AN. 439, distinguished.
Bhoalee Singh vs Mst.
Neemoo Behoo, , Syed Shah Najamuddin Hyder vs Syed Zahid Hossein, 8 C.L.J. 300, Maharaja P. section Bahadur vs State of Bihar, 18 Pat.
1018, Deo Kuar vs Man Kuar, 21 I.A. 148 and Mahendra Narayan Roy Chowdhuri vs Abdul Gafur Choudhry, referred to.
State of Uttar Pradesh vs Kunwar Sri Trivikram Narain Singh, ; , relied on. |
Appeal No. 1801 of 1967.
Appeal under section 116 A of the Representation of the People Act, 1951 from the judgment and order dated October 10, 1967 of the Rajasthan High Court in Election Petition No. 13 of 1967.
R.M. Hazarnavis and B.R.Agarwala, for the appellant.
S.V. Gupte, Sardar Bahadur Saharya, Vishnu Bahadur Saharya and Yogindra Khusalani, for respondent No. 1.
H.K. Puri, for respondent No. 2.
The Judgment of the Court was delivered by Hidayatullah, C.J.
This is an appeal by the unsuccessful election petitioner against the judgment of the High Court of Rajasthan dated October 10, 1967.
The election petition was filed to challenge the election of the first respondent at the Pali Parliamentary Constituency in the Fourth General Elections.
At that election seven nomination papers were filed.
Two of the candidates withdrew.
Amongst them was one R.D. Periwal.
There were thus only five contesting candidates.
of these, the first respondent obtained 1,47,509 votes.
His closest rival respondent No. 2 (now deceased) obtained 1,21,438 votes.
The remaining candidates got a little over thirty thousand votes between them.
The election petitioner (appellant here) is an elector of Pali.
In his petition he joined the returned candidate and the other four contesting candidates.
Many grounds were urged in the petition.
The first ground was that the returned candidate or his election agent prompted hatred against the Congress, appealed to religion and sent persons dressed as Sadhus preaching that if Congress was returned to power there would be go hatya and took pledges or oaths from the voters.
The second was that the returned candidate and his election agent were guilty of suppression of true expenses and filed false returns.
The third ground was that the candidate or his election agent obtained the services of Government servants in furthering the election of the returned candidate.
6 3 2 The last ground was that the returned candidate and his election agent and other persons with the consent of the returned candidate paid and offered bribes between January 13, 1967 to February 14, 1967 to induce the electors directly or indirectly to vote for the returned candidate.
The petition was scrutinised and was found to be in order.
The returned candidate entered appearance on May 15, 1967 and filed a written statement a month later.
He took the objection that the allegations were vague and lacking in necessary particulars.
The High Court thereupon ordered better and fuller particulars on July 2, 1967.
The election petitioner was asked to file an application for amendment and a draft of the amended petition.
This was done but there were objections.
The objections were decided on August 1, 1967.
Some of the allegations of corrupt practices were deleted for want of sufficient particulars.
The other amendments were allowed.
16 of the petition in the amended form read as follows: "That the respondent No. 1 and his election agents Messrs. R.D. Penwal and Shri Lunia and other persons with the consent of the respondent No. 1 paid and offered bribes between 13 1 67 to 20 2 67 with the object of inducing directly or indirectly electors to vote for respondent No. 1.
The following amongst other are some of the instances" (Instances were mentioned) On August 24, 1967 written statement was filed in which an objection was taken that as R.D. Periwal, against whom corrupt practices had been alleged, was not joined as a party, the petition was liable to be dismissed under section 86( 1) of the Representation of the People Act.
This preliminary objection was heard by the Judge on August 29, 1967.
Same day an application for amendment of the election petition was fled.
It was stated in the election petition that the election petitioner had gathered the impression that Inder Kumar Lucia was the election agent, from a telegram sent by Lunia; that the name of R.D. Periwal in paragraph 16 crept in because of 'uncertainty and inadvertence ' and the reference to election agent 'came to be made in an omnibus manner '.
What this statement means is not very clear.
However, it was pointed out that there was no intention to make any allegation against R.D. Periwal but two or three allegations of corrupt practice were imputed to Lunia.
A request was, therefore, made that the reference to 'election agent ' in all the paragraphs charging, corrupt practices should be deleted and it was specifically prayed that.
the name of R.D. Periwal in paragraph 16 should also be 633 deleted.
In short, it was intended to withdraw allegations against Periwal.
This application was not separately considered by the High Court but the election petition itself was dismissed under section 86(1) since Periwal, who was a duly nominated candidate (who withdrew later), had to be compulsorily joined under section 82(b) if allegations of corrupt practice against him were made.
It will be noticed, therefore, that in the original election petition allegations were made against the returned candidate or his election agent.
Two of the allegations of corrupt practice were against the returned candidate and his election agent.
They were charges of taking assistance of Government servants and bribing voters.
In connection with the bribery charge, no names were mentioned.
In his reply to the petition the returned candidate denied the charges in respect of himself and his election agents (using the plural).
In the amended petition, in one place, the returned candidate and his, election agent were mentioned with Lunia as the election agent and in another,.
which we have quoted earlier, two election agents,.
Lunia and Periwal were mentioned by name.
The returned candidate in reply denied that Lunia was the election agent.
In the second application for amendment filed on August 29, 1967 attempt was made to withdraw allegations against the election agent and to delete all references to Periwal.
This was resisted and it was stated that Periwal was the only election agent appointed by the returned.
candidate.
The question is whether the election petition was liable to be dismissed for not joining Periwal who was a duly nominated candidate and against whom charges of corrupt practice were made ? Mr. Hazarnavis contends that the amendments were made in answer to the order for better and fuller particulars.
He submits that the original petition did not name Periwal although the amended petition did and the High Court need not have mixed up the two petitions to find out whether Periwal had to be joined or not According to him, the original petition could not be dismissed since it did not name Periwal and the amended petition only supplied particulars as required by the Judge.
He submits that even in giving instances of bribery in paragraph 16, although the name of Periwal was mentioned in the opening part, no instance was cited with Periwal 's name although other names were mentioned.
Therefore, he submits that Periwal was not in the mind of the election petitioner at all and the mention of Periwal was merely an error.
In reply it is pointed out that all allegations were supported by affidavits and that all references to the election agent and allegations against him were affirmed on personal knowledge by the election petitioner.
In the Original ' petition no names were given but when better particulars were ordered a categoric refer to the election agents was made by referring to Lunia and Periwal and this was again affirmed on personal knowledge by the 634 petitioner.
It is pointed out that in the list of workers of time returned candidate Periwal was shown as 'the election agent and the returned candidate affirms that Periwal was the only election agent.
It is shown by way of illustration that the return of election expenses was filed by Periwal as the election agent and the allegations of corrupt practice in respect of the election expenses related to Periwal.
On examining the entire record with the assistance of counsel we are satisfied that Periwal was always meant when the reference was to an election agent and tiffs was more clearly specified when the amended petition was filed.
Therefore, the attempt was first to name him and now to withdraw his name to save the petition.
This, in our opinion, could not be done and the High Court last right in dismissing the election petition and disallowing the amendment by implication.
We give our reasons briefly: It is necessary to read the Act backwards from section 86( 1 ).
That section reads: "86.
Trial of election petitions.
( 1 ) The High Court shall dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117.
This is a peremptory provision and admits of no exception.
The Court must enforce it strictly if there is a non compliance with the requirements of section 82 among others.
In this connection we have to read section 82(b) which reads as follows: "82.
Parties to the petition.
A petition shall join as respondents to his petition: (a) (b) any other candidate against whom allegations of any corrupt practice are made in the petition.
" This makes it incumbent that any candidate against whom a charge of corrupt practice is made must be joined as a party.
Who is a candidate is laid down in section 79(b).
That provision reads as follows: "79. Definitions.
In this Part and in Part VII unless the context otherwise requires.
(a) (b) 'candidate ' means a person who has been or claims to have been duly nominated as a candidate at any election.
and any such person shall 635 be deemed to have been a candidate as from the time when, with the election in prospect, he began to hold himself out as a prospective candidate." Since Periwal was a candidate who was duly nominated at an election he would be a candidate within the meaning assigned to that word by this definition.
The question raised is that Periwal was a candidate at the election since he had withdrawn and, in any ease, this definition need not be read in section 82(b) which should be limited to contesting candidates.
Under section 37 a candidate may withdraw and once the notice of withdrawal is given it is final.
After the date of withdrawal passes a list of contesting candidates is drawn up under section 38.
It is submitted that section 82(b) should be limited to the contesting candidates.
It is also submitted that when sections 100 and 123 speak of a candidate they refer to a candidate whose candidature subsists to the time of the election, that is to say, after the time for withdrawal passes.
The petition under section 83(1 )(b), it is said, can set out particulars of corrupt practices "against parties" and that would include contesting candidates, election and other agents and persons other than candidates and their agents.
It is submitted that a candidate who has withdrawn is no longer a candidate and hence cannot be a party.
The argument cannot be entertained.
These questions have already been considered by 'this Court on more than one occasion.
They were first considered in K. Kamaraja Nadar V. Kunju Thevar and Others(1) but that ruling may not strictly be appropriate since it was based on section 55A(2) which is now repealed.
However, other cases (Amin Lal V. Hunna Mal(2) and Har Swarup & Anr.
V. Brij Bhushan Saran & Ors.) (3) consider this point.
It is there laid down that a candidate who is duly nominated continues to be a candidate for purposes of section 82(b) in spite of withdrawal.
This really decides the question which has been mooted before us.
A very detailed examination of the same question is to be found in Chaturbhuj V. Election Tribunal, Kanpur & Ant.(4).
In that case our brother Bhargava (M. L. Chaturvedi, J. concurring) has examined in the Allahabad High Court these provisions from every angle which is presented to us and has adequately answered all the arguments.
It is argued that the Civil Procedure Code applies and O. VI, r. 17 and O. 1, r. 10 enable the High Court respectively to order amendment of a petition and to strike out parties.
It is submitted, therefore, that both these powers could be exercised in this case by ordering deletion of reference to Periwal.
This argument cannot be accepted.
No doubt the power of amendment is preserved (1) (2) [19651 1 S.C.R. 393.
(3) ; (4) 636 to the court and O. 1, r. 10 enables the court to strike out parties but the court cannot use O. VI, r. 17 or O. 1, r. 10 to avoid the consequences of non joinder for which a special provision is to be found in the Act.
The court can order an amendment and even strike out a party who is not necessary.
But when the Act makes a person a necessary party and provides that the petition shall be dismissed if such a party is not joined, the power of amendment or to strike out parties cannot be used at all.
The Civil Procedure Code applies subject to the provisions of the Representation of the People Act and any rules made thereunder (see section 87).
When the Act enjoins the penalty of dismissal of the petition for non joinder of a party the provisions of the Civil Procedure ' Code cannot be used as curative means to save the petition.
An attempt is made to distinguish the cases cited by us on the ground that now the provisions of sections 4 to 25 of the Indian Limitation Act are applicable to election petitions and the amendment of the petition and joining of parties can take place at any time.
It is subtitled that now the cases must be decided under the amended law.
We need not go into this matter.
It is doubtful whether these provisions of the Limitation Act apply at all.
The petitioner has not asked to join Periwal.
He only wants an amendment to delete allegations of corrupt practice against him.
This cannot be permitted since it will defeat the provisions of section 86(1 ).
Every election petition can be saved by amendment in this way but that is not the policy of the law.
The dismissal is peremptory and the law does not admit of any other approach.
It is significant that in Amin Lal V. Hunna Mal(1), although the matter was not gone into from this angle it was said that the amendment for better particulars was not intended to enable the election petitioner to remove the defect in presentation or in the joinder of parties.
Sheopat Singh V. Ram Pratap(2), since the facts were assumed, cannot be said to record any decision.
Lastly, it is submitted that Periwal was being charged in character as an election agent and not as a candidate.
This submission runs counter to the amendment petition which says that he was not an election agent and therefore he was really charged in his capacity as an individual and as he was a duly nominated candidate he had to be joined.
The argument really contradicts the last amendment petition and cannot be entertained.
For the reasons above stated it must be held that the decision of the High Court under appeal was correct.
The appeal fails and will be dismissed with costs.
V.P.S. Appeal dismissed. | Seven candidates were duly nominated for election from a Parliamentary constituency, but two of the candidates withdrew.
The first respondent, who was one of the remaining five contesting candidates, was declared elected.
His election was challenged on various grounds by the appellant who was an elector.
To the petition, only the returned candidate (first respondent) and the other four contesting candidates were made parties.
On the first respondent 's objection that the allegations were vague, the appellant amended his petition.
In his amended petition, with respect to one of the grounds, namely, offering bribes to voters, the appellant gave instances of bribes having been offered or paid by the first respondent, his election agents, and others.
Two persons were referred to as the election agents of the first respondent.
One of them was one of the candidates who had withdrawn and who was not made a party to the election petition.
The first respondent in his written statement contended that the petition should be dismissed under section 86(1) of the Representation of the People Act, 1951, as the candidate against whom corrupt practices were alleged and who was a necessary party under section 82(b) was not made a party to the election petition.
The appellant then filed an application for amendment of his petition wherein he stated that by 'election agent ' he never meant the candidate who had withdrawn, that there was never any intention to make any allegations against that candidate and that his name may be deleted from the petition, as he was not the first respondent 's election agent and reference to him was.
made by inadvertence.
The High Court dismissed the election petition under section 86(1).
In appeal to this Court, HELD: (1) A candidate who is duly nominated continues to be a candidate for purposes of section 82(b) in spite of withdrawal, and if he is not joined as a party when allegations of corrupt practice are made against him, the election petition shall be dismissed under section 86(1).
F] Aminlal V. Hunna Mal, ; and Har Swarup V. Brij Bhushan Saran; , , followed.
Chaturbhuj V. Election Tribunal, Kanpur, (1958) 15 E.L.R. 301, approved.
(2) The record showed that allegations of corrupt practice were made against the candidate who had withdrawn.
It could not be contended by the appellant that the allegations were made against him not as a candidate but in the character of an election agent, because, the appellant had himself stated in his application for amendment that the candidate who had withdrawn was not the election agent of the first respondent.
Therefore, the 631 allegations were made against an individual who was a candidate within the meaning of section 82(b) and who had to be joined as a necessary party to the election petition.
[634 B C; 636 F G] (3) The Court cannot use O. VI, r. 17 or O. I, r. 10 of the Civil procedure Code to avoid the consequences of non joinder for which a special provision, namely section 86, is found in the Act.
The Civil procedure Code applies to the trial of election petitions only subject to the provision of the Representation of the People Act and the rules, made thereunder.
When the Act makes a person a necessary party and provides that the petition shall be dismissed if he is not joined, the power in the Code, of amendment or to strike out parties.
cannot be used at all.
If the deletion prayed for by the appellant was granted, every election petition can be by amendment and the provisions of section 86(1) and the policy of frae law will be defeated.
[636 A C, D E] |
ivil Appeal Nos. 410 and 520(N) of 1973.
From the Judgment and Decree dated 21/22/23.11.1972 of the Gujarat High Court in First Appeal Nos. 454 and 455 of 1970.
B.K. Mehta, D.N. Misra, J.B. Dadachanji & Co. and N.J. Modi, for the Appellants.
236 S.K. Dholakia, P.H. Parekh, J.H. Parekh, Ms. Sunita Sharma, Krishan Kumar, Vimal Dave and H.J. Javeri, for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
These appeals are directed against the deci sion of the Gujarat High Court in an appeal arising out of a suit for partition instituted by the respondent No. 1, Vadilal Bapalal Modi (since deceased).
The father of the plaintiff Vadilal was Bapalal who had 5 sons the plaintiff, Ramanlal, Gulabchand, Kantilal and Jayantilal; and a daughter Champaben.
Gulabchand was impleaded as the first defendant in the suit and on his death his heirs and legal representatives have been substi tuted.
Kantilal and Champaben are defendants No. 2 and 3 respectively.
Ramanlal predeceased Bapalal and his wife and son are defendants No. 4 and 5.
Jayantilal also died earlier and his wife Smt.
Chandrakantaben, defendant No. 6 is the appellant in Civil Appeal No. 418 of 1973.
Their children are defendants No. 7 to 12.
CiviI Appeal No. 520 of 1973 has been preferred by the 7th defendant, Narendra.
The suit by VadilaI was instituted in 1960, claiming share in the considerably large properties detailed in the Schedule to the plaint, but the present appeals are not related to any other item excepting the property described as a chawl admeasuring 7 acres and 2 gunthas of land with 115 rooms and huts, situated in the Naroda locality in Ahmedabad under Lot No. 8 of the plaint which has been referred to by the counsel for the parties before us as the chawl or the Naroda chawl.
According to the case of the defendants No. 6 to 12, this property exclusively belongs to defendant No. 6 and is not liable to partition.
The other defendants contested the claim of the plaintiff with respect to some other items, but so far the disputed chawl is con cerned, they supported the plaintiffs ' case that it belonged to the joint family and is liable to partition.
The land of Lot No. 8 was acquired by Bapalal in 1932 for a sum of Rs.9,450 and the rooms were constructed thereon in about 1934.
It has been held by the High Court, and the finding has not been challenged before us, that Bapalal acquired the property and built the chawl with the aid of ancestral joint funds, and the property, therefore, belonged to the family.
According to the case of the defendants 237 No. 6 to 12, Bapalal orally gifted the property to his daughter in law Chandrakanta the 6th defendant, in March, 1946 and made a statement before the Revenue authorities on the basis of which her name was mutated, and she was put in possession thereof.
Admittedly 114 rooms in the Naroda chawl had been let out to tenants, and one room was retained for the caretaker.
According to Chandrakanta 's case, although she came in peaceful possession, the management which in cluded realisation of rent was in the hands of Gulabchand (defendant No. 1).
It appears that in 1952 some dispute arose and Chandrakanta assumed direct charge of the Naroda chawl and has remained in possession thereafter.
Thus she has been in exclusive possession of the disputed chawl since 1946, and acquired good title therein by adverse possession before the suit was filed in 1960.
The learned Judge, City Civil Court, Ahmedabad, who tried the suit, held that BapalaI and his sons constituted a joint Hindu family and the business carried on by Bapalal was for the benefit of the family and the income from the business was thrown in the common pool and all the proper ties including the disputed chawl were treated as belonging to the family.
Proceeding further it has been found that the case of the defendant No. 6 about the gift, the mutation of her name, and her exclusive possession from 1946 till the date of the suit was correct.
She was accordingly held to have acquired a title by adverse possession.
The suit, therefore, was dismissed with respect to the disputed chawl.
For the purpose of the present appeal it is not essential to mention the findings of the trial court relating to the other items of the suit property.
The plaintiff appealed before the Gujarat High Court.
Some of the defendants also filed two separate appeals against the judgment of the trial court dealing with other items of property with which we are not concerned.
The appeals were heard and disposed of to gether by a common judgment in November 1972.
The High Court reversed the finding of adverse possession in regard to the disputed chawl and granted a decree for partition.
It was held that the defendant No. 6 remained in exclusive posses sion of the property only since 1952 and the period was thus short of the time required for prescription of title.
Deal ing with the relief for rendition of accounts, the Court held that since the rents of the chawl from 1952 were col lected by Jayantilal, Chandrakanta 's husband and after his death by her son Narendra (defendant No. 7), Chandrakanta was liable to render accounts till the death of her husband and she along with defendant No. 7 would be jointly liable for the period thereafter.
The present appeals are directed against this judgment.
238 5.
According to the case of the defendant No. 6, her husband, Jayantilal, used to indulge in speculative business and he was, therefore, not considered a dependable person.
To ensure economic stability of Chandrakanta and her chil dren, her father in law, Bapalal decided to make a gift of the Naroda chawl to her.
Both Bapalal and Chandrakanta appeared before the Talati of Naroda on 5.3.1946 and made statements.
The original statement of Bapalal recorded by the Talati and signed by Bapalal was produced and marked as Ext.
268 in the trial court and similarly the statement of Chandrakanta as Ext.
Bapalal has stated in Ext.
268 that Chandrakanta had loyally served him and, therefore, he was making the gift.
A prayer was made for substitution of her name in the revenue records.
A similar prayer was made by the lady in Ext.
The extract from the Record of Rights is Ext.
247 which mentions Bapalal as the occupant of the Naroda chawl.
The entry was made in May 1933.
This entry appears to have been placed within brackets and a second entry inserted mentioning Chandrakanta 'wife of Jayantilal Bapalal '.
Mr. B.K. Mehta, the learned counsel for the appel lant has strongly relied upon the revenue entry as proof of her title.
Reference was made to the decision in Gangabai and others vs Fakirgowda Somaypagowda Desai and others, A.I.R. 1930 Privy Council 93; and Desai Navinkant Kesarlal vs Prabhat Kabhai, 9 Gujarat Law Reporter 694.
It was point ed out by the learned counsel that in the Privy Council case also the revenue records, which were under consideration, were prepared under the Bombay Land Revenue Code, that is the same Code under which Ext.
247 was prepared and it was observed in the judgment that the revenue entry furnished presumptive evidence of title.
The Gujarat case also indi cated that a presumption as to the rights in the concerned property arose in favour of the person whose name was en tered.
We are not very much impressed by this part of argu ment of the learned counsel as it cannot be denied that title to Naroda chawl could not have passed to the defendant No. 6 by virtue of the entry Ext.
The value of the chawl even in 1946 was large and no registered instrument of transfer was executed.
Besides Ext.
247 describes Bapalal and thereafter Chandrakanta as Kabjedar, that is, occupant.
In these circumstances the presumption which can be raised in favour of Chandrakanta from this entry is with respect to her possession and possession only.
There is a serious dispute between the parties as to the actual physical possession of the chawl during the period 1946 to 1952 and we will have to consider the evi dence on this aspect in some detail.
In 1952 there was direct confrontation between Chandrakanta and the defendant No. 1, Gulabchand.
On 14.4.1952 a public notice was 239 published in a local daily named 'Sandesh ' vide Ext.
254 wherein Gulabchand informed and called upon the tenants in the chawl to pay the rent to him within 3 days against receipts to be issued, failing which legal steps would be taken against them.
On the very next day 'Sandesh ' carried another public notice Ext.
255 issued by Chandrakanta as serting her title and exclusive possession and repudiating the claim of Gulabchand.
The tenants were warned that Gulab chand or any other person on his behalf had no right or authority to dispute her claim.
On the same day, i.e., on 15.4.1952 another public notice was published in 'Sandesh ' at the instance of Gulabchand reiterating his claim and asserting that his father Bapalal (who was then alive) was the owner.
It appears that no further action was taken by any of the parties.
The evidence on the record shows that Bapalal had withdrawn himself from wordly affairs and was staying in Vrindavan near Mathura.
The evidence led by Chandrakanta of her exclusive possession from 1952 through her husband and son till the date of the suit was accepted as reliable by the High Court.
Thus there is concurrent finding of both the two courts below accepting her exclusive possession from 1952 onwards.
The learned counsel for the plaintiff has, therefore, rightly not challenged before us this finding which we are independently also satisfied is a correct one.
The actual position of the chawl from 1946 to 1952 becomes crucial, as Chandrakanta is bound to fail if she is not successful in proving her adverse possession for this period.
As has been stated earlier, the suit was filed in 1960 and her possession since 1952 cannot be treated long enough for a prescriptive title to accrue.
The parties have, therefore, taken great pains to prove before us their rival cases as to the possession of the chawl from 1946 to 1952.
The defendant No. 1 was admittedly managing the properties belonging to the family.
Out of 115 rooms in Naroda chawl only 114 were let out to tenants and one room was retained in which, according to the case of Chandrakan ta, a caretaker known as Gangia Pathan, engaged by Bapalal, was staying.
After collecting the rent from the tenants the Pathan used to hand over the money to the defendant No. 1.
After the gift, it was decided that the same arrangement would continue but the defendant No. 1 would be managing the property on her behalf and after receipt of the rent he would deliver the same to her.
She claims that this arrange ment was acted upon.
Admittedly the total rent collection from the chawl was not large and after deducting the ex penses including the maintenance and repair costs and the salary of the Jamadar (caretaker) the money left was not a considerable sum.
240 According to the evidence of Chandrakanta the Pathan left the service and his whereabouts are not known and another Jamadar with the name of Maganji came in his place.
He looked after the chawl till 1950.
Thereafter he was substi tuted by Nathu Singh.
Maganji 's present whereabouts are also not known.
In 1952 Gulabchand made a claim to the chawl repudiating the ownership of Chandrakanta and he was, there fore, removed.
The appellant has relied on a large number of rent receipts filed by her and her learned counsel laid great stress on five of them which have been marked as Exts.
240 to 243 and 250 issued in December 1947, January 1948, June 1948 April 1949 and July 1947 respectively.
It is signifi cant to note that the defendant No. 1 was in charge of the collection of the rent upto 1952 according to the case of all the parties.
The parties contesting the claim of the appellant contend that he was so doing on behalf of the entire family and not on behalf of Chandrakanta as claimed by her.
The defendant No. 1, however, did not choose to enter the witness box nor did he produce any document which could have supported his case.
The counter foil receipts were in his possession and neither they were filed by the defendant No. 1 nor the plaintiff called for the same.
Defendant No. 6 was able to examine two of the tenants Vajesingh (D.W. 1) and Nathaji (D.W. 2).
They filed a large number of receipts issued to them evidencing payment of rent.
The list of documents filed by them are printed on pages 394 to 395 of the paper book and have been marked as Exts. 237 and 239.
12 receipts in the list Ext.
237 are for the period 1.6.1946 to 30.5.1949 and 7 of the list Ext.
239 are from 1.1.1947 to 30.9.1949.
They support the case of Chandrakanta inasmuch as on the top of these receipts are printed the following words: " CHAWL OF BAI CHANDRAKANTA THE WIFE OF MODI JAYANTILAL BAPALAL" Out of them the receipts Exts.
240 to 243 were admittedly issued when the defendant No. 1 was incharge of collection of rent and it is not denied that they were issued at his instance during the crucial period.
The other receipt Ext.
250 was issued for the period 1.6.1947 to 1.7.1947 under the signature of the plaintiff Vadilal and this also similarly carried the description of the chawl as belonging to Chan drakanta.
No explanation is forthcoming on behalf of either the defendant No. 1 or the plaintiff as to how they were issuing receipts of the above description.
241 11.
From the evidence it appears that although defendant No. 1 was in charge of the management of the chawl during 1946 to 1952, the actual collection from the individual tenants was made by the Jamadar (caretaker) who generally signed the receipts and handed over the collected amount to the defendant No. 1.
The tenant Nathaji (D.W. 2) has said that Maganji Jamadar used to prepare the receipts.
It has been argued before us on behalf of the plaintiff that the receipts were filed after the examination of the plaintiff was over and so he could not explain the same, specially the one receipt issued under his signature.
It is significant to note that the cases of the plaintiff, the defendant No. 1 and the other defendants excepting defendants 6 to 12 are common so far the Naroda chawl was concerned and the turn of these defendants leading evidence at the trial of the suit came later.
The evidence of Chandrakanta was closed on 29.9.1964 and the witnesses for the defendant No. 1 were examined on 20.10.1964.
Besides, the plaintiff could have re examined himself if he had any explanation to offer.
The cross examination of D.W. 2 on his behalf also indicates that no suggestion to the witness by way of explanation was made.
In his evidence plaintiff stated that he was also collecting the rent from the different tenants in chawl at the instance of defendant No. 1 and he used to hand over the collections to him.
He admitted the fact that there were counter foils which ramained with the defendant No. 1.
The High Court while examining this aspect accepted and relied on Ext.
250 signed by the plaintiff, but failed to appreci ate the significance of the description of the Naroda chawl on the receipt as the property of the defendant No. 6.
Similar is the position of the defendant No. 1 who did not come to the witness box at all.
Chandrakanta examined her self as D.W. 3 and supported her case.
Although there are some minor discrepancies in her deposition, the same is consistent with the documents and the circumstances in the case and appears to be reliable.
While reversing the finding of the trial court that Chandrakanta was in exclusive possession of the chawl not only from 1952 onwards but even earlier since 1946, the High Court was mainly impressed by three items of the evidence, namely, i)certain account books claimed to be the books at the joint family, ii) several IncomeTax returns filed by the defendant No. 1, and iii) a document of agreement, Ext.
So far the Income Tax papers are concerned, they are of the period after 1952 and it has already been stated earlier that the High Court has agreed with the trial court that since 1952 the defendant No. 6 was in adverse possession of the chawl.
In view of this finding, with which we fully agree, the Income Tax documents do not 242 have any impact, except showing that the author of these returns was falsely including income therein which did not accrue to the family.
So far the account books and the deed of agreement are concerned, it will be necessary or appreci ating their true nature and impact on this case, to consider some more facts.
The account books were produced by the defendant No. 1 within a list of documents, Ext. 123.
The defendant No. 1, however, did not lead any evidence with respect to the same when his turn at the trial came.
As mentioned earlier, he personally avoided the witness box, but examined some wit nesses who did not attempt either to prove the books or speak about their authenticity.
The books were admitted in evidence and marked as exhibits on the statement of the plaintiff which he made in cross examination.
Some of the books were shown to him and he admitted that they were in his hand writing, but immediately added; "I have written them as per the instructions of defendant No. 1 and as directed by him.
They are maintained from month to month.
" The income from the Naroda chawl which was admittedly very small as compared to the vastness and the present value of the property, was included in the account books.
According to the case of the respondent the books are authentic, and disclosed the true state of affairs.
There was considerable discussion at the bar before us as well as before the High Court as is apparent from the judgment under appeal, relat ing to the law of evidence dealing with account books.
Reliance was placed on Sec.
34 of the which provides that entries in books of account regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to enquire.
It has been contended on behalf of the respondents that since the plaintiff stated that the books were being maintained from month to month the requirement of law was satisfied.
Mr. Mehta, the learned counsel for the appellant argued that apart from the formal proof of the execution of the docu ment, the party relying thereon was under a duty to lead evidence in support of the correctness of the entries in the books which is completely lacking here.
Besides, it was pointed out that the relevant books are merely joint khata bahis of Samvat 2005 to 2006 equivalent to 1948 to 1949 without the support of primary evidence of the cash books.
, ,The other relevant documents which are admittedly in pos session of the defendant No. 1 have not been produced, including the account books of other years during the cru cial 243 period, the Income tax returns and assessment orders for the period 1946 to 1952 and the counter foil rent receipts.
It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries in the account books.
When they were produced in Court the plaintiff filed his objection as per his purshis, Ext. 172 (page 368 of the paper book).
Many of the documents produced by the defendant No. 1 were accepted, but the account books which were serial nos.
123 75 to 123 97 of the list Ext.
123 were in express terms not admitted.
The plain tiff said that they might be exhibited, but subject to his objection.
The defendant No. 6 also filed her objection as per the purshis Ext.
The plaintiff did not make any statement supporting the books in his examination in chief and only in reply to the question of the cross examining lawyer of the defendant No. 1, he stated as mentioned earli er.
It is significant to note that by saying that he had written as per the instructions of the defendant No. 1 he made it clear that he could not vouchsafe for their reli ability.
In spite of this situation, the defendant No. 1 could not sommon courage to support them either personally or through any witness.
No reason has been suggested at all on his behalf as to why he did not produce the other impor tant documents in his possession which would have supported the account books and the joint case of the parties resist ing the appellants ' claim.
In view of all these circum stances we have no hesitation in rejecting the account books as not reliable.
So far Ext.
167 is concerned, the High Court has relied upon it as the Naroda chawl has been treated by the document as belonging to the joint family.
It was executed on 24.10.1954 by the plaintiff and his three brothers but not by Jayantilal, the husband of defendant No. 6, although he is also shown as a party thereto.
The brothers appear to have settled their dispute with respect to different items of property and the disputed Naroda chawl is shown as the seventh item in the list of properties.
Although the four brothers personally signed the document, so far Jayantilal 's branch was concerned the signature of Narendra, defendant No. 7, who was a minor then, was taken.
Reliance has been placed on the attestation of Bapalal, the father of the executants.
Two days earlier, i.e., on 22.10.1954, he had executed a release deed, Ext.
222 giving up his right in the family properties for a sum of money named therein.
He was already staying in Vrindavan for sometime past and proposed to spend the rest of his life there.
The release deed, however, did not contain any list of properties and the document, therefore, is not of any help to either side.
SOl far the 244 agreement Ext.
167 is concerned, it has not been stated by anybody that Bapalal went through its contents or that somebody read the same to him before he attested it.
There is no presumption that an attesting witness of a document must be assumed to be aware of its contents.
What is signif icant, however, is that it was executed in 1954 when the defendant No. 6 was in adverse possession to the exclusion of the defendant No. 1 and the other members of the family, and Jayantilal did not join the document and his brothers chose to get the signature of his minor son.
This is con sistent with their dishonest attempt to include the income from the chawl in the Income Tax returns of the period after 1952, when the defendant No. 6 undoubtedly was in exclusive possession.
As has been stated earlier, in 1952 there was a direct confrontation between them on the one hand and the defendant No. 6 on the other, when public notices were published in 'Sandesh '.
If their case about their earlier possession had been true they would have produced their Income Tax returns and the assessment orders of that period, i.e. 1946 to 1952.
The family was possessed of vast proper ties and was paying Income Tax.
The entire circumstances lead to the irresistible conclusion that after the defendant No. 1 was removed by the defendant No. 6 from the management of the disputed Naroda chawl he and the other members of the family started creating evidence in support of their false claim.
We do not in the circumstances place any reliance on this deed of agreement.
So far the oral evidence in the case is concerned, the plaintiff, Vadilal examined himself as a witness, but was not supported by any other member of the family, al though his brothers, Gulabchand and Kantilal, defendants 1 and 2 respectively, were alive when the case was heard in the trial court.
Even his nephew, Rajnikant, defendant No. 5, son of deceased Ramanlal did not prefer to come to the witness box.
The husband of the defendant No. 6, Jayantilal had died in 1956, i.e., about 3 4 years before the institu tion of the suit.
Chandrakanta examined herself in support of her case and was cross examined at considerable length.
Her son, Narendra defendant No. 7, who was minor in 1954 when Ext.
167 was executed, was also examined as a witness.
After the death of his father, Jayantilal in 1956, he start ed collecting the rent of the chawl, and as stated earlier both the courts have concurrently held in favour of the exclusive possession of the defendant No. 6 from 1952 on wards.
The plaintiff, however, claimed that the chawl was in the possession of the family even later than 1952.
We have been taken through his evidence and the evidence of Chandra kanta in extenso by the learned counsel for the parties, who made long comments thereon during their arguments.
Both the judg 245 ments of the trial court and the High Court have discussed the evidence at length and we do not consider it necessary to once more deal with them in detail.
We agree with the reasons given by the trial court for accepting the case and the evidence of the defendant No. 6 and rejecting the plain tiff 's oral evidence and the case of the respondents.
The plaintiff contradicted himself so seriously during his examination that at one stage he had to expressly admit that several of the statements made in his examination in chief were 'false ' (see paragraph 25).
It was demonstrated by the further cross examination that he had made many more incor rect statements.
On the other hand, Chandrakanta 's evidence is far superior.
Although she also made some inconsistent statements, but the discrepancies did not relate to any matter of vital importance.
Her evidence substantially is reliable and is supported by important circumstances of (i) the mutation of her name in place of Bapalal on the basis of a statement of the latter; (ii) the description of the chawl as belonging to her on the printed rent receipts given to the tenants out of which some were issued by the defendant No. 1 and the plaintiff, and (iii) the suppression of vital materials in possession of the defendant No. 1 which were withheld from the Court.
The conduct of the parties in not filing the suit before 1960 is also consistent with the correctness of her case.
When the defendant No. 1 was effec tively removed from the management of the property by the defendant No. 6 in 1952, Bapalal was alive.
The defendant No. 1 as also the other members of the family contesting her claim kept quiet and did not risk starting a litigation during his life time.
Even in 1960 it was the plaintiff and not the defendant No. 1 who instituted the present suit in which he included the Naroda chawl in the schedule of properties to be partitioned.
The defendant No. 1 was manag ing the affairs of the family, but did not take any steps to dislodge the defendant No. 6 from the chawl.
The impugned judgment indicates that there were serious differences between the plaintiff and the defendant No. 1 on other items of property and the main reason for the plaintiff to file the suit does not appear to be his claim to the Naroda chawl.
We do not consider it necessary to reiterate the other reasons given in the trial court judgment in support of the decision in favour of the appellant, with which we agree.
We, therefore, hold that the defendant No. 6 remained in exclusive adverse possession of the disputed Naroda chawl right from 1946 onwards till the suit was filed in 1960.
Mr. Dholakia, the learned counsel for the contesting respondents contended that since the chawl has remained in actual possession of the tenants, Bapalal or the family must be held to be in symbolic 246 possession in 1946 and for that reason the defendant No. 6 also can not be treated to have come in actual possession of the property, which could have permitted her to prescribe a title in the chawl.
The learned counsel further argued that since the defendant No. 1 and the plaintiff were actually collecting rent from the tenants they also must be held to be in joint possession and, therefore, the defendant no. 6 can not succeed as she has not been able to prove their ouster.
The other members of the joint family will also be entitled to rely on this aspect so as to successfully defend their right.
Reliance was placed on the decision of the Patna High Court in Hari Prasad Agarwalla and another vs Abdul Haq and others, A.I.R. 1951 Patna 160; in support of the argument that for adverse possession actual physical possession is necessary and mere constructive possession is not sufficient.
We are afraid, it is not possible to accept the argument.
The subject matter of dispute in the present case is the title to the chawl as the owner landlord subject to the tenancy of the tenants in possession.
Neither the plaintiffs nor the defendants are claiming the actual physical posses sion of the chawl by eviction of the tenants.
Any reference to the actual physical possession of the tenant is, there fore, wholly irrelevant for the purpose of the present controversy.
It has to be remembered that the title to the chawl as owner, subject to the tenancy was an interest in immovable property so as to be covered by Article 144 of the Indian Limitation Act, 1908, which specifically mentioned," . or any interest therein".
These words were retained in Article 65 of the new Limitation Act.
It is true that it is the intention to claim exclusive title which makes possession adverse and this animus possidendi must be evidenced and effectuated by the manner of occupancy which again depends upon the nature of the property.
The manner of possession depends upon the kind of possession which the particular property is susceptible.
That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner 's possession.
In the present case the parties have been fighting for the rent from the chawl so long as it continues in possession of the tenants.
Before the gift of 1946 the defendant No. 1 was collecting the rent and he continued to do so even thereafter till 1952.
The appellant has, however, established her case that the defendant No. 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the manage ment of the chawl.
Since 1946 the tenants attorned to the defendant No. 6 and paid rent to her under printed receipts announcing her ownership, but of course through her agent the defendant No. 1.
The actual physical possession of the tenants in 247 the circumstances would enable the appellant to establish her prescriptive title.
The decision in Uppalapati Veera Venkata Satyanarayanaraju and another vs Josyula Hanumayamma and another, , indicates that if a tenant makes an attornment in favour of a person who is not the true owner and follows and paying the rent to him, such a person must be held to have effective possession.
The land lord must be deemed to be in possession through his tenant is also demonstrated by another illustration.
If the tenant trespasses over the neighbour 's land treating it to be covered by his tenancy and remains in possession for the requisite period so as to prescribe a title thereto, his interest therein is limited to the interest of the tenant and his landlord acquires the title of the owner.
The con duct of such a tenant has been aptly described as stealing for the landlord (see I.L.R. 10 Calcutta 820 and The fact that the tenants have been in actual physical possession of the chawl is, in the circumstances, of no assistance to the respondents.
What is material is that they paid the rent to the defendant No. 6. 19.
There is no merit in the further argument that the defendant No. 1 must be treated to be in joint possession as he was actually collecting the rent from the tenants.
It is well settled that the possession of the agent is the posses sion of the principal and in view of the fiduciary relation ship the defendant No. 1 cannot be permitted to claim his own possession.
This aspect was well emphasised in David Lyeii vs John Lawson Kennedy, [1889] XIV H.L. (E) 437, where the agent who was collecting the rent from the tenants on behalf of the owner and depositing it in a separate ear marked account continued to do so even after the death of the owner.
After more than 12 years of the owner 's death his heir 's assignee brought the action against the agent for possession and the agent defendant pleaded adverse posses sion and limitation.
The plaintiff succeeded in the first court.
But the action was dismissed by the Court of Appeal.
The House of Lords reversed the decision of the Court of Appeal and remarked: "For whom, and on whose behalf, were those rents received after Ann Duncan 's death? Not by the respondent for himself, or on his own behalf, anymore than during her life time".
Emphasing the fiduciary character of the agent his possession was likened to that of trustee, a solicitor or an agent receiving the rent under a power of attorney.
Another English case of Williams vs Pott, L.R. XII Equity Cases 149, arising out of the circumstances similar to the present case was more interesting.
The agent in that case was the real owner of the estate but he collected the rents for a considerably long period as the agent of his principal who was his mother.
After the agent 's death his heir claimed the estate.
248 The mother (the principal) had also by then died after purporting by her will to devise the disputed lands to the defendants upon certain trusts.
The claim of the plaintiff was dismissed on the plea of adverse possession.
Lord Romil ly, M.R., in his judgment observed that since the possession of the agent was the possession of the principal, the agent could not have made an entry as long as he was in the posi tion of the agent or his mother, and that he could not get into possession without first resigning his position as her agent which he could have done by saying: "The property is mine; I claim the rents, and I shall apply the rents for my own purposes".
The agent had thus lost his title by reason of his own possession as agent of the principal.
A similar situation arose in Secretary of State for India vs Krishna moni Gupta, 29 Indian Appeals 104, a case between lessor and lessee.
There the proprietors of the land in dispute, Mozum dars were in actual physical possession but after getting a settlement from the Government in ignorance of their title.
The Government contended that the possession of the Mozum dars was, in circumstances, the possession of the Government claiming the proprietory right in the disputed land and that such possession was in exclusion and adverse to the claim of the Mozumdars to be proprietors thereof.
The plea succeeded.
It was observed by the Judicial Committee.
"It may at first sight seem singular that parties should be barred by lapse of time during which they were in physical possession, and estopped from disputing the title of the Government.
But there is no doubt that the possession of the tenant is in law the posses sion of the landlord or superior proprietor, and it can make no difference whether the tenant be one who might claim adversely to his landlord or not.
Indeed, in such a case it may be thought that the adverse character of the possession is placed beyond controversy.
" We are, therefore, of the view that the defendant No. 6 was in adverse possession from the period 1946 to 1952 through her agent defendant No. 1 and thereafter through her husband, Jayantilal and son, defendant No. 7 till 1960 when the suit was filed, the total period being more than 12 years.
For the reasons mentioned above, the decision of the High Court must be held to be erroneous.
Consequently the decrees for accounts against the defendants No. 6 and 7 must also go.
Accordingly, the appeals are allowed, the decision of the High Court, so far 249 the subject matter of the present appeals is concerned, is set aside and that of the trial court restored.
In view of the close relationship of the parties and the other circum stances, the parties are directed to bear their own costs throughout.
N.V.K. Appeals allowed. | Respondent No. 1 in the appeals instituted a suit for partition against his younger brothers and sisters, and the heirs of his deceased brothers.
The plaintiff was the eldest among the brothers and sisters.
The 1st and 2nd Defendants were his brothers, the 3rd Defendant his sister, the 4th and 5th Defendants, the widow and son respectively of the third brother.
Defendant 6 was the widow of the fourth brother, and Defendants 7 to 12 were his children, while Defendant No. 14 was the wife of Defendant No. 1, and Defendants 13, 15, 16 and 17 were their children.
The subject matter of the appeals related only to one item of property known as "Naroda Chawl" measuring 7 acres and 2 gunthas of land, where 115 rooms and huts stood con structed, out of which 114 rooms had been let out to ten ants, and one room was retained for the caretaker.
According to Defendants No. 6 to 12 this property exclu sively belonged to defendant No. 6 and was not liable to partition.
The other defendants however supported the plain tiff 's case that it belonged to the 233 joint family and was liable to partition.
Defendants 6 to 12 pleaded that the plaintiff 's father Bapalal orally gifted this property to his daughter in law Defendant No. 6 in March 1946 and made a statement before the Revenue authorities on .
the basis of which her name was mutated and she was put in possession thereof, that although she came in peaceful possession, the management which in cluded realisation of rent was in the hands of Defendant No. 1, that as some dispute arose in 1952 she assumed direct charge of the chawl and had remained in possession thereaf ter, and that she had acquired good title therein by adverse possession before the suit was filed in 1960.
The City Civil Judge who tried the suit, held that there was a joint Hindu family and a business was carried on for the benefit of the family and the income therefrom was thrown into the common pool and all the properties including the disputed chawl were treated as belonging to the family.
As the case of Defendant No. 6 about the gift, the mutation of her name, and her exclusive possession from 1946 till the date of the suit was found correct, it was held that she had acquired title by adverse possession, and the suit was dismissed with respect to the disputed chawl.
The plaintiff appealed to the High Court.
Some of the defendants also filed appeals in respect of the other items of property.
All these appeals were heard and disposed of by a common judgment.
The High Court reversed the finding of adverse posses sion in regard to the disputed chawl and granted a decree for partition.
It held that Defendant No. 6 remained in exclusive possession of the property only since 1952, the period was thus short of the time required for prescription of title.
It further held that since the rents of the chawl from 1952 were collected by her husband and after his death by her son (Defendant No. 7), she was liable to render accounts till the death of her husband, and she along with Defendant No. 7 would be jointly liable for the period thereafter.
Separate Appeals were preferred by Defendant Nos. 6 and 7 to this Court.
Allowing the Appeals, setting aside the decision of the High Court and restoring that of the Trial Court.
234 HELD: 1.
The principle that revenue entry furnishes presumptive evidence of title is inapplicable in the instant case.
It cannot be denied that title to Naroda Chawl could not have passed to Defendant No. 6 by virtue of the entry Ext.
The value of the chawl even in 1946 was large and no registered instrument of transfer was executed.
Besides Ext.
247 describes the plaintiff 's father (Bapalal) and Defendant No. 6 (Chandrakanta) as Kabjedar, that is occu pant.
In such circumstances, the presumption which can be raised in favour of Defendant No. 6 from this entry is with respect of her possession and possession only.
[238F G] Gangabai and others vs Fakirgowda Somaypagowda Desai and others, AIR 1930 Privy Council 93; and Desai Navinkant Kesarlal vs Prabhat Kabhai, 9 Gujarat Law Reporter 694, referred to.
The account books have to be rejected as not reli able.
It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries therein.
Many of the documents produced by Defendant No. 1 were accepted, but the account books which were section Nos.
123 75 to 123 97 of Ext.
123 were in express terms not admitted.
The plaintiff filed his objection Ext.
Defendant No. 6 also filed her objection Ext.
The books were admitted in evidence and marked as exhibits on the statement of the plaintiff which he made in cross exami nation.
The plaintiff by saying that he had written as per the instructions of Defendant No. 1 made it clear that he Could not vouchsafe for its reliability.
Defendant No. 1 could not summon courage to support them either personally or through any witness.
No reason has been suggested as to why he did not produce other important documents in his possession which could have supported the account books and the joint case of the parties resisting the appellant 's claim.
[243B E] 3.
Defendant No. 1 cannot be treated to be in joint possession as he was actually collecting the rents from the tenants.
it is well settled that the possession of the agent is the possession of the principal and in view of the fidu ciary relationship, Defendant No. 1 cannot be permitted to claim his own possession.
[247D E] David Lyeii vs John Lawson Kennedy, [1889] XIV H.L.(E) 437; Williams vs Pott, L.R. XII Equity Cases 149 and Secre tary of State for India vs Krishnamoni Gupta, 29 Indian Appeals 104, referred to.
It is the intention to claim exclusive title which makes 235 possession adverse and this animus possidendi must be evi denced and effectuated by the manner of occupancy which again depends upon the nature of the property.
The manner of possession depends upon the kind of possession which the particular property is susceptible.
That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner 's possession.
[246E F] (b).
The title to the chawl as owner, subject to the tenancy was an interest in immovable property so as to be covered by Article 144 of the Indian Limitation Act, 1908, which specifically mentioned, ".
or any interest therein".
[246E] In the instant case, the parties have been fighting for the rent from the chawl so long as it continued in posses sion of the tenants.
Before the gift of 1946 the Defendant No. 1 was collecting the rent and he continued to do so even thereafter till 1952.
The appellant has, however, estab lished her case that the Defendant No. 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the management of the chawl.
Since 1946 the tenants attorned to the Defendant No. 6 and paid rent to her under printed receipts announcing her ownership, but of course through her agent the Defendant No. 1.
The fact that the tenants have been in actual physical posses sion of the chawl is, in the circumstances, of no assistance to the respondents.
What is material is that they paid the rent to the Defendant No. 6.
Defendant No. 6 was in adverse possession from the period 1946 to 1952 through her agent Defendant No. 1 and thereafter through her husband and son Defendant No. 7 till 1960 when the suit was filed, the total period being more than 12 years.
[246G H; 248G] Uppalapati Veera Venkata Satyanarayanaraju and another vs Josyula Hanumayamma and another, and Hari Prasad Agarwalla and another vs Abdul Haw and others, A.I.R. 1951 Patna 160, referred to. |
Appeals Nos.
2464 and 2465 of 1966.
Appeal from the judgment and order dated April 8, 1964 of the Punjab High Court, Circuit Bench at Delhi in Letters Patent Appeal No. 75 D of 1962.
M.C. Chagla and Lily Thomas, for the appellants (in C.A. No. 2464 of 1966) and the respondents (in C.A. Nos. 2465 of 1966).
A.K. Sen and 1.
N. Shroff, for the respondents (in C.A. E No. 2464 of 1966) and the appellants (in C.A. No. 2465 of 1966).
The Judgment of the Court was delivered by Bachawat, J.
One Mehtab Singh, the landlord, is the owner of the premises No. 279, situate in Dariba Kalan, Delhi.
His son Muni Subrat Dass resides on the first floor while the ground F floor is in the occupation of the tenants, Bahadur Singh and Daryao Singh where they set up a workshop and installed machinery for manufacturing purposes.
According to Muni Subrat the workshop was a nuisance and caused him great annoyance.
He made a number of complaints to the Municipal Committee for stoppage of the nuisance.
On June 10, 1954, Muni Subrat G and the tenants agreed in writing to refer the disputes between them to the arbitration of two named arbitrators.
The landlord was not a party to the agreement.
The arbitrators made their award on July 14, 1954.
The award directed that (i) Muni Subrat would withdraw the applications pending before.
The Municipal Committee; (ii) the tenants would be at liberty to run the workshop during the day time upto December 31, 1957; (iii) on January 1, 1958, the tenants would remove the machinery; (iv) on the same date they would give vacant possession of the ground floor to the landlord and (v) the tenants would pay rent 434 to landlord for the period of their occupation.
.The award was signed by the arbitrators and the parties to the reference and was attested by the landlord.
It was filed in COurt under section 14 of the .
On August 26, 1954, the tenants and Muni Subrat stated in Court that they had no objections against the award.
On the same date the Court pronounced judgment according to the award and a decree followed accordingly.
On August 23, 1958 Muni Subrat and the landlord jointly applied for execution of the decree `for delivery of possession of the premises.
In anticipation of the application for execution of the decree, on January 9, 1958 the tenants filed an application under sec.
47 of the Code of Civil Procedure raising the following objections to the execution of the decree as to the delivery of possession of the premises to the landlord: (i) the award was beyond the scope of the reference and was invalid and the decree based on the invalid award was void; (ii) the decree was passed in contravention of the Delhi and Ajmer Rent Control Act, 1952 (Act No. 38 of 1952) and was void; and (iii) the landlord could not execute the decree.
The Subordinate Judge, First Class, Delhi, dismissed the objection.
He held that (i) that the objection that the award was without jurisdiction could not be raised under sec.
47; (ii) the decree was not in contravention of the Rent Act; and (iii) the landlord was entitled to execute the decree.
On appeal,the Additional Senior Sub Judge, Delhi, held that (i) the question as to the validity of the award could not be agitated in the execution proceedings; (ii) the decree for eviction was passed in contravention .of the Rent Act and was void; (iii) the appeal against the order allowing the landlord to execute the decree was incompetent and (iv) Muni Subrat was entitled to execute the decree for removal of the machinery but he could not execute the decree for eviction.
In the result, he dismissed the appeal in part so far 'as it was directed against the landlord, allowed the appeal in part against Muni Subrat and declared that he could get the machinery removed but he could not claim eviction.
The tenants and the decree holders filed two separate appeals in the Punjab High Court at Delhi.
Gurdev Singh 1.
held that (i) the first appeal filed against the order in favour of the landlord was competent; (ii) the decree for eviction did not contravene the provisions of the Rent Act and (iii) the landlord was entitled.
to execute the decree for eviction.
In the result, he accepted the decree holder 's appeal and dismissed the tenant 's appeal.
The tenants filed an appeal under clause 10 of the Letters Patent.
A Divisional Bench of the High Court held that (1) the objection to the validity of the award could not be entertained in the execution proceedings; (2) the decree directing delivery of possession of the premises to the landlord was passed in contravention of the Rent Act; (3)neither the landlord nor Muni Subrat could 435 enforce that part of the decree; (4) the decree directing removal of the machinery was 'separable and was void and Muni Subrat was entitled to execute it.
In the result, the DiviSional Bench allowed the appeal and restored the order of the Additional Senior Sub Judge, Delhi.
In passing this order the Bench overlooked that the Senior Sub Judge had dismissed the appeal against the landlord as incompetent.
Having regard to the fact that the appeal against the landlord was competent, the Bench should have also set aside the order favouring the landlord.
The present appeals have been filed by the tenants as also by the landlord and Muni Subrat after obtaining certificates from the High Court.
The following points arise for determination in these appeals, (1) Can the objection as to the ' validity of the award be raised after a decree is passed ' on the award, and can the decree be pronounced to be a nullity on the ground that it was based on an invalid award; (2) Is the decree directing the tenants to deliver possession of the premises to the landlord a nullity on the ground that it was passed in contravention of the Rent Act; (3) Is this portion of the decree enforceable either by the landlord or by Muni Subrat; and (4) Is the decree so far as it directs removal of the machinery valid and enforceable by Muni Subrat.
The award was filed in Court under section 14 of the and on notice to the tenants and in their presence a decree, was passed according to the award under section 17.
It is not Open to the tenants now to take the objection that the award was in excess of the 'authority of the arbitrators or was otherwise invalid.
Having regard to the scheme of sections 14 'to 17 and 31 to 33 all ' questions regarding the validity of the award had to be determined by the Court in which the award was filed and by no other Court.
An award which is invalid on any ground can be set aside under section 30.
After a decree is passed on the award it is not ' open to the parties to the reference to raise any ' objection as to ' the validity ' of the award.
As between them the decree conclusively determines that the award is valid.
Nor can the decree be pronounced to be a nullity on the ground that ' the award was invalid.
A decree passed on an invalid award in arbitrations in suits under the second schedule to the Code of Civil ' Procedure, 1908, stood on the same footing, see Rabindra Deb Manna vs Jogendra Deb Manna(1) where Rankin, '1. 'observed: "An award made out of time, Or otherwise 'invalid, is no longer a nullity it is 'liable to be set aside by the Court, but, if not set aside, a decree made for its enforcement is not without jurisdiction, Shib Kristo Daw vs Satish Chandra Dutt The next question is whether the decree directing the tenant to deriver possession of the premises to the landlord was.
passed A.I.R. 1923 Cal.
410, 413.
436 in contravention of section 13 (1) of the Delhi and Ajme Rent Control Act, 1952.
That sub section provided that: "Notwithstanding anything to the contrary contained in any other law or any contract, no decree or order for the recovery of possession of any premises shall be passed by any Court in favour of the landlord against any tenant (including a tenant whose tenancy is terminated): Provided that nothing in this sub section shall apply to any suit or other proceeding for such recovery of possession if the Court is satisfied. " Then followed a catalogue of grounds on which the decree for recovery of possession could be passed.
The other sub sections to section 13 showed that a decree or order could be passed on one of those grounds in a suit or proceeding instituted by a landlord against a tenant.
Section 13 (1) prohibited the Court from passing a decree or order for recovery of possession of any premises in favour of a landlord against a tenant except in such a suit or proceeding and unless the Court was satisfied that a ground of eviction existed.
Now the decree in the present case is on the face of it one for recovery of possession of the premises in favour of a landlord against a tenant.
The Court passed the decree according to an award under section 17 of the in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed.
On the plain wording of section 13 (1 ) the Court was forbidden to pass the decree.
The decree is a nullity and cannot be enforced in execution.
The contusion that a decree passed in contravention of section 13 (1) is a nullity is supported by the decision in Peachey Property Corpn.
vs Robinson(1).
In that case the landlords issued a writ to recover possession of a flat let to tenants who resided there for non payment of rent.
No appearance was entered and judgment was signed in default of appearance.
On an application for leave to issue a writ for possession, the Court held that the judgment was a nullity as it was given without any determination that it was reasonable to do so in contravention of section 3 (1) of the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933.
As the decree was a nullity the Court refused to issue a writ for possession.
Winn, L.J. said : "Accordingly,the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933, section 3(1) was made to apply to these premises and that sub section provided: 'No Order or judgment for the recovery.
of possession of any dwelling house to which the principal Acts apply or for the ejection of a tenant therefrom shall be (1) , 983. 437 made or given unless the Court considers it reasonable to make such an order or give such a judgment. and. " One or other of two additional conditions is satisfied.
It is perfectly plain from what I have said that before the judgment in default of appearance was entered no court had determined whether it was reasonable to make such an order or give such a judgment.
In my view, therefore, by express force of that section the judgment in default of appearance here was a nullity.
It was, according to its terms, a judgment for recovery of possession of these premises, and that is something which the section prohibits unless there has been a prior determination by the court that it was reasonable to give such a judgment." As the decree for the delivery of possession of the premises to the landlord is a nullity it cannot be enforced or executed either by the landlord or by the landlord 's son Muni Subrat.
The decree in so far as it directs the removal of the machinery from the premises is clearly valid and separable from the rest of the decree and may be executed by Muni Subrat.
In the result, it is declared that (a) the objections as to the validity of the award cannot be entertained in the execution proceedings; (b) the decree in so far, as it directs delivery of possession of the premises to the landlord is a nullity and cannot be executed either by Muni Subrat or by Mehtab Singh and (c) the decree in so far as it directs removal of the machinery is valid and may be executed by Muni Subrat.
Subrat to the declarations mentioned above the appeals are dismissed.
There will be no order as to the costs in this Court.
Y.P. Appeals dismissed. | The tenants occupying the ground floor of a building set up a workshop therein.
According to the landlord 's son M, who resided in the first floor, the workshop was a nuisance and caused him great annoyance.
M and tenants agreed to refer the dispute to arbitration.
The landlord was not a party to the agreement.
The award directed that the tenants would run workshop up to certain time and ' thereafter remove the machinery.
and on that day give.
vacant possession of the ground floor to the landlord.
The award was signed by the arbitrators, the tenants, and M, and it was attested by the landlord.
It was filed in Court under section 14 of the Arbitration Act.
The tenants and M stated in Court that they had no objections against the award.
The Court pronounced judgment according to the award and decree followed.
On the expiry of the date fixed for removing the, machinery and for vacating the premises, M and the landlord jointly applied for the execution of the decree.
The tenants objected under section 47, Code of Civil Procedure to the execution contending that (i) the award was beyond the, scope of the reference and was invalid and the decree based on the invalid award was void; (ii) the decree was passed in contravention of the Delhi and Ajmer Rent Control Act, 1952 and was void; and (iii) the landlord could not execute the decree.
HELD: (i) The award was filed in Court under section 14 of the Arbitration Act and on notice to the tenants and in their presence a decree was passed according to the award under section 17.
It was not open to the tenants then to take the objection that the award was in excess of the authority on the arbitrators or was otherwise invalid.
Having regard to the scheme of ss, 14 to 17 and 31 to 33 all questions regarding the validity of the award had to be determined by the Court in which the award was filed and by no other Court.
An award which is invalid on any ground can be set aside under section 30.
After a decree is passed on the award it is not open to the parties to the reference to raise any objection as to the validity of the award.
As between them the decree conclusively determines that the award is valid.
Nor can the decree be pronounced to be a nullity oh the ground that the award was invalid.
[435 E G] Rabindra Deb Manna vs Jogendra Deb Manna A.I.R. 1923 Cal. 410, and Shib Kristo Daw vs Sottish Chandra Dutt approved.
(ii) The decree for delivery of possession to the landlord was a nullitv and could not be enforced in execution.
Section 13(1) of the Delhi and Ajmer Rent Control Act, 1952 prohibited the Court, from passing a decree or order for recovery of possession of any premises in 433 favour of a landlord against a tenant except in such a suit or proceeding instituted by the landlord against the tenant for recovery of possession on one of the grounds stated therein, and unless the Court was satisfied that a ground of eviction existed.
The decree in the present case was on the face of it one for recovery of possession of the premises in favour of a landlord against a tenant.
The Court passed the decree according to an award under section 17 of the in a proceeding to which the landlord was not a party without satisfying itself that a ground of eviction existed.
[436 C E] Peachey Property Corpn.
Robinson [1966] 2 All E.R.981, applied.
(iii) The decree in so far as it directed the removal of the machinery from the premises was clearly.
valid and separable from the rest of the decree and could be executed by M. |
ivil Appeals Nos. 281, 284, 363, 383 to 393 and 513 to 567 of 1969.
Appeals from the judgment and order dated December 6, 1968 of the Madras High Court in Writ Petitions Nos.
1659 of 1968.
M.S. Sethu and A.V.V. Nair, for the appellant (in C.As.
281 and 363 of 1969).
M.S. Sethu and P. Parameshwara Rao, for the appellant (in C.A. No. 284 of 1969).
H.R. Gokhale and K. Jayaram, for the appellant (in C.A. No. 383 of 1969).
K. Jayaram and T.S. Vishwanatha Rao, for the appellants (in C.As.
Nos. 384 to 393 and 513 to 567 of 1969).
S.V. Gupte, section Mohan and A. V. Rangam, for the respondent (in C.A. No. 281 of 1969).
section Mohan and A1.
V. Rangam, for the respondents (in C.As.
Nos. 284, 363, 383 to 393 and 513 to 567 of 1969).
The Judgment of the Court was delivered by Shah, J.
At the conclusion of the hearing of these appeals on April 23, 1969, we announced that "the appeals are dismissed with costs; reasons in support of the order will be delivered thereafter".
We proceed to record the reasons in support of the order.
The appellants carry on business as dealers in "cane jaggery" in the State of Tamil Nadu.
As a result of certain legislative and executive measures, transactions of sale in "cane jaggery" were made liable as from January 1, 1968 to tax under the Madras General Sales Tax Act, 1959, and transactions of sale in "palm jaggery" remained exempt from sales tax.
The appellants filed petitions in the High Court of Madras challenging the validity of the levy of tax on "cane jaggery", on three grounds: (1) that the levy of tax on turnover from sale of "cane jaggery" ' was discriminatory and violated the equality clause of the Constitution; (2) that the levy of tax imposes a restriction on trade and commerce contrary to the provisions of Part XIII of the Constitution; and (3) there is excessive delegation of legislative authority to the executive and on that account the levy of tax pursuant to an order made in 617 exercise of the powers under section 59 of the Madras General Sales Tax Act 1 of 1959 on "cane jaggery" is invalid.
The High Court rejected all the contentions.
Counsel for the appellants have in these appeals urged the first two grounds and have in addition submitted that in levying tax on turnover from sale of "cane jaggery" legislative power has been colourably exercised.
The argument that there was excessive delegation to the executive of the legislative power was abandoned before this Court, because the State of Madras has enacted Act II of 1968 authorising levy of tax on sale of jaggery by amending Sch.
III to Madras Act 1 of 1959.
Turnover from sale of jaggery cane or palm was subject to tax under section 3(1) of the Madras Act IX of 1939 at three pies per rupee.
By G.O. 651 dated February 28, 1955 and G.O. 2780 dated September 7, 1955 all sales of "palm jaggery" effected through Co operative Societies and the Palm Gut Federation were exempt from tax.
By another G.O. No. 1605 dated April 19, 1956, all transactions of sale in "palm jaggery" were exempted from sales tax with effect from April 1, 1956.
Transactions of sale in "cane jaggery" therefore continued to remain liable to ' tax whereas sales of "palm jaggery" enjoyed the benefit of exemption from tax.
After the judgment of this Court in The Bengal Immunity Company Ltd. vs The State of Bihar & Others(1) the Parliament amended article 286 and entry 54 in List II of the Seventh Schedule 'and added a new Entry 92A in List I in the Seventh Schedule by the Constitution (Sixth Amendment) Act.
In, exercise of the power under Entry 92A List I the Parliament enacted the Central Sales Tax Act 74 of 1956.
By Ch.
IV of that Act the power reserved under the amended article 286 cl.
(3) was exercised by the Parliament, and certain classes of goods were declared to be of "special importance in inter State trade or commerce".
By section 15 certain modifications were declared in State Acts relating to the levy of taxes on sales and purchases of declared goods.
However in the list of goods of "special importance in inter State trade or commerce" gur or jaggery was when, the Act was enacted not included.
The Parliament then enacted the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (Act 58 of 1957).
Section 3 of that Act authorised the levy and collection of additional duties in respect of several classes of goods including "sugar".
By section 4 it was provided that during each financial ' year, there shall be paid out of the Consolidated Fund of India (1) 618 to the States in accordance with the provisions of the second schedule, such sums, representing a part of the net proceeds of the additional duties levied and collected during that financial year, as are specified in that Schedule.
It was enacted by the proviso to cl.
(2) of the Schedule that if during that financial year there is levied and collected in any State specified in the Table a tax on the sale or purchase of sugar by or under any law of that State, no sums shall be payable to that State under sub cl.
(ii) or sub cl.
(iii) of cl.
(b) 'in respect of that financial year, unless the Central Government by special order otherwise directs.
The expression 'sugar ' was defined in section 2(c) as having the same meaning as it has in the First Schedule to the .
The Governor of Madras issued Ordinance 1 of 1957 directing that transactions of sale of "cane jaggery" be liable to a single point tax at 5 per cent.
with effect from April 1, 1957.
By virtue of the , as amended by Act 31 of 1958 "sugar" as defined in Item No. 8 of the First Schedule to the was declared a commodity essential to the life of the community and tax could thereafter be levied on "sugar" at the rate of 2 per cent.
But in view of the definition contained in the , there was some doubt whether the expression 'sugar ' included gut.
The State of Madras being apparently of the opinion that "palm jaggery" and "cane jaggery" were subject to the provisions of the Additional Excise Act 58 of 1957, issued on April 15, 1958, G.O., No. 1457 exempting all sales of "cane jaggery" from tax with effect from April 1, 1958.
Transactions of sale of "palm jaggery" were therefore exempt partially from sales tax from February 28 1955 and wholly from April 1, 1956, and transactions of sale of "cane jaggery" were exempt from tax from April 1, 1958.
The State Legislature enacted the Madras General Sales Tax Act 1 of 1959 with effect from April 1, 1959.
By section 3 every dealer whose total turnover was not less than Rs. 10,000 became liable to pay tax for each year at the rate of 2 per cent of his taxable turnover.
By section 8 it was: provided that subject to such restrictions and conditions as may be prescribed, a dealer who deals in goods specified in the Third Schedule shall not be liable to pay any tax under the Act in respect of such goods Item 5 in the Third Schedule was "sugar including jaggery and gur.
" Section 17 of that Act authorised the State Government by notification to exempt or to make reduction in rate 'in respect of any tax payable under the Act on the sale or purchase of any special goods or class of goods 'at all points or specified points in respect of sales by successive dealers or by any specified class on dealers in respect of the whole or ,any part of their turnover.
By section 59(1) of the Act the State Government was authorised by notification, to alter, add or cancel any of the Schedules.
619 On April 1, 1959 transactions of sale of "sugar including jaggery and gur" were exempt from liability to pay tax under .the
Madras General Sales Tax Act 1 of 1959.
The exemption applied to all transactions of sale of "cane jaggery" and "palm jaggery".
On September 10, 1965 the Government of India advised the State Government that "jaggery" was not included in the expression 'sugar ' in the Additional Duties of Excise Act 58 of 1957.
The State of Madras in exercise of the power under sub section
(1 ) of section 59 of the Madras General Sales Tax Act, issued G.O. 2261 dated December 30, 1967, that: "In the said (Third) Schedule in item 5, for the word 'including ' the words 'but not including ' shall be substituted.
" The State simultaneously issued another notification that: "In exercise of powers conferred by section 17(1) of the Madras General Sales Tax Act, 1959, the Governor of Madras granted exemption in respect of tax payable under the Act on all sales of palm jaggery.
" In consequence of the two notifications turnover from transactions of sale of "cane jaggery" which was till then exempt from tax became liable to tax under section 3 of the Madras Act 1 of 1959 whereas sale of "palm jaggery" remained exempt from liability ' to pay sales tax.
In support of the plea that the State had practised unlawful discrimination between sales of "palm jaggery" and "cane, jaggery" it was urged that "cane jaggery" and "palm jaggery" which were identical commodities and were treated similarly under the successive Sales Tax Acts of the State for many years past were without any rational nexus with the object sought to be served by the Madras General Sales Tax Act, 1959, differently treated 'and on that account the notification issued under section 59 sub section
(1) which modifies the Third Schedule is ultra vires.
It may be recalled that the notification under section 59(1) which was issued in exercise of executive authority has received legislative sanction by Madras Act 2 of 1968.
Amendment in the Third Schedule now flows from the exercise of legislative authority and not executive .authority.
Since section 8 read with the Third Schedule as amended by Madras Act 2 of 1968 exempts only "sugar" from liability to tax, sales of jaggery, cane and palm, now fall within the charging section.
But the Government of Madras have in exercise of power under section 17 of Act 1 of 1959 exempted transactions of sale of "palm jaggery" from tax.
It is true that between April 1,.
620 1958 and October 31, 1967 transactions of sale of "cane jaggery" and "palm jaggery" were exempt from liability to pay sales tax under the Madras General Sales Tax Acts of 1939 and 1959, but it cannot be inferred therefrom that the Legislature treated "palm jaggery" and "cane jaggery" as the "same commodity.
" For nearly three years before April 1, 1958 sales of "palm jaggery" were exempt from tax but sales of "cane jaggery" were not.
The evidence on the record clearly shows that "cane jaggery" and "palm jaggery" are commercially different commodities. "Cane jaggery" is produced from the juice of sugarcane; "palm jaggery" is produced from the juice of the palm tree.
Mr. Raghupathy, Deputy Secretary to the Government of Madras (Commercial Taxes) has stated in his affidavit that "palm jaggery" industry comes under the purview of Khadi and Village Industries Board and is one of the cottage industries which gives ,employment mainly to poor tappers.
The tappers, according to Mr. Raghupathy, collect "neera" from palm and other trees and prepare jaggery by the traditional method of boiling "neera" in their huts and produce jaggery without the aid of any machinery.
Production of "palm jaggery" in the State compared to "cane jaggery" is small.
The price of "palm jaggery" and "cane jaggery" differ widely and apparently "palm jaggery" and "cane jaggery" are consumed by different sections of the community.
It is clear that the method of production of "palm jaggery" and "cane jaggery" are different; they reach the consumers through different channels of distribution; the prices at which they are sold differ and they are consumed by different sections of the community.
In a recent judgment N. Venugopala Ravi Varma Rajah vs Union of India and Another(1) this Court observed: ".
Tax laws are aimed at dealing with complex problems of infinite variety necessitating adjustment of several disparate elements.
The Courts accordingly admit, subject to adherence to the fundamental principles of the doctrine of equality, a larger play to legislative discretion in the matter of classification.
The power to classify may be exercised so as to adjust the system of taxation in all proper and reasonable ways: the Legislature may select persons, properties, transactions and objects and apply different methods and even rates for tax, if the Legislatures does so reason ably.
If the classification is rational, the Legislature is free to choose objects of taxation, impose different rates, exempt classes of property from taxation, subject different classes of property to tax (1) ; 621 in different ways and adopt different modes of assessment.
A taxing statute may contravene Article 14 of the Constitution if it seeks to impose on the same class of property, persons, transactions or occupations similarly situate; incidence of taxation, which leads to obvious inequality.
" It was also said by the Court that: "It is for the Legislature to determine the objects on which tax shall be levied, and the rates thereof.
The Courts will not strike down an Act as denying the equal protection merely because other objects could have been, but are not, taxed by the Legislature.
" We are accordingly of the view that "cane jaggery" and "palm jaggery" are not commodities of the same class, and in any event in imposing liability to tax on transactions of sale of "cane jaggery" and exempting "palm jaggery", no unlawful discrimination denying the guarantee of equal protection was practised.
No serious argument was advanced in support of the plea that the freedom of trade and commerce guaranteed by Part XIII of the Constitution is infringed by the imposition of tax on "cane jaggery".
Freedom of trade, commerce and intercourse guaranteed by article 301 of the Constitution is protected against taxing statutes as well as other statutes, but by imposition of tax on transactions of sale of "cane jaggery" no restriction on the freedom of trade or commerce or in the course of trade with or within the State is imposed.
The tax imposed on transactions of sale of "cane jaggery" does not affect the freedom of trade within the meaning of article 301.
As observed by this Court in The state of Madras vs IV.
K. Nataraja Mudaliar(1) "a tax may in certain cases directly and immediately restrict or hamper the free flow of trade, but every imposition of tax does not do so.
There is no substance in the contention that the Act which impose tax on "cane jaggery" and the notification which exempts "palm jaggery" from liability to tax imposes a colourable exercise of authority.
If the Legislature has the power to impose the tax, its authority is not open to challenge on a plea of colourable exercise of power: K.C. Gajapati Naravan Deo & Others vs The State of Orissa(2).
There will be one hearing fee.
G.C. Appeals dismissed. | As a result of a notification dated December 30, 1967 under section 59(1) of the Madras General Sales Tax Act and later by Act 2 of 1968 sales of jaggery became liable to tax.
But while by notification under section 17 'palm jaggery was exempted from tax 'cane jaggery ' was not.
The appellants who were dealers in 'cane jaggery ' challenged the levy by writ petitions in the High Court which were, however, dismissed.
In appeal before this Court it was contended (i) that the tax on 'cane jaggery ' while exempting 'palm jaggery ' was ,discriminatory and violative of article 14 of the Constitution; (ii) that taxation of 'cane jaggery ' was restrictive of trade and commerce and therefore violative of article 301; (iii) that the impugned legislation constituted a colourable exercise of power.
HELD: (i) The evidence on record clearly showed that 'cane jaggery ' and 'palm jaggery ' were commercially different commodities.
The methods of production of 'palm jaggery ' and 'cane jaggery ' were different; they reached the consumers through different channels of distribution; the prices at which they were sold differed and they were consumed by different sections of the community.
'Cane jaggery ' and 'palm jaggery ' did not thus belong to the same class and in differently treating them for the purpose of taxation there was no unlawful discrimination.
[620 B E; 621 C D] It was incorrect to say that the State Legislature had always treated the two products on the same footing.
For nearly three years before April 1, 1958 sales of 'palm jaggery ' were exempt from tax but sales of 'cane jaggery ' were not.
[620 B] Further, it is for the legislature to determine the objects on which tax shall be levied.
The courts will not strike down an Act as denying equal protection merely because other objects could have been but are not taxed by the legislature.
[621 B C] N. Venugopala Ravi Varma Rajah vs Union of India, ; , applied.
(ii) Freedom of trade, commerce and intercourse guaranteed by article 301 of the Constitution is protected against taxing statutes as well as other statutes, but by imposition of tax on transactions of sale of 'cane jaggery ' no restriction on the freedom of trade or commerce or in the course of trade with or within the State.
was imposed.
[621 D F] State of Madras vs N. K. Nataraja Mudaliar. ; , referred to.
(iii) The plea of colourable exercise of power had no substance because the legislature had power in the present case to.
levy the tax.[621 G] 4 Sup.
C.I./69 616 K.C. Gajapati Narayan Deo & Ors.
vs State of Orissa, [1954] S.C.R.1, applied. |
: Criminal Appeal No. 208 of 1966.
Appeal by special leave from the judgment and order dated February 22, 1966 of the Patna High Court in Criminal Appeal No. 530 of 1962 and Government Appeal No. 44 of 1962.
A. S.R. Chari, M.K. Ramamurthi, G. Ramamurthy and Vineet Kumar, for the appellant.
B.P. Jha, for the respondent.
695 The Judgment of the Court was 'delivered by Sikri, J.
Fourteen persons were tried by the learned Second Additional Sessions Judge, Bhagalpur, on various charges.
Out of these 14 persons Sheo Prasad Sharma and Ram Prasad Sharma were charged under section 302, i.
P.C. Sheo Prasad Sharma was charged under section 302 for having intentionally caused the death of Qudrat Mian by shooting him down with his gun whereas Ram Prasad Sharma was charged under this section for having shot down with his gun Kaleshwar Yadav and thus having caused the murder of this person.
The Second Additional Sessions Judge, Bhagalpur, convicted Sheo Prasad Sharma under sections 304, 324/34, 201 and 148 and sentenced him to seven years rigorous imprisonment.
The appellant, Ram Prasad Sharma was convicted under sections 326/149, 324/ 34, 201 and 148,/.P.C. and sentenced to four years rigorous imprisonment.
Seven other accused were also convicted but it is not necessary to mention the sections under which they were convicted.
Five of the accused persons were acquitted by the learned Second Additional Sessions Judge.
Two appeals were filed before the High Court, one by the State and the other by the nine convicted persons, including Ram Prasad Sharma.
Both the appeals were heard together.
The High Court accepted the appeal of the State as far as Ram Prasad Sharma was concerned and convicted him under section 304, I.P.C., in connection with the shooting and causing the death of Kaleshwar and sentenced him to rigorous imprisonment for seven years.
The convictions of seven others were altered from under sections 326/149 to one under sections 304/149 but the sentence of four years rigorous imprisonment was maintained.
In other respects the convictions were maintained.
The High Court, however, quashed the convictions under section 201, I.P.C. The nine convicted persons filed petition for special leave to appeal.
This Court by its order dated October 4, 1966 rejected the petition except as regards Ram Prasad Sharma and his appeal is now before us.
The prosecution case as accepted by the High Court was, in brief, as follows.
On August 15, 1960, at about 1.30 or 2 p.m., by the side of a Danr (water channel) known as Chaksafia Danr at village Bindi about five miles away from.
Police Station Banka, a serious occurrence took place.
The Chaksafia Danr runs between village Bindi which is to its east and Banki which is to its west and then goes further north to village Bhadrar and other villages.
Lands of several villages, namely, Bhadrar, Nayadih, Uprama, Basuara, Jitnagar, Majhiara, Banki, etc.
are irrigated from the water of this Danr and there are detailed entries regard LI4Sup.
C.I, 69 15 696 ing the respective rights of the different villages in the Fard Abnashi which was prepared at the time of the last survey.
It appears that the villagers of different villages who enjoy the above rights go in in a body every year during the rainy season for 'clearing tins Danr in order mat there may not be any obstruction in the flow of water therein.
On the date of occurrence, i.e. August 15, 1960, a number of persons of villages Bhadrar, Nayadih, Uprama, Basuara, Jitnagar and Bhatkunki went along with spades to clear this Danr in the .usual course and some of them had lathis also with them.
The total number of persons were estimated to vary from about 150 to 'about 400.
When they reached the brick kiln, which exists in Malmala Tikar they were confronted by a mob of 40 to 50 persons including all the convicted persons.
Sheo Prasad Sharing and Ram Prasad Sharma were armed with guns and Patel Thakur was armed with a pharsa and the remaining accused except Dhanusdhari Mehta were armed with bhalas.
It may be mentioned that in the First Information Report Dhanusdhari Mehta was alleged to have been armed with a pistol but this allegation was subsequently given up.
Dhanusdhari Mehta was a retired inspector of police; his son Ram Prasad Sharma was a practising lawyer at Bhagalpur at the time of the occurrence in question.
On seeing this crowd of villagers, Sheo Prasad Sharma directed them to return and threatened to shoot them if they failed to do so.
There was some exchange of hot words and brick bats were thrown by both sides.
Sheo Prasad Sharma thereafter fired one shot towards the sky but the villagers did not disperse.
Then Dhanusdhari ordered his two sons Ram Prasad Sharma and Sheo Prasad Sharma to open fire on the villagers.
On this both Ram Prasad Sharma and Sheo Prasad Sharma opened fire with their guns on the villagers.
One shot fired by Sheo Prasad Sharma hit one Qudrat Mian and he fell down and died on the spot.
One other villager was alleged to have been shot by Ram Prasad Sharma and he died on the spot.
A number of villagers sustained gun shot injuries and as a result of the firing by Sheo Prasad Sharma and Ram Prasad Sharma, who are estimated to have fired about 12 rounds, the villagers dispersed.
Sobban Mandal, one of the injured persons went to the Police Station with three other injured persons, namely, Chotan Rai, P.W. 5, Jagdeo Choudhary, P.W. 8 and Kishori Prasad Singh, P.W. 12, who had also sustained gun shot injuries.
The learned Additional Sessions Judge had rejected the prosecution story that Kaleshwar Yadav was shot and killed during the occurrence.
He had come to the conclusion that Kaleshwar Yudav had died prior to the date of occurrence.
The High Court has accepted the prosecution version and it is this finding which is 697 being seriously challenged by the learned counsel for Ram Prasad Sharma, appellant.
The learned Additional Sessions Judge had rejected the version of the prosecution regarding the shooting down of Kaleshwar Yadav mainly on the basis of entries in an attested copy of the Chaukidar 's hath chitha (Ext.
D) according to which the death of Kaleshwar took place in Gopalpur mauza on August 12, 1960, that is, three days prior to the occurrence.
The learned Additional Sessions Judge had also relied on the First Information Report in which the name of Kaleshwar Yadav does not find mention.
Two points arise before us, first, whether the hath chitha is admissible in evidence, and secondly, whether on the evidence on record it is otherwise proved that Kaleshwar Yadav was shot down by the appellant Ram Prasad Sharma.
According to the entries in this document, Ext.
D, Kaleshwar Yadav died on August 12, 1960, in Gopalpur Mauza and in the remarks column of this register he is described as "Bahanoi (brother in law) of Asarfi Yadav.
" We looked at the attested copy produced in Court and we were unable to ascertain the date on which the attested copy had been obtained by the defence.
The only dates this document bears are the date of attestation (October ' 15, 1960) by the District Statistical Officer, the date September 22, 1960, next to the signature of one Shukdeo Chowdhary, and the date of admission by the Additional Sessions Judge (June 25, 1962).
As rightly pointed out by the High Court the learned Sessions Judge took this copy on record in an extraordinary manner.
The prosecution evidence closed on June 21, 1962 and on June 25, 1962, this attested copy was admitted in evidence without any proof.
On the same day an order was passed calling for the original.
On the very next day the public prosecutor filed a petition objecting to the admission of this document and alleged, that the document was bogus.
The hearing of the argument thereafter proceeded on July 4, 1962.
The Public Prosecutor again filed a petition that this document be not taken in evidence.
The learned Additional Sessions Judge disposed of this petition with the following order: "Let the petition be placed with the record.
The original has once again been called for.
The matter will be discussed in the judgment.
" It is pointed out by the High Court that there is no further reference to the document in the order sheet.
After the arguments concluded on July 7, 1962, the case was adjourned for judgment.
The judgment of the learned Additional Sessions Judge shows that the original was subsequently received by him with letter dated July 10, 1962, and he observed that he was satisfied about 698 its genuineness.
The High Court rightly pointed out that the Additional Sessions Judge should have dealt with the question of the admissibility of the document.
The High Court, following Sanatan Senanati vs Emperor(1) and Brij Mohan Singh vs Priya Brat Narain Sinha(2), held that the document was inadmissible in evidence.
We agree with the conclusion arrived at by the High Court.
Section 35 of the Evidence Act provides: "An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact." In this case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties.
As observed by this Court in Brij Mohan Singh vs Priya Brat Narain Sinha,(2), "the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it ' himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high." No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty.
In the result we must hold that exhibit D. the hath chitha, was rightly held by the High Court to be inadmissible.
The High Court then dealt with the other evidence on the record and came to the conclusion that Kaleshwar was actually shot down by the appellant, Ram Prasad Sharma.
The learned counsel for the appellant has tried to assail these findings but he has not been able to show in what way the High Court has gone 'wrong in coming to the conclusion.
The High Court states that ten witnesses have named Kaleshwar being the second person who was shot.
Further, Kaleshwar 's son and widow, P.Ws 24 and 34, Chamak Lal Yadav and Karma Devi, deposed that on the day of occurrence Kaleshwar had left his house with a kudal and had gone to Chaksafia Danr alongwith others.
They further deposed that on the next day they learnt from Nandai Lal Singh, P.W. 17, that Kaleshwar had. been killed.
The High Court further accepted the explanation of P.W. 1, who had made the F.I.R., that he had named Gholtan as being the person shot and killed by Ram ' Prasad because he had heard a hulla that Gholtan had been murdered.
It seems to us that the High Court came to a correct (1) A.I.R. 1945 Pat. 489.
(2) [19651 3 S.C.R. 861 ,864.
699 conclusion and was right in accepting the explanation of P.W. 1.
The learned counsel further contends that it was doubtful that 12 rounds would have been fired.
He points out the number of injuries received by the villagers.
But these injuries support the prosecution story.
From the injuries on the various persons examined by Dwarka Nath Prasad, P.W. 41, apart from the .persons who had died and whose bodies had been held to ' have been cremated by unidentified persons, it appears that 20 persons had received gun shot injuries; one of them had as many as ' 14 lacerated wounds and another had 10 lacerated wounds.
Apart from that there is no reason to doubt the oral evidence given in this case that a number of rounds were fired.
In the result the appeal fails and is dismissed.
G.C. Appeal dismissed. | The appellant was tried for an offence under section 302 I.P.C. as well as for other offences in connection with an incident in which two persons were killed and several injured.
The allegation against the appellant was that he caused the death of one K by shooting him with a gun in the course of the alleged incident.
The Additional Sessions Judge who tried the case convicted the appellant for offences under sections 326/149.
324/34, 201 'and 148 I.P.C. but acquitted him in respect of the murder of K.
In so doing he relied upon an attested copy filed by the defence which purported to be the copy of an entry in the Chaukidar 's hath chitha according to which K died three days before the alleged incident.
He also relied on the fact that the name of 'K was not mentioned as a victim in the First Information Report of the incident.
In appeal the High Court convicted the appellant under section 304 I.P.C. for causing the death of K, holding that the alleged entry in the hath chitha had been wrongly admitted in evidence by the trial judge and that the deficiency in the F.I.R. was sufficiently explained.
Appeal against the High Court 's judgment was filed by special leave.
HELD: (i) The attested copy of the Chaukidar 's hath chitha was not admissible in evidence because the entry in question was not proved to have been made by a public servant in the discharge of his duties.
[699 E] Sanatan Senanati vs Emperor.
A.I.R. 1945 Pat.
489 and Brij Mohan Singh vs Priya Brat Natain Sinha.
; , relied on.
(ii) K 's death at the time and place alleged by the prosecution was established by sufficient evidence and the High Court was right in acCepting the explanation of the. maker of the F.I.R. for the absence of K 's name therein.
[699 F] |
iminal Appeals Nos.
60 and 63 of 1965.
Appeals from the judgment and order dated November 20, 1963 of the Gujarat High Court in Criminal Appeals Nos. 957 and 796 of 1963 respectively.
Urmila Kapur and section P. Nayar, for the appellant.
The respondent did not appear.
The Judgment of the Court was delivered by Dua, J.
These two criminal appeals (Nos. 60 and 63 of 1965) with certificate raise a common question and are, therefore, being disposed of by a common judgment.
The Gujarat High Court also recorded the main judgment only in Criminal Appeal No. 60 of 1965.
The question which arises for determination is whether, several accused persons jointly tried have been acquitted by the trial Court, the state can ' prefer one appeal against the acquittal of all of them.
The High court held such a joint appeal not to be maintainable under Cr.
P.C. and so holding rejected the appeal by the State without going into the merits.
The Division Bench of the ,High Court speaking through Raju, J. recorded a very lengthily order though the reasoning in support of the non maintainability of the joint appeal is confined to a couple of pages only.
The High Court in its order referred to ss 258, 410, 417, 419 and 423 of the Code and came to the conclusion that the scheme of Chapter XXXI of the Code as disclosed by these sections and particularly by section 419 is against the maintainability of a joint appeal by the State against an order acquitting several accused persons tried jointly.
Section 419 was construed by the High Court to contain a bar against a joint appeal.
The major portion of the impugned order dealt with the question of binding character of the Full Bench decision of that High Court since reported as Lalu Jela vs State of Gujarat(1) on the Division Bench hearing the present appeals.
After a lengthy ,discussion the Division Bench came to the conclusion that the Full Bench decision holding a joint appeal to be maintainable in law was not binding on it.
On the view that we propose to take on the question of main tainability of a joint appeal against a common order acquitting (1) A.I.R. 1962 Guj.
877 several accused persons tried jointly, we do not consider it necessary to embark on a lengthy discussion on the question of binding charter of decisions of Full Benches and of Division Benches on future Benches of co ordinate jurisdiction of the same High Court.
We may only make a passing reference to the decisions of this Court cited at the bar in support of such binding character.
In Mahadeolal Ranodia vs The Administrator General of West Bengal(1), this Court observed as follows : "We have noticed with some regret that when the earlier decision of two judges of the same High Court in Beorajan 's an 's case was cited before the learned judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a lar ger Bench.
Judicial decorum no less than legal propriety forms the basis of judicial procedure.
If one thing is more necessary in law than any other thing, it is the quality of certainty.
That quality would totally disappear if judges of co ordinate jurisdiction in a High Court start overruling one another 's decision.
If one Division Bench of a High Court is unable to distinguish a previous decision of another Division bench and holding the view that the earlier decision is wrong itself gives effect to that view, the result would be utter confusion.
" Other decisions cited containing similar observations are : jai Kaur and others vs Sher Singh etc.
(2 ) and Atma Ram vs State of Punjab and others(3).
We are aware of a still more recent decision of this Court in Jaisri Sahu vs Rai Dewan (4) in which re Ference is made to a Privy Council decision in Budha Singh vs Laltu Singh(5).
The question of competency of a joint appeal by several per sons convicted by one order at a joint trial was referred for authoritative decision to a Full Bench of the Gujarat High Court in Lalu Jela 's case(6).
The argument before the Full Bench was that r. 6 in Chapter XXVI of the Bombay High Court Appellate Side Rules (which are applicable to the proceedings in Gujarat High Court) was inconsistent with Chapter XXXI of the Code of Criminal Procedure, with the result that a joint appeal to the High Court by several persons convicted at a joint trial was not maintainable.
The Full Bench on an exhaustive discussion held such (1) [1960]3.S.C.R. 78 (2) (3) (4) (5) I.L.R , 37 All, 604 (P.C.).
(6) A.I.R. 1962 Guj.
125. 878 an appeal to be competent and did not consider r. 6 to be inconsistent with Chapter XXXI of the Code.
The decision of this Court in Rabari Ghela Jadav.
State of Bombay(1) was explained and distinguished.
If we agree with the principle accepted in the Full Bench decision then the present appeals would on the reasoning of that decision seem prima facie to possess merit and in the absence of some other cogent reason to the contrary the appeals would have to succeed.
Chapter XXVI of the Bombay High Court Appellate Side Rules, 1960 deals with "criminal business" and r. 6 is in the following words "Joint appeal or application by persons affected by the same judgment.
All persons aggrieved,by a judgment or an order passed in a criminal case, may join in one appeal or application for revision, and one copy of the judgment or order complained of shall be sufficient." This rule, of course, does not in terms cover the case of an appeal by the State against several accused persons jointly tried and acquitted by the trial Court by a common order, but if an appeal by persons jointly tried and convicted is competent, then on principle it is difficult to negative the maintainability of one appeal by the State against a common order acquitting several persons tried jointly.
This rule deals with a matter of procedure and not of Substantive rights and seems to be based on sound commonsense.
Procedure has been described to be a hand maid and not a mistress of law, intended to subserve and facilitate the cause of justice and not to govern or obstruct it.
Like all rules of procedure, this rule demands a construction which would promote this cause.
So construed a joint appeal, in compliance of this rule must be sustained.
The power to frame this rule is specifically conferred on the High Court by section 554(2)(c) Cr.
P.C. and r. 6 does not seem to us to be inconsistent with any provisions of the said Code.
Holding this rule to be valid, in agreement with the decision of the Full Bench, the competency of a joint appeal by several accused persons convicted at one trial must be upheld.
On the same reasoning a joint appeal by the State against several accuses.
persons acquitted at a joint trial has also to be held not to be contrary to any provision of the Code and therefore not legally prohibited.
Section 419 of the Code on which the High Court seems to have relied in support of the non maintainability of a joint appeal by the State, lays down inter alia that every appeal shall be made in the form of a petition in writing presented by the appellant (1) A.I.R, 1960 S.C. 748.
879 or his pleader and every such petition shall, unless the court otherwise directs, be accompanied by a copy of the judgment or order appealed against.
This section does not seem to us to prohibit a joint appeal by the State against more than one accused persons.
The contrary view taken by the, High Court on the construction of this section is clearly unacceptable.
Section 417 which provides for an appeal in a case of acquittal empowers the State Government to direct the public prosecutor in any case to present an appeal from an order of acquittal.
This section also does not suggest any bar or prohibition against presentation of a joint appeal against several accused persons acquitted in a case.
On the other hand, it provides for an appeal in a case, and not against an accused person, who has, been acquitted.
The plain reading of this sections therefore.
, seems to be wide enough to permit a joint appeal.
Sections 258, 410 and 423 of the Code also do not seem to indicate any bar as is suggested by the order of the High Court.
This Court in Rabari Ghela Jadav 's case(1), on the basis of which the judgment of the High Court mainly proceeds, merely lays down that the Appellate Court hearing an appeal cannot admit it only on a question of sentence and that such a restricted order of admission being invalid, the appellant would be entitled to insist that his appeal should be heard on the merits.
This decision, in Our opinion, does not militate against the maintainability of a joint appeal.
The Full Bench decision of the Gujarat High Court rightly distinguished and explained this decision.
As observed earlier, once we accept the Full, Bench to lay down the correct rule of law, then there cannot be much difficult in upholding the maintainability of a joint appeal by the State against several accused persons acquitted at a joint trial.
There being no legal bar (at least we are aware of none either in the Cr.
P.C. or elsewhere), such an appeal cannot be held to suffer from any serious legal infirmity.
And then the matter being one of mere form it calls for a liberal approach requiring the appeal to be heard on the merits.
To hold it to be unmaintainable on this ground would defeat the larger cause of justice.
Unfortunately, we did not have the advantage of arguments on behalf of the respondents because they were unrepresented, but on considering the scheme of the relevant provisions of the Code of Criminal Procedure, we are of the view that the High Court was wrong in holding the joint appeal not to be maintainable and in summarily rejecting the same.
We accordingly allow the appeal, set aside the order of the High court and remit the case back to it for decision of the appeal on the merits.
G.C. Appeal allowed.
(1) A.I.R. 1960 S.C. 748. | The respondents were tried jointly and acquitted by a common judgment.
State of Gujarat filed a Joint appeal against their acquittal in.
the High Court.
Rule 6 of the Bombay High Court Appellate Side Rules, 1960 (which were applicable to the proceedings in the Gujarat High Court) provided for joint appeals by persons aggrieved by a common judgment or order.
There was however no, rule specifically providing for similar joint appeals by the State.
A Division Bench of the High Court dismissed the joint appeal by the State against the respondents on the ground that such an appeal was not maintainable.
The Division Bench held that the decision by a Full Beach of the High Court in Lalu lela 's case in which a contrary view had been taken was not binding on the Division Bench.
In appeal to this Court against the judgment of the Division Bench.
HELD : (i) The Division Bench was in error in not treating as binding the earlier decision of a Full Bench of the same court on the same question.
1877 A F] Mahadeolal Kanodia vs The Administrator General of West Bengal, ; , Jai Kaur & Ors.
vs Sher Singh etc. , Atma Ram vs State of Punjab & Ors. , Jaisri Sahu vs Rai Dewan, [19621 2 S.C.R. 559 and Budha Singh vs Laltu Singh, I.L.R. 37 All. 604 (P.C.), applied.
(ii) Rule 6 of the Bombay High Court Appellate Side Rules does not in terms cover the case of an appeal by the State against several accused persons jointly tried and acquitted by the trial court by a common order, but if an appeal by persons jointly tried and convicted is competent, then on principle it is difficult to negative the maintainability of one appeal by the State against a common order acquitting several persons tried jointly.
Like all rules of procedure this rule demands a construction which would ' promote the cause of justice and not obstruct it.
(878 D F] A joint appeal by the State against several accused persons acquitted at a joint trial is not contrary to any provision of the Code of Criminal Procedure and is therefore not legally prohibited.
Sections 258, 410, 417, 419 or 423 of the Code do not indicate any bar as was suggested by the order of the High Court.
Indeed the plain reading of section 417 which pro%ides for an appeal in a case and not against an accused person, seems to be wide enough to permit ,A joint appeal.
The matter being one of mere form it calls for a liberal approach requiting the appeal to be beard on its merits.
The order of the High Court must accordingly be set aside.
[878 G H; 879 C F] 876 Rabari Ghela jadav V. State of Bombay, A.I.R. 1960 S.C. 748, ,explained.
Lalu Jela.
vs State of Gujarat, A.I.R. 1962 Guj. 125, approved. |
No. 528, of 1959.
Appeal from the judgment and order dated September 20, 1957, of the former Bombay High Court in I.T.R. No. 15 of 1957.
Hardayal Hardy and D. Gupta, for the appellant.
R. J. Kolah, section N. Andley, J. B. Dadachanji, Rameshwar Nath and P. L. Vohra, for the respondent.
635 1960.
November 24.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
The Commissioner of Income tax, Bombay City 11, has filed this appeal with a certificate under section 66A(2) of the Income tax Act, against the judgment and order of the High Court of Bombay dated September 20, 1957, in Income tax Reference No. 15 of 1957.
The question referred to the High Court for its opinion by the Income tax Appellate Tribunal, Bombay was: "Whether the assessee is entitled to a deduction of Rs. 1,350 and Rs. 18,000 from his total income of the previous year relevant to the assessment years, 1953 54, 1954 55?" The assessee, Sitaldas Tirathdas of Bombay, has many sources of income, chief among them being property, stocks and shares, bank deposits and share in a firm known as Messrs. Sitaldas Tirathdas.
He follows the financial year as his accounting year.
For the assessment years 1953 54 and 1954 55, his total income was respectively computed at Rs. 50,375 and Rs. 55,160.
This computation was not disputed by him, but he sought to deduct therefrom a sum of Rs. 1,350 in the first assessment year and a sum of Rs. 18,000 in the second assessment year on the ground that under a decree he was required to pay these sums as maintenance to his wife, Bai Deviben and his children.
The suit was filed in the Bombay High Court (Suit No. 102 of 1951) for maintenance allowance, separate residence and marriage expenses for the daughters and for arrears of maintenance, etc.
A decree by consent was passed on March 11, 1953, and maintenance allowance of Rs. 1,500 per month was decreed against him.
For the account year ending March 31, 1953 only one payment was made, and deducting Rs. 150 per month as the rent for the flat occupied by his wife and children, the amount paid as maintenance under the decree came to Rs. 1,350.
For the second year, the maintenance at Rs. 1,500 per month came to Rs. 18,000 which was claimed as a deduction.
636 No charge on the property was created, and the matter does not fall to be considered under section 9(1)(iv) of the Income tax Act.
The assessee, however, claimed this deduction on the strength of a ruling of the Privy Council in Bejoy Singh Dudhuria vs Commissioner of Income tax (1).
This contention of the assesses was disallowed by the Income tax Officer, whose decision was affirmed on appeal by the Appellate Assistant Commissioner.
On further appeal, the Tribunal observed: "This is a case, pure and simple, where an assessee is compelled to apply a portion of his income for the maintenance of persons whom he is under a personal and legal obligation to maintain.
The Income tax Act does not permit of any deduction from the total income in such circumstances.
" The Tribunal mentioned in the statement of the case that counsel for the assessee put his contention in the following words: "I claim a deduction of this amount from my total income because my real total income is whatever that is " computed, which I do not dispute, less the maintenance amount paid under the decree.
" The assessee appears to have relied also upon a decision of the Lahore High Court in Diwan Kishen Kishore vs Commissioner of Income tax(2).
The Tribunal, however, referred the above question for the opinion of the High Court.
The High Court followed two earlier decisions of the same Court reported in Seth Motilal Manekchand vs Commissioner of Income tax (3) and Prince Khanderao Gaekwar vs Commissioner of Income tax (4), and held that, as observed in those two cases, the test was the same, even though there was no specific charge upon property so long as there was an obligation upon the assessee to pay, which could be enforeed in a Court of law.
In Bejoy Singh Dudhuria 's case (1), there was a charge for maintenance created against the assessee, and the Privy Council had observed that the income must be deemed to have never reached that assessee, (1) (3) (2) (4) 637 having been diverted to the maintenance holders.
In the judgment under appeal, it was held that the income to the extent of the decree must be taken to have been diverted to the wife and children, and never became income in the hands of the assessee.
The Commissioner of Income tax questions the correctness of this decision and also of the two earlier decisions of the Bombay High Court.
We are of opinion that the contention raised by the Department is correct.
Before we state the principle on which this and similar cases are to be decided, we may refer to certain rulings, which illustrate the aspects the problem takes.
The leading case on the subject is the decision of the Judicial Committee in Bejoy Singh Dudhuria 's case(1).
There, the stepmother of the Raja had brought a suit for maintenance and a compromise decree was passed under which the stepmother was to be paid Rs. 1,100 per month, which amount was declared a charge upon the properties in the hands of the Raja, by the Court.
The Raja sought to deduct this amount from his assessable income, which was disallowed by the High Court at Calcutta.
On appeal to the Privy Council, Lord Macmillan observed as follows: "But their Lordships do not agree with the learned Chief Justice in his rejection of the view that the sums paid by the appellant to his step mother were not 'income ' of the appellant at all.
This in their Lordships ' opinion is the true view of the matter.
When the Act by Section 3 subjects to charge 'all income ' of an individual, it is what reaches the individual as income which it is intended to charge.
In the present case the decree of the court by charging the appellant 's whole resources with a specific payment to his step mother has to that extent diverted his income from him and has directed it to his stepmother; to that extent what he receives for her is not his income.
It is not a case of the application by the appellant of part of his income in a particular way, it is rather the allocation of a sum out of his revenue before it becomes income in his hands." (1) 81 638 Another case of the Privy Council may well be seen in this connection.
That case is reported in P. C. Mullick vs Commissioner of Income tax, Bengal (1).
There, a testator appointed the appellants as executors and directed them to pay Rs. 10,000 out of the income on the occasion of his addya sradh.
The executors paid Rs. 5,537 for such expenses, and sought to deduct the amount from the assessable income.
The Judicial Committee confirmed the decision of the Calcutta High Court disallowing the deduction, and observed that the payments were made out of the income of the estate coming to the hands of the executors and in pursuance of an obligation imposed upon them by the testator.
It observed that it was not a case in which a portion of the income had been diverted by an over riding title from the person who would have received it otherwise, and distinguished the case in Bejoy Singh Dudhuria 's case (2).
These cases have been diversely applied in India, but the facts of some of the cases bring out the distinction clearly.
In Diwan Kishen Kishore vs Commissioner of Income tax (3), there was an impartible estate governed by the law of primogeniture, and under the custom applicable to the family, an allowance was payable to the junior member.
Under an award given by the Deputy Commissioner acting as arbitrator and according to the will of the father of the holder of the estate and the junior member, a sum of Rs. 7,200 per year was payable to the junior member.
This amount was sought to be deducted on the ground that it was a necessary and obligatory payment, and that the assessable income must, therefore, be taken to be pro tanto diminished.
It was held that the income never became a part of the income of the family or of the eldest member but was a kind of a charge on the estate.
The allowance given to the junior member, it was held, in the case of an impartible estate was the separate property of the younger member upon which he could be assessed and the rule that an allowance given by the head of a Hindu coparcenary to its members by way of maintenance was liable to be assessed (1) (2) (3) 639 as the income of the family, had no application.
It was also observed that if the estate had been partible and partition could have taken place, the payment to the junior member out of the coparcenary funds would have stood on a different footing.
In that case, the payment to the junior member was a kind of a charge which diverted a portion of the income from the assessee to the junior member in such a way that it could not be said that it became the income of the assessee.
In Commissioner of Income tax, Bombay vs Makanji Lalji (1), it was stated that in computing the income of a Hindu undivided family monies paid to the widow of a deceased coparcener of the family as maintenance could not be deducted, even though the amount of maintenance had been decreed by the Court and had been made a charge on the properties belonging to the family.
This case is open to serious doubt, because it falls within the rule stated in Bejoy Singh Dudhuria 's case (2); and though the High Court distinguished the case of the Judicial Committee, it appears that it was distinguished on a ground not truly relevant, namely, that in Bejoy Singh Dudhuria 's case (2) the AdvocateGeneral had abandoned the plea that the stepmother was still a member of the undivided Hindu family.
It was also pointed out that this was a case of assessment as an individual and not an assessment of a Hindu undivided family.
In Commissioner of Income tax, Bombay vs D. R. Naik (3), the assessee was the sole surviving member of a Hindu undivided family.
There was a decree of Court by which the assessee was entitled to receive properties as a residuary legatee, subject, however, to certain payments of maintenance to widows.
The widows continued to be members of the family.
It was held that though section 9 of the Income tax Act did not apply, the assessee 's assessable income was only the balance left after payment of the maintenance charges.
It appears from the facts of the case, however, that there was a charge for the maintenance (1) (2) (3) 640 upon the properties of the assessee.
This case also brings out correctly the principles laid down by the Judicial Committee that if there be an overriding obligation which creates a charge and diverts the income to some one else, a deduction can be made of the amounts so paid.
The last case may be contrasted with the case reported in P. C. Mullick and D. C. Aich, In re(1).
There, under a will certain payments had to be made to the beneficiaries.
These payments were to be made gradually together with certain other annuities.
It was held that the payments could only be made out of the income received by the executors and trustees from the property, and the sum was assessable to income tax in the hands of the executors.
It was pointed out that under the wilt it was stated that the amounts were to be paid "out of the income of my property", and thus, what had been charged was the income of the assessees, the executors.
The case is in line with the decision of the Privy Council in P. C. Mullick vs Commissioner of Income tax, Bengal(2).
In Hira Lal, In re,(3) there was a joint Hindu family, and under two awards made by arbitrators which were made into a rule of the Court, certain maintenance allowances were payable to the widows.
These payments were also made a charge upon the property.
It was held that inasmuch as the payments were obligatory and subject to an overriding charge they must be excluded.
Here too, the amount payable to the widows was diverted from the family to them by an overriding obligation in the nature of a charge, and the income could not be said to accrue to the joint Hindu family at all.
In Prince Khanderao Gaekwar vs Commissioner of Income tax (4), there was a family trust out of which two grandsons of the settlor had to be paid a portion of the income.
It was provided that if their mother lived separately, then the trustees were to pay her Rs. 18,000 per year.
The mother lived separately, and two deeds were executed by which the two grandsons agreed to pay Rs. 15,000 per year to the mother, (1) (3) (2) (4) 641 and created a charge on the property.
The sons having paid Rs. 6,000 in excess of their obligations, sought to deduct the amount from their assessable income, and it was allowed by the Bombay High Court, observing that though the payment was a voluntary payment, it was subject to a valid and legal charge which could be enforced in a Court of law and the amount was thus deductible under section 9(1)(iv).
There is Do distinction between a charge created by a decree of Court and one created by agreement of parties, provided that by that charge the income from property can be said to be diverted so as to bring the matter within section 9(1)(iv) of the Act.
The case was one of application of the particular section of the Act and not one of an obligation created by a money decree, whether income accrued or not.
The case is, therefore, distinguishable from the present, and we need not consider whether in the special circumstances of that case it was correctly decided.
In V. M. Raghavalu Naidu & Sons vs Commissioner of Income tax (1), the assessees were the executors and trustees of a will, who were required to pay maintenance allowances to the mother and widow of the testator.
The amount of these allowances was sought to be deducted, but the claim was disallowed.
Satyanarayana Rao and Viswanatha Sastri, JJ. distinguished the case from that of the Privy Council in Bejoy Singh Dudhuria (2).
Viswanatha Sastri, J. observed that the testator was under a personal obligation under the Hindu law to maintain his wife and mother, and if he had spent a portion of his income on such maintenance, he could not have deducted the amount from his assessable income, and that the position of the executor was no better.
Satyanarayana Rao, J. added that the amount was not an allowance which was charged upon the estate by a decree of Court or otherwise and which the testator himself had no right or title to receive.
The income which was received by the executors included the amount paid as maintenance, and a portion of it was thus applied in discharging the obligation.
(1) (2) 642 The last cited case is again of the Bombay High Court, which seems to have influenced the decision in the instant case.
That is reported in Seth Motilal Manekchand vs Commissioner of Income tax(1).
In that case, there was a managing agency, which belonged to a Hindu joint family consisting of A, his son B and A 's wife.
A partition took place, and it was agreed that the managing agency should be divided, A and B taking a moiety each of the managing agency remuneration but each of them paying A 's wife 2 as. 8 pies out of their respective 8 as.
share in the managing agency remuneration.
Chagla, C. J. and Tendolkar, J. held that under the deed of partition A and B had really intended that they were to receive only a portion of the managing agency commission and that the amount paid to A 's wife was diverted before it became the income of A and B and could be deducted.
The learned Judge observed at p. 741 as follows: "We are inclined to accept the submission of Mr. Kolah that it does constitute a charge, but in our opinion, it is unnecessary to decide this question because this question can only have relevance and significance if we were considering a claim made for deduction under section 9(1)(iv) of the Income tax Act where a claim is made in respect of immovable property where the immovable property is charged or mortgaged to pay a certain amount.
It is sufficient for the purpose of this reference if we come to the conclusion that Bhagirathibai had a legal enforceable right against the partner in respect of her 2 annas and 8 pies share and that the partner was under a legal obligation to pay that amount.
" These are the cases which have considered the problem from various angles.
Some of them appear to have applied the principle correctly and some, not.
But we do Dot propose to examine the correctness of the decisions in the light of the facts in them.
In our opinion, the true test is whether the amount sought to be deducted, in truth, never reaches the assessee as his income.
Obligations, no doubt, there are in every case, but it is the nature of the obligation which is the (1) 643 decisive fact.
There is a difference between an amount which a person is obliged to apply out of his income and an amount which by the nature of the obligation cannot be said to be a part of the income of the assessee.
Where by the obligation income is diverted before it reaches the assessee, it is deductible; but where the income is required to be applied to discharge an obligation after such income reaches the assessee, the same consequence, in law, does not follow.
It is the first kind of payment which can truly be excused and not the second.
The second payment is merely an obligation to pay another a portion of one 's own income, which has been received and is since applied.
The first is a case in which the income never reaches the assessee, who even if he were to collect it, does so, not as part of his income, but for and on behalf of the person to whom it is payable.
In our opinion, the present case is one in which the wife and children of the assessee who continued to be members of the family received a portion of the income of the assessee, after the assessee had received the income as his own.
The case is one of application of a portion of the income to discharge an obligation and not a case in which by an overriding charge the assessee became only a collector of another 's income.
The matter in the present case would have been different, if such an overriding charge had existed either upon the property or upon its income, which is not the case.
In our opinion, the case falls outside the rule in Bejoy Singh Dudhuria 's case and rather falls within the rule stated by the Judicial Committee in P. C. Mullick 's case For these reasons, we hold that the question referred to the High Court ought to have been answered in the negative.
We, accordingly, discharge the answer given by the High Court, and the question will be answered in the negative.
The appeal is thus allowed with costs here and in the High Court.
Appeal allowed. | A consent decree was passed against the assessee awarding maintenance to his wife and children.
The decree did not create any charge upon the income of the assessee.
The assessee claimed in the assessment of income tax deduction of the amount paid under the decree from his total income.
Held, that the assessee was not entitled to the deduction.
Where by the obligation income was diverted by an overriding title before it reached the assessee, it was deductible; but where the income was required to be applied to discharge an obligation after such income reached the assessee, it was not deductible.
The true test was whether the amount sought to be deducted, in truth, never reached the assessee as his income.
In the present case, the wife and children of the assessee received a portion of the income of the assessee, after the assessee had received the income as his own.
Bejoy Singh Dudhuria vs Commissioner of Income tax, (1933) I I.T.R. 135, not applicable.
P. C. Mullick vs Commissioner of Income tax, Bengal, , applied.
Diwan Kishen Kishore vs Commissioner of Income tax, , Seth Motilal Menekchand vs Commissioner of Income tax, , Prince Khanderao Gaekway vs Commissioner of Income tax, , Commissioner of Income tax, Bombay vs Makanji Lalji, , Commissioner of Income tax, Bombay V. D. R. Naik, , D. C. Aich, It; re, , Hira Lal, In re, and V. M. Raghavalu Naidu & Sons vs Commissioner of Income tax, , referred to |
Appeals Nos.
1991 1992, 2010 and 2011 of 1968.
Appeals from the judgment and order dated October 9, 1967 of the Gujarat High Court in Wealth Tax Reference No. 3 of 1964.
B. Sen, section K. Aiyar and B. D. Sharma, for the appellant (in C. A. Nos. 1991 and 1992 of 1968) and the respondent (in C. As.
2010 and 2011 of 1968).
8 20 N. A. Palkhivala and I. N. Shroff, for the respondent (in C. As.
Nos. 1991 and 1992 of 1968) and the appellant (in C.As.
2010 and 2011 of 1968).
The Judgment of the Court was delivered by Hegde, J.
These appeals by certificate under section 29 of the Wealth Tax Act, 1957 (to be hereinafter referred to as the Act) arise from a reference under section 27(1) of the Act to the High Court of Gujarat.
Therein four questions were referred to the High Court for its opinion.
,These four questions really gave rise to two questions of law viz. (1) whether under the three trust deeds referred to therein the assessee got annuities falling within the scope of section 2(e) (iv) ? and (2) whether the value of the jewels owned by the assessee was exempt under section 5(1)(viii) in computing the net wealth of the assessee ? The assessee is an individual and the assessment years with which we are concerned in these appeals are 1957 58 and 195859, the corresponding valuation dates being December 31, 1956 and December 31, 1957.
By a deed of settlement dated September 7, 1945 the father of the assessee settled certain shares of the Indian Companies of the estimated value of Rs. 5,50,325/ upon trust for the benefit of his two sons and his daughter, the assessee.
By another deed of settlement dated October 12, 1945 he settled certain other shares upon trust for the benefit of the assessee and her two brothers.
All the terms of the two trust deeds relevant for our present purpose are identical.
By a deed of settlement dated September 30, 1945, the mother in law of the assessee settled upon trust a sum of Rs. 3,88,931/ and shares of some Indian Companies of the aggregate market value of Rs. 11,81,670/ .
The assessee is one of the beneficiaries named in that deed.
The assessee also possessed jewellery of the value of Rs. 80,000/ .
As regards the payments to be made to the assessee under the afore mentioned three trust deeds, the contention of the assessee is that under each of those deeds, she has only a right to an 'annuity ' and the terms and conditions relating thereto preclude the commutation of any portion thereof into a lumpsum grant and hence in view of section 2(e)(iv), the value of those annuities cannot be included in the computation of her net wealth.
As regards the jewellery her case is that they are articles of her personal use and therefore their value cannot be taken into consideration in ascertaining her net wealth.
She contends that the value of those jewellery is exempt under section 5(1)(viii).
The Wealth Tax Officer rejected both those contentions and assessed her after including in her net wealth the value of the benefits receivable by her under 821 the trust deeds in question as well as the value of the jewellery minus Rs. 25,000/ , deduction given under section 5(1)(xv) as it stood at the relevant time.
Against that order the assessee went up in appeal to the Assistant Appellate Commissioner.
That officer agreed with the conclusions reached by the Wealth Tax Officer and he accordingly dismissed the appeal of the assessee.
Thereafter the assessee appealed to the Tribunal.
The Tribunal held that the payments to be made to the assessee under the trust deed executed by her mother in law is an 'annuity ' entitled to exemption under section 2(e) (iv).
As regards the payments to be made to the assessee under her father 's, settlement deeds, it opined that as the assessee was entitled to withdraw from the trust fund at her own discretion after she attained majority and after she gave birth to one child, one half of the corpus, to that extent commutation was possible.
Therefore to the extent of one half of the value of the annual payments to be made to her under those deeds, the assessee was not entitled to exemption under section 2(e)(iv) but she was entitled to exemption as regards the other half.
The Tribunal rejected the assessee 's claim for exemption under section 5(1)(viii) i.e. in respect of the value of the jewellery.
One a reference under section 27(1), the High Court of Gujarat held that the payments to be made to the assessee under the three settlement deeds do not come within section 2(e)(iv) but the value of the jewellery is exempt under section 5(1)(viii).
Both the assessee as well as the Revenue have appealed against that decision.
We shall first take up the contention of the assess6e that the payments to be made to her under the trust deeds are annuities which by the terms and conditions relating thereto preclude the commutation of any portion thereof into a lumpsum grant and hence are within the scope of section 2(e)(iv).
If those payments fall within the scope of that provision, they cannot be considered as the assets of the assessee and therefore their value cannot be reckoned in determining her net wealth under section 2(m).
Under section 3, the charging section, only the net wealth of an assessee can be brought to tax.
Hence we have to examine the terms of the settlement deeds to find out whether the benefits conferred on the assessee by any or all of those deeds can be considered as annuity.
As stated earlier the two settlement deeds executed by the father of the assessee are expressed more or less in identical language.
It was conceded at the bar that whatever construction we may place on one, would be equally applicable to the other.
Therefore we shall take up the deed executed on September 7, 1945 by the father of the assessee.
Under cl. 3 of that deed it is provided that the trustees, after deducting from the income of the 822 shares in question, all costs and expenses incurred in or about the administration of the trust, should at the end of every calendar year pay the whole residue to the assesses and her two brothers in equal shares.
But after the death of the assessee her heirs are not entitled to any share in that income.
Therein provision is made by the settler for disposition of the corpus of the trust.
But it is provided that notwithstanding anything contained to the contrary in the deed of Trust after assessee attained majority and after the birth of her first child when and so often as might be required by the assessee, the trustees are required to pay a portion of the corpus of the trust fund not exceeding in the whole one half thereof to the assessee and this payment of the corpus was to be absolutely freed and discharged from the trust and provisions of the trust deed.
The other provisions of the trust deed are not relevant for our present purpose.
Under the trust deed executed by the assessee 's mother in law on December 30, 1945, the husband of the assessee and her two brothers in law were constituted as the Trustees.
Under cl.
(a) of that deed, the trustees were required to pay the income of the trust fund after deducting the expenses to the assessee during her life time.
The rest of the clauses in that trust deed relate to disposition of the corpus to different beneficiaries after the life time of the assessee.
It is clear from the terms of the three trust deeds referred to earlier that the assessee had a life interest in each of those funds.
Further under the trust deeds executed by her father, she was also entitled to a portion of the corpus under certain circumstances.
The question for decision is whether the benefits obtained by the assessee under those deeds can be held to come within section 2 (e)(iv).
The expression "annuity" is not defined in the Act.
In Halsbury 's Laws of England, 3rd Edn. Vol.32 at p. 534 (paragraph 899), the meaning of the word "annuity" is explained thus "An annuity is a certain sum of money payable yearly either as a personal obligation of the grantor or out of property not consisting exclusively of land." In Jarman on Wills at p. 11 13 "annuity" is defined thus "An annuity is a right to receive de anno in annum a certain sum; that may be given for life, or for a series of years; it may be given during any particular period, or in perpetuity; and there is also this singularity about annuities, that, although payable out of the personal assets, they are capable of being given for the purpose of devolution, as real estate; they may be given to a man and his heirs, and may go to the heir as real estate.
" 823 In Williams on Executors and Administrators "annuity" is described as a yearly payment of a certain fixed sum of money granted for life or for years charging the person of the grantor only.
In Bignold vs Giles,(1), Kindersley V. C. described "annuity" in these words: "An annuity is a right to receive de anno in annuma certain sum; that may be given for life, or for a series of years; it may be given during any particular period, or in perpetuity; and there is also this singularity about annuities, that although payable out of the personal assets, they are capable of being given for the purpose of devolution, as real estate; they may be given to a man and his heirs, and may go to the heir as real estate so an annuity may be given to a man and the heirs of his body; that does not, it is true constitute an estate tail, but that is by reason of the Statute De Donis, which contains only the word 'tenements ', and an annuity, though a hereditament, is not a tenement; and an annuity so given is a base fee.
" Proceeding further the learned judge observed: "But this appears to me at least clear; that if the gift of what is called an annuity is so made, that, on the face of the will itself, the testator shows his intention to give a certain portion of the dividends of a fund, that is a very different thing; and most of the cases proceed on that footing.
The ground is, that the Court construes the intention of the testator to be, not merely to give an annuity, but to give an aliquot portion of the income arising from a certain capital fund." Illustrations of annuity given in section 173 of the Indian Succession Act also show that it is a right to receive a specified sum and not an aliquot share in the income arising from any fund or property.
Ordinarily an annuity is a money payment of a fixed sum annually made and is a charge personally on the grantor.
On an analysis of the relevant clauses in three trust deeds, it is clear the assessee was given thereunder a share of the income arising from the funds settled on trust.
Under those deeds she is not entitled to any fixed sum of money Therefore it is not possible to hold that the payments that she is entitled to receive under those deeds are annuities.
She has undoubtedly a life interest in those funds.
In Ahmed G. H. Ariff vs Commissioner of Wealth Tax, Calcutta (2) , a Division Bench of the Calcutta High Court held that the right of a person to receive under a wakf an aliquot (1) Drew 345; (Revised Reports 113 p. 390).
(2) 824 share of the net income of the wakf property is an 'asset ' within the meaning of the Wealth Tax Act, 1957 and the capital value of such a right is assessable to wealth tax.
Therein the Court repelled the contention that the right in question was an 'annuity '.
This decision was approved by this Court in Ahmed G. H. Ariff & Ors.
vs Commr.
of Wealth Tax, Calcutta(1) and the same is binding on us.
A similar view was taken by another Bench of the Calcutta High Court in Commissioner of Wealth Tax vs Mrs. Dorothy Martin(1).
In that case under the will of the assessee 's father the assessee was entitled to receive for 'her life the annual interest accruing upon her share in the residuary trust fund.
The Wealth Tax Officer included the entire value of the said share in the assessable wealth of the assessee and subjected the same to tax under section 16(3) of the Wealth Tax Act, 1957.
That order was confirmed by the Assistant Appellate Commissioner but the Tribunal in appeal excluded the same in the computation of the net wealth of the assessee.
On a reference made to the High Court, it was held that on a construction of the various clauses in the will, the assessee was entitled to an aliquot share in the general income of the residuary trust fund and not a fixed sum payable periodically as "annuity" and, therefore, the value of her share was an asset to be included in computing his net wealth.
These decisions in our view correctly lay down the legal position.
In this view it is not necessary to consider whether the income receivable by the assessee under those deeds either wholly or in part is capable of being commuted into a lumpsum grant.
For the reasons mentioned above we agree with the High Court that payments to be made to the assessee under the three trust deeds cannot be considered as annuities and hence she is not entitled to the benefit of section 2(e)(iv).
This takes us to the question whether the High Court was right in its view that the value of the assessee 's jewellery should not be taken into consideration in determining her net wealth.
The Tribunal has taken the view and the High Court has agreed with that view that the jewellery in question are articles intended for the personal use of the assessee.
As mentioned earlier those jewels were valued at Rs. 80,000/ ; out of that amount Wealth tax Officer deducted Rs. 25,000/ under section 5(1)(xv).
The assessee claims that in view of section 5(1)(viii), the value of those jewels cannot be included in the computation of her net wealth.
Section 5(1)(viii) reads: "5.
(1) Wealth tax shall not be payable by the assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee (1) ; (2) 825 (viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal, or household use of the assessee.
" There is no dispute that the Jewels in question were intended for the personal use of the assessee; but it is said on behalf of the revenue that section 5(1)(viii) does not apply to jewels as those articles are specifically provided for under section 5(1)(xv).
On the other hand it is urged on behalf of the asessee that section 5(1)(xv) deals with jewellery which are not intended for personal use of the assessee such as heirloom or other jewellery which are retained as valuable assets or intended for the use of persons other than the assessee whereas section 5(1)(viii) takes in only such jewellery as are intended for personal use of the assessee.
We think the contention advanced on behalf of the assessee is the correct one.
It is well known that the jewellery is widely used as articles of personal use by the ladies in this country specially by those belonging to the richer classes.
That being so jewellery intended for the, personal use of the assesses comes within the scope of section 5(1)(viii).
But the jewellery mentioned in section 5 (1) (xv) need not be articles intended for personal use of the assessee.
That provision deals with jewellery in general.
The two provisions deal with different classes of jewellery.
That is made further clear by section 5(1)(xiii) which says that Wealth Tax shall not be payable by assessee in respect of any drawings, paintings, photographs, prints and other heirloom not falling within cl.
(xii) and not intended for sale but not including jewellery.
If the contention that the jewellery is exclusively dealt with by section 5(1)(xv) is correct then there was no occasion for the legislature to refer to jewellery in section 5(1)(xiii).
From an analysis of the various provisions in section 5, it appears to us that therein there are four provisions dealing With jewellery viz. (1) jewellery intended for personal use of the assess.
5(1) (viii); (2) jewellery that is heirlooms.
5(1)(xiii); (3) jewellery in the, possession of any ruler section 5(1)(xiv) and (4) jewellery in generate section 5(1)(xv).
Under section 5(1)(xv) as it stood at the relevant time every assessee was entitled deduct a sum of Rs. 25,000/ from out of the value of the jewellery in her possession whether the same was intended for her personal use or not but under section 5(1) (viii) the value of all the jewellery intended for the personal use of the assessee stands excluded in the computation of the net wealth of an assessee.
For the reasons mentioned above we think the High Court was right in answering the question relating to the value of the jewellery in favour of the assessee.
In the result these appeals fail and they are dismissed no costs.
V.P.S. Appeals dismissed. | The assessee was an individual.
She was entitled for her life, to an aliquot share of the income arising from the funds settled on trust by three trust deeds and 'received payments of such share.
She also possessed jewellery, intended for her personal use, of the value of Rs. 80,000.
On the questions : (1) whether the payments to the assessee were annuities falling within the scope of section 2(e)(iv) of the Wealth Tax Act, 1957, whose value could not be included in the computation of her net wealth; and (2) whether the value of the jewels was exempt under section 5(1) (viii).
HELD : (1) Under the trust deeds, the assessee was not entitled to any fixed sum of money.
Therefore, the payments to the assessee under the trust deeds could not be considered as annuities and hence, she was not entitled to the benefit of section 2(e)(iv).
[824 E F] Ahmed G H. Ariff vs Commissioner of Wealth Tax, Calcutta, ; followed Commissioner of Wealth Tax vs Mrs. Dorothy Martin, (1968) 60 I.T.P 586, approved.
(2) Under section 5 there are four provisions dealing with jewellery, namely, (a) jewellery intended for ' the personal use of the assessees.
5(1)(viii), (b) jewellery which forms an heir loom section
5(1)(xiii),(c) jewellery in the possession of any ruler section 5(1)(xiv); and (d) jewellery in general.
5(1)(xv).
Under section 5(1)(xv), as it stood in 1958 59, every assessee was entitled to deduct a sum of Rs. 25,000 from out of the value of the jewellery whether the same was intended for personal use or not; but under section 5 (1) (viii) the value of all the jewellery intended for the personal use of the assessee stands excluded in the compu tation of the net wealth of an assessee.
Therefore, the jewellery in the present case is exempt under section 5(1)(viii).
[825 D, E G] |
Appeals Nos. 2380 and 2381 of 1966.
Appeals from the judgment and order dated January 7, 1966 of the Calcutta, High Court in Income tax References Nos. 7 and 176 of 1961.
section Mitra, section K. Aiyar, R, N. Sachthey and B. D. Sharma, for the appellant (in both the appeals).
A. K. Sen, O. P. Khaitan and B. P. Maheshwari, for the respondent (in both the appeals).
The Judgment of the Court was delivered by Grover, J.
These appeals by certificate arise out of a common judgment of the Calcutta High Court in two Income tax References.
The assessee is a private limited company.
It carried on the business of banking and financing as also of managing agency.
Starch Products Ltd. was one of the various companies which was being managed by the assessee.
Starch Products had appointed the U.P. Sales Corporation Ltd. as its selling agent.
The assessee claimed to have stood guarantee for a loan of Rs. 6 lakhs which was advanced to the U.P. Sales Corporation Ltd. by the Gwalior Industrial Bank Ltd. The borrower failed to pay the loan which on August 2, 1948 stood at Rs. 5,60,199.
This amount was paid by the assessee pursuant to the guarantee.
Thereafter the assessee treated the U.P. Sales Corporation Ltd. as its debtor for the aforesaid amount.
That company went into liquidation and as the assessee could not recover anything from it a sum of Rs. 5,60,199 was written off in the books of the assessee company.
The claim was not entertained either by the Income tax Officer or the Appellate Assistant Commissioner.
Before the Income tax Officer the 359 said amount Was claimed as bad debt vide assessee 's letter dated September 12, 1957.
The Income tax Officer rejected the explanation furnished by the assessee for advancing such a large amount to a company whose financial position was far from satisfactory.
According to him the advance was not a bona fide money lending investment.
Subsequently it was sought to be established before the Income tax Officer, that an indemnity had been given to the Gwalior Industrial Bank Ltd. in the matter of the loan account of the U.P. Sales Corporation Ltd. and the payment had been made on its failure to clear the debt of the Bank.
According to the In come tax Officer the assessee was asked to produce evidence about the guarantee having been furnished but he was not satisfied that there was any directors ' resolution authorising the furnishing of a guarantee or that the document purporting to be a guarantee had been properly stamped or that there was other sufficient evidence to establish the transaction.
Before the Appellate Assistant Commissioner the only substantial ground taken was that the Income tax Officer had wrongly disallowed the claim &or bad debt amounting to Rs. 5,60,199.
The Appellate Assistant Commissioner considered the question of the aforesaid amount being an admissible deduction or allowance under section 10(2) (xi) of the Income tax Act 1922.
In his opinion the guaranteeing of a loan though made in the interest of the assessee 's business and is a matter of commercial expediency did not represent an advance made in the normal course of the assessee 's business.
Such an advance could have been made only if it had been made to the company managed by the assessee under a contractual obligation to guarantee the finances of the managed company.
According to him the claim for irrecoverable loan would have been also admissible if the assessee could establish that the loan represented an interest bearing advance made in the course of the assessee 's money lending business but that was not the case of the assessee.
And since the loan had been advanced to assist a concern having trade relations with one of the managed companies it could not be allowed as a permissible deduction.
The appellate tribunal did not agree with the finding of the Appellate Assistant Commissioner that the loss was not directly incidental to the assessee 's business.
This is what the tribunal stated in its order : "The Appellate Assistant Commissioner, in our opinion, failed to appreciate the special nature of the business carried on by the assessee.
This is not a case where any money was advanced by the assessee for the purpose of earning interest.
All that the assesses did was to stand surety for the money advanced by a Bank to the selling agent of one of its managed companies,.
If such a 3 60 guarantee was not given Messrs. Starch Products Ltd., one of the managed companies, would have had to give extended credit to the selling agent and this could be possible if the managed company in its turn was financed either by the managing agents or a third party.
It was to obviate the necessity of such borrowing by the managed company that the assessee company stood guarantee for the loan given by Gwalior Industrial Bank Ltd. to U.P. Sales Corporation Ltd. It was only on the failure on the part of the borrower, i.e. U.P. Sales Corporation Ltd., to fulfill its committment that the assessee as a guarantor came into the picture. ' There was, therefore, no question of earning of any interest on any money advanced.
It was in the larger interest of the assessee 's business that the guarantee was given.
The standing of surety for the sales Organisation of the managed company and the consequent loss arising therefrom was in our opinion germane to the assessee 's 'business.
It is now well established that a sum of money extended not of necessity and with a view to give a direct and immediate benefit to the trade but voluntarily and on the ground of commercial expediency and in order to indirectly facilitate the carrying on of the business, may yet be an allowable deduction in computing the profits and gains of the business.
" The Tribunal held that the assessee 's claim for the loss of Rs. 5,60,199 was an admissible deduction.
At the instance of the Commissioner of Income tax, the Tribunal referred the following question of law to the High Court: "Whether on the facts and in the circumstances of the case, the sum of Rs. 5,60,199 was an admissible deduction in computing the business profits of the assessee ?" Three other questions were referred to the High Court on an application made under section 66(2) of the Act.
It is unnecessary to refer to them as the real controversy has centred on the above question alone.
The High Court addressed itself to the question whether the amount in dispute fell within section 10(2) (xi) of the Act.
The finding of the Appellate Assistant Commissioner that the guarantee had in fact been furnished to the Bank was not disputed.
This is what the High Court said after referring to certain decided cases and the relevant portion of the Tribunal 's judgment : "We agree that it was in the larger interest of the assessee 's business that the guarantee was given and we 3 6 1 are of the opinion that the debt was incidental to the business of the assessee within the meaning of section 10(2)(xi) of the Act and such a debt was found to be irrecoverable in the relevant accounting year commencing on the 31st October 1951 and ending on the 18th October 1.952." While computing profits or gains of business under section 10 certain allowances have to be made under sub section
The allowance covered by clause (xi) thereof has to be made when the assessee 's accounts in respect of any part of his business, profession or vocation are not kept on the cash basis, of such sum, in respect of bad and doubtful debts, due to the assessee in respect of that part of his business, profession or vocation, ,and in the case of an assessee carrying on a banking or money lending business of such sum in respect of loans made in the ordinary course of such business as the Income tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the books of the assessee.
Now a bad debt means a debt which would have gone into the balance sheet as a trading debt in the business or trade.
It must arise in the course of and as a result of the assessee 's 'business.
The deduction claimed should not be too remote from the business carried on by the assessee.
In Madan Gopal Bagla vs Commissioner of Income tax West Bengal(1) the principle which was accepted was that the debt in order to fall within section 10(2) (xi) must be one which can properly be called a trading debt i.e. debt of the trade the profits of which are being computed.
It was observed that the assessee in that ease was not a person carrying on business of standing surety for other persons nor was he a money lender.
He was simply a timber merchant.
There was some evidence that he had from time to time obtained finances for his business by procuring loans on the joint security of himself and some other person.
But it was not established that he was in the habit of standing surety for other persons along with them for the purpose of securing loans for their use and benefit.
Even if such had been the case any loss suffered by reason of having to pay a debt borrowed for the benefit of another would have been a capital loss to him and not a business loss at all.
A businessman may have to stand surety for some one in order to get monies for his own business.
There may be a custom of the business by which that may be the only method whereby he could get money for the purpose of his own business.
If he is to discharge a surety debt and if any such custom is established it would be a business debt.
If the assessee has made a payment not voluntarily but to discharge a legal obligation which arises from his business.
he would be entitled to have the amount deducted as a bad debt under section 10(2)(xi); see Commissioner of Income tax Bombay vs (1) 362 Abdullabhai Abdulkadar(1).
In Essen Private Ltd. vs Commis sioner of Income tax(2) Madras, the appellant carried on business as a managing agent of several concerns.
Pursuant to the agreement with one of the companies managed by it, it advanced large sums of money to the managed company and also guaranteed a loan of Rs. 2 lakhs obtained by that company from a Bank.
The managed company failed in its business and upon the Bank pressing for payment the appellant in accordance with its guarantee made certain payments to that Bank.
The assessee had ultimately to write off certain sum in its books as bad debts and it claimed that allowance under section 10(1) (xi).
The Tribunal found that the advances to the managed company and the agreement guaranteeing the loan to the managed company were in pursuance its objects and were made in the course of its business and the claim was allowed.
That decision was finally affirmed by this Court.
In this case there was a cause in the memorandum of association by which the assessee was entitled to land monies and to guarantee the performance of contracts.
Similarly the managing agency agreement contained a clause about lending and advancing of money to the managed company.
It was found by the appellate tribunal that it was a part of the managing agency to provide funds to the managed company.
In the present case none of those facts have been found.
Neither the memorandum of association nor the managing agency agreement contained any such provision by which it could be said that the guaranteeing of the loan made by the Bank to the selling agents was done in the course of the managing agency business.
In our judgment the facts relied upon by the appellate tribunal and the High Court are barely sufficient for bringing the allowance claimed under section 10(2) (xi).
It may be mentioned that the case of the assessee was confined to that provision and no reliance was placed on any other provision under which such an allowance could be claimed.
There was no privity of contract or any legal relationship between the assessee and the selling agent.
Neither under customer nor under any statutory provision or any contractual obligation was the assessee bound to guarantee the loan advanced by the Bank to the selling agent.
It is difficult how it was in the interest of the assessee 's business that the guarantee was given.
There was even no material to establish that the managed company was under any legal obligation to, finance the selling agent or to guarantee any loans advanced to the selling agent by a third party.
It is incomprehensible in what manner the guaranteeing of the loan advanced to the selling agent indirectly facilitated the carrying on of the assessee 's business.
It is equally difficult to appreciate the observations of the High Court that it was in the larger interest of (1) (2) 363 the assessee 's business that the guarantee was given.
In our opinion the view of the appellate tribunal was based on a complete misapprehension of the true legal position.
The High Court also fell into the same error.
The allowance which was claimed did not fall within section 10(2) (xi).
No attempt was made nor indeed it could be usefully made to claim any allowance under section 10(2:) (xv)of the Act.
For the reasons given above the correct answer to the question referred should be in the negative and against the, assessee.
The appeals are thus allowed with costs and the judgment of the High Court is set aside.
One hearing fee.
G.C. Appeals allowed. | The assessee was a Private Limited Company.
It carried on the business of banking and financing as also of managing agency.
Starch Products Ltd., was one of various companies which was being managed by the assessee.
Starch Products had appointed the U.P. Sales Corporation Ltd., as its selling agent.
The assessee claimed to have stood guarantee for a loan of Rs. 6 lacs which was advanced to U.P. Sales Corporation Ltd., by the Gwali Industrial Bank.
The borrower failed to pay the loan which on August 2, 1948 stood at Rs. 5,60,199.
This amount was paid by the assessee pursuant to the guarantee.
Thereafter the assessee treated the U.P. Sales Corporation as its debtor for the aforesaid amount.
That company went into liquidation and as the assessee could not recover anything from it, a sum of Rs. 5,60,199 was written off in the books of the assessee company.
Before the Income tax Officer the said amount was claimed as a bad debt under section 10(2) (xi) of the Income tax Act, 1922.
The Income tax Officer rejected the claim.
The assessee 's appeal before the Assistant Commissioner failed.
The Appellate Tribunal, however, held that the guarantee given by the assessee was of indirect benefit to the assesse 's business because if it had not guaranteed the loan in question the company managed by it would have had to give extended credit to its selling agent which it could not have done without borrowing money either from the assessee or some third party.
In reference, the High Court also held that the guarantee was in the larger interest of the assessee 's business.
The Commissioner of Income tax appealed to this Court by special leave.
HELD : (i) While computing profits or gains of business under section 10 certain allowances have to be made under sub section
The allowance covered by cl.
(xi) thereof has to be made, when the assessee 's accounts in respect of any part of his business, profession or vocation are not kept on a cash basis, of such sum, in respect of the bad and doubtful debts, due to the assessee in respect of that part of his business profession and vocation and in the case of an assessee carrying an a banking or money lending business of such sum in respect loans made in the ordinary course of such business as the Income tax Officer may estimate to be irrecoverable but not exceeding the amount actually written off as irrecoverable in the books of the assessee.
A bad debt means a debt which would have gone into the balance sheet as a trading debt in the business or trade.
It must arise in the course of and as a result of the assessee 's business.
The deductions claimed should not be too remote from the business carried on by the assessee.
[361 B E] 12 Sup.
C 1/70 9 358 In the present case, neither the memorandum of association nor the managing agency agreement contained any such provisions by which it could be said that he guarantee of the loan made by the bank to the selling agents was done in the course of the managing agency business.
There was no privity of contract or any legal relationship between the assessee and the selling agent.
Neither under custom nor under any statutory provision or any contractual obligation was the assessee bound to guarantee the loan advanced by the bank to the selling agent. 'The guarantee could not be said to be indirectly in the interest of the assessee 's business, or as held by the High Court, in its larger interest.
The Tribunal and the High Court were, therefore, in error in holding that the sum in question was allowable as a deduction under section 10 (2) (xi).
[362 D E, F H] Madan Gopal Bagla vs Commissioner of Income tax, West Bengal, and Commissioner of Income tax, Bombay vs Abdullabhai Abdulkadar, , applied.
Essen Private Ltd. vs Commissioner of Income tax, 65 I.T.R. 625, distinguished. |
ivil Appeal No. 2588 of 1966.
Appeal from the judgment and decree dated January 14, 1964 of the Patna High Court in First Appeal No. 572 of 1958.
D. Goburdhun and R. Goburdhun, for the appellants.
A. N. Sinha and P. K. Mukherjee, for respondent No. 1.
640 The Judgment of the Court was delivered by Mitter, J.
The only question involved in this appeal is, whether the direction of the High Court that the partition suit launched in 1943 should be allowed to proceed in view of the provisions of section 6 of the Bihar Land Reforms Act, 1950 which came into force on 25th September, 1950, is correct.
The suit had a chequered career.
It was instituted against a number of persons the main relief asked for being partition of four annas Milkiat interest in Touzi No. 702, Tappa Haveli, Pargana Maheshi, District Champaran, Bihar.
The Subordinate Judge of Motihari made a preliminary decree for partition declaring the first respondent 's share in the property as claimed by him.
The High Court in appeal modified the decree reducing the plaintiff 's share to Rs. 0 1 4 interest only.
In further appeal to these Court the trial court 's preliminary decree was upheld on 5th ,October 1953.
In the meanwhile the Bihar Land Reforms Act of 1950 effecting far reaching changes in the incidents of land tenure and land holdings had been passed.
The first appellant made an application to the trial court in June 1958 prayina that the proceedings for final decree be treated as having abated in view of the vesting of all estates in land in the State of Bihar.
This was accepted by the Subordinate Judge by an order dated July 12, 1958.
The High Court allowed the appeal with the direction above mentioned which the appellants now seek to have set.
aside.
The bone of contention between the parties is the extensive "bakasht ' lands in the aforesaid Mouza.
The appellants contend that under section 6 (1) of the Act all these lands vested in the State and came to be held by the persons in "khas possession" thereof as raiyats under the State.
To appreciate the plea it is necessary to make a brief reference to some of the provisions of the Act.
As is well known the object of the Act was to cause transference to the State of the interest of proprietors and tenure holders in land as also of the mortgagees and lessees of such interests including interests in trees, forests, fisheries, jalkars, ferries, hats, bazars, mines and minerals and to provide for certain consequences following there from and connected therewith.
section 3 of the Act ,enabled the State Government to declare by notification that the estates or tenures of a proprietor or tenure holder specified therein 'would pass to and become vested in the State.
The consequences ,of such vesting are set forth in section 4.
Under cl.
(a) : "Such estate or tenure including the interests of the proprietor or tenure holder in any building or part of a building comprised in such estate or tenure and used 641 primarily as office or cutchery for the collection of rent of such estate or tenure, and his interest in trees, forests, fisheries, jalkars, sairati interest as also his interest in all sub soil including any rights in mines and minerals whether discovered or undiscovered, or whether being worked or not, inclusive of such rights of a lessee of mines and minerals, comprised in such estate or tenure (other than the interests of raiyats or under raiyats) shall, with effect from the date of vesting, vest absolutely in the State free from all encumbrances and such proprietor or tenure holder shall cease to have any interest in such estate or tenure, other than the interests expressly saved by or under the provisions of the Act.
" section 6 of the Act provides for such saving and the relevant portion thereof runs as follows "(1) On and from the date of vesting all lands used for agricultural or horticultural purposes, which were in khas possession of an intermediary on the date of such vesting, including (a) (i) proprietor 's private lands let out under a lease for a term of years or under a lease from year to year. . . (ii) landlords privileged lands let out under a registered lease for a term exceeding one year or under ,a lease, written or oral, for, a period of one year or less, referred to in section 43 of the Chota Nagpur Tenancy Act, 1908, (b) lands used for agricultural or horticultural purposes and held in the direct possession of a temporary lessee of an estate or tenure and cultivated by himself with his own stock or by his own servants or by hired labour or with hired stock, and (c) lands used for agricultural or horticultural purposes forming ' the subject matter of a subsisting mortgage on the redemption of which the intermediary is entitled to recover khas possession thereof; shall. . . be deemed to be settled by the State with such intermediary and he shall be entitled to retain possession thereof and hold them as a raiyat under the State having occupying rights in respect of such lands subject to the payment of such fair and equit able rent as may be determined by the Collector in the prescribed manner.
642 The broad proposition which was advanced before the High Court and rejected by it and reiterated before us is that the consequence of section 6, was to put an end to the character of the possession of the bakasht lands to the malik by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession thereof.
There is no dispute that bakasht lands fall under categories (b) and (c).
We are not here concerned with category (c) and have quoted it to appreciate some decisions relied on where there are references to that category.
This question has engaged the attention of the Patna High Court more than once and it would appear that the views expressed in different cases have not been uniform.
So far as the said High Court is concerned the point was settled by a decision of the Full Bench in Mahanth Sukhdeo Das.
vs Kashi Prasad Tewari and Shrideo Misra vs Ramsewak Singh(1).
The main questions before the Full Bench were whether on the vesting of an estate which was mortgaged at the material time the bakash lands therein which are deemed to be settled with the ex proprietor in khas possession would form substituted security for the purpose of the mortgage, and whether a co sharer proprietor not in actual possession of such lands had Any claim thereto on the basis of his constructive possession.
The High Court answered both the above in the affirmative.
One of the earliest cases in which this Court had to interpret section 6 of the Act was that of Surajnath Ahir vs Prithinath Singh (2 ) .
There the question which engaged the attention of this Court was whether the appellants who had originally gone into possession on the strength of a mortgage lost their right to continue in possession even if they claimed to be trespassers after the redemption of their mortgage by reason of the estate vesting in the State on the passing of the Act.
Although the case is not directly in point, it bears upon the identical provisions of law which have to be applied to the facts of the case before us.
The facts in that case were that the appellants had entered into possession of kasht lands of the mortgagors on the strength of a mortgage deed.
The mortgagors thereafter executed another mortgage with respect to their milkiat (proprietary) interest in favour of certain persons.
The plaintiff respondents bought the milkiat rights together with "kasht" lands from the mortgagors and entered into possession of the milkiat property and subsequently redeemed the mortgage deeds in 1943.
The appellants however did not make over possessions of the lands in dispute even after the redemption of the mortgage.
It was held by this Court that the respondents could not take advantage of section 6 (1) (c) of the Act as no mortgage subsisted on the date of vesting and the mere fact that the proprietor had a subsisting (1) I.L.R. 37 Patna 918.
(2) [1963] 3 S.C.R. 290 643 title to possession over certain land on the date of vesting could, ' not amount to that land being treated as under his "khas possession" for the purposes of the Act.
Referring to the definition of "Khas possession" in section 2(k) of the Act as meaning "the possession of such proprietor or tenure holder by cultivating such land or carrying on horticultural operations thereon himself with his own stock or by his own servants or by hired labour or with hired stock".
it was held that in order that the respondents could take advantage of the provision of section 6 (1 ) (c) of the Act they had to, establish a subsisting mortgage on the date of vesting which was inclusive, of the land subject to their right of redemption.
On the question of possession of the lands it was observed "On the date of vesting, the appellants were not in possession as mortgagees.
The mortgages had been redeemed in 1943.
Thereafter, the possession of the appellants was not as mortgagees.
It may be as trespassers or in any other capacity.
The land in suit, therefore, did not come within cl.(c) of section 6 of the Act.
" Rejecting the construction put on the expression 'khas possession by the High Court in Brijnandan Singh vs Jamuna Prasad(1) it was said : " The mere fact that a proprietor has a subsisting title to possession over certain land on the date of vesting would not make that land under his 'khas possession '.
" The Full Bench decision of the Patna High Court, came up for consideration by this Court in Ram Ran Bijai Singh vs Behari Singh alias Bagandha Singh(2).
There the appellants before this, Court were the plaintiffs who had filed a suit for a declaration that a certain plot of land was their zeraiti land and that the persons impleaded as the defendants 1st and 2nd parties had no right or title thereto and for recovery of possession of the said land by dispossessing them therefrom.
It was argued that in view of the concurrent findings of the courts below that the lands were the zeraiti lands of the plaintiffs they would not vest in the State because of the saving in section 6 of the Act and the appellant should be deemed to have been in khas possession of the land under section 6 (1) (c).
The respondents contended that it was not a case of a mortgagee remaining in possession after payment of the debt without anything more but of tenants who claimed to remain in possession by asserting a title which was as much against the mortgagors as against the mortgagees.
Reference was made in the (1) A.I.P. 1958 Patna 580.
(2) (3) I.L.R.37Pat.
644 course of arguments to the Full Bench decision in Sukhdeo Das 's case(3) and it was submitted that a mortgagee continuing in possession of the mortgaged property after payment of the :mortgage amount must hold the same on behalf of the mortgagor and in trust for him.
Counsel further relied on certain observations in the judgment of the Full Bench in aid of his proposition and submitted on the basis thereof that even the possession of a trespasser who had not perfected his title by adverse possession for the requisite period of time under the Limitation Act should be considered as in khas possession of the true owner.
Turning down this submission it was observed by this Court (p. 378) : "We consider that this equation of the right to possession with 'khas possession ' is not justified by principle or authority.
Besides this is also inconsistent with the reasoning of the Full Bench by which constructive pos session is treated as within the concept of khas possession.
" The Court went on to add that "The possession of the contesting defendants in the present case was in their own right and adverse to the plaintiffs, even on the case with which the appellants themselves came to court." Noting the statement of the plaintiffs in their plaint that the mortgagees had fulfilled their obligations and the obstruction to possession was put forward only 'by persons who claimed occupancy rights this Court concluded that, in the circumstances of the case, it was not possible for the appellants to contend that these tenants (defendants 1st and 2nd parties) were in possession of the property on behalf of the mortgagor or by virtue of any right through the mortgagor.
The case is not therefore an authority for the proposition that a co sharer 's constructive possession is to be ignored under section 6 (1) (c) of the Act.
Counsel for the appellants also referred us to a recent decision of this Court in section P. Shah vs B. N. Singh(1) in aid of his contention that the true effect of section 6 of the Act was to create a new right ,of tenancy in favour of the person in khas possession and consequently even if the plaintiff in the partition suit had a right to ask for demarcation of his Rs. 0 4 0 share of the bakasht lands before the passing of the Land Reforms Act, he could not pursue his claim by a prayer that he be considered a tenant along with those who were in actual khas possession.
In our view the above decision is no authority for this broad proposition.
In that case the appellants who were mortgagees of an estate including bakasht lands and other lands filed a suit on (1) ; 64 5 their mortgage and tried to follow up the preliminary decree which was obtained before the Act came into force by a petition for passing a final decree.
One of the questions before this Court was whether the mortgage decree had become unexecutable in view of the provisions of the Act.
It was held that the net effect of sections 3, 4 and 6 was that although on the vesting of the, lands in the State a settlement was deemed to be effected with the person in khas possession in law, there were two different transactions and the deemed settlement was in effect a separate transaction creating new rights.
The Court came to the conclusion that the only remedy open to the decree holders wag that provided in Chapter IV of the Act i.e. a claim under section 14 before the Claims Officer for determining the amount of debt legally and justly payable to each creditor in respect of his claim.
The Court was there dealing with the rights of the mortgage creditors after the Act had come into force.
Chapter IV of the Act made special provisions for dealing with the rights of secured creditors and section 4 (1) (d) expressly provided for the abatement of all suits and proceedings for the recovery of any money through proceedings which might be pending on the date of vesting arising out of securities created by mortgage or a charge on an estate or tenure.
Here however we are not dealing with the claims of mortgagees under Chapter IV.
In this case we have to consider whether the appellants had laid a claim which a co sharer could not put forward except by pleading ouster or any other independent ground.
Even if they were in actual khas possession within the meaning of section 2 (k) of the Act it must be held that the plaintiff who was a co sharer was in constructive possession through the appellants as "under the law possession of one co sharer is possession of all the co sharers".
We see no reason to hold that the observations of this Court to the above effect in P. L. Reddy vs L. L. Reddy(1) are not applicable to the case before us.
The appellants do not claim to be trespassers on the property neither did they claim any title to the lands adversely to the plaintiff respondent.
The deeming provision of section 6 must therefore enure for the benefit of all who in the eye of law would be regarded as in actual possession.
It follows that the plaintiff had not lost his share in the bakasht lands and had a right to them though not as tenure holder or proprietor but certainly as a raiyat under the provisions of the Land Reforms Act. ' The appeal must therefore be dismissed with costs.
V.P.S. Appeal dismissed.
(1) ; , 202. | In a suit for partition of bakash land a preliminary decree was passed.
The defendants appellants, claiming to be in actual possession of the bakasht land, filed a petition contending that the consequence of section 6.
of the Bihar Land Reforms Act, 1950 (which came into force in the meanwhile) was to put an end to the proprietor 's possession of the bakasht land by causing them to vest in the State and simultaneously creating a tenancy in favour of the person in khas possession thereof, and therefore, no final decree could be passed.
The trial court accepted the contention and dismissed the plaintiff 's application for passing final decree.
In appeal, the High Court set aside the order.
In appeal to this Court, HELD : Even if the appellants were in actual khas possession within the meaning of section 2(k) of the Act, it must be held that the plaintiff respondent, who was a co sharer, was in constructive possession through the appellants, as, under the law, possession of one co sharer is possession of all co shares.
The appellants did not claim to be trespassers on the property neither did they claim any title to the lands adversely to the respondent.
The deeming provision of section 6 must, therefore, enure for the benefit of all, who in the eye of land) would be regarded as in actual possession.
Therefore, the respondent had not lost his share in the bakasht lands and had a right to his share in them, though not as tenure holder or proprietor, but as a raiyat under the provisions of the Act.
[645 E G] P. L. Reddy vs L. L. Reddy, ; , 202, followed.
Surajnath Ahir vs Prithitnath Singh, , Ram Ran Baijal Singh vs Behari Singh alias Bagandha Singh, , section P. Shah vs, B. N. Singh; , and Mahant Sukhdeo Das vs Kashi Prasad, Tewari referred to. |
Appeals Nos.
1384 and 1584 of 1970.
Appeals under Section 116 A of the Representation of the People Act, 1951 from the Judgment and Order dated May.22, 1970 of the Patna High Court in Election Petition No. 2 of 1969.
J. P. Govat, Subhagmal Jain, section P. Mukherjee, Pranab Chatterjee and G. P. Roy, for the appellant (in C.A. No. 1384 of 1970) and respondent No. 1 (in C.A. No. 1584 of 1970).
V. M. Tarkunde, P. N. Tiwari, 0.
C. Mathur, Ravinder Narain and J. B. Dadachanji, for respondent No. 1 (in C.A. No. 1384 of 1970) and the appellant (in C.A. No. 1584 of 1970).
The Judgment of the Court was delivered by Hegde, J.
These are cross appeals under section 116 A of the Representation of the People Act, 1951 (to be hereinafter referred to as the Act) arising from an election petition filed by the first respondent (who for the sake of convenience will hereinafter be referred to as the respondent), before the High Court of Patna.
During the last mid term election for the Bihar Legislative Assembly held in the beginning of 1969, the appellant, the respondent and 1 1.
other contested from the Arrah Assembly Constituency.
The last date for filing the nomination was January 8, 1969 and the date of scrutiny was January 9, 1969.
The poll took place on February 9, 1969 and the votes were counted on the next day.
The appellant was declared elected as having obtained the highest number of votes i.e 13,556.
His nearest rival was the respondent 676 who secured 12,278 votes.
The appellant was the nominee of the Socialist party and the respondent was the nominee of the Congress party.
After the publication of the results in the official gazette, the respondent filed the election petition challenging the validity of the appellant 's election on various grounds.
The principal ground taken by her was that the result of the election had been materials affected by the improper acceptance of the appellant 's nomination papers.
She also charged the appellant with the commission of various corrupt practices to which reference will be made at a later stage.
The learned trial judge accepted the contention of the respondent that the result of the election had been materially affected by the improper acceptance of the appellant 's nomination.
He accordingly set aside the election of the appellant; but lie ,rejected the contention of the respondent that the appellant was guilty of any corrupt practice.
Aggrieved by the decision of the High Court, the appellant has filed Civil Appeal No. 1384 of 1970 and the respondent has filed Civil Appeal No. 1. 5 84 of 1970.
The principal questions that arise for decision are : (1) whether the defects found in the nomination paper of the appellant are, of " substantial character" within the meaning of that expression in section 36(4) of the Act and (2) whether it in is established that the acceptance of the nomination of the appellant had materially affected the result of the election.
After dealing with those questions, we shall proceed to consider the appeal of the respondent challenging the conclusion of the trial court regarding the corrupt practices alleged to have been committed by the appellant.
Before proceeding to consider the relevant provisions in the Act, it is necessary to set out a few more facts.
The appellant has been contesting from the Arrah constituency from about the year 1962.
He represented that constituency before the dissolution of the Bihar Legislative Assembly.
He was registered as on elector in the Sandesh Assembly Constituency of the Bihar State.
His name continued to be on the electoral roll of that constituency even at the time he filed his nomination from the Arrah constituency on January 6, 1969 i.e. two days before the last date for filling the nomination.
It appears that in 1968, his name was also entered in the electoral roll of Arrah constituency.
But later on, evidently because.
his name stood entered in the Sandesh constituency, the same was deleted from the Arrah constituency.
But this deletion was done without notice to the appellant.
The deletion was shown in a separate supplemented list.
In the main electoral roll, his name continued to be shown in the Arrah constituency.
According to the appellant when he came, to file his nomination paper, he was not aware of the fact that his name was entered in the electoral 677 roll of the Arrah constituency.
Therefore he had brought with him a certified copy of the electoral roll of the Sandesh constituency.
But in the ' morning of January 6, 1969 he came to know that his name was also in the Arrah constituency.
At that time he did not notice the deletion of his name which was in a separate list.
Therefore in his nomination paper, he entered his electoral roll No., as shown in the electoral roll of Arrah constituency.
But at the, same time he showed to the Returning Officer the certified copy of the scrutiny, no one objected to the nomination of the appellant.
The Returning Officer supports this version of the appellant.
After checking the name of the appellant as well as his electoral number as found in the electoral roll of Arrah constituency, and also the names and electoral roll number of his proposers, the Returning Officer received the nomination paper filed by him.
At the time of the scrutiny, no one objected to the nomination of the appellant.
The Returning Officer accepted his nomination as a valid nomination.
The objection to the acceptance of the nomination of the appellant was put forward for the first time, in the election petition.
We have now to consider whether the appellant was validly nominated.
Section 5 of the Act prescribes the qualifications for membership of a Legislative Assembly.
It says that "A person shall not be qualified to be chosen to fill a seat in the Legislative Assembly of a State unless (a) (b) (c) in the case of any other seat he is an elector for any Assembly constituency in that State" It is not denied that the appellant possesses all the qualifications prescribed either under the Constitution or under the Act and further that he has none of the disqualifications mentioned either under the Constitution or under the Act.
All that is said against his nomination is that his nomination paper was not properly filled in.
The law requires that the nomination of a candidate should be in the prescribed form and among others it should contain the name of the person nominated, his proposer 's name as well as the electoral roll numbers of the candidate and his proposer.
Sub cl.
(4) of section 33 provides that : "On the presentation of a nomination paper, the returning officer shall satisfy himself that the names and electoral roll numbers of the candidate and his proposer as entered in the nomination paper are the same as those entered in the electoral rolls : Provided that no misnomer or inaccurate description or clerical, technical or printing error in regard to the 678 name of the candidate or his proposer or any other person, or in regard to any place, mentioned in the electoral roll or the nomination paper and no clerical, technical or printing error in regard to the electoral roll numbers of any such person in the electoral roll or the nomination paper, shall affect the full operation of the electoral roll or the nomination paper with respect to such person or place in any case where the description in regard to the name of the person or place is such as to be commonly understood; and the returning officer shall permit any ,such misnomer or inaccurate description or clerical, technical or printing error to be corrected and where necessary, direct that any such misnomer, inaccurate description, clerical, technical or printing error in the electoral roll or in the nomination paper shall be overlooked.
" Sub section
(5) of section 33 provides that where a candidate is an elector ,of a different constituency, a copy of the electoral roll of that constituency or of the relevant part thereof or a certified copy of the relevant entries in such roll shall unless it has been filed along with the nomination paper be produced before the Returning Officer at the time of the scrutiny.
Section 36 of the Act prescribes the mode of scrutiny of the nomination.
Sub section
(2) of that section says : "The returning officer shall then examine the nomination papers and shall decide all objections which may be made to any nomination and may, either on such objection or on his own motion, after such summary enquiry, if any, as he thinks necessary, reject any nomi nation on any of the following grounds : (a) that on the date fixed for the scrutiny of nomination the candidate either is not qualified or is disqualified for being chosen to fill the seat under any of the following provisions that may be applicable namely .
Articles 84, 102, 173 and 191 (b) that there has been a failure to comply with any of the provisions of section 33 or section 34; or (c) that the signature of the candidate or the proposer on the nomination paper is not genuine." Sub section
(4) of that section commands the Returning Officer not to reject any nomination paper on the ground of any defect which 679 is not of a substantial character.
Sub section
(6) of that section prescribes that : "The returning officer shall endorse on each nomination paper his decision accepting or rejecting the same and, if the nomination paper is rejected, shall record in writing a brief statement of his reasons for such rejection.
" The only other relevant provision which we need consider is sub section
(1) of section 100 which prescribes the grounds for declaring election to be void.
That section reads : "Subject to the provisions of sub section
(2) if the High Court is of opinion (a) that on the date of his election a returned candidate was not qualified, or was disqualified, to be chosen to fill the seat under the Constitution or this Act or the ; or (b) that any corrupt practice has been committed by a returned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c) that any nomination has been improper rejected; or (d) that the result of the election, in so far as it concerns a returned candidate, has been materially affected (i) by the improper acceptance of any nomination.
or (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent or (iii) by the improper reception, refusal or rejection of any vote or the reception of any vote which is void, or (iv) by any non compliance with the provisions of the Constitution or of this Act or of any rules or orders made under this Act, the High Court shall declare the election of the returned candidate to be void.
" The first question that we have got to decide is whether the defects found in the nomination paper of the appellant are of substantial character.
As mentioned earlier, the appellant was fully 680 qualified to be nominated for the election.
The only thing said against his nomination is that his nomination paper was not properly filed in.
We have earlier seen that a duty is imposed on the Returning Officer by sub section
(4) of section 33 to look into the nomination ' paper when it is presented and to satisfy himself that the names and the electoral roll numbers of the candidate and that of the proposer as entered in the nomination paper are the same as those entered in the electoral roll.
In this case it is proved that the Returning Officer did look into the nomination paper but unfortunately he also did not notice that the name of the appellant had been removed from the ' electoral roll of Arrah constituency.
If lie had noticed that fact, he, would have asked the appellant either to correct the mistake or to file a fresh nomination paper.
We have earlier noticed that the appellant filed his nomination paper on the 6th of January 1969 and the last date for filing the nomination paper was the 8th of that month.
That being so, there would have been no difficulty for him either to correct the nomination paper filed or to file a fresh nomination paper.
We have earlier noticed that the appellant had with him a certified copy of the electoral roll of the Sandesh constituency and he had shown the same to the Returning Officer.
Mistakes complained or occurred because both the appellant as well as the Returning Officer merely looked into the main voters ' list but overlooked the deletion noted in a separate list.
But the implication of section 33 (4) is that a wrong entry in a nomination paper as regards the name of the candidate or the proposer or their electoral roll numbers is not a matter of substantial importance.
That is why the legislature requires the Returning Officer to look into them and if there are any mistakes to get them corrected.
What is of importance in an election is that the candidate should possess all the prescribed qualifications and that he should not have incurred any of the disqualifications mentioned either in the Constitution or in the Act.
The other information required to be given in the nomination paper is only to satisfy the Returning Officer that the candidate possesses the prescribed qualification and that he is not otherwise disqualified.
In other words those information relate to the proof of the required qualifications.
It may also be noted that the legislature itself has made distinction between the acceptance of a nomination and the rejection of a nomination.
The Returning Officer is required to give reasons for rejecting a nomination whereas he is not required to give reasons for accepting a nomination.
Further sub section
(2) of section 36 says that "he may reject the nomination paper".
It is further seen that the proviso to sub c.
(4) of section 33 says that no inaccurate description in regard to the name of the candidate or his proposer or in regard to any place mentioned in the nomination paper shall affect the full operation of the nomination.
681 From a, combined reading of sections 33 and 36, it is clear that a mis description as to electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.
In Karnail Singh vs Election Tribunal, Hissar and ors.(1), the tribunal held that the nomination paper of one of the candidates was wrongly rejected on the ground that column No. 8 in the nomination paper was not duly filled up.
The only defect pointed out was that the name of the sub division was not stated therein '.
But on the evidence it was quite clear that there was no difficulty in identifying the candidate and the candidate himself pointed out to the returning officer the entry of his name in the electoral roll.
Agreeing with the tribunal this Court held that the defect in those circumstances was a technical one and the tribunal was perfectly right in holding that the defect was not of a substantial character and that the nomination paper should not have been rejected.
In Rangilal Choudhury vs Dahu Sao and ors.
(2) this Court held that the fact that the name of the constituency was wrongly, mentioned as 'Bihar ' instead of 'Dhanbad ' in the nomination paper did not vitiate the nomination as it was clear from a reading of the entire nomination paper that the respondent was seeking election from the Dhanbad constituency.
In reaching that conclusion this Court referred to the requirements, of section 3 3 (4), section 3 6 (2) (b) and (4).
After referring to those provisions this Court observed "The result of these provisions is that the proposer and the candidate are expected to file the nomination papers complete in all respects in accordance with the prescribed form; bat even it there is some defect in the nomination paper in regard to either the names of the electoral roll numbers, it is the duty of the returning officer to satisfy himself at the time of the presentation of the nomination paper about them and if necessary to allow them to be corrected, in order to bring them into conformity with the corresponding entries in the electoral roll.
Thereafter on scrutiny the returning officer has the power to reject the nomination paper on the ground of failure to comply with any of the provisions of section 33 subject however to this that no nomination paper shall be rejected on the ground of any defect which is not of a substantial character." In Namdeo Chimanji Tapre and anr.
vs Govinddas Ratanlal Bhatia and ors.
(1), the High Court of Bombay held that as the (1).
(2) ; (3).
I.L,R. 682 identity of the candidate was not in dispute, the rejection of the nomination paper by the Returning Officer was not valid having regard to the provisions in section 33 and section 36 of the Act.
In Dev Kanta Barooah vs Kusharam Nath and ors.
(1), a nomination paper for the Nowgong constituency of the Assam Legislative Assembly contained a recital in the heading that the respondent was thereby nominated as a candidate for election "from the Assembly constituency", but against column No. 2 of nomination paper relating to the electoral roll number of the proposer and column No. 5 relating to the electoral roll number of the candidate, the entry was "Assam Legislative Assembly constituency, Part No. 10 of the Electoral Roll of village Phulaniati, Mouza Hatichung, Police Station Sadar, Nowgong, Roll No.
" The Returning Officer rejected the nomination paper on the ground that the name of the constituency to which the elec toral roll related was not mentioned in columns 2 and 5 as required section 33 (4) of the Act.
This Court agreeing with the tribunal and the High Court held that the rejection of the nomination was improper.
Our attention has not been invited to any decision either of this Court or of any High Court or even of a tribunal where the Returning Officer had accepted the nomination paper of a qualified candidate, the same was found to be improper because of some defect in the nomination paper.
The case of rejection of a nomination paper by the Returning Officer stands on a footing different from that of an acceptance of a nom ination paper.
In the latter case the main though not the only question to be considered is whether the candidate is qualified to be a candidate.
The very fact that the law requires the Returning Officer to look into the nomination paper, when filed and get any mistake regarding the name or electoral number of the candidate or his proposer corrected shows that the mistake regarding them is not a material defect.
Learned Counsel for the respondent has sought to place reliance on some decisions of this Court in support of his contention that the appellant 's nomination paper was improperly accepted.
We shall now refer to the decisions relied on by him.
, In Narbada Prasad vs Chhagan Lal and ors.
(2) a candidate 's nomination paper was rejected by the Returning Officer on the round that he did not produce the proof required under section 33(5) of the Act.
That rejection was upheld by this Court.
We fail to see how that decision lends any support to the respondent 's case.
Without the required proof, the Returning Officer could not satisfy himself that the candidate was qualified to seek election.
(1) XXI, E.L.R. 459.
(2) [1969] 1, S.C.R.499 683 Reliance was next placed on the decision of this Court in Rana Dayal vs Brijraj Singh and ors.
(1) Therein the proposer of the candidate was an illiterate person.
He had not got authenticated or attested the mark put by him in the nomination paper by one of the designated officers as required by the relevant provisions of the Act and the rules framed thereunder.
Hence the nomination paper was rejected by the Returning Officer.
That rejection was upheld both by the High Court as well as by this Court.
No nomination can be held to be valid unless the candidate is duly proposed.
If the mark put by the proposer is not authenticated in the manner required by law, it cannot be said that the candidate has been properly nominated.
In Brijendralal Gupta and ant .
vs Jwalaprasad and ors.(2), this Court observed that the word 'defect ' in section 36(4) included an omission to satisfy the details prescribed in the nomination.
It further observed that the distinction laid down in English cases between "omission and "inaccurate description" depended on the specific provisions of the English statute which did not obtain under the Indian law.
This decision, again has no bearing on the point in issue.
For the reasons mentioned above we are of the opinion that the defect in the appellant 's nomination paper was not a substantial defect.
Hence the High Court was not justified in allowing the election petition on the ground that his nomination was improperly accepted.
In view of the conclusion reached above, it is not necessary for us to go into the question as to the true interpretation of section 100(1) (d).
We shall merely notice the arguments advanced on either side on that question.
According to the appellant th@e legislature has made a clear distinction between improper rejection and improper acceptance of a nomination.
In the case of improper rejection, the High Court shall declare the election of the returned candidate to be void but in the case of improper acceptance before the election of the returned candidate can be declared void, the election petitioner will have to establish that the result of the election in so far as it concerns the returned candidate has been materially affected.
At this stage we, may notice that prior to the amendment of the Act in 1956, improper rejection and improper acceptance were placed in the same category.
Clause (c) of section 100(1) as it stood then read : "If the Tribunal is of opinion.
(c) that the result of the election has been materially affected by the improper acceptance or rejection of any nomination.
(1) [1970] I S.C.R. 530.
(2) ; 684 the Tribunal shall declare the election to be wholly void." This Court in Vashist Narain Sharma vs Dev Chandra and ors.
(1) observed in the course of its judgment that where the person whose nomination has been improperly accepted is the returned .candidate himself, it may be readily conceded that his nomination has materially affected the result of the election.
This observation was not the ratio of that decision.
That apart, after this observation was made, the Parliament has amended the relevant provision and has made a distinction between improper rejection and improper acceptance of a nomination.
It was urged on 'behalf of the ,appellant that in view of the amendment the observation made by this Court in Vashist Narain Sharma 's case (supra), can no more govern the point in issue.
According to the learned Counsel, clause (d) of section 100(1) as it now stands definitely requires that in the case of improper acceptance of any nomination, the election petitioner must establish that the result of the election in so far as it concerns the returned candidate has been materially affected.
He urged that the word "any" in section 100(1)(d) (1) means every .nomination.
On the other hand it was urged on behalf of the respondent that the amendment of section 100(1) did not affect the correctness of the observation made by this Court and that observation had been quoted by this Court in two cases arising under the amended provision.
In view of our earlier finding about the validity of the appellant 's nomination, it is not necessary to decide the controversy relating to the interpretation of section 100 (1) (d).
For the reasons mentioned above, differing from the view taken by the I earned trial judge, we have come to the conclusion that the nomination of the appellant was properly accepted.
This takes us to the appeal filed by the respondent.
As mentioned earlier, the High Court has rejected the charges of corrupt practices levelled by the respondent against the appellant.
Those charges were sought to be established only by oral evidence.
The learned trial judge was unable to accept the evidence adduced in support of the alleged corrupt practices.
Ordinarily this Court does not reappropriation Oral evidence.
Our attention has not been ,invited to any exceptional circumstances in this case requiring us .to go into the evidence afresh.
It is well known that the factious feelings generated during elections continue even after the election and hence the contesting parties are able to produce before court large (number of witnesses, some of whom may be seemingly disinterested ' But that by itself is no guarantee of the truth of the .evidence adduced.
Mr. Tarkunde, learned Counsel for the respondent put forward three broad contentions in support of the (1)[1955] S.C.R. 509.
685 appeal preferred by the respondent.
They are : (1) that the High Court failed to take an overall view of the evidence adduced; it merely contented itself by examining evidence relating to each one of the instances, (2) the High Court erred in not relying on the evidence relating to an instance when the same is spoken to by a single witness and (3) the High Court erred in rejecting the testimony of some of the witnesses on the ground that they were chance witnesses.
None of these contentions appear to have any merit.
Each instance of a corrupt practice pleaded had to be established separately.
If every one of those instances are not proved, all of them put together cannot be accepted as true because of the volume of evidence.
Now coming to the instances sought to be proved by the evid ence of a single witness, the learned trial judge observed in the course of his judgment that those instances were not seriously pressed by the Counsel for the respondent.
Evidently these charges were given up.
In appreciating evidence of the witnesses, the courts have to take into consideration the probability of their being present at the time of the alleged incident.
Courts have always viewed with suspicion.
the evidence of chance witnesses.
There was nothing wrong in the learned judge not being able to place much reliance on the evidence of chance witnesses.
Hence we see no merit in the appeal filed by the respondent.
For the reasons mentioned above we allow Civil Appeal 1384 of 1970 and dismiss Civil Appeal No. 1584 of 1970.
In the result the election petition stands dismissed with costs both in the High Court as well as in this Court in this Court the appellant is entitled to only one hearing fee.
G.C. C.A. No. 1384/70 allowed. | During the mid term election held in 1969 in Bihar the respondent and 11 others contested from the Arrah Assembly Constituency.
The appellant was declared elected as having obtained the highest number of votes.
His nearest rival was the respondent. ' The respondent filed an election petition challenging the election of the appellant on various.
The principal ground taken was that the result of the election had been material affected by the improper acceptance of the appellant 's nomination papers.
It was alleged that nomination Paper showed that r the appellant 's name was registered as an elector in the Arrah Constituency whereas at the relevant time it had been removed therefrom.
The returning Officer was therefore wrong in accepting the nomination paper.
The other allegations against the appellant related to corrupt practice.
The High Court rejected the allegations as regards corrupt practice but it set aside the election of the appellant on the ground that the nomination paper had been improperly accepted and the election had been materially affected thereby.
In appeal to this Court, HELD : (i) The appellant was fully qualified to be nominated at the election.
The only thing said against his nomination was that his nomination paper was not properly filled in.
It was proved from the evidence that the Returning officer did look into the nomination paper but unfortunately he also did not notice that the name of the appellant had been re moved from the electoral roll of Arrah constituency.
If he had noticed F that fact he would have asked the appellant either to correct the mistake or to file a fresh nomination paper.
The appellant filed his nomination paper on the 6th of January 1969 and the last date for filing the nomination paper was the 8th of that month.
That being so there would have been no difficulty for him neither to correct the nomination paper filed or to file a fresh nomination paper.
The appellant had with him a certified copy of the electoral roll of Sandesh Constituency where his name was enrolled and he had shown the same to the Returning Officer.
Mistakes complained of occurred because both the appellant as well as the Returning Officer merely looked into the main voters ' list in Arrah constituency but overlooked the deletion noted in a separate list [670 A D] From a combined reading of sections 33 and 36 of the Representation of the People Act, 1961 it is clear that a mis description as to the electoral roll number of the candidate or of the proposer in the nomination paper is not to be considered as a material defect in the nomination paper.
The High Court was accordingly not justified in allowing the election petition on the ground that the nomination paper of the appellant was improperly accepted.
[681 A; 683 E] 675 In view of the above finding the further question whether the result of the election was materially affected did not survive for consideration.
[683 E F] (ii) The appeal of the respondent on the question of corrupt practice had no merit.
The three instances mentioned were in the opinion of the High Court not established by the evidence.
Each instance of a corrupt practice pleaded has to be established separately.
If every one of the instances was not proved all of them put together cannot be accepted as true because of the volume of evidence.
[685 B C] The election petition must therefore be dismissed.
Karnail Singh vs Election Tribuna, Hissar & Ors., 10 E.L.R. 189, Rangilal Choudhury vs Dahu Sao & Ors., [1962] 2 S.C.R. 401, Namdeo Chimnaiji Tapre & Anr.
vs Govindas Ratanlal Bhatia & Ors.
I.L.R. and Wey Kanta Barooah vs Kusharam Nath & Ors,, XXI E.L.R. 459, applied.
Narbada Prasad vs Chhagal Lal & Ors., [1967] I S.C.R. 499, Ram Dayal vs Brijrai Singh & Ors., [1970] I S.C. R. 530 and Brijendralal Gupta find Anr.
vs Jawalaprasad & Ors.
, ; , distinguished.
Vashist Narainin Sharma vs Dev Chandra and Ors., , referred to. |
minal Appeal No. 138 of 1968.
Appeal by special leave from the judgment and order dated the June 10, 1968, of the Bombay High Court in Criminal Appeal No. 667 of 1967.
V. section Desai, P. section Nadkarni and Vineet Kumar, for the appellants.
section K. Dholakia and B. D. Sharma, for the respondent.
The Judgment of the Court was delivered by Ray, J.
This is an appeal by special leave from judgment dated 10 June, 1968 of the High Court at Bombay setting aside the order of acquittal of the appellants and convicting them under section 325 read with section 34 of the Indian Penal Code for having assaulted and injured Choharjasing and sentencing each of the appellants to four years rigorous imprisonment and a fine of Rs. 1000 each and six months rigorous imprisonment in default of payment of fine and further convicting the appellants under section 323 read with section 34 of the Indian Penal Code for having assaulted and injured Ramkeshwarsing and sentencing each of the appellant 's to three months rigorous imprisonment.
The sentences were to run concurrently.
The appellants and another accused were charged under sec tions 143, 147, 307 read with section 149 of the Indian Penal Code.
The four appellants were also charged under section 148 of the Indian Penal Code.
In the alternative the appellants were charged under section 307 read with section 34 of the Indian Penal Code.
The appellants and the other accused were further charged under section 326 read with section 149 of the Indian Penal Code.
In the alternative they were charged under section 324 read with section 34 of the Indian Penal Code.
The appellants and the other accused were further charged under section 324 read with section 149 of the Indian Penal Code.
In the alter native they were charged under section 324 read with section 34 of the Indian Penal Code.
The complainant Choharjasing and Nandlal are brothers.
They resided in room No. 5 of Vidya Bhuvan Kurla along with their cousin Ramkeshwarsing and Gayitrising brother in law of Choharjasing.
Chollarjasing.
Nandlal and Ramkeshwarsing were employed at Premier Automobiles at Kurla.
The, prosecution witness Awadh Narayan who resided at Moturam Chawl was also employed at Premier Automobiles.
Another prosecution witness 624 Dinanath was a shopkeeper residing at Halav Pool, Kurla.
The first appellant dealt in milk and resided at Maulana Chawl, Halav Pool, Kurla.
Appellant No. 2 is the brother of appellant No. 1 and resided at a nearby Chawl at Halav Pool and was employed at Premier Automobiles at Kurla.
Appellant No. 3 also resided at Halav Pool Chawl, Kurla and was employed at Premier Automobiles, Kurla.
Appellant No. 4 resided at another Chawl at Kurla and was also employed at Premier Automobiles, Kurla.
Accused No. 5 worked as a Mehtaji of one Jairaj Pandye and resided at Bhagwat Bhuvan, Halav Pool, Kurla.
The prosecution case was this.
The relation between Cho harjasing and his brother Nandlal on the one hand and appellants No. 1 and 2 on the other were strained for some time.
On the morning of 15 October, 1964 Nandlal brought a truck load of earth and spread the same in front on their room.
On that account there was some altercation between him and appellants No. 1, 2 and 3.
On the morning of 16 October, 1964 Choharjasing left his room and went to Podar Hospital at Worli for undergoing an operation for fistula.
He returned to his room at about 11 or 12 noon.
On his return he was told by his brother Nandlal about the quarrel and that the appellants and another accused had given a threat and enquired as to where Choharjasing was.
Nandlal further told Choharjasing that the appellants and the other accused had threatened that they would break Choharjasing 's hands .and feet.
Choharjasing went to the Police Station and filed a non cognizable complaint.
The police directed Choharjasing to approach the proper criminal court.
Choharjasing went to prosecution witness Dinanath and told him about the threats.
Choharjasing then returned to his room and launched with his brother Nandlal, cousin Ramkeshwarsing and brother in law Gaitrising.
Choharjasing was not feeling comfortable after the ,operation.
He sat on a charpoy (cot) outside his room.
Nandlal was with Choharjasing.
Ramkeshwarsing was inside the room.
At about 5 or 5.30 p.m. the appellants came there.
Appellant No. 1 was armed with a lathi.
Appellants No. 2, 3 and 4 had also lathis or something like iron bars.
Accused No. 5 was standing at some distance.
Accused No. 5 instigated the appellants by shouting the words 'Dekhte kya ho, Mar Dalo ' (what are you looking at, assault them).
Appellant No. 1 also shouted to assault.
The appellants surrounded Choharjasing and Nandlal and started assaulting them with weapons.
Appellants No. 1 and 4 hit Choharjasing.
Appellants No. 2 and 3 hit Nandlal.
Choharjasing fell down.
The assault continued.
Appellant No. 2 thrust his stick in the mouth of Choharjasing and he lost four of his teeth.
Choharjasing and Nandlal both fell unconscious.
Ramkeshwar sing received a blow on left hand.
625 The Sub Inspector of Police, on getting a telephone message came to the spot.
On the way the Sub Inspector met appellants No. 1 and 4 each of whom had injuries on their person.
They were put in the police van.
The van was taken to the place of incident.
Choharjasing and Nandlal were lying unconscious.
Witnesses Awadh Narayan and Dinanath were present there.
Choharjsing.
and Nandlal were put into the van and removed to the hospital.
At the time of admission to the hospital Choharjasing had 12 injuries.
Nandlal had 5 injuries.
Appellant No. 4 had 3 injuries.
Choharjasing and Nandlal were detained in the hospital as indoor patients from 16 October 1964 to 12 November, 1964.
Appellant No. 4 in spite of medical advice left the hospital on 17 October, 1964.
The trial Court acquitted all the 5 accused.
The trial Court gave these reasons.
Choharjasing and Ramkeshwarsing, did not mention accused No. 5.
Witness Award Narayan did not mention accused No. 5.
Ramkeshwarsing did not mention accused No. 2, 3 and 5.
Witness Awadh Narayan did not mention accused No. 3.
Choharjasing and Nandlal were all thin and of weak build.
The accused were hefty in build.
It is difficult to say why so many persons would engage in the assault on two weak persons, particularly when Choharjasing had just returned after operation from the hospital.
The injuries on appellants No. 1 and 4 were not satisfactorily explained.
The possibility of persons from the crowd feeling enraged at the assault on accused No. 1 to 5 who were holding important offices in the local Congress organisation and then rushing forward and inflicting injuries on the assaulters of Choharjasing and Nandlal two well known persons of the locality cannot be ruled out as contended for by the defence.
Iron bars and sticks were not recovered.
Ramkeshwarsing had failed to go to the police station of his own accord.
He and Choharjasing did not implicate accused No. 5 in their earlier statements.
The presence of accused No. 2 and 3 is not free from doubt.
Ramkeshwarsing and Awadh Narayan did not mention accused No. 2 in their earlier statements.
Ramkeshwarsing did ;not mention the name of accused No. in his statement to the police.
Choharjasing and Nandlal could not explain how accused No. 1 and 4 came to receive the injuries.
Though the injuries on Choharjasing and Nandlal are no doubt serious, the evidence does not satisfactorily establish that they were caused by the accused in furtherance of their common intention and that they formed an unlawful assembly and used force or violence and they rioted with deadly weapons in prosecution of their common intention.
The defence that accused No. 1 was assaulted and seeing 626 this accused No. 4 came there and he was assaulted cannot in the circumstances be overlooked.
With these reasons the trial Court acquitted all the five accused.
The High Court set aside the order of acquittal.
The High Court arrived at these conclusions.
The evidence established that the grievous injury inflicted on Choharjasing and Nandlal and the simple injury inflicted on Ramkeshwarsing were inflicted by the appellants.
The trouble arose on account of dispute over the open space adjoining the room of Choharjasing.
The appellants could not be convicted under section 307 of the Indian Penal Code The appellants were guilty of causing grievous hurt.
The High Court, therefore, convicted the appellants for injuries sustained by Choharjasing, Nandlal and Ramkeshwarsing.
Counsel for the appellants made these submissions.
The High Court interfered with the acquittal without giving any reasons The first information report about the cognizance of the offence was wrongly admitted in evidence.
The incident on the morning of 16 October, 1964 could not be believed and therefore the entire prosecution would fail.
As to the incident on the morning of 16 October, 1964 the trial Court said that the time of recording the complaint on 16 October, 1964 was 11.05 am.
where as the complainant 's version in court was that he returned from the hospital at about 11 a.m. or 12 noon, when he received information from Nandlal.
Further in the complaint Choharjasing did not mention about any of the accused and Nandlal also did not mention accused No. 5.
The land on which earth was spread belonged to one Khot and therefore appellant No. 1 could not have interest in that land.
Or these grounds the trial Court did not accept the version that there was any occurrence on the morning of 16 October, 1964.
The High Court, however, accepted the version that there was an incident on the morning of 16 October, 1964 and said that Chohajasing would not have taken the trouble of going to the police and lodging a complaint.
The High Court gave two broad reasons for accepting the prosecution version about the incident on the morning of 16 October, 1964.
First, there was the complaint by Choharjasing.
Secondly, Choharjasing had gone to the hospital on the morning of 16 October, 1964 and on his return from the hospital he went to lodge the complaint.
Choharjasing would not have done so, if there had been no incident in the morning.
The High Court referred to the first information report about the commission of the offence and said that once the statement was admitted in evidence it afforded a very strong corroboration 627 to the testimony of Choharjasing so far as the complicity of accused No. 1 to 4 in the crime was concerned and the first information report was admissible under section 157 of the Evidence Act.
The first information report is not substantive evidence.
It can be used for one of the limited purposes of corroborating or contradicting the makers thereof.
Another purpose for which the first information report can be used is to show the implication of the accused to be not an afterthought or that the information is a piece of evidence res gestao.
In certain cases, the first infor mation report can be used under section 32(1) of the Evidence Act or under section 8 of the Evidence Act as to the cause of the informant 's death or as part of the informer 's conduct.
The High Court was wrong in holding that the first information report would be admissible under section 157 of the Evidence Act.
When the maker of the first information report was examined in court the report was not tendered by the prosecution in accordance with the provisions of the Evidence Act.
The appellants were denied the opportunity of cross examination on the first information report.
The first information report was therefore wrongly relied upon in evidence for the purposes suggested by the High Court.
It is therefore to @ seen as to whether the High Court was justified in convicting the appellants on the evidence and the grounds mentioned in the judgment.
The evidence of the complainant is that in the afternoon of 16 October, 1964 all the appellants came armed with lathis or something like iron bars and all the four appellants assaulted Choharjasing and Nandlal with what the appellants had in their hands.
The further evidence is that appellant No. 2 thrust the lathi into Choharjasing 's mouth and be lost four of his teeth as a result of that.
Nandlal in his evidence stated that appellant No. 2 gave a blow with a stick on his head.
Nandlal and Choharjasing were attempting to run away when appellant No. 3 assaulted Nandlal on his head with what looked like an iron bar and appellant ,No. 4 also assaulted him with what he was holding and which also looked like an iron bar.
Nandlal further said that appellant No. 2 assaulted him before he fell down and after he bad fallen down all the appellants assaulted him.
Witness Ramkeshwarsing said that he saw all the appellants and when Choharjasing and Nandlal had fallen on the ground they were assaulted by all the appellants with sticks and iron bars.
Ramkeshwarsing further said that in the statement to the police he mentioned that he saw appellant No. 1, 2 and two others.
628 Witness Awadh Narayan said that he knew all the appellants and he saw sticks in their hands.
He corroborated Nandlal 's evidence that appellant No. 2 assaulted with a stick Choharjasing on the mouth.
He also said that all the appellants continued assaulting Choharjasing and Nandlal.
He said that in his statement to the police he mentioned the names of appellants No. 1 and 2.
Witness Dinanath said that he knew Choharjasing and Nandlal for a few years and he also know the appellants.
He said that appellant No. 2 had a stick in his hand and appellant No. 2 assaulted Nandlal on his head.
His further evidence was that appellant No. 2 gave a straight and perpendicular blow with a stick on the mouth of Choharjasing.
The Sessions Court was wrong in holding that Ramkeshwarsing did not mention the name of appellant No. 2.
He not only stated in his oral evidence that he had mentioned the name of appellant No. 2 to the police but this was also not challenged in cross examination.
The other witnesses Choharjasing, Nandlal, Awadh Narayan and Dinanath all spoke about the appellants who assaulted Choharjasing and Nandlal.
As to appellant No. 3 Choharjasing said that appellants No. 3 and 4 carried something like iron bars of a black colour.
As far as appellant No. 3 is concerned there is no contradictory police statement on the part of Choharjasing.
The oral evidence of Nandlal in relation to appellant No. 3 was that he assaulted Nandlal.
Nandlal in his statement to the police also mentioned about appellant No. 3.
There is no contradictory police statement on the part of Nandlal as far as appellant No. 3 was concerned.
Nor was any such contradiction put to Nandlal.
The medical evidence about the injuries to Choharjasing was that the injuries could be caused by hard and blunt substance like iron bars and lathis and were likely to cause death if not medically attended to.
The medical evidence about the injuries to Nandlal was that those injuries could be caused by coining in contact with hard and blunt substance such as lathi, bamboo, stones, iron bars etc.
and were serious injuries and were likely to cause death if not medically attended to.
Ramkeshwarsing 'in his oral evidence said that the appellants assaulted Choharjasing and Nandlal, He said that he did not mention appellants No. 3 and 4 in the police statement because he did not know them.
There is no contradictory police statement as far as witness Ramkeshwarsing is concerned in relation to appellant No. 3.
In his police statement he mentioned appellants No., 1 and 2 and he said that two others assaulted Choharjasing and Nandlal.
Ramakeshwarsing thus spoke of four persons 629 assaulting Chohajasing and Nandlal.
That was not challenged in cross examination.
Witness Awadh Narayan spoke of appel lant No. 3.
There is no contradictory police statement of Awadh Narayan in relation to appellant No. 3.
Witness Dinanath spoke about appellant No. 3 assaulting Choharjasing and Nandlal.
There is no cross examination of Dinanath that appellant No. 3 gave a blow with a stick to Nandlal.
On behalf of the appellants it was contended that appellants, No. 2 and 3 did not receive any injuries and therefore it was improbable that they would be involved in the assault.
That contention is unacceptable because of the clear and convincing evidence of several witnesses about appellants No. 2 and 3 assaulting Choharjasing and Nandlal.
The trial Court was wrong in holding that the names of appellants No. 2 and 3 were not mentioned by the witnesses to the police.
The names of appellants No. 2 and 3 were mentioned by the witnesses to the police.
The oral evidence of the witnesses was to that effect.
That evidence was not challenged.
The High Court was therefore justified in coming to the con clusion that the acquittal of appellants No. 2 and 3 by the trial Court was to be set aside.
The evidence of the several witnesses that appellants No. 2 and 3 assaulted Choharjasing and Nandlal cannot be discarded on the statement that the appellants No. 2 and 3 did not receive injuries.
It does not follow that appellants ,No. 2 and 3 were not at the scene of occurrence and did not commit the acts of assault just because there was no injury on them.
As far as appellants No. 1 and 4 are concerned the High Court was correct in holding that they were wrongly acquitted by the trial Court.
12 injuries on Choharjasing and 5 injuries on Nandlal were all serious in nature.
The oral evidence was rightly accepted by the High Court that all the appellants were guilty of assaulting Choharjasing, Nandlal and Ramkeshwarsing.
Counsel for the appellants relied on the decisions of this Court in Harbans Singh and Anr.
vs State of Punjab [1962]Suppl.
(1) S.C.R. 1041 and Khedu Mohton & Ors.
vs State of Bihar ; in support of the proposition that the High Court should not have interfered with the acquittal by the trial Court and if on the ruling of this Court in Khedu Mohton & Ors.
vs State of Bihar (supra) two reasonable conclusions can be reached on the basis of the evidence on record then the acquittal of the accused should be preferred.
The observations in Khedu Mohton 's case mean this: If two conclusions can be reached with a plausible appearance of reason the court should can in favour of that which leads to acquittal and not to that 630 which leads to t conviction.
Two views and conclusions cannot both be right and one must be preferred over the other because our criminal jurisdiction demands that the benefit of doubt must prevail.
As to powers of the appellate court this Court in Sanwat Singh & Ors.
vs State of Rajasthan ; laid down three principles.
First, the appellate court had power to review the evidence upon which the order of acquittal is founded.
Second, the principles laid down by the Judicial Committee in Sheo Swarup vs King Emperor 61 I.A. 398 are a correct guide for the approach by an appellate court.
These principles are that the views of the trial Judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt and the slowness ,of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage, of seeing the witnesses are the 'rules and principles ' in the administration of justice.
Thirdly, the appellate court in coming to its own conclusion should not only consider every matter on record having a hearing on the questions of fact and the reasons given by the trial court in support of the order of acquittal, but should also express reasons to hold that the acquittal was not justified.
in the light of the rulings of this Court to which reference has been made, we are satisfied that the High Court kept in view the rules and principles of appreciation of evidence and the right of the accused to the benefit of doubt and the, High Court gave reasons as to why the occurrence on the morning of 16 October, 1964 was proved and also why the appellants were found on the evidence on record to be guilty of having committed an offence.
Benefit of doubt was not sustainable in the present case inasmuch as the materials on record.
did not exclude the guilt of the appellants.
This Court in Khedu Mohton & Ors.
vs State of Bihar (supra) set aside the judgment of the High Court and restored that of the Sessions Judge by acquitting the appellants because the High ,Court did not deal with finding of the first appellate court that it was unsafe to place reliance on the evidence of four prosecution witnesses who were interested witnesses.
Another feature which vitiated the approach of the High Court in that case was that there was a delay of 8 days in filing the complaint and the first appellate, court said that it threw a great deal of doubt on the prosecution story.
The High Court made reference to some information lead before the Police and did not properly assess the delay in the filing of the complaint.
This Court found there that the information before the police prior to the complaint was 631 an application that there was an apprehension of breach of peace.
It is in this context of facts that this Court said that the High Court was wrong in setting aside the acquittal.
Once the appellate court came to the conclusion that the view of the trial court was unreasonable that itself would provide a reason for interference.
Again if it was found that the High Court applied the correct principles in setting aside the order of acquittal this Court would not ordinarily interfere with the order of conviction passed by the High Court in an appeal against acquittal or review the entire evidence where the High Court was right in its view of evidence.
Therefore, if the High Court has kept in view the rules and principles of appreciation of the entire evidence and has given reasons for setting aside the order of acquittal this Court would not interfere with the order of the High Court [See Harbans Singh vs State of Punjab (supra).
This Court in Nihal Singh & Ors.
vs State of Punjab ; said that there were two ways of dealing with an appeal by this Court from an order of conviction setting aside an acquittal.
One of the modes was to go through the evidence and find out whether the High Court had infringed the principles laid down in Sanwat Singh vs State of Rajasthan (supra) or whether the appeal was an exceptional one within the ruling of this Court in State of Bombay vs Rusy Mistry A.I.R. 1960 S.C. 391 where the finding was such that 'it shocks the conscience of the court or that it disregarded the forms of legal process or substantial and grave injustice had been done.
In dealing with an appeal against an acquittal the High Court can go into the questions of law and fact and reach its own conclusion on evidence provided it pays due regard to the fact that the matter had been before the Court of Sessions and the Sessions Judge had the chance and opportunity of seeing the witnesses depose to the facts See Laxman Kalu Nikalie vs The State of Maharashtra (1968) 3 S.C.R. [685].
The High Court was correct in setting aside the order of acquittal and convicting the appellants.
The appeal therefore fails and is dismissed.
If the appellants are on bail their bail bonds are cancelled.
They will surrender and serve out the sentence.
V.P.S. Appeal dismissed. | The High Court set aside an order of acquittal of the appellants on various charges and convicted them.
One of the items of evidence on which the High Court relied was the first information report.
Though it was not proved through its maker when be gave evidence in the trial court.
the High Court held it to be admissible under section 157 of the Evidence Act.
in appeal to this Court, HELD : (1) The High Court was wrong in holding that the First Information Report would be admissible under section 157 of the Evidence Act.
Under that section.
it could not be used as substantive evidence but only to corroborate its maker.
The appellants were also denied the opportunity of cross examination on the First Information Report.
[627 A D] (2) The High Court, however, was correct in setting aside the order of acquittal and convicting the appellants on the other evidence.
[1639 D G] In dealing with an appeal against acquittal the High Court can go into questions of law and fact and reach its own conclusion on evidence provided it pays due regard to the principles for such review.
These principles are giving due regard to, the views of the trial Judge as to the credibi lity of the witnesses, the presumption of innocence in favour of the accused, the right of the accused to any benefit of doubt and the slowness of an appellate court in disturbing the finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.
The appellate court ill coming to its own conclusion should not only consider every matter oil record having a bearing on questions of fact and the reasons given by the trial court in support of the order of acquittal but should also express reasons for holding that the acquittal was not justified.
If two conclusions can be reached with a plausible appearance of reason the court should lean in favour of that which leads to acquittal and not to that which lead, to conviction.
But once the appellate court comes to the conclusion that the view of the trial court was unreasonable that itself would provide a reason for interference.
[629 H; 630 A E. 631 B D] In the present case, the High Court bid kept in view the rules and principles of appreciation of evidence in setting aside the order of quitting.
In such a case.
this Court would not ordinarily interfere with the order of conviction by the High Court in an appeal against an acquittal, or review the evidence.
[630 E; 631 B D] Harbans Singh and Anr.
vs State of Punjab, [1962] Supp. 1 S.C.R. 104, Senwat Singh & Ors.
vs State of Rajasthan, ; Nihal Singh & Ors.
vs State of Punjab, ; , State of Bombay vs Rusy Mistry, A.T.R. and Laxman Kalu Nikalje State of Maharashtra. , followed.
623 Khedu Mohton & Ors.
vs State of Bihar, ; and Sheo Swarup vs, King Emperor, 61 I.A. 398, referred to. |
ivil Appeal No. 2548 of 1983 From the Judgment and Order dated 15.9.82 of the Allaha bad High Court in Civil Misc.
W.P. No. 14807 of 1981.
Pramod Swarup for the Appellant.
R.B. Mehrotra for the Respondents.
562 The Judgment of the Court was delivered by KANIA, J.
This is an Appeal by Special Leave against a judgment and order dated September 15, 1982 delivered by the Allahabad High Court in Civil Miscellaneous Writ No. 14807 of 1981.
The appellant before us is the tenant of the shop in question.
Respondent No. 1 is a proforma party, namely, the Prescribed Authority, and respondent No. 2 is the landlord of the building containing the shop in question, situated at Mandi Harbansganj Dhampur.
We propose to refer to the appel lant as the tenant and respondent No. 2 as the landlord.
In 1959 the landlord filed an application under section 3(1) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 (hereinafter referred to as "the U.P. Rent Act of 1947") for the eviction of the tenant from the said shop.
The said application was made on the ground that the landlord wanted to demolish the shops in the building including the said shop and in their place wanted to construct new shops and also to construct the residential portion on the first floor.
In the new building the accommodation would be much larger and, apart from shops, even residential premises would be constructed.
In paragraph 7 of the application, the landlord gave an "assurance (undertaking that the applicant will give the new shop to the second party after the new shops are constructed on a reasonable rent.
" It is common ground that the applicant referred to was the landlord and the second party referred to was the tenant.
This applica tion was contested by the tenant along with other tenants, against whom also, the similar applications were filed.
The application was made to the District Magistrate within the meaning of the said expression in sub section (d) of section 2 of the U.P. Rent Act of 1947.
The Rent Controller and Eviction Officer who acted as District Magistrate with in the connotation of the said term under the said Act, about which there is no dispute, granted the permission and rejected the contentions of the tenant.
In the order grant ing the permission, which order.
is dated February 27, 1980, the Rent Controller and Eviction Officer noted that the landlord was ready to give the newly constructed shops to the tenants on a reasonable rent.
Taking into account all relevant facts and circumstances including the aforesaid fact of the assurance cure undertaking given by the land lord, the permission to evict the tenant was granted.
Against this decision all the tenants including the tenant herein filed revision petitions which were dismissed by the Commissioner, Rukhilkand and Division, Bareilly.
The tenants applied by way of further revision to the State Governor under Section 7 F of the said U.P. Rant Act of 1947.
In disposing of the revision 563 petitions, the Special Secretary, who disposed of the same in the name of the Governor of the State of U.P., noted that the landlord had given an undertaking to the tenants that they would be given newly constructed shops on standard rent and that during the period taken for construction, alterna tive accommodation would also be given to them.
Thereafter, the landlord filed a suit on the basis of the aforesaid permission for eviction of the tenant.
During the pendency of the suit, the Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter re ferred to0 as 'the U.P. Rent Act of 1972") came into force.
The U.P. Rent Act of 1947 was repealed by sub,section (1) of section 43 of the U.P. Rent Act of 1972 save and except to the extent provided in the savings clause set out at subsec tion (2) of that section.
Some amendments were made to section 43(2) (rr) in the U.P. Rent Act of 1972 by the U .P.
Act of XXXIII of 1976, whereby the landlords who had on the basis of the permissions granted to them under section 3(1) of the U.P. Rent Act of 1947 instituted suits for the evic tion of their tenants were given the right to apply for eviction of their tenants straightaway if the permission granted to them under section 3(1) of the U.P. Rent Act of 1947 had been obtained on any ground specified in sub,sec tion (1) or subsection (2) of section 21 of the U.P. Rent Act of 1972.
Taking advantage of these provisions, the landlord filed an application for an order of eviction against the tenant on the ground that the permission had been obtained by the landlord on the ground specified in clause (b) of section 21(1) of the U.P. Rent Act of 1972 and hence, he was entitled to an order of eviction straightaway under section 43(2) (rr) of the U.P. Rent Act of 1972.
The Prescribed Authority dismissed the application of the land lord on the ground that the permission obtained by him was a conditional permission and it could not come into operation unless the landlord had complied with the offer made by him before the Rent Controller and Eviction Officer, namely, to make available to the tenant an alternative shop.
It was held by the Prescribed Authority that till that condition was satisfied by the landlord, he could not claim the evic tion of the tenant under section 43(2) (rr) of the U.P. Rent Act of 1972.
Against this order, the landlord preferred the aforesaid writ petition which was disposed of by the learned Single Judge of the High Court by the impugned judgment.
The learned Judge took the view that the Prescribed Authority was bound to allow the application of the landlord under section 43(2) (rr) of the U.P. Rent Act of 1972 and order eviction.
It was held by the learned Judge that the ground on which permission was granted by the Rent Controller and Eviction Authorities under the U.P. Rent Act of 1947 fell within clause (b) of sub section (1) of section 21 of the U.P. 564 Rent Act of 1972 and hence, the Prescribed Authority under the Act of 1972 had no jurisdiction to embark upon any fresh enquiry as to the nature of the permission.
It was held by the learned Judge that the finding of the Rent Control authorities was that the building was in a dilapidated condition and required demolition and hence, the Prescribed Authority had no jurisdiction to impose any condition before granting an eviction order.
It was held by him that the Prescribed Authority had failed to exercise its statutory duty to order the eviction of the tenant.
The learned Single Judge directed the Prescribed Authority to pass an order of eviction against the tenant.
It is this judgment of the learned Single Judge which is impugned before us by Shri Parmod Swaroop, learned counsel for the appellant.
Learned counsel for the appellant submitted that the decision of the prescribed Authority to decline the prayer for eviction made by respondent No. 2 was justified in view of the undertakings given by respondent No. 2 when the permission to file a suit for eviction was given under the U.P. Rent Act of 1947 and the High Court was in error in upsetting the decision of the Prescribed Authority.
It was, on the other hand, contended by Mr.Mehrotra, learned counsel for respondent No. 2 that in view of the provisions of section 43(2) (rr) of the U.P. Rent Act of 1972, the Pre scribed Authority had no jurisdiction to go behind the permission and was bound to give an order for eviction unconditionally as held by the High Court in its impugned judgment.
Although the judgment of the Prescribed Authority, which was set aside by the High Court, is not before us, it appears clear from the impugned judgment that the Prescribed Authority took the view that the permission granted to respondent No. 2 to file the suit for eviction was a condi tional one and was operative only on the performance of the condition incorporated in the undertaking given by the landlord.
We are of the view that the entire argument before us proceeds to a large extent on a misapprehension.
However, before dealing with the rival submissions, we propose to refer to the relevant provisions of the aforestated two Acts very briefly.
U.P. Rent Act of 1947 was a temporary measure enacted with the object of continuing during a limited period the powers to control the letting and the rent of residential and non residential accommodation and to prevent the evic tion of tenants from the same.
The relevant portion of sub section (1) of section 3 of that Act runs as follows: 565 "3.
Restrictions on eviction.
(1) Subject to any order passed under sub section (3) no suit shall, without the permis sion of the District Magistrate, be filed in any civil court against a tenant for his eviction from any accommodation, except on one or more of the following grounds:" Thereafter, clauses (a) to (g) set out the grounds on which a suit for eviction could be filed without the permission of the District Magistrate.
Sub section (2) of section 3 pro vides for an application for revision against the order of the District Magistrate granting or refusing the grant of permission to file a suit for eviction of a tenant to the Commissioner.
Sub section (4) provides that the order of the Commissioner made in such revision application as set out above, shall be subject to any order passed by the State Government under section 7F of that Act.
Sub section (d) of section 2 of the U.P. Rent Act of 1947 gives an inclusive definition of the term "District Magistrate" ,red states that the said term would include an officer authorised by the District Magistrate to perform any of his functions under that Act.
The U.P. Rent Act of 1972 was enacted to make provisions in the interest of the general public for the regulation of letting and rent of, and the eviction of tenants from, certain classes of buildings situated in the urban areas.
Section 21 of this Act provides for release of a building under occupation of the tenants, that is, very briefly, for the eviction of tenants from the buildings under tenancy and also inter alia prescribes grounds on which such eviction can be ordered.
It may be mentioned that eviction of tenants is not permitted except on prescribed grounds.
Section 43 of the U.P. Rent Act of 1972 provides for repeal and savings.
Under sub section (1) of that sec tion the U.P. Rent Act of 1947 is repealed.
The relevant portion of sub section (2) of section 43 of the U.P. Rent Act of 1972 which is in the nature of a savings provision runs as follows: "43 Repeal and savings.
(1) x x x x (2) Notwithstanding such repeal X X X (rr) where any permission referred to in section 3 of the 566 old Act has been obtained on any ground speci fied in subsection (1) or sub section (2) of section 21, and has become final, either before the commencement of this Act, or in accordance with the provisions of this sub section, after the commencement of this Act, whether or not a suit for the eviction of the tenant has been instituted, the landlord may apply to the prescribed authority for his eviction under section 21, and thereupon the prescribed authority shall order the eviction of the tenant from the building under tenancy, and it shall not be necessary for the pre scribed authority to satisfy itself afresh as to the existence of any ground as aforesaid, and such order shall be final and shall not be open to appeal under section 22".
The provisos to the clause are not relevant for our purpose.
The main contention of the learned counsel for respond ent No. 2 before us was that in view of the provisions of clause (rr) of sub section (2) of section 43 of the U.P. Rent Act of 1972, once the permission to file the suit for eviction was granted by the authorities concerned under the U.P. Rent Act of 1947 and that permission was on a ground specified in sub section (1) or sub section (2) of section 21 of the U.P. Rent Act of 1972, it was not open to the Prescribed Authority before which the application for evic tion was filed to reconsider the same.
The Prescribed Au thority, in the present case, has tried to analyse that permission and declined to grant the decree for eviction on the basis that the permission was conditional and the land lord was not willing to carry out those conditions.
In our view, the question of the authority under the U.P. Rent Act of 1947 having imposed any condition, does not arise at all.
A plain reading of the order of the Rent Controller and Eviction Officer, Bijnor as well as the orders of the Com missioner in revision and that of the State Government makes it clear that the permission given to the landlord to file the suit was not subject to any condition at all.
At the same time, the judgment of the Rent Controller clearly shows that one d the circumstances which constituted the basis for the grant of the permission to file the ,suit for eviction was that the landlord gave an assurance cum undertaking to give newly constructed shops to the tenants sought to be evicted including the tenant before us and that the landlord also gave a similar assurance to give alternative accommoda tion to the tenant during the period which would be taken in completing the new construction.
As we have already pointed out, the petition for permission to file a suit, flied before the Rent Controller by the landlord, in terms, con tained an 567 assurance cum undertaking that the landlord would give the newly constructed shops after the new shops were constructed to the tenants sought to be evicted on a reasonable rent.
It appears that the offer to provide for alternative accommoda tion during the period when the new construction was coming up was made by the landlord in the course of the hearing before the said Eviction Officer, Bijnor.
The revision petition against that said order was dismissed by the Com missioner, Rukhilkhand Division, as we have already pointed out earlier.
The order passed under section 7F of the U.P. Rent Act of 1947 by the State Government also dismissed the revision petition preferred by the tenant to the State Government.
The order of the State Government which was passed on behalf of the Governor of the State by the Special Secretary, however, clearly notes that the landlord had given an undertaking to the tenants that they would be giving the newly constructed shops to them on standard and that during the period taken up in completing the new con struCtion, alternative accommodation would also be given to them.
However, no condition in this connection was imposed by the State Government on the permission to file the suit for eviction.
Under these circumstances, we propose to proceed on the assumption that the High Court was justified in coming to the conclusion that the Prescribed Authority under the U.P. Rent Act of 1972 had no jurisdiction to go behind the permission granted by the relevant authorities under the U.P. Rent Act of 1947 for the filing of the eviC tion suit.
However, it appears to us that the High Court was, with respect, in error in not taking into account the undertakings cumassurance given by the landlord to the tenant in his application for permission to file a suit as well as in the course of the hearing before the aforemen tioned authorities.
We do not find anything in the provi sions of seCtion 43(2) (rr) of the U.P. Rent Act of 1972 which would enable the landlord to evade his duty to comply with the undertakings cum assurances given by him.
These undertakings cum assurances givenby the landlord certainly formed part of the basis on which the permission to file the suit for eviCtion was unconditionally given to him.
It is but fair that the court should see to it that the tenant is not deprived of the benefit of the undertakingscum assur ances.
In fact, no good reason has been shown as to how the landlord can justly claim that he is no longer bound by the undertakingscum assurances given by him as set out earlier.
In these circumstances, we set aside the order of the High Court and pass the following order in its place: (1) We direct that the Prescribed Authority, Nagina, District Bijnor, to pass an order of eviCtion against the appellant tenant before us but the ' Prescribed Authority will give the necessary directions or 568 orders to respondent No. 2 landlord to provide alternative accommodation to the appellant during the period when the new construction is coming up and also pass appropriate orders for ensuring that after the new construction is completed, a comparable shop is given to the appellant herein.
(2) In order not to delay the construction of the new shops, the Prescribed Authority may provide that, in case the landlord fails to or is unable to provide alternative accommodation to the appellanttenant during the period when the new construction is being completed, he shall pay a certain sum as fixed by the Prescribed Authority per month to the appellant tenant which would be reasonably adequate to enable that tenant to obtain alternative accommodation for that period.
For the aforesaid purpose, the Prescribed Authority may give such directions as it may think fit.
Before parting with the matter, we may refer to two decisions which were cited before us.
The first of these is the decision of a Full Bench of the Allahabad High Court in Asa Singh vs B.D. Sanwal & Ors., AIR 1969 All. 474.
The Full Bench of that High Court inter alia held in that case that while granting permission under section 3 of the U.P. Rent Act of 1947 the District Magistrate was bound to consider also the need of the tenant for the accommodation, if such a case is set up by the tenant.
This case was cited by the learned counsel for the tenant.
Learned counsel for respond ent No. 2, on the other hand, cited the decision of another Full Bench of the Allahabad High Court in Bansilal Sahu vs The Prescribed Authority & Anr., AIR 1980 All. 194 which, very briefly stated, laid down that the Prescribed Authority under the U.P. Rent Act of 1972 is bound while acting under clause (rr) of section 43(2) of the said Act, irrespective of the occurrence of subsequent events, to order eviction according to the permission granted by the Prescribed Au thority under section 3 of the U.P. Rent Act of 1947.
In our view, it is not necessary for us to enter into a discussion of either of the authorities because they do not touch upon the question which has arisen before us, namely, enforcing the undertakings cumassurances given by the land lord in obtaining the permission under section 3 of the U.P. Rent Act of 1947.
The Appeal is allowed to the extent aforestated.
Looking to the facts and circumstances of the case, there will be no order as to costs.
R.N.J. Appeal allowed. | In 1959 the landlord filed an application under section 3(1) of the U.P. (Temporary) Control of Rent & Eviction Act, 1947 for the eviction of the tenant from the shop on the ground that the landlord wanted to demolish the shops in the building including the shop of the appellant/ tenant and in their place wanted to construct new shops and residential portion on the first floor.
In the application the landlord gave an assurance (undertaking) that he would give new shop to the tenant/appellant after the new shops were construct ed, at a reasonable rent.
This application was contested by the appellant/tenant alongwith other tenants.
The applica tion was made to the District Magistrate u/s 2(d) of the U .P.
Rent Act, 1947.
The Rent Controller and Eviction Officer who acted as District Magistrate under the said Act granted the permission and rejected the contentions of the tenants.
Against this decision all the tenants filed revi sion petitions which were dismissed by the commissioner Rohilkhand Division, Bareilly.
The tenants preferred further revision to the State Govt.
u/s 7 F of the said Act.
In disposing of the revision petitions the Special Secretary noted that the landlord had given an undertaking to the tenants that they would he given newly constructed shops on standard rent and that during the period taken for construc tion alternative accommodation would he given to them.
Thereafter the landlord filed a suit on the basis of the, permission for eviction of the tenants.
During the pendency of the suit the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 came into force.
The U.P. Rent Act of 1947 was repealed and some amendments were made to section 43(2)(rr) in the U.P. Rent Act of 1972 whereby the landlords who had on the basis of permission granted to them u/s 3(1) of the U.P. Rent Act of 1947 instituted suits for the eviction of the tenants were given the right to apply for eviction of their tenants straightaway if the permission granted to them under section 3(1) of the U.P. Rent Act of 1947 had been obtained on any ground 561 specified in sub section (1) or subsection (2) of section 21 of the U.P. Rent Act of 1972.
Taking advantage of these provisions, the landlord filed an application for an order of eviction u/s 43(2)(rr) of the U.P. Rent Act 1972.
The Prescribed Authority dismissed the application of the land lord on the ground that the permission obtained by him was conditional permission and it would come into operation when the landlord had complied with the offer made by him and until then he could not claim eviction of the tenant u/s 43(2)(rr) of the U.P. Rent Act, 1972.
Against that order the landlord preferred a writ petition in the High Court of Allahabad.
The High Court took the view that the Prescribed Authority was bound to allow the application of the landlord u/s 43(2) (rr) and order eviction.
Against this judgment the tenant appellant came up by way of special leave.
In setting aside the order of the High Court, this Court in allowing the appeal, HELD: One of the circumstances which constituted the basis for the grant of the permission to tile the suit for eviction was that the landlord gave an assurance cum under taking to give the newly constructed shops to the tenants sought to he evicted including the tenant in the appeal and that the landlord also gave a similar assurance to give alternative accommodation to the tenant during the period which would he taken in completing the new construction.
Nothing is found in the provisions of Section 43(2)(rr) of the U.P. Rent Act of 1972 which would enable the landlord to evade his duty to comply with the undertaking cum assurances given by him.
The undertaking cum assurances given by the landlord in the instant case certainly formed part of the basis on which the permission to file suit for eviction was unconditionally given to him.
It is but fair that the Court should see to it that the tenant is not deprived of the benefit of the undertakings cum assurances.
[566G, 567F] Asa Singh vs
B.D. Sanwal & Ors., AIR 1969 All.
474 and Bansilal Sahu vs The Prescribed Authority & Anr., AIR 1980 All. 194, referred to. |
Appeal No. 76 of 1959.
Appeal from the judgment and decree dated November 16, 1951, of the Madras High Court in Second Appeal No. 1656 of 1947.
T. V. R. Tatachari, for the appellants.
K. N. Rajagopal Sastri and T. Satyanarayana, for the respondent No. 1., 1961.
September 22.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This is an appeal by a certificate granted by the High Court of Madras against its judgment and decree in Second Appeal 741 Suit No. 27 of 1939 filed by respondent 1 Gollapalli Ramalingamurthi against respondent 2 Immani Venkanna and his four sons appellants 1 to 4.
The appellants and respondent 2 are members of an undivided Hindu family.
The case for respondent 1 was that he had purchased the properties described ' in the Schedule attached to his plaint on April 1, 1936 in a sale held by the Official Receiver in the insolvency of respondent 2.
A registered sale deed was accordingly issued in favour of respondent 1 (exhibit P. 4) on September 21, 1936.
In pursuance of the said sale respondent 1 obtained possession and enjoyment of such properties after partitioning them with Rayudu, the brother of respondent 2.
In October, 1938, however, the appellants and respondent 2 trespassed on the said properties and so respondent 1 had to file the present suit claiming a declaration of his title in regard to the said properties, and asking for their possession and for past and future mesne profits.
That in brief is the nature of the suit from which the present appeal arises.
The claim thus made by respondents 1 was resisted by respondent 2 and the appellants on several grounds.
It was urged by respondent 2 that the transfer in favour of respondent 1 was benami and that respondent 1 was not the real owner of the properties.
In support of this case respondent 2 gave, what according to him, was the antecedent history of the sale in favour of respondent 1.
He alleged that he had sustained heavy losses in business conducted by him with the result that he was indebted to the extent of Rs. 25,000.
Apprehending that the suit properties would be lost to the family at the instance of his creditors he and his junior mother in law Kanthamani Seshamma approached respondent 1 's father in law Suryaprakasa Sastrulu for advice and on his advice respondent 2 executed a collusive and nominal mortgage deed for Rs. 1,000 (exhibit P. 9) in favour of respondent 1 on June 16, 1933.
Similarly, on the same advice a similar nominal transfer deed was executed in favour of respondent 1 on August 6, 1939, (exhibit P. 12) after the properties covered by the said document had been released from an earlier non possessory mortgage (exhibit P. II) which had been executed on July 21, 1930.
Thus, according to respondent 2 the documents executed in favour of respondent 1 were nominal and collusive and were not supported by any consideration.
Respondent 2 further alleged that the execution of the said collusive documents between him and respondent 1 came to the knowledge of some of his creditors and that led to an insolvency petition against respondent 2 by one of his creditors in 1.P. No. 91 of 1933.
This petition was filed in the Court of the Subordinate Judge at Ellore on September 15, 1933, against respondent 2.
In these insolvency proceedings respondent 2 was adjudicated insolvent and the Official Receiver, appointed to take charge of respondent 2 's properties, brought the said properties to sale subject to the aforesaid nominal mortgages in favour of respondent 1.
Kanthamani Seshamma purchased the said properties with her own money but benami in the name of respondent 1 on condition that respondent 1 would reconvey the said properties to the family of respondent 2 whenever called upon to do so.
The allegation of respondent 1 that he had obtained possession of the properties was denied, and it was urged that respondent 1 had no title to the properties and was entitled to no relief in the suit filed by him.
That is the substance of the pleas raised by respondent 2 and the appellants joined respondent 2 in making the same pleas by their separate written statement.
At the trial three issues were tried as preliminary issues; they were issues 5, 8 and 9.
Issues 8, and 9 were in regard to the court fees payable on the claim made in the plaint and regarding the pecuniary jurisdiction of the Court.
The Court found that it had jurisdiction to try the suit and it valued the subject matter of the suit at Rs. 2,411 7 2 on which additional court fees was paid by respondent 1.
Issue 5 was as to whether the sale in favour of respondent 1 bound the shares of the appellants in the family properties.
The learned trial judge answered this issue in favour of the appellants purporting to follow the Full Bench decision of the Madras High Court in Ramasastrulu vs Balakrishna Rao (1).
According to the said decision the right of respondent 2 as the father of the appellants and manager of the undivided Hindu family to sell the shares of his sons for purposes binding on the family did not vest in the Official Receiver on his insolvency, and so the sale effected by the Official Receiver in favour of respondent 1 did not, and could not, in law bind the shares of the appellants in the properties conveyed.
After these findings were recorded respondent 1 applied for the amendment of his plaint and the said amendment was allowed.
By this amendment respondent 1 alleged that the suit properties were the self acquired properties of respondent 2 and so the appellants had no interest therein.
On this alternative plea it was urged by respondent 1 that the properties sold by the Official Receiver to respondent 1 conveyed the entire properties which belonged to respondent 2 alone.
In addition to this alternative claim made by an amendment respondent 1 also made an alternative prayer that he should be either given possession of the whole of the properties or 1/5th of the properties according as the properties are found to be separate properties of respondent 2 or are held to be properties of the undivided family consisting of respondent 2 and the appellants.
These alternative grounds taken by respondent 1 by virtue of the amendment were traversed by respondent 2 and the appellants in their additional written statements.(1) I.L.R. 744
When the suit went to trial on the amended pleadings several issues were framed by the learned trial judge.
In addition to the issues arising on the pleadings the learned trial judge framed suo motu one more issue 1(a), whether respondent 1 was the benamidar of the appellants, and if yes whether the appellants could be allowed to plead the same as a defence in the suit.
The learned trial judge found that the suit properties were the joint family properties of respondent 2 and the appellants.
Alternatively he held that even if they were originally the self acquired properties of respondent 2 they had been blended with the family properties and thus became the properties of the undivided family.
He found that the shares of the appellants in the said properties did not vest in the Official Receiver and so were not conveyed to respondent 1.
He came to the conclusion that the purchase by respondent 1 from the Official Receiver was only a benami transaction for the benefit of the appellants and that respondent 1 had not obtained possession of the properties at any time.
According to the learned trial judge the sale in favour of respondent 1 was fraudulent and was brought into existence to defraud the creditors of respondent 2; and this fraud had been carried out and the creditors of respondent 2 had been defrauded.
Since the fraud had been carried out, the learned judge held respondent 2 and the appellants could not be allowed to plead the same as a defence in the suit.
As a result of this finding the learned judge passed a preliminary decree in favour of respondent 1 for 1/5th share in items 1 to 4 and 8 to 10 of the properties described in the Schedule attached to the plaint.
In regard to items 5 to 7 on which the dwelling house of the family was constructed the learned judge held that respondent 1 was entitled to monetary compensation.
Consistently with the preliminary decree thus passed as to the share of respondent 1 the learned judge 745 also directed that future mesne profits should be determined under O. 20, r. 12(c) of the Code of Civil Procedure.
Against this decree respondent 1 preferred an appeal, No. 288 of 1943, in the Court of the Subordinate Judge,, West Godavari at Ellore.
In this appeal he claimed that a decree should be passed in his favour in respect of the whole of the properties sold to him by the Official Receiver.
The appellants filed cross objections and urged that the learned trial judge was in the error in framing issue 1 (a) suo motu and challenged his conclusion on it.
The appellate Court agreed with the conclusions of the trial judge and so dismissed both the appeal and the cross objections.
Against this appellate decree respondent I filed a Second Appeal, No. 1656 of 1947, and the appellants filed cross objections.
This appeal came on for hearing before Mr. Justice Raghava Rao and it was urged before him that since the Provincial Insolvency (Amendment) Act No. 25 of 1948 which introduced section 28A had come into operation in the meanwhile retrospectively the decision of the Courts below that the Official Receiver could not in law have sold the appellant 's shares in the family properties could not longer be sustained.
This contention was raised by respondent 1.
It was met by the appellants by their counter contention that issue 1(a) had been sprung upon them as a surprise; it had been framed by the trial court after it had heard arguments on both sides and that the appellants had no opportunity to show that in fact the fraud contemplated by the parties had not been effectively carried out.
They alleged that if the fraud had not been carried out the principle of estoppel invoked against them could not come into play.
This contention raised by the appellants was accepted by the High.
Court which called for a finding by the trial co art on issue 1(a), after giving both the parties an opportunity to adduce evidence on the 746 question about the completion or otherwise of the fraud connected with the benami purchase.
After remand the trial court took evidence and made a finding that respondent 2 bad successfully played fraud on his creditors by getting the properties purchased by respondent 1 benami for his sons at the sale held by the Official Receiver.
In due course this finding was submitted by the trial court to the High Court.
Thereupon the appellants filed objections to the said finding.
After this finding was received the second appeal was again placed for bearing by Mr. Justice Ragghava Rao.
At the second hearing the appellants raised the point the amending Act by which section 28A was inserted in the Provincial Insolvency Act was ultra vires.
The learned judge overruled the objections made by the appellants against the finding submitted by the trail court on the issue remanded to it and accepted that finding; but in view of the fact that the vires of the amending Act was challenged he thought it exp edient that the second appeal should be heared by a Bench of two judges.
That is how the second appeal came before a division Bench of the Madras High Court for final disposal.
In its final judgment the High Court has observed that the argument that Act 25 of 1948 was ultra vires was not pressed before the High Court, that certain other grounds were sought to be raised by the appellants but they were not allowed to be raised; so that in the result the main argument urged before the High Court was whether having regard to the fact that the fraud contemplated by respondent 2 and respondent 1 had been effectively carried out it was open to the appellants to plead that fraud against respondent 1 in respect of his claim for possession of the suit properties in the present suit.
The High Court considered the conflicting decisions on this point and adhered to the view which has prevailed in the said High Court 747 since the decision in Vodiana Kamayya vs Gudisa. Mamayya (1) and held that the appellants and respondent 2 were estopped from setting up the fraud against respondent 1 in his present suit.
In the result respondent 1 's claim in respect of the whole of the properties conveyed to him by the Official Receiver has been decreed.
It is against this decree that the appellants have come to this Court with a certificate granted by the High Court and the principal point which has been argued before us on their behalf by Mr. Tatachari is that the High Court was in error in coming to the conclusion that in a case where both the transferor and the transferee ' were equal in fraud and where the fraud contemplated has been carried out it is not, open to the appellants to plead that fraud in defence against the claim made by respondent 1 to obtain possession of the properties conveyed to him benami by the Official Receive Mr. Tatachari contends that where the parties are equally guilty estoppel cannot be pleaded against the appellants and the estate must be allowed to remain where it rests.
The point thus raised lies within a narrow compass and the material facts which give rise to it are no longer in dispute.
The transaction in favour of respondent 1 is the result of a fraudulent plan to which both he and respondent 2 agreed.
In was effected with the mutual consent of the vendore and the vendee to defraud the creditors of the vendor.
That being so the transfer is not supported by any consideration and the transferee agreed to act as the benamindar until the transferor required him to reconvey the properties to his sons.
The object intended to be achieved and the fraud initially contemplated by both the parties have been achieved and the creditors of respondent 2 have been defrauded.
Possession of the properties, however, remained with respondent 2 and his sons the appellants; and in the present 748 section respondent 1 seeks to obtain possession of the properties on the ground that a deed of conveyance has been passed in his favour by the Official Receiver.
Thus both the parties are confederates in the fraud and are equally guilty.
Respondent 2 and the appellants seek to resist respondent 1 's claim to recover possession of the properties conveyed to claim on the ground that the conveyance is void having been effected for a fraudulent purpose which has been carried out.
They urge that it has not been supported by any consideration and no title has passed in favour of the transferee.
Respondent 1 sheets this challenge to his title by pleading that respondent 2 who participated in the fraud cannot be allowed to plead his own fraud in support of his refusal to part with the possession of the properties, and he urges that there is a conveyance duly executed in his favour on which the Court must act without permitting respondent 2 to challenge its validity.
The High Court his upheld the plea of respondent 1 and has not allowed either respondent for the appellants to plead the fraud in support of their defence.
Is this decision right? That is the question which falls to be decided in the present appeal.
Reported decisions bearing on this question show that consideration of this problem often gives rise to what may be described as a battle of legal maxims.
The appellants emphasised that the doctrine which is preeminently applicable to the present case is ex dolo malo non oritur action or ex turpi causa non oritur actio.
In other words, they contended that the right of action cannot arise out of fraud or out of transgression of law; and according to them it is necessary in such a case that possession should rest where it lies in pari delicto potior est conditio possidenties; where each party is equally in fraud the law favors him who is actually in possession, or where both parties are equally guilty the estate will lie where it falls.
On the other hand, respondent 1 argues that the proper maxim to apply is nemo allegans suam turpitudinum audiendumest, 749 whoever has first to plead turpitudinum should fail; that party fails who first has to allege fraud in which he participated.
In other words, the principle invoked by respondent 1 is that a man cannot plead his own fraud.
In deciding the question as to which maxim should govern the present case it is necessary to recall what Lord Wright, M. ' R. observed about these maxims in Berg vs Sadler and Moore (1).
Referring to the maxim ex turpi causa non oritur actio Lord Wright observed that "this maxim, though veiled in the dignity of learned language, is a statement of a principle of great importance; but like most maxims it is much too vague and much too general to admit of application without a careful consideration of the circumstances and of the various definite rules which have been laid down by the authorities".
Therefore, in deciding the question raised in the present appeal it would be necessary for us to consider carefully the true scope and effect of the maxims pressed into service by the rival parties and to enquire which of the maxims would be relevant and applicable in the circumstances of the case.
It is common ground that the approach of the Court in determining the present dispute must be conditioned solely by considerations of public policy.
Which principle would be more conducive to, and more consistent with, public interest, that is the crux of the matter.
To put it differently having regard to the fact that both the parties before the Court are confederates in the fraud, which approach would be less injurious to public interest.
Whichever approach is adopted one party would succeed and the other would fail, and so it is necessary to enquire as to which party 's success would be less injurious to public interest.
Out of the two confederates in fraud respondent 1 wants a decree to be passed in his favour and that means he wants the active assistance of the Court in reaching the properties possession of (1) , 162. 750 which has been withheld from him by respondent 2 and ' the appellants.
if the defense raised by the appellants is shut out respondent 1 would be entitled to a decree because there is an ostensible deed of conveyance which purports to convey title to him in respect of the properties in question; but, in the circumstances ', passing a decree in favour of respondent 1 would be actively assisting respon dent 1 to give effect to the fraud to which he was a party and in that sense the Court would be allowed to be used as an instrument of fraud and that is clearly and patently inconsistent with public interest.
On the other hand, if the Court decides to allow the plea of ' fraud to be raised the Court would be in a position to hold an enquiry on the point and determine whether it is a case of mutual fraud and whether the fraud intended by both the parties has been effectively carried out.
If it is found that both the parties are equally guilty and that the fraud intended by them has been carried out 'the position would be that the party raising the defence is not asking the Court 's assistance in any active manner; all that the defence suggests is that a confederate in fraud should not be permitted to obtain a decree from the Court because the document of title on which the claim is based really conveys no title at all It is true that as a result of permitting respondent 2 and the ' appellants to prove their plea they would incidentally be assisted in retaining their possession; but this assistance is of a purely passive character and all that the Court is doing in effect is that on the facts proved it proposes to allow possession to rest where it lies.
It appears to us that this latter course is less injurious to public interest than the former.
There can be no question of estoppel in such a case for the obvious reason that the fraud in question was agreed by both the parties and both parties have assisted 'each other ' in carrying out the fraud.
When it is said that a person cannot 751 plead his own fraud it really means that a person cannot be permitted to go to a Court of Law to seek for its assistance and yet base his claim for the Court 's assistanceon the ground of his fraud.
In this connection it would be relevant to remember that respondent 1 can be said to be guilty of a double fraud; first he joined respondent 2 in his fraudulent scheme and participated in the commission of fraud the object of which was to defeat the creditors of respondent 2, and then he committed another fraud in suppressing from the Court the fraudulent character of the transfer when he made out the claim for the recovery of the properties conveyed to him.
The conveyance in his favour is not supported by any consideration and is the result of fraud; as such it conveys no titile to him.
Yet, if the plea of fraud is not allowed to be raised in defence the Court would in substance be giving effect to a document which is void ab initio.
Therefore, we are inclined to hold that the paramount consideration of public interest requires that the plea of fraud should be allowed to be raised ' and tried, and if it is upheld the estate should be allowed to remain where it rests.
The adoption of this course, we think, is less injurious to public interest than the alternative course of giving effect to a fraudulent transfer.
This question has been the subject matter of judicial decisions in most of our High Courts; and it appears that the consensus of judicial opinion with the exception of the Madras High Court is in favour of the view which we have taken.
In Bombay the principle that in dealing with a contest between two participants in fraud possession should be allowed to remain where it rests appears to have been consistently accepted until Chief Justice Sir Lawrence Jenkins struck a note of dissent in Sidlingappa Bin Ganeshappa vs Hirwa Bin Tukasa (1).
Thereafter the correctness of (1) (1907) 1.L. R. 752 this judgment was sometimes doubted in the subsequent decisions of the said High Court [Vide : Lakshman Balvant Khisti V. Vasudev Mohoniraj Pande(1)] and finally the Full Bench of the said High Court reversed the said decision of Sir Lawrence Jenkins in Guddappa Chikkappa Kurbar vs Balaji Ramji Dange (2).
Since then the decision of the Full Bench has been consistently followed in the Bombay High Court.
The same view has been accepted by the Calcutta, Allahabad, Nagpur and Patna High Courts [Vida : Preomath Koer vs Kazi Mahomed Shazid(3).Emperor vs Abdul Sheikh(4), Vilayat Husain vs Misran (5), Nawab Singh vs Daljit Singh (6), Qader Baksh vs Hakim (7), Bishwanath g/o Karunashanker Shukla vs Surat Singh alias Chhuttu Singh s/o Bhabhut Singh (s), and J. C. Field Electric Supply vs K. Agarwala (9) (Case of illegal contract)].
In Madras the earlier decisions of the High Court appear to have, taken the same view [Vide: Venkataramana vs Viramma (10), Yaramati Krishnayya vs Chundru Papayya (11) and Raghavalu Chetty vs Adinarayana Chetty (12)].
In the case of Vodiana Kamayya vs Gudisa Mamayya (13), however, a Division Bench of the Madras High Court upheld the view that a person who has conveyed property benami to another for the purpose of effecting a fraud on his creditors cannot, where the fraud has been effected, set up the benami character of the transaction by way of defence in a suit by the transferee for possession under the conveyance.
Since then this view has prevailed in the Madras High Court [vide : Keppula Kotayyar Naidu vs Chitrapu Mahalak8hmamma (14) and Muthu K. R. A. R. P. L. Arunarhalam Chettiar vs Bangaswamy Chettiar (1.5)].
In our opinion (1) (2) I. L. R (3) (1903 4) 8 C. W. M. 620.(4) A. I. R. (5) All. 396.(6) (1936) 1.L. R. 58 All. 842.(7) (1932) 1.L. R. 13 Lab.(8) A.I. R. 3.(9)(1951) 1.R. 30 Pat.(10) (1887) 1.L. R.10 Mad.(11) (1 897) 1.L. R. (12) (1 909) 1.L. R. (13) (14) Mad.(15) Mad.753 the view taken by these subsequent decisions of the Madras High Court does not represent the true and correct approach to the question.
In this connection we may incidentally refer to the observations made by the Privy Council in T. P. Petherpermal Chetty vs R. Muntandi Servai.
In that case the Privy Council has no doubt dealing with the question on the basis that the purpose of the fraudulent conveyance had been defeated and so different principles naturally came into play.
While discussing the problem in its broad aspect, however, Lord Atkinson, who delivered the judgment of the Board, cited with approval the observations made in Mayne 's Hindu Law which clearly support the view that we have taken.
Says Mayne: 1 'The, fact that A has assumed the name of B in order to cheat X can be no reason whatever why a Court should assist or permit B to cheat A.
But if A requires the help of the Court to get the estate back into his own possession, or to get the title into his own name, it may be very material to consider whether A has actually cheated X or not.
If he has done so by means of his alias, then it has ceased to be a mere mask and has become a, reality.
It may be very proper for a Court to say that it will not allow him to resume the individuality which he has once cast off in order to defraud others.
If, however, he has not defrauded any one there can be no reason why the Court should punish his intention by giving his estate away to B, whose roguery is.
even more complicated than his own This appears to be the principle of the English decisions.
But where the fraudulent or illegal purpose has actually been effected by means of the colorable grant then the maxim applies In pari delicto potior est conditio possidentis.
The Court will help neither party and let the estate lie where it falls (2)".
Lord Atkinson has observed that this statement of the law is correct and in that sense (1) (1908) L. R. 35 1.A. 98.(2)Mayne 's Hindu Law, 7th Ed,p.595 para 446(35 I.A.p 102) 751 the view that we have taken may be said to be consistent with the opinion expressed by the Privy Council by approving the statement of the law made by Mayne.
In support of the contrary view reliance is usually placed on an early English decision in Doe, Dem.Roberts against Roberts, Widow (1).
In that case it was held that "ro man can be allowed to allege his own fraud to avoid his own deed; and, therefore, where a deed of conveyance of an estate from one brother to another was executed, to give the latter a colorable qualification to kill game.
The document was as against the parties to it valid and so sufficient to support an ejectment for the premises".
In dealing with the question raised Bayley, J. observed "by the production of the deed, the plaintiff established a prima facie title; and we cannot allow the defendent to be heard in a Court of Justice to say that his own deed is to be avoided by his own fraud;" and Holroyd, J., added that " 'a deed may be avoided on the ground of fraud, but then the objection must come from a person neither party nor privy to it, for no man can allege his own fraud in order to invalidate his own deed".
This decision has, however, been commented on by Taylor in his "Law of Evidence".
According to Taylor "it seems now clearly settled that a party is not estopped by his deed from avoiding it by proving that it was executed for a fraudulent, illegal or immoral purpose (2)".
The learned Author then refers to the case of Roberts (1) and adds "in the subsequent case of Prole vs Wiggins (3) Sir Nicholas Tindal observed that this decision rested on the fact that the defence set up was inconsistent 'with the deed".
Taylor then adds that ",the case, however, can scarcely be supported by this circumstance, for in an action of ejectment by the grantee of an annuity to recover premises.
(1) (2) Taylor 's "Law of Evidence", Vol.I, 11th Ed.p. 97, paragraph 93.(3) 35; ; 43 R. R. 621.755 on which it was secured, the grantor was allowed to show that the premises were of less value than the annuity, and consequently, that the deed required enrollment, although he had expressly covenanted in the deed that the premises were of greater value. . .
According to the learned author "the better opinion seems to be that where both parties to an indenture either know, or have the means of knowing, that it was executed for an immoral purpose, or in contravention of a statute, or of public policy, neither of them will be estopped from proving those facts which render the instrument void ab initio; for although a party will thus in certain cases be enabled to take advantage of his own wrong, yet this evil is of a trifling nature in comparison with the flagrant evasion of the law that would result from the adoption of an opposite rule" (P. 98).
Indeed, according to Taylor, although illegality is not pleaded by the defendant nor sought to be relied upon by him by way of defence, yet the Court itself, upon the illegality appearing upon the evidence, will take notice of it, and will dismiss the action Ex turpi causa non oritur actio.
No polluted hand shall touch the pure fountain of Justice" (P. 93).
To the same effect is the opinion of Story:(1) "In general, where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, Courts of Equity following the rule of law as to participators hi a common crime will not interpose to grant any relief, acting upon the known maxim In pari delicto potior est conditio defendentis et posidentis The old cases often gave relief, both at law and inequity, where the party would otherwise derive an advantage from his inequity.
But the modern doctrine has adopted a more severely just and probably politic and moral rule, which is to leave the parties where it finds them giving no relief and no countenance to claims of this sort" '.
(1) Story ' s Equity Jurisprudence, Vol.I. section 421; English edition by Randell, 1920, section 298.756
In judicial decisions where this question has been considered a passage from the judgment of Lord Mansfield, C. J., in Holman vs Johnson (1) is often quoted.
If we may say so with respect the said passage very succinctly and eloquently brings out the true principles which should govern the decision of such cases.
Said Lord Mansfield, C. J., "the objection that a contract is immoral or illegal as between plaintiff and defendant sounds at all times very ill in the mouth of the defendant.
It is not for his sake, however, that the objection is ever allowed; but it is founded in general principles of policy which the defendant has the advantage of, contrary to the real justice, as between him and the plaintiff, by accident, if I may say so.
The principle of public policy is this ex dolo malo non oritur actio.
No Court will lend its aid to a man who founds his cause of action upon an immoral or an illegal act.
If, from the plaintiff 's own stating or otherwise the cause of action appears to arise ex turpi causa or the transgression of a positive law of this country, there the court says he has no right to be assisted.
It is upon that ground the Court goes; not for the sake of the defendant, but because they will not lend their aid to such a plaintiff".
On behalf of the respondents it was urged that the principles on which the appellants rely are applicable to contracts and not to conveyances.
A conveyance, it is argued, rests on a different basis from a contract, and so the English decisions cannot be pressed into service by the appellants.
We are not impressed by this argument.
Even if respondent 1 has based his case on a conveyance the position still remains that as a result of the facts proved by respondent 2 and the appellants the conveyance is void ab initio.
It is a document fraudulently executed and as such it conveys no title to the transferee at all.
That being so we do not think that in giving effect to the considerations of (1) (1775) 1 Cowrer 341.757 public interest or policy it makes any difference that the deed on which the present suit is brought is one of conveyance.
It is then contended that in deciding the point raised by the appellants we must look to the provisions of section 84 of the and nothing else.
The is a comprehensive code and it is only in cases failing under section 84 that it would be permissible to the Court to apply the equitable principles or to invoke considerations of public policy as the appellants purport to do.
Section 84 provides that where the owner of property transfers it to another for an illegal purpose and such purpose is not carried into execution, or the transferor is not as guilty as the transferee, or the effect of permitting the transferee to retain the property might be to defeat the provisions of any law, the transferee must hold the property for the benefit of the transferor.
We do not see how this section is material or can give any assistance in the decision of the point before us.
In the present case the transferee is not in possession of the properties and the present case is not one of the three categories of cases contemplated by the section.
If the argument assumes that the only cases where equitable principles can be invoked are cases falling under section 84 and section 84 is exhaustive in that sense, we have no difficulty in rejecting the said argument.
Since the present case is entirely outside section 84 it inevitably falls to be considered on considerations of general policy, and as we have already held, judged in the light of such considerations it must be held that the public interest would be less injuriously affected if the property is allowed to remain where it lies.
Therefore, we must hold that the High Court was in error in not giving effect to the finding recorded by the trial court that the fraud mutually agreed upon and contemplated by respondents 1 and 2 had been effectively carried out and that in the 758 carrying out of the fraud both the parties were equally guilty.
The appeal must, therefore, be allowed and the suit instituted by respondent 1 must be dismissed.
In the circumstances of this case we direct that the parties should bear their own costs, throughout.
Appeal allowed. | The conveyance in suit was the result of a collusive plan between respondent 1 and respondent 2 to defraud the latter 's creditors.
The agreement was that respondent 1 was to act as the benamidar for respondent 2 and his sons, the appellants.
The fraud succeeded and the creditors of respondent 2 were in fact defrauded.
Thereafter respondent 1 brought the present suit for declaration of title and recovery of possession against respondent 2 and the appellants on the basis or the conveyance.
The latter resisted the suit on the ground that the conveyance was fraudulent, unsupported by consideration and passed no title.
The High Court in second appeal held that the appellants and respondent 2 were estopped from pleading fraud in the suit and decreed the same.
The question was whether the view taken by the High Court was correct and the ostensible owner was entitled to a decree.
Held, that there could be no question of estoppel in a case where both the parties were guilty of fraud.
740 Where in a case, such as the present, one of the confederates in fraud seeks a, decree on a conveyance that resulted from such faud and the other takes plea 'of fraud in defence, the matter has to be decided on considerations of public policy.
Since one of the parties must succeed in any event, the proper approach for the Court to adopt would be the one that was less injurious to public interest, namely, to allow the plea of fraud to be raised in defence and, if upheld, allow the properties to remain where they were, than to decree a suit based on a fraudulent claim.
It could make no difference in such a case if the suit was based on a deed of conveyance and not a contract.
Vodiana Kamayya vs Oudisa Kamayya, (1917) 32 M.J.J. 484, Kepula Kotayyar Naidu vs Chitrapur Mahalakshmama, Mad. 646 and Mutho K.B.A.R.P.L. Arunachalam Chettiar vs Rangaswamy Chettiar, Mad. 289, disapproved.
Berg vs Sadler and Moore, , T. P. Petherperumal Chetty vs B. Muniandi Servai, (1908) L.R. 35 I.A. 98 and Holman vs Johnson, (1775) 1 Cowper, 34 1, referred to.
Deo, Dem.
Roberts against Roberts, Widow, (1819) 106 E. R. 401, considered.
Case law reviewed.
Section 84 of the is not exhaustive in its provisions and since the present case falls outside of that section, it has to be decided on considerations of general policy. |
Civil Appeal No. 1264 of 1969.
Appeal by certificate from the judgment and order dated the 12th Feb., 1968 of the High Court of Assam and Nagaland at Gauhati in First Appeal No. 21 of 1963.
D. Mookherjee and section K. Nandy, for the appellant.
M. H. Chowdhury and section N. Chowdhury, for the respondent The Judgment of the Court was delivered by KRISHNA IYER, J.
The concurrent conclusions of fact reached by both the courts below regarding the quantum of compensation payable to the appellant on the acquisition of his land for a public purpose by the State are assailed by Shri D. Mukherjee before us on the ground that the amount is grossly inadequate.
Having heard him in the light of the High Court 's reasoning, we are persuaded to affirm the finding.
100 bighas of land belonging to the appellant (a Tea Planter) were first requisitioned by Government to settle landless people and the owner 'gladly ' agreed to surrender the area which, on his own showing, was lying unused.
Later, the State proceeded to acquire the land under s.7 (1A) of the Assam Land (Requisition and Acquisition) Act, 1948 (Assam Act XXV of 1948).
The sole dispute turns on whether the lesser scale of compensation proceeded under s.7(1A) or the larger one stipulated under s.7(1) is attracted to the situation.
The simple statutory test that settles the issue is to find out whether the land acquired is Lying fallow or uncultivated.
If it is, a small compensation alone is awardable, as laid down in s.7(1A) of the Act.
On the other 69 hand.
if it is ten garden, the quantum is as under section 23 of the Land Acquisition Act, 1894.
This decisive factor lends itself to easy decision, because a plethora of evidence, to most of which the appellant is a party, proceeds on the basis that the land in question is fallow.
The High Court has collected and considered the prior statements and other materials leading to the reasonable holding that s.7(1A) appropriately applied to this case.
It follows that the appeal has no merit and deserves to be dismissed.
We order both parties to bear their respective costs.
Subject to this direction, the appeal is dismissed.
V. M. K. Appeal dismissed. | 100 bights of land lying unused were requisitioned by Government to settle landless people.
The appellant, a tea planter, willingly surrendered the same.
But, when the State proceeded to acquire the land under section 7(1A) of ' the Assam Land (Requisition and Acquisition) Act, 1948 he disputed the payment of lesser scale of compensation prescribed under section 7(1A) of the Act. 'The Courts below concurrently held against him.
Dismissing the appeal, ^ HELD: The simple statutory test that settles the issue is lo find out whether the land acquired is Lying fallow or uncultivated.
If it is, a small compensation alone is awardable, as laid down in section 7(1A) of the Act.
On the other hand, if it is tea garden, the quantum is as under section 23 of the Land Acquisition Act, 1894.
Plethora of evidence adduced in this case clearly proceeds on the basis that the land in question is fallow.
The High Court has, therefore, rightly held that section 7(1A) appropriately applied to this case.
[68H 69B] |
Appeal No. 563 of 1960.
Appeal by special leave from the judgment and decree dated March 20, 1959, of the Patna High Court in Election appeal No. 8 of 1958.
J. C. Sinha, D. P. Singh, M. K. Ramamurthi, R. K. Garg and section C. Agarwala, for the appellant.
B. C. Ohosh and R. C. Datta, for respondent No. 1.
Udaipratap Singh and P. C. Agarwala, for respondent No. 2. 1961.
September 22.
The Judgment of the Court was delivered by RAGHUBAR DAYAL, J.
Badri Narain Singh, the appellant, and four other persons including Kam Deo Prasad, respondents, were candidates to the Bihar Legislative Assembly during the last general election held in 1957.
Two of those candidates withdrew before the relevant date.
The appellant secured the largest number of votes and was declared elected on March 14, 1957.
Respondent No. 2 secured larger number of votes than 761 Kam Deo Prasad, respondent No. 1, who filed an election petition under sections 80 and 81 of the Representation of the People Act, 1951 (Act XLIII of 1951) challenging the election of the appellant, on the ground that the nomination of the appellant and respondent No. 2, who, as Ghatwals, held an office of profit, was against the provisions of section 7 of the Act, and that the appellant had also committed corrupt practices.
Kam Deo Prasad, by his election peti tion, not only prayed for the declaration that the ,election of the appellant was void, but also for the declaration that he himself was duly elected.
The appellant denied the allegations against him.
The Election Tribunal held that Badri Narain Singh, the appellant, was guilty of corrupt practices and that a Ghatwal was not a holder of an office of profit under the State of Bihar.
It therefore set aside the election of the appellant, but did not grant the dec laration that Kam Deo Prasad was a duly elected candidate.
The appellant filed Election Appeal No. 7 of 1958 in the High Court of Judicature at Patna, against the order of the Election Tribunal setting aside his election, and prayed that the order of the Election Tribunal be set aside and that it be held that he had been duly elected.
Kam Deo Prasad also filed Election Appeal No. 8 against the order of the Election Tribunal not declaring him to be the duly elected candidate and prayed for a declaration that he, had been duly elected.
The grounds of appeal questioned the correctness of the finding of the Election Tribunal that Badri Narain Singh and respondent No. 2, as Ghatwals, were not the holders of offices of profit and that Kam Dec) Prasad could not be declared duly elected.
Both these appeals were disposed of by the High Court by one judgment.
It did not accept the finding of the Election Tribunal that Badri Narain Singh had committed any corrupt practice and accepted the contention for respondent No. 1 that Badri Narain Singh and respondent No. 2 held 762 offices of profit under the Bihar Government as they were Ghatwals.
It was in this view of the matter that it confirmed the order of the Election Tribunal setting aside the election of the appellant and allowing the appeal of respondent No. 1, declared him duly elected.
The concluding portion of the judgment of the High Court may be usefully quoted here : "To conclude, the election of the returned candidate is not valid, and the order of the Tribunal is, therefore, right, though on different grounds.
Further, there, was only one seat, and three persons contested it, namely, the petitioner and the two respondents.
The two respondents were disqualified for being chosen as, and for being, members of Legislative Assembly or Legislative Council of the State, and, therefore, their nomination papers were not validly accepted.
If their nomination papers are rejected, and it cannot but be rejected, the only person left in the field was the petitioner Kam Deo Prasad Singh, and, therefore, be must be declared to be duly elected.
In the result, Election Appeal No. 7 of 1958 is dismissed, and Election Appeal No. 8 of 1958 is allowed, and Kam Deo Prasad Singh is declared to be duly elected to Bihar Legis lative Assembly from the Sarnath State Assembly Constituency in the district of Santal Parganas.
" As a result of this order, separate decrees were As a result of this order, separate decrees were As a result of this order, separate decrees were prepared in the two appeals.
Decree in Election Appeal No. 7 said, 'It is ordered and decreed that this appeal be and the same is hereby dismissed '.
The decree in appeal No. 8 said, 'It is ordered and decreed that this appeal be and the same is hereby allowed and Kam Deo Prasad Singh is declared to be duly elected to the Bihar Legislative Assembly from the Sarnath State Assembly constituency in the District of Santhal Parganas '.
763 The appellant has filed this appeal by special leave against the order in Election Appeal No. 8 of 1958.
All the grounds of appeal relate to the finding of the High Court that the office of a Ghatwal is an office of profit.
The petition for special leave to appeal does not mention the relief the appellant seeks from this Court.
Presumably, he prays for the setting aside of the order in Appeal No. 7 confirming the order of the Election Tribunal setting 'aside his election and also the order in Appeal No. 8.
A preliminary objection has been taken on behalf of respondent Kam Deo Prasad Singh that this appeal is incompetent as barred by the principle of res judicata inasmuch as the appellant did not appeal against the order of the High Court in Appeal No. 7 whose dismissal by the High Court confirmed the order of the Election Tribunal setting aside the election of the appellant.
It is urged that the order setting aside the appellant 's election having become final, it cannot be set aside and that the finding arrived at in that appeal about a Ghatwal being a holder of an office of profit operates as res judicata in this appeal and therefore no appeal against the order in Appeal No. 8 declaring respondent No. 1 to be the duly elected candidate can be pressed on the ground that the view of the High Court about the appellant 's holding an office of profit is wrong.
If the correctness of that view cannot be challenged, the correctness of the declaration in favour of respondent No. 1 cannot be challenged in this appeal on any other ground when no other ground had been taken in the application for special leave.
The contention in effect, therefore, is that it is not open to the appellant in this appeal to question the correctness of the finding that he held an office of profit under the Bihar Government, a finding which formed the basis of the dismissal of Appeal No. 7 and the confirmation of the order setting aside his election.
764 The learned counsel for the appellant relied on the judgment of this Court in Narhari vs Shankar(1) in support of his contention that the judgment in Election Appeal No. 7 cannot operate as res judicata in this appeal.
That case is distinguishable on facts and is with respect to the interpretation of section 11 of the Code of Civil Procedure.
In the suit.
, in that case, the plaintiffs claimed possession over 2/3rds of the plot No. 214.
They claimed 1/3rd which was in the possession of ' one set of defendants, namely, defendants ,Nos. 1 to 4 and the other 1/3rd was in possession of another set of defendants, namely, defendants Nos. 5 to 8.
Each set of defendants claimed that they were entitled to the land in their possession as their share of the family property and denied the allegations of the plaintiffs that the senior branch was under custom entitled to exclusive possession of the plot which was Inamland.
The suit was decreed by the trial Court.
Each set of defendants then filed an appeal claiming 1/3rd of the plot.
The first appellate Court allowed both the appeals and dismissed the plaintiffs suit by one judgment and ordered a copy of the judgment to be placed on the file of the other connected appeal.
Naturally, it decided the one point of contention common to both the appeals, namely, that the senior branch was not entitled to exclusive possession of the plot.
This was the finding in each of the appeals.
The plaintiffs thereafter filed two appeals to the High Court, one against the decree in the appeal filed by defendants Nos. 1 to 4 and the other against the decree in the appeal filed by defendants Nos.
5 to 8.
The latter appeal was filed beyond limitation and the High Court refused to condone the delay.
It was contended at the hear ing of the appeal that the second appeal was filed (1) ; 765 beyond the period of limitation and was not maintainable and that when it was dismissed as not maintainable the first appeal would we barred by the principle of res judicata.
The High Court agreed with the contention, dismissed the second appeal as time barred and the first on the ground that the judgment in the appeal by the defendants Nos. 5 to 8 operated as res judicata.
The plaintiffs then filed two appeals to the Judicial Committee of the Hyderabad State and, ultimately, they were disposed of by this Court in view of article 374(4) of the Constitution.
The plaintiffs had impleaded all the defendants as respondents in their first appeal to the High Court.
They had paid the full court fee necessary for an appeal against the dismissal of the entire suit.
Their prayer covered both the appeals.
This indicated that it was sought to be an appeal against the dismissal of the entire suit.
It is not clear whether the common judgment passed by the first appellate Court specifically stated that ,it dismissed the plaintiffs suit with respect to one third of the plot by its order allowing one appeal and dismissed the suit with respect to the other one third by its order allowing the second appeal.
Possibly it just said that as a result of its finding the appeals are allowed and the plaintiffs ' suit is dismissed and that such an order led the plaintiffs to actually file one appeal against all the defendants and against the dismissal of the entire suit.
The prayer in the first appeal covered the subject matter of both the appeals.
Thus the first appeal was really a consolidated appeal against the decrees in both the appeals and could have been split up for the purposes of record into two separate appeals.
This Court itself felt that the circumstances of the case were such that the High Court should have allowed the benefit of section 5 of the Limitation Act to the appellant.
766 It was in these circumstances that this Court observed, at page 757 : "It is now well settled that where there has been one trial, one finding, and one decision, there need not be two appeals even though two decrees may have been drawn up.
" This does not mean that whenever there be more than one appeal arising out of one suit, only one appeal is competent against the order in Any.
of those appeals irrespective of the fact whether the issues for decision in those appeals were all common or some were common and others raised different points for determination.
The existence of one finding and one decision mentioned in this observation simply contemplates the presence of common points in all the appeals and the absence of any different point in those appeals, and consequently of one decision on those common points in all the appeals.
This Court, further observed at page 758: "The question of res judicata arises only when these are two suits.
Even when there are two suits it has been held that a decision given simultaneously cannot be a decision in the former suit.
When there is only one suit, the question of res judicata does not arise at all and in the present case, both the decrees are in the same case and based on the same judgment, and the matter decided concerns the entire suit.
As such there is no question of the application of the principle of res judicata.
" These observations do not apply to cases which are governed by the general principles of res judicata which rest on the principle that a judgment is conclusive regarding the points decided between the same parties and that the parties should not be vexed twice over for the same cause.
We are therefore of opinion that both in view of the facts of the case and the provision of law 767 applicable to that case, that case can be no guide for determining the question before us in this appeal.
It is true that both the appeals Nos. 7 and 8 before the High Court arose out of one proceeding, before the Election Tribunal.
The subject matter of each appeal was, however, different.
The subject matter of appeal No. 7 filed by the appellant related to the question of his election being bad or good, in view of the pleadings raised before the Election Tribunal.
had nothing to do with the question of right of respondent No. 1 to be declared as duly elected candidate.
The claim on such a right is to follow the decision of the question in appeal No. 7 in case the appeal was dismissed.
If appeal No. 7 was allowed, the question in appeal No. 8 would not arise for consideration.
The subject matter of appeal No. 8 simply did not relate to the validity or otherwise of the election of the appellant.
It related to the further action to be taken in case the election of the appellant was bad, on the ground that a Ghatwal holds an office of profit.
The decision of the High Court in the two appeals, though stated in one judgment, really amounted to two decisions and not to one decision common to both the appeals.
It is true that in his appeal No. 8, the respondent No. 1 had referred to the rejection of his contention by the Election Tribunal about the appellant and respondent No. 2 being holders of an office of profit.
He had to challenge the finding on this point because if he did not succeed on it, he could not have got a declaration in his favour when respondent No. 2 was also in the field and had secured a larger number of votes.
He could, however, rely on the same contention in supporting the order of the Election Tribunal setting aside the election of the appellant and which was the subject matter of Appeal No. 7.
This contention was considered by the High Court in Appeal No. 7 in that context and it was therefore that even though the 768 High Court did not agree with the Election Tribunal about the appellant 's committing a corrupt practice, it confirmed the setting aside of his election on the ground that he held an office of profit.
The finding about his holding an office of profit served the purpose of both the appeals, but merely because of this the decision of the High Court in each appeal cannot be said to be one decision.
The High Court came to two decisions.
It came to one decision in respect of the invalidity of the appellants election in Appeal No. 7.
It came to another decision in Appeal No. 8 with respect to the justification of the claim of respondent No. 1 to be declared as a duly elected candidate, a decision which had to follow the decision that the election of the appellant was invalid and also the finding that respondent No. 2, as Ghatwal, was not a properly nominated candidate.
We are therefore of opinion that so long as the order in the appellant 's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an office of profit under the Bihar Government and therefore could not have been a properly nominated candidate stands, he cannot question the finding about his holding an office of profit, in the present appeal, which is founded on the contention that finding is incorrect.
We therefore accept the preliminary objection and dismiss the appeal with costs.
Appeal dismissed. | The Election Tribunal on the petition of the first res pondent set aside the election of the appellant holding that the appellant as a Ghatwal, was not a holder of office of profit, and t hat he was guilty of corrupt practices.
The Election Tribunal however did not entertain the first respondent 's prayer to declare him as duly elected.
The ' appellant and the first respondent, both went up in appeal to the High Court.
Appellants appeal being No ' 7 was against the order setting aside his election.
The first respondent 's appeal being No. 8 was against the order not declaring him to be duly elected.
Both the appeals were disposed of by the High Court by one judgment.
The appellant 's appeal No. 7 was dismissed holding that the appellant was not guilty of corrupt practices and that be, as a Ghatwal, held an office of profit.
The respondent 's appeal No. 8 was allowed declaring him as duly elected.
Two separate decrees were prepared in the two appeals.
The appellant filed this appeal by special leave from the order in Appeal No. 8 by the first respondent.
All the grounds of the appeal related to the finding of the High Court that the office of Ghatwal was an office of profit.
A preliminary objection was taken on behalf of the first respondent that this appeal was incompetent as barred by the principle of res judicata inasmuch as the appellant did not appeal against the order of the High Court in Appeal No. 7 whose dismissal by the High Court confirmed the order of the Election Tribunal setting aside the election of the appellant; and that it was not open to the appellant to question the correctness of the finding that he held an office of profit, which was the basis of the dismissal of appeal No. 7.
Held, that where two appeals arose out of one proceeding, but the subject matter of each, appeal was different, the 760 decision of the High Court in the appeals though stated in one judgment, really amounted to two decisions and not to one derision common to both the appeals.
The subject matter of Appeal No 7 filed by the appellant related to the question of his election being bad or good.
The subject matter on appeal No. 8 did not relate to the validity or otherwise of the election of the appellant.
It related to the further action to be taken in case the election of the appellant was bad, on the ground that ' a Ghatwal holds an office of profit.
The High Court came to two decisions, one in respect of the invalidity of the appellant 's election in appeal No. 7.
It came to another decision in appeal No. 8 with respect to the justification of the claim of the first respondent to be declared as a duly elected candidate.
That so long as the order in the appellant 's appeal No. 7 confirming the order setting aside his election on the ground that he was a holder of an off ice of profit stands, he cannot question that finding in the present appeal, preferred against the decree in the first respondent 's appeal No. 8.
Narhari vs Shankar ; , distinguished. |
Civil Appeals Nos. 247 and 248 1975.
Appeals by special leave from the Judgment and order dated the 29th May, 1974 of the Kerala High Court in original Petition No. 5463 of 1971.
Krishnamoorthy Iyer and N. Sudhakaran, fol the appellant (in appeal No. 247/75 and respondent No. 2 in C.A. No. 248/75).
T. C. Raghavan and P. K. Pillai, for respondent no.1 (in both the appeals).
K. T. Harindranath (in C.A. No. 248/75) and K. R. Nambiyar.
(for respondent No, 2 in C.A. No. 247 and the appellant in C.A. No. 248/75).
376 The Judgment of the Court was delivered by `CHANDRACHUD, J.
This appeal by special leaves arises out of the judgment of the High Court of Kerala in Writ Petition No. 5463 of 1971.
That petition was filed by the The respondent A. Satyavan against the State of Kerala, the Director of the department of Museums and Zoos, Trivandrum and the appellant Smt.
V. A. Subhadra.
The main relief sought by the Ist respondent was that the order passed by 1 the State of Kerala on March ]8, 1971 appointing the appellant as an Upper Division Clerk in the Department of Museums and Zoos be quashed.
The appellant was appointed as a Lower Division Clerk ill the Department of Museums and Zoos, Trivandrum in 1949.
She was confirmed in that post in 1950.
The Ist respondent was appointed as a Lower Division Clerk in The same Department in 1955 and was confirmed ill 1963.
On April 9, 1962 the appellant, on her own request department transfer to the Department of Agriculture.
her rank was an inter departmental transfer.
Though on transfer the appellant became the junior most employee in the Department of Agriculture, her rank and lien were maintained in the Department of Museums and Zoos.
In course of time vacancy arose in the post of the Upper Division Clerk in the Department of Museums and zoos.
One M. section Pillai was the senior most Lower Division Clerk in that Department but when The post of promotion was offered to him he declined it on the ground of ill health.
The appellant was next in order of seniority amongst the Lower Division Clerks ill the Department of Museums and Zoos and since her rank and lien in that Department were maintained, she was offered the post of the Upper Division Clerk.
She conveyed her inability to accept that post for the time being and thereupon the 1st respondent, who was next in order of seniority, was appointed provisionally as an Upper Division Clerk.
His appointment was made without prejudice to the claims of the seniors in the Department of Museums and Zoos.
on the retirement of M. section Pillai, a permanent vacancy in the post of the Upper Division Clerk arose in the Department of Museums and Zoos.
On July 6, 1970 the appellant, who was working in the Department of Agriculture, conveyed her willingness to accept that post.
By an order dated March 18, 1971 she was appointed as an Upper Division Clerk and later on May 3, 1971 she was further promoted as a Senior Superintendent.
Both of these appointments as also the order by which his representation was rejected by the Government, were challenged in the Writ Petition by the 1st respondent.
The High Court of Kerala allowed the writ petition holding that under the relevant rules, the appellant was not entitled to be re transferred to her parent department and without a valid order of re transfer she could not be appointed as an Upper Division Clerk in that Department.
The High Court therefore quashed the order dated March 18. ;1 1971 by which the appellant was appointed as an Upper Division Clerk and the orders consequent upon it.
377 There are two things in favour of the appellant and they must first be mentioned.
The order dated April 9, 1962 passed by the Director of Museums and Zoos by which the appellant was transferred to the Department of Agriculture expressly mentions that her lien and rank will be maintained in the Department of Museums and zoos.
It is therefore plain that if and when the appellant rejoined the Department of Museums and Zoos in conformity with the rules and regulations, she would occupy the rank which she would have occupied but for her transfer to the Department of Agriculture.
Secondly, the order dated April 4, 1968 passed by the Director of Museums and Zoos by which the 1st respondent was appointed as an Upper Division Clerk in the Department of Museums and Zoos mentions expressly that he was appointed in the higher post for the time being only and that the appointment was made without prejudice to the claims of his seniors.
In the Department of Museums and Zoos the appellant was senior to the 1st respondent and therefore her claim of seniority would not be affected by the appointment of the 1st respondent as an Upper Division In spite of this position, the appellant 's appointment as an Upper Division Clerk in the Department of Museums and Zoos is invalid because such an appointment could be made only if, in the first place, the appellant was entitled under the relevant rules to return to her parent .
department.
It was common ground that the appellant 's right to re turn to the Department of Museums and Zoos was governed by the notification issued by the Government of Kerala on January 2, 1961.
Paragraph 2 of that notification reads thus: : A permanent person need not be required to relinquish his permanency.
He may be permitted to retain his permanent lien in the old post until he is confirms in the new unit or department, but he can come back to the old unit or department only if and when there is no vacancy for him to continue in the new unit, or if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him.
" It is clear from this provision that a person can return to his parent department ill one of the two contingencies only.
He can return if There is no vacancy for him to continue ill the new unit to which he is transferred.
Admittedly, there was a vacancy available to the appellant in the Department of Agriculture in which she could have continued and therefore this clause has no application.
The second contingency in which a person can return to his parent Department is if his pay in the substantive post in the parent department becomes higher than his pay in the post held by him in the department to which he is transferred.
The question which arises for consideration is whether by reason of this clause, The appellant was entitled to go back to her old unit.
If she would validly go back, there is no doubt that it was open to the Government to appoint her to the post of an Upper Division Clerk.
The High Court, in our opinion, was right in taking the view that "pay ill the substantive post in the parent department" means the pay 378 attached to the post substantively held by the employee on the date of transfer to another department.
since the substantive post held by the appellant on the date of her transfer to the Department of Agriculture was that of a Lower Division Clerk, what must be considered is whether the pay which the appellant would have drawn in that post, had she continued in her parent department, had for any reason become higher than the pay drawn by her in the post held by her in the Department of ' Agriculture.
It is undisputed that the pay which the appellant would have drawn as an Upper Division Clerk in her parent department on March 18, 1971 was not higher than the pay which she was drawing in the Department of Agriculture.
Since under Paragraph 2, an employee can come back to his old unit or department, "only if and when either of the two conditions is satisfied, the appellant was not entitled to return to her parent department.
Unless she could validly revert to her old unit, she could not be appointed to a post higher than the one substantively held by her in that unit on the date of her transfer.
It is urged on behalf of the appellant that the pay which she would draw in the post of an Upper Division Clerk in tile parent department after her re transfer to that department, would be higher than the pay which she was drawing In the post which she was holding in the Department of Agriculture and therefore she would be entitled to re 1) turn to her parent department under the second of the two condition mentioned above.
It is impossible to accept this contention.
The substantive post held by the appellant, apart from the impugned order of promotion, was that of a Lower Division Clerk in the Department of Museums and Zoos.
The comparison therefore has to be between the pay of that post and the pay of the post which the appellant was holding in the department to which she was transferred.
The order dated March 18, 1961 by which the appellant was appointed as an Upper Division Clerk in the Department of Museums and Zoos is therefore illegal and was rightly quashed by the High Court. 'the order dated May 3, 1971 further promoting the appellant as a Senior Superintendent must fall with that order.
The appeal is accordingly dismissed.
F Civil Appeal No. 248 of 1975: , This appeal is filed by the state of Kerala against the same judgment of the High Court which gave rise to the appeal just disposed of by us.
In accordance with the view taken by us in C.A. No. 247 of 1975, this appeal must be dismissed.
While admitting these two appeals, this Court had directed that the Government of Kerala shall pay the costs of the 1st respondent, A. Satyavan, in any event.
Accordingly, the Government of Kerala shall pay the costs of the 1st respondent.
Costs shall be in one set only.
P.B.R. Appeal dismissed. | The appellant who was a Lower Division Clerk in a department of the State Government had gone on transfer to another department on her own request.
Under a notification issued by the State Government.
a person could revert to his parent department (i) only if and when there is no vacancy for him to continue in the new unit or (ii) if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him.
The appellant was offered a temporary post of U.D.C. in the parent department but she declined.
The first respondent was therefore promoted to the post.
When a permanent vacancy of Upper Division Clerk occurred in the parent department the appellant was appointed to the post and was later promoted to higher post.
In a petition under article 226 of the Constitution filed by respondent No. 1 the High Court quashed the order of the appellant 's appointment and her promotion to the higher post.
Dismissing the appeal to this Court.
^ HELD: The order by which the appellant was appointed as an Upper Division Clerk in the parent department was illegal and was rightly quashed by the High Court.
The order promoting the appellant must fall with that order.
[378F] (I ) Since under paragraph of the notification an employee can come back to his old unit or department "only if and when" either of the two conditions is satisfied.
the appellant was not entitled to return to her parent department.
Unless she could validly revert to her old unit she could not be appointed to a roost higher than the one substantively held by her in that unit on the date of her transfer.
[378B C] (2) Pay in the substantive post in the parent department means the pay attached to the Post substantively held by an employee on the date of transfer to another department.
The pay which the appellant would have drawn as an Upper Division Clerk in her parent department on the date of her appointment was not higher.
than the pay which she was drawing in the new unit.
The substantive post held by the appellant apart from the impugned order of promotion was that of a Lower Division Clerk.
The comparison therefore has to be between the pay of that post and the pay of the post which the appellant was holding in the department to which she was transferred.
[377 H, 378E] |
Appeals Nos. 220, 221, 349 and 497 of 58.
Appeals from the judgment and decrees dated 1955 March 24,1956 September 15 and 1956 April 12 of the former Saurashtra High Court at Rajkot in Civil Second Appeals Nos.
123 of 1953 & 104 of 1955 and Civil Appeals Nos.
42 of 1953 and 50 of 1954.
M. C. Setalvad, Attorney General for India, C. K.Daphtary, Solicitor General of India, B. Sen and R. H. Dhebar, for the Appellant (In all the Appeals).
I. N. Shroff for the Respondents (In C. As.
Nos. 220 and 221 of 1958).
G.S. Pathak, N. P. Nathnwni and K. L. Hathi for the Respondents (In C.A. No. 349 of 1958).
J.P. Mehta, J. B. Dadachanji, Onkar Chand Mathur and Ravinder Narain, for the Respondents C.A. No. 497 of 1958).
October 3.
The Judgment of Sinha, C.J., section K. Das and N. Rajagopala Ayyangar,, JJ.
was, delivered by section K. Das, J. The Judgment of Sarkar and J. R. Mudholkar, JJ., was delivered by J. R. Mudholkar, J. section K. DAs, J. These four appeals which have been brought to this Court on certificates granted by the then High Court of Saurashtra under article 133 of the Constitution fall into three groups, and have been heard together.
The essential facts relating to these appeals are the same, and 'a common question of law now falls for determination on those facts.
973 The State of Gujarat., within whose territories the disputed properties are now situate, is the appellant in the appeals.
The respondents and in some cases their.
ancestors, obtained grants from the then Nawab of Junagadh, which was then a ruling State, in respect of lands and, in one case, of a building known as "Datar Manzil '.
These grants were repudiated or cancelled and the property, subject of the grant, was resumed by the Administrator who took over charge of the administration of Junagadh on behalf of the Dominion of India in 1947 in circumstances which we shall presently state.
The respondents brought suits challenging the validity of the orders made by the Administrator.
These suits were decreed by the lower court and the decrees were substantially upheld by the High Court of Saurashtra.
The principal point for decision in these appeals is whether the impugned orders made by the Administrator arose out of and during an act of State which was not justiciable in the municipal courts.
This is the only point which has been agitated before us on behalf of the, appellant State and very strong reliance has been placed on the decision of this Court in the State of Saurashtra vs Memon Haji Ismail Haji (1) where, in circumstances same as those of the appeals before us, it was held that the act of the Dominion of India in assuming the administration of Junagadh was an act of State pure and simple and the resumption of the grant in question therein having been made by the Administrator before that act was completed and at a time when the people of Junagadh were aliens outside the State, the act of resumption, however arbitrary, was an act of State on behalf of the Government of India and was not, therefore, justiciable in the municipal courts.
It may be here noted that by that decision this Court over ruled the earlier decision of the Saurashtra High Court in State of Saurashtra vs Memon Haji Ismail Haji Valimamad(2), (1) ; (2) A.I.R. 1953 Saurashtra 180. 974 a decision on the basis of which the High Court decided the cases under consideration in these appeals.
The learned Attorney General has submitted that the decision of this Court in the State of Saurshtra vs Memon, Haji Ismail Haji completely covers and concludes the present appeals.
On behalf of respondents it has been, contended that the decision aforesaid proceeded on a finding that the, act of State,.
was not completed before the impugned orders were made and that finding being a finding of fact does, not bind the respondents who were not parties to the case in which the decision was rendered.
In the appeals before us the main contention on behalf of the respondents has been that the impugned orders were made after the assumption of sovereignty by the Dominion of India was completed, and therefore the decision of this Court in the State of Saurashtra vs Memon Haji Ismail Haji(1) is not determinative of the problem which arise,% in these, appeals.
It has been further argued that, after full sovereignty, had, been assumed by the Dominion of India, the petition of the people of Junagadh, including the respondents was not that of.
aliens outside the State, but their position on such assumption of sovereignty was that of citizens of India against whom there could be no act of State and they had rights as such citizens in respect of which they could ask for relief in the municipal courts.
We have set out above, in brief outline, the principal point which falls for decision in these appeals and the respective contentions of.
the parties relating thereto in order to highlight the main problem presented for solution in these appeals.
But we must first set out the essential facts which are relevant for the solution of the problem ' We have already stated that the essential facts , are the same in these appeals, though the facts relating (1) [1960] I section C R. 537.
975 to each ' of the grants made in favour of the respondents are, different We shall state the essential facts bearing upon.
the main problem and then briefly refer to the grants made in each of the India attained independence in 1947.
As from the 15th day of August, 1947, two independent Dominions were set up known respectively as India and Pakistan under the Indian Independence Act, 1947 (10 & 11 Geo.
C. 30).
Under section 7 of the said Act, the suzerainty of Iris Majesty over the Indian States including Junagadh lapsed.
It released those States from all their obligations to the Crown.
The White Paper on Indian States said (at page 32) : "It was evident that if in consequence the Indian States became separate independent entities, there would be a serious vacuum not only with regard to the political relationship between the Central Government and the States, but also in respect of the co ordination of all India policies in the economic and other fields.
All that the Dominion Government inherited from the Paramount Power was the proviso to section 7 of the Indian Indepen dence Act, which provided for the continuance, until denounced by either of the parties, of agreements between the Indian States and the Central and Provincial Governments in regard to specified matters, such as Customs, Posts and Telegraphs, etc.
(Appendix IV).
" A process of accession was therefore begun and by August 15, 1947 all the States in the geographical limits of India barring Hyderabad, Kashmir and Junagadh had acceded to the Indian Dominion.
The Nawab of Junagadh however, did not accede to the new Dominion of India by executing an Instrument of Accession as did the other Rulers in Saurashtra.
He fled the country and the affairs of Junagadh State fell into disorder and chaos.
At the request 976 of the Nawab 's Council, the Government of India decided to take over the administration of the State.
On November 9, 1947, the Regional Commissioner, Western India and Gujarat States Region, assumed charge of the administration of the State on behalf of the Government of India.
A proclamation was issued on that date which.
said that the Regional Commissioner had assumed charge of the administration of the Junagadh State at 18 00 hours on November 9, 1947.
On November 14, 1947 the Regional Commissioner appointed Shri section W. Shiveshwarkar as Administrator of Junagadh State.
The Administrator passed certain orders which are the orders impugned in these appeals and to which we shall presently refer, but we must first complete the general picture of political changes that took place in Junagadh.
In February, 1948 the Government of India held a referendum in Junagadh State to ascertain the choice of the people in regard to accession and the people voted by a large majority in favour of accession to the Dominion of India.
The Administrator then decided with the approval of the Government of India to appoint an Executive Council with himself as President and three other persons as members thereof.
In December, 1948 the elected representatives of the people of Junagadh resolved that the administration of the State be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra ' State with a view to framing a, common Constitution for Saurashtra and the Junagadh State.
It is necessary to state now how this integration took place.
On January 23, 1948, thirty rulers of the principal States of Kathiawar signed a covenant bringing into existence the United State of Kathiawar (later I known as the ' United State of Saurashtra) comprising the territories of their States for the welfare of the people and entrusted to a Constituent, Assembly the.
task 977 of drawing up a democratic Constitution for that State within the frame work, of the Constitution of India, to which they had already acceded.
On that date Junagadh State had no Ruler nor was any Covenant signed on behalf of the Junagadh State.
Later, in December, 1948, the elected representatives of the people of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh recommended to the Government of India and the Government of the United State of Saurashtra, as it was then called, that the administration of the States mentioned above be integrated with the United State of Saurashtra.
The Rulers of the Covenanting States thereupon entered into a Supplementary Covenant with the concurrence of the Government of India to provide for such integration and for the participation of the elected representatives of the people of these States into the Saurashtra Constituent Assembly.
Article 3 of the, Supplementary Covenant was in these terms (See White Paper on Indian States, page 249) : "From a date to be agreed upon between the Government of the said States and the Government of the United State of Saurashtra, with the concurrence of the Government of India, the administration of the said States shall be integrated with that of the United State of Saurashtra and thereafter the legislative and executive authority, powers and jurisdiction of the United State of Saurashtra shall extend to the said States to the same extent as it extends to the territory of any Covenanting State. . . " The administration of the Junagadh State was thereafter integrated with that of the United State of Saurashtra on January 20, 1949.
Therefore, as from that date the legislative and executive authority and jurisdiction of the United State of Saurashtra extended to the Junagadh State to the same extent as it extended to the rest of the territories of the Covenanting States.
978 Further political changes took place after January 20, 1949, but with those changes we are not concerned in the present appeals.
The two dates which are important for our purpose are November 91 1947, when the Regional Commissioner first took over charge of the administration of Junagadh and January 20, 1949 when Junagadh merged into the United State of Saurshtra.
Now, as to the impugned orders made by the, Administrator.
In Civil Appeal No. 349 of 1958 the ancestor of the respondents, had obtained grants from the then Nawab of Junagadh of two villages called Handla and Venderwad some time between the years 1865 and 1868.
A detailed history of the grants so made is not necessary for our purpose.
On December 6, 1947, the Administrator made the following order "It has come to the Administrator 's notice that Aba Salem Bin Abs Mahmed Hindi the alienee of Handla village, (i) was maintaining many Arab employees of Timbdi it his house in Junagadh, (ii) was uttering threats to massacre all Hindus of Handla village,.
(iii) was keeping in Hendla fifty animals at the expense of the poor village people, (iv) did not pay any remuneration to Dhedh employees of his garden and was exacting Veth from them, (V) was buying exhorbitant cesses from the village people, (vi) had converted into Islam three Hindus, and (vii) had taken the, following arms from Hand to Junagadh about a month ago,: 979 (a) 12 bore guns and (b) one M. I. gun.
It is, therefore, ordered that.
the village J. of Handla should be taken under the State manager.
The Revenue Commissioner should mak e necessary managements for the same and report compliance.
By that order the management of Kandla was taken over by the State, Though there is no reference to the other village Venderwad in the order the admitted position is that the management of both the villages was taken over.
Then on January 8, 1949, the Administrator passed the following order: "The Junagadh State Government is pleased to order that the land and villages comprising the Handla estate which is an Inam grant be resumed by the State forthwith.
" This order also refers only to the Handla estate, but the admitted position is that both the villages were resumed by the order of the Administrator.
It is the order dated January 8, 1949, which is impugned by the respondents in this appeal.
In Civil Appeal No 497 of 1958 the grant was in respect of a bungalow or building known as 'Datar Manzil '.
On 1 March 9, 1948 the Administrator made the following order: " The State building situated near Gadhrup Wada at Junagadb, was granted to Khan Shri Abdullkanmiyan Mahomedkhanmiyan hereditarily by Way of gift, under Dewan "Daftar Tharay No. 3379 dated lot August, The said Tharay is hereby cancelled and it is hereby ordered in the interest of the State that the said building along with all the superstructures thereon should be resumed and managed by the State as State property.
" 980 In Civil Appeals Nos. 220 and 221 of 1958 a the impugned order is dated July 27, 1948, and is in these terms: "Twenty five Santis of land from the village of Khokhardea under Vanthali, Mahal was granted as a gift 'hereditarily to Mr. Mohamed Abdulla, son of late.
Jamadar Abdulla Moosa under Hazur Farman No. 279 dated 30th April, 1943.
In view of the principles of Alienation settlement of 1897 no grant can be wantonly favoured to anybody in contravention of the well established principles of resumption attaching to such grants.
It is hereby ordered that Hazur Farman No. 279 dated 30th April, 1943, is cancelled and the land in question should be resumed by the State forthwith by setting aside the settlement made thereon.
" It will be noticed, from what has been stated above that the impugned orders ' were all made after November 9, 1947, but, before January 20, 1949.
The question before us is whether the orders were made in pursuance of acts of State not justiciable in the municipal courts.
There can, be no doubt that if the decision of this Court in State of Saurashtra vs Memon Haji Ismail Haji (1) applies, then these appeals must be allowed.
Learned counsel for the respondents has however sought to distinguish that decision on the ground that the decision proceeded on the footing that the Dominion of India assumed sovereignty over Junagadh on January 20, 1949.
His contention is that when the Dominion of India assumed charge of the administration of Junagadh State on November 9, 1947, through the Regional Commissioner, Western India and Gujarat States Region, there was a complete changeover of sovereignty, the act of State was complete, and the.
Dominion of India became the new sovereign; thereafter, (1) [1960] I.S.C.R. 537.
981 the people of Junagadh including the respondents, so the argument proceeded, became citizens of the Dominion of India and had rights as.
such citizens it in respect of which they could ask for relief in the municipal courts.
It would be apparent that this argument consists of two steps: the first step in the argument is that there was a complete changeover of sovereignty on November 9, 1947 and the act of State was complete; the second step in the argument which is really based on the correctness of the first step is that on such a change over of 'sovereignty the people of Junagadh, including the respondents, became citizens of the Dominion of India and were no longer aliens outside the Dominion.
, We shall now consider the validity of the first step in the argument.
In doing so we must make it clear that we must not be understood to have assented to the submission of learned counsel for the respondents that a finding as to change over of sovereignty or completion of an of State, is a finding of fact pure and simple.
In our view, the question essentially is what inference in law should be drawn from the fact proved or admitted relating to the change over of sovereignty.
As the matter was not argued from this stand point in the State of Saurashtra vs Memon Haji Ismail Haji(1), we have allowed learned counsel for the respondents to address us on this question.
Learned counsel for the respondents has made a two fold submission: firstly, he has submitted that the question as to when the change over of ,sovereignty took place is a political question, and must or should be referred to the Government of India for opinion and the Court should abide by that opinion; secondly,he has submitted that on the facts admitted in this case, it should be hold that there.
was a complete change over of sovereignty on November 9, 1947, and the act of State was complete.
We do not think that either of these two submissions of learned counsel for the respon dents is correct.
On the first snbmission he has (1) ; 982 drawn our attention to para.
603 at pages 285 286, Vol. 7 of Halsbury 's Laws.
of England, 3rd 'Ed.
That paragraph is in these terms : .lm15 " There is a class of facts which are conveniently termed "facts of State".
It consists of matters and questions the, determination of which is solely in the hands of the Crown or the government, of which the following are examples (1) Whether a state of war exists between the British Government and any other State, and if so, When it began; the municipal courts have no power of inquiring into the validity of a declaration by the Crown whether a state of war exists or whether it has ended: (2) whether a particular territory is hostile, or foreign, or within the boundaries of a particular state; (3) whether and when a particular government is to be recognised as the, government of an independent state,, (4) The status of a person claiming, immunity from judicial process on the ground of diplomatic privilege.
The court takes judicial notice of such facts of state, and for this purpose in any case of uncertainty, seeks information from a Secretary of State; and the information so received is conclusive.
Learned counsel has also referred us to some of the English decisions on which the statements in the paragraph quoted above axe based.
We consider it unnecessary to examine those decisions.
, It appears to us that the question with which we are concerned in the present appeals is not a question on which it is necessary to seek information from to relevant department of the Government of India; for ' one thing, it does not appear to us that there is any uncertainty in the matter; secondly, as we shall 983 presently show, the Government of India in the relevant department has already spoken with sufficient clarity in the: White Paper on Indian States with regard to the political changes in Junagadh and what the Government of India has stated therein shows clearly enough that there was no changeover of assumption of sovereignty on 'November 9, 1947 in the sense 'which learned counsel for the respondents has contended for; lastly, it appears to us that the question with which we are concerned in these appeals is not essentially a question as to any disputed ""facts of State" the determination of which is solely in the hands of government; rather it is a question which must be determined by the court.
What we have to determine in these appeals is not; the status or boundaries of a particular State territory, but the validity or otherwise of the plea taken on behalf of the appellant State that the impugned orders made by the administrator were acts "of State not justiciable in the municipal courts.
There is a long line of decisions in which such a plea has been determined by courts ' of law without the necessity of obtaining the opinion of Government.
The plea is really a plea with regard to the maintainability of the suits brought by the respondents and must be determined by the courts concerned.
At one stage of the arguments learned counsel for the respondents referred us to s.6 of the Extra Provincial Jurisdiction Act, 1947 (XLVII of 1947) and contended that under that section it was obligatory on this court to refer the question to the Ventral Government.
When however it was brought to his notice that section 6 in terms did not apply to the proceedings out of which these appeals have arisen he submitted that even if, it be not obligatory to refer the question to the Central Government, it is expedient that it should be so referred inasmuch as the answer to the question depends on "the extent of the jurisdiction" which the Dominion of India, assumed in Junagadh on November 9, 1947.
This according to learned counsel, is a " 'fact of State" which only; Government can determine.
984 We have already stated there is no uncertainty about.
the facts on which the plea of the appellant State is based, and Government has already spoken about them with sufficient clarity.
What are these facts and how has Government spoken? We refer to para.
223 at pages 113 and 114 of the White Paper on Indian States issued by the Government of India, Ministry of States, a publication to which this Court has referred in several earlier decisions as containing the authentic opinion of Government on the political questions involved.
"The position of Junagadh and certain other adjoining States in Kathiawar may also be briefly stated here.
After the Nawab of Junagadh had left the State for Pakistan, the administration of the State was taken over by the Government of India on November 9, 1647, at the request of the Nawab 's Council.
Obviously, the action taken by the Govern.
ment of India had the fullest approval of the people of Junagadh in that the results of the referendum held in Junagadh and the adjoining smaller States in February 1948, showed that voting in favour of accession to India was virtually unanimous.
During the period the Government of India held charge of the State an Administrator appointed by the Government of India assisted by three popular rep resentatives conducted the administration of the State.
In December 1948, the elected representatives of the people of Junagadh resolved that the administration of the Stat e be made over to the Government of Saurashtra and that the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State with a view to framing a common Constitution for Saurashtra and the Junagadh State.
Similar resolutions were adopted by the representatives of Manavadar, Mangrol,.
Bantwa, Babariawad and Sardargarh.
Accordingly a Supplement Covenant (Appendix XXXVI) was 985 executed by the Rulers of Kathiawar States with a view to giving effect to the aforemen tioned resolutions.
The administration of Junagadh was taken over by the Saurashtra Government on January 20, 1949, and of the other States some time calling.
Accordingly the Constitution treats Junagadh and these States as part of Saurashtra.
" It would be clear from the aforesaid paragraph that the various steps in the assumption of sovereignty over Junagadh by the Dominion of India, between the dates November 9, 1947, and January 20, 1949, were these: (1) The administration of Junagadh was taken over by the Government of India on November 9, 1947 at the request of the Nawab 's Council; (2) during the period the Government of India held charge of the State, an Administrator appointed by the Government of India assisted by three popular representatives conducted the administration of the State; (3) in February, 1948 there was a referendum and the people of Junagadh voted in favour of accession to India; but no actual accession took place by the execution of any Instrument of Accession; (4) in December, 1948 the elected representatives of the people of Junagadh resolved that the Administration of the State be made over to the Government of Saurashtra and the representatives of Junagadh be enabled to participate in the Constituent Assembly of Saurashtra State; (5) a Supplementary Covenant (Appendix XXXVI of the White Paper) was executed by the Rulers of Kathiawar States with a: view to giving effect to the resolutions aforesaid; and (6) lastly, the administration of Junagadh was taken over by the Government of Saurashtra on January 20, 1949.
986 In M/s. Dalmia Dadri Cement Co., Ltd. vs The Commissioner of Income tax (1) this Court observed.
.lm15 "In law, therefore, the process of acquisition of new territories is one continuous act of State terminating on the assumption of sovereign powers de jure over 'them by the new sovereign, and it is only thereafter that rights accrue to the residents of those territories as subjects of that sovereign.
In other words under the dominion of a new sovereign, the right of citizenship commences when the act of.
State terminates and the two therefore cannot co exist.
" There may be cases where by a treaty or an agreement there is a change, over of de lure sovereignty at one and the same time and in such a circumstance the change over may not be a process, but that is not what happened in the case of Junagadh.
The administration of Junagadh fell into chaos and disorder and the Government of.
India stepped in at the request of the Nawab 's Council and took charge of the administration through an Administrator, on November 9, 1947, the Ruler having fled the country before that date.
It is clear to us that there was no change over of de jure sovereignty on that date.
Junagadh State still continued as such and did not cease to exist; otherwise there would be no meaning in the referendum held in February, 1948 or the resolutions passed in December, 1948, by the elected representatives of the people of Junagadh.
Nor, would there be any meaning in the Supplementary Covenant executed by the Rulers of Kathiawar States.
It is also worthy of note that there was no accession to India by the Junagadh State by the execution 'of any Instrument of Accession.
We may in this connection refer to sections 5 and 6 of the Government of India Act, 1935, as they stood at the relevant time.
Section stated inter alia that the Dominion of India shall, (1) [1959] section C. R. 729, 741.
987 as from the 15th day of August, 1947, be a Union, comprising (a) the, Governor is ' Provinces, (b) the; Chief Commissioners ' Provinces,(c) the Indian States acceding.
to the, Dominion in the manner provided by section 6, and (d) any other areas that, may with the consent of the Dominion be included, in the Dominion.
Junagadh was neither a Governor 's nor a Chief Commissioner 's Province.
It did not accede in the manner laid down in section 6.
It was not, therefore, a State acceding to, the Dominion.
Nor do we think that the territory of, Junagadh State was included within the territory of the Dominion in the sense of el.
(d) of section 5 as from November 9, 1917.
The process of assumption of sovereignty was not yet complete and the Dominion of India did not treat the territory of Junagadh, as part of its own territory.
The Dominion Government gave its concurrence to the Supplementary Covenant executed by the Rulers of Kathiawar by which the States of Junagadh, Manavadar, Mangrol, Bantwa, Babariawad and Sardargarh were to be integrated with Saurashtra.
It is significant that in this Supplementary, Covenant Junagadh was mentioned as a separate State, the administration of which was to be integrated with the United State of Saurashtra.
It was only when, this.
integration took place that Junagadh ceased to be a separate State.
This position appears to us to be beyond any doubt and has been made sufficiently clear by the statements made in, par&. 223 of the White Paper on Indian States.
Learned Counsel for the respondents has relied on certain observations made in well known text books on International law and has contented that State sovereignty and.
, State jurisdiction are complementary and co extensive; and a right of property and control exercised by the State is really a right of territorial severeignty and therefore the acquisition of territory by a State can mean nothing else than the acquisition of sovereignty over such territory.
(See Sohwarzenberger: International , Vol. 1, page 79: Charles Cheney Hyde: International Law, 2nd revised edition, Vol.
I, page 319; Oppenheim 's International Law, 8th Edn.
I, page 545).
He has contended that in view of the aforesaid observations, it must be, held that the Dominion of India assumed sovereignty over Junagadh on November 9, 1947; because, so learned counsel contends, exercising control over a parti cular territory is exercising sovereignty over it.
We do not think that the observations to which learned counsel has referred help in the solution of the problem before us.
In cases where the acquisition of new territory is a continuous process, a distinction must be made between de,facto exercise of control and de jure assumption of sovereignty.
The problem before us is, as was stated in M/s. Dalmia Dadri Cement Co., Ltd. V. The Commissioner of Income tax (1), as to when the act of State was complete; in other words, when did the assumption of sovereign powers de jure, by the new sovereign over territories acquired by it take place? The problem is really one of State succession; namely succession to International Persons as understood in International law.
Such a succession takes place when one or more International Persons take the place of another International Person in consequence of certain changes in the latter 's condition; there may be universal succession or partial succession.
In the case before us, as long as Junagadh State ' continued as such, there was no such succession and even though the Dominion of India took over the administration of Junagadh and exercised control therein, it did not assume de jure sovereignty over it.
Therefore, the act of State did not terminate till January 20, 1949, when the Dominion of India assumed de, jure sovereignty over Junagadh by its integration into the United State of Saurashtra.
It is perhaps necessary here to refer to two decisions on which learned counsel for the (1) [1959] section C. R. 729, 741.
989 respondents has relied: In re: Southern Rhodesia(1) and Sammut vs Strickland (2).
In the first decision it was observed in connection with the conquest of certain territories in Southern Rhodesia, that a proclamation of annexation is not essential to constitute the Crown owner of the territory as completely as any sovereign can be owner of lands publici juris; a manifestation of the Crown 's intention to that effect by Orders in Council dealing with the lands and their administration, is sufficient for the purpose.
These observations were made in the context of a question not between State and State but between sovereign and subject.
Lord Sumner said: " No doubt a Proclamation annexing a conquered territory is a well understood mode in which a conquering Power announces its will urbi et orbi.
It has all the advantages (and the disadvantages) of publicity and precision.
But it is only declaratory of a state of fact.
In itself it is no more indispensable than is a declaration of war at the commencement of hostilities.
As between State and State special authority may attach to this formal manner of announcing the exercise of sovereign rights, but the present question does not &rise between State and State.
It is one between sovereign and subject.
The Crown has not assented to any legislative act by which the declaration of its will has been restricted to one definite form or confined within particular limits of ceremonial or occasion.
The Crown has not bound itself towards its subjects to determine its choice upon a conquest either out of hand or once and for all.
If her 'Majesty Queen Victoria was pleased to exercise her rights, when Lobengula was defeated by her and her subjects, as to one part of the dominions in 1894 and as to another.
part not until 1898, (1) (2) 990 if she was pleased to do so by Public acts of State which indicate the same election and confer the same supreme rights of disposition over his conquered realm as annexation would have done it is not for one of her subjects to challenge her policy or to dispute her, manner of giving effect to it.
, We do not think that these observations help to establish the contention of learned counsel for the respondents that any exercise of administrative control in acquired territory must mean at once that there is an assumption of sovereignty ' by the incoming State so as to terminate the act of State.
The observations made by Lord Sumner merely show that with regard to territory which the 'Crown has Conquered the Crown 's intention can be manifested in more than one way, and not necessarily by a proclamation.
In the case before us a proclamation was issued by the Administrator, but that merely announced that he had assumed charge of the administration of Junagadh State under orders of the Government of India.
It made no announcement as to assumption of sovereignty.
In the second decision one of the questions raised was the true nature of the title of the Crown to the sovereignty of Malta, and a distinction was sought to be drawn between ceded territories those acquired by an act of cession from some sovereign power, and those ceded by the general consent or desire of the inhabitants.
It was held that so far as concerned the prerogative right of the crown to legislate by Letters Patent or Orders in Council for the ' ceded colony, the distinction was of no materiality '.
It is difficult to see how this decision affords any assistance to the respondents.
It is indeed true that the people of Junagadh voted for accession to the Dominion of India , but no Accession actually took place and later there was a merger in ' the United State of Saurashtra with the consent of the people of, Junagadh and the Government of 991 India Till, such merger there was,, no "cession" of territory in the I sense either with or without the Consent of the people.
In view, the only conclusions which follows from the facts which we have earlier stated is that there was no assumption of sovereignty by the Dominion of India over Junagadh before January 20, 1949.
This disposes of the main argument advanced on, behalf of the respondents, and it is unnecessary in these appeals to consider the further argument to what rights the subjects of the ex sovereign in the acquired territory carried with them as against the new; sovereign.
At one stage of his argument learned counsel for, the respondents commended for our acceptances the view of Chief Justice John Marshall in United States vs Percheman (1) that when 'the inhabitants of the acquired territory change their allegiance and their relation to the old sovereign is dissolved, their rights of property, remain undisturbed, and, he suggested that this view was consistent with modern usage of nations and was accepted by the Permanent Court of Inter.
national Justice.
(See the Advisory Opinion of the Permanent Court on the Settlers of German Origin in Territory ceded by Germany to Poland, Series B, No. 6, particularly pp. 35 36).
He conceded, however that this Court has accepted the view expressed by the English Courts in Cook vs Sprigg(2) and the decisions which followed it.
That view proceeds on the doctrine that acquisition of territory by conquest, cession or; annexation being an act of State ', municipal tribunals have no authority to give a remedy in respect of any actions arising therefrom (See M/s. Dalmia Dadri Cement Co., Ltd.,V.
The Commissioner of Income tax(3) and State of Saurashtra vs Memon Haji Ismail Haji(4) Therefore learned counsel,was at great pains establish that the act of State was complete on November 9, 1947, (1) ; , 86 87.
(2) (3) [1959] section C. R. 729, 741 (4) 7. 992 and he argued that thereafter the respondents be came citizens of the Dominion of India and under section 299 of the Government of India Act, 1935, they could not be deprived of property, save by authority of law.
He relied on two decisions of this Court: Thacker vs State of Saurashtra (1) and Virendra Singh vs State of Uttar Pradesh (2).
In view of our finding that the act of State did not terminate till the process of acquisition was complete on January 20, 1949, it becomes unnecessary to consider this second step in the argument of learned counsel.
But per haps it is necessary to add that the decision in Virendra Singh vs State of Uttar Pradehe (2) was based on the special circumstances mentioned there in which led to the making of the Constitution of India.
The learned Attorney General appearing for the appellant State has submitted that the principle of Virendra Singh 's case (2) cannot be extended to the entirely different set of circumstances in which the Government of India Act, 1935, was made and a. 299 thereof did not affect the doctrine that municipal tribunals have no authority to give a remedy in respect of actions arising from an act of State.
He also drew our attention to a decision of this Court in Jagannath Agarwala vs The State of Orissa (a) in which in respect of some claims made against the State before the coming into force of the Constitution but enquired into and rejected by Government after the coming into force.
of the Constitution, it was held that unless the now sovereign had expressly or impliedly admitted the claims, the municipal courts bad no jurisdiction in the matter.
We consider it unnecessary to give our decision on these 'submissions, because it is obvious that before the Dominion of India assumed de jure sovereignty over Junagadh, the respondents were not in a position to call to their aid the provisions of section 299 of the Government of India Act, 1935.
(1) A.I.R. 1954 S.C.680.
(2) (3) ; 993 In the appeals before us we are dealing with orders made the Administrator before the act of ,State was complete.
The action taken by the impugned orders &rose out of and during an act of State.
That being the position, it is clear that the municipal, tribunals had no authority to give a remedy in respect of such action.
It remains now to consider the last argument advanced on behalf of the respondents.
As was observed in State of Saurashtra vs Memon Haji Ismail Haji (1) an act of State is an exercise of sovereign power against an alien and is neither intended nor purports to be legally founded.
On behalf of the respondents it has been contended that the Administrator purported to cancel or :resume the grants under consideration in these appeals in pursuance of law; therefore, it was not open to the appellant State to take up the plea of an act of State.
We 'do not think that there is any substance in this argument.
Learned counsel for the respondents in Civil Appeal No. 349 of 1958 has drawn our attention to the pleadings, particularly to par&. 8 of the written statement filed on behalf of the appellant State.
In that paragraph it was stated the order of resumption dated January 8, 1949 was legal and the Administrator had authority to resume such inam grant.
On the basis of this paragraph 'it has been contended that inasmuch as the Administrator purported to act under authority of law it was not open to the appellant State to raise the plea of an act of State.
In this connection we must also refer to para.
17 of the written statement where the appellant State specifically pleaded that the plaintiff respondent had no right to bring the suit against Government.
In the trial court a specific issue was ;struck on the question as to whether the court had jurisdiction to hear and determine the suit.
and under this issue the argument advanced was that the order of resumption was an act od State not justiciable in the municipal.
courts.
It appears, however, that the appellant State (1) [1960] 1 S.C.R.537.
994 also took a plea in the alternative that the order of resumption was justified under the rules in force in the Junagadh State.
The trial, court, held that the order of resumption was not an act of State It further held that the order of resumption was not justified by the rules in: force in the Junagadh State.
In these circumstances it cannot be said that the appellant State did not plead an act of State; nor can it be said that it was not open to the appellant State to raise, that plea ' , In the High Court also the same plea of: act of State was urged on behalf of the appellant State but was rejected by the High Court on the basis of its decision in State of Saurashtra vs Memon Haji Ismail Haji Valimamad(1).
That decision, we have stated earlier, was overruled by this Court in State of Saurashtra vs, Memon Haji Ismail Haii Learned counsel for the respondents then, referred us to an order dated February 9, 1949, 'in which it was stated that inam grants were resumable at the pleasure of Government and therefore the orders passed on January, 8, 1949, could not be cancelled.
Apparently the orders dated February.
, 9, 1949 was passed on some representation made, at the instance of the plaintiffs respondents.
We have to read the two orders, one dated January 8, 1949, and the other dated February 9, 1949, together.
If so read, it is clear that the order dated January 8, 1949, was, made by the Administrator not under the authority of any law but as an act of State.
Learned counsel for the respondents relied on the decision in Forester vs The Secretary.
of State for India(3).
In that case, the Privy Council, upon a construction of the treaty, or agreement made by the British.
Government in August, 1805, with Begum Sumroo, held that the Begum was not a sovereign princess but a mere Jagirdar under obligation to keep up a body, of troops to be employed when called upon in, the (1) All.
R. 1953 Saurashtra 180.
(2) (1960) I section C. R. 537.
(3) 995 service of the sovereign.
On that finding it was held that the resumption of the lands by the British Government upon the death of the Begum was not an act of State but an act done under legal title.
We do not think that the principle of that decision applies to the facts of these cases.
In Vejesingji ji Joravarsingji vs Secretary of State for India (1) Lord Dunedin said that no plea specifically using the words " 'act of State" was required and the moment cession of territory was admitted.
, the onus was on the plaintiffs respondents to prove that the right which they claim had been expressly or tacitly recognised by the new sovereign.
If there was ,no such recognition and none was pleaded in these cases the municipal courts would have, no jurisdiction to give any relief.
In this view of the matter it was not open to the courts below to enquire into the powers of the Nawab to resume or derogate from the grants made and whether similar powers were inherited by the Dominion Government or its agents.
The action being an act of State was not ;justiciable in the municipal courts, even if the same were arbitrary.
We have, therefore, come to the conclusion that the courts below were wrong in holding that the suits were maintainable and in enquiring into the merits of the cases.
The appellant State is entitled to succeed on the plea that the orders of resumption made by the Administrator arose out of and during, an act of State and were not, therefore, justiciable in the municipal courts.
We would accordingly allow these appeals and the suits will stand dismissed with costs throughout.
There will be one hearing fee for the hearing in this court.
MUDHOLKAR, J. We also agree that the appeals be allowed.
but we wish to I say a few words.
To appreciate the points which arise in these cases certain broad facts common to all appeals may well (1) (1924) L. R. 511 A. 357.
996 be stated.
The respondents held certain properties in that part of the present State of Gujarat which was formerly the ruling State of Junagadh, by virtue of grants from its Ruler.
After India attained independence on August 15, 1947, the suzerainty which the British Crown held over the State of Junagadh lapsed and that State became completely sovereign.
That was the effect of the Indian Independence Act.
Shortly thereafter, the Ruler of Junagadh went to Pakistan leaving the State to its fate, with the result that the affairs of that State fell into disorder.
At the invitation of the people of the State the Government of India decided to step in and accordingly took over its administration through the Regional Commissioner, Western India and Gujarat States Region on November 9, 1917.
A proclamation was issued by him to the effect that he had assumed the administration of Junagadh as from that date.
On November 14, 1947, he appointed an Administrator for administering the territory.
The Administrator passed orders on different dates resuming the grants in favour of the respondents and dispossessed them.
Thereafter on January 20, 1949, the territory of Junagadh was with the approval of the Government of India integrated with the United States of Saurashtra and the Administrator ceased to exercise any functions as from that date.
The resumption of the grants and the validity of their dispossession were challenged by the respondents by instituting, suits for possession of the property after the integration of Junagadh with the United State of Saurashtra upon the ground that they could not be deprived of their properties by executive action.
According to them the act of the Dominion of India in taking over the administration of Junagadh territory on November 9, 1947, amounts to assumption of sovereignty over it, that ' thereby its residents became citizens of the Dominion of India as from that date and, therefore, no not of state 997 such as resumption of their properties could be committed against them by the Indian Dominion.
According to the appellants no municipal court could grant the relief claimed by the respondents because the act complained of was an act of state.
The plea of the respondents was accepted by the High Court of Saurashtra following the decision in the State of Saurashtra vs Memon Haji Ismail Haji Valimamd(1).
The present appeals are, from its judgment.
The Attorney General who appeared for the appellants stated that this Court has reversed that decision in State of Saurashtra vs Memon Haji Ismail Haji (2) and that, therefore, these appeals should be allowed.
In that case this Court held that the Indian Dominion merely assumed the administration of Junagadh State on November 9, 1947 at the request of the Ruler 's Council but did not formally annex it till January 20, 1949.
Mr. Pathak 's contention is that as the respondents were not parties to the decision in Memon Haji 's case (2) they are not bound by the finding of this Court that the Junagadh State was annexed by the Indian Dominion on January 20, 1949.
It seems to us, however, that the question whether Junagadh was annexed on January 20, 1949, or.
earlier would make little, difference to the result of the appeals before us.
Nor again would the question whether the, I Extra Provincial Jurisdiction Act was applicable to the orders made by the Administrator and this was a display of sovereignty, as contended for by Mr. Pathak, would make any difference.
In along catena of cases beginning from Cook vs Spriggs (3) and going upto Asrar Ahmed vs Durgah Committee, Ajmer(4) the Privy Council has stated the legal position of the subject of a displaced sovereign vis a vis the now sovereign.
In the words (1) A. I. R. 1953 Saurashtra 180.
(2) ; (3) (4) A. I. R. 1947 P.C I. 998 of Lord Dunedin in Vajesinghji vs Secretary of State for India(1), it is as follows When a territory is acquired by,& sovereign State for the first time that is an act of State.
It matters not how the acquisition has been brought about.
It may be by conquest, it may be by cession following on treaty, 'it may be by occupation of territory hitherto unoccupied by a recognised ruler.
In all cases the result is the same. 'Any inhabitant of the territory can make good in municipal courts established by the new sovereign only such rights as that sovereign has, through his officers, recognized.
Such rights as he had tinder the rule of predecessors avail him nothing.
Nay more, even if in a treaty of cession it is stipulated that certain inhabitants should enjoy certain rights, that does not give a title to those inhabitants to enforce those stipulations in the municipal courts.
The right to enforce remains only with the high contracting parties.
" This statement of the law has ' been accepted by this Court in M/s. Dalmia Dadri Cement Co., Ltd. vs Commissioner of Income tax (2) upon which ;reliance has been placed in State of Saurashtra V. Memon Haji Ismail Haji (3) and recently also in Jagannath Aggarwala vs The State of Orissa (4).
Thus even if on the respondents ' own showing that the Junagadh territory must be deemed to have been annexed by the Indian Dominion by assuming administration over it and thereupon its residents became citizens of India, they could assert and establish in the municipal courts of the new sovereign only such rights as were recognized by the.
Indian Dominion.
The respondents claim to be grantees from the Ruler of Junagadh but their grants avail them nothing in the courts of the now sovereign unless they were recognized by that sovereign.
The burden of showing that they were so recognized lay on the respondents.
(1) (1921) L.R. 51 I. A. 357.
(2) (3) ; (4) ; 999 A perusal of the orders passed by the administrator would clearly show that, far from recognizing those grants 'they Were in effect repudiated by him.
The administrator in fact resumed the grants but whatever the form his orders took in truth and in substance they were no" more than a clear arid unequivocal declaration of the fact that the right ' claimed by the respondents to the 'properties in question by virtue of the grants made in their favour by the former Ruler.
were not, recognized by the new sovereign.
Recognition or refusal of recognition of rights of erstwhile aliens who had no legal enforceable , rights cannot be said to be an act of state because in the Indian Dominion other had already vested in the Indian Dominion at the moment it occupied Junagadh territory The right to retain Possession was also dependent, upon recognition by the Dominion of India and by dispossessing the respondents the former exercised its choice and refused to recognise their rights.
On the principle accepted by this Court in the decisions already referred to, the res pondents "were disentitled from obtaining any redress from 'a court in the Indian Dominion, and after the commit into force 'of the constitution, from a court in the union of India, in the absence of recognition of their rights by it or by the Union of India.
We may now ' advert to another point, urged by Mr. Pathak, According to him, if we understood him correctly, the Extra Provincial Jurisdiction Act was applied to Junagadh, that thereunder the local laws prevailing therein were continued and that the Alienation Settlement Act which was one of such laws, conferred on the granted of rights against the Ruler.
By continuing this law the Dominion of India, accordant, to him,. must be deemed to have recognized the respondents rights under the grants.
For enabling us to consider, the point it was necessary for the respondents to place before us the Order of the Dominion of India under 1000 section 4 of the Extra Provincial Jurisdiction Act, 1947 Which alone empowered it to prescribe the laws which of the Indian Dominion, over which it had assumed sovereignty or administrative control.
Similarly they had to place the Alienation Settlement Act of Jungadh before us.
the absence of this material we cannot consider the argument at all.
Mr. Pathak, however contended that if sovereignty was assumed on November 9, 1947, the residents of Junagadh became the citizens of the Indian Dominion and were therefore, entitled for the protection of section 299(1) of the constitution Act, 1935.
` This provision runs thus: "No person shall be deprived of his property save by authority of law".
What section 299(1) protects are the rights of a person to property which he had when section 299(1) cases into force or applied to him.
It does not add to any property right of any person, though it contains an admonition to the State against deprive in any person of his property by mere executive action.
For ascertaining whether the provision has been violated we must first examine the existance and the nature of.the rights possessed by the respondents on November 9, 1947, that is, at the moment of assumption of administration by the Dominion of India over Junagadh territory assuming of,courge that this amounted to assump tion of sovereignty over Junagadh).
Their rights were as grantees from the former ruler and although it thay be that according to the principles of international law their rights as grantees ought not to be affected, no municipal court has their right to enforce the obligation of the new sovereign to respect them.
For, as oitited out by Venkatarama Iyer J., who delivered he judgment of this Court in Dalmia Dadri Cement Co., Ltd. vs Commissioner of Income tax(1): (1) [1959] S.C.R. 729, 741.
1001 "It is also well established that in the new set up these residents do not carry with them the rights which they possessed as subjects of the ex sovereign, and that as subjects of the new sovereign, they have only such rights as are granted or recognised by him One of the decisions relied on by this Court in that case is that of the Privy Council in Secretary of State for India vs Bai Rajbai(1) in which they have observed "The relation in which they stood to their native sovereign before this cession and the legal rights they enjoyed under them, are, save in one respect, entirely irrelevant matters.
They could not carry on under the new regime the legal rights, if any, which they might have enjoyed under the old.
The only legal enforceable rights they could have as against their new sovereign, were those, and only those, which that new sovereign by agreement express or implied, or by legislation, chose to confer upon them." Thus, before the respondents could claim the 'benefit of section 299(1) of the Constitution Act, 1935 they had to establish that on November 9, 1947, or thereafter they possessed legally enforceable rights with respect to the properties in question as against the Dominion of India.
They could establish this only by showing that their pre existing rights, such .as they were, were recognized by the Dominion of India.
If they could not establish this fact, then it must be held that they did not possess any legally enforceable rights against the Dominion of India and, therefore, section 299(1) of the Constitution Act, 1935 avails them nothing.
As already stated a. 299(1) did not enlarge anyone 's right to property but only protected the one which a person already had.
Any right to property which in its very (1) (1915) L. R: 42 I.A. 229. | The Nawab of junagadh State made grants of properties in favour of the respondents before 1947.
After India attained independence the Nawab fled the country.
At the request of the Nawab 's Council the Government of India took over the administration of the State and on November 9, 1947 the Regional Commissioner assumed charge of the administration on behalf of the Government of India.
The Regional Commis sioner appointed an Administrator of junagadh State.
In December 1948, the elected representatives of Junagadh and certain other neighbouring States recommended to the Govern ment of India and to the United State that of Saurashtra that the States be integrated.
Thereafter, the administration of junagadh State was integrated with the United State of Saurashtra on January 20, 1949.
On different dates between November 9, 1947, and january 20, 1949, the Administrator passed orders cancelling the grants in favour of the respondents and took possession of the properties.
The respondents filed civil suits for the recovery of the properties on the ground that 971 they had been taken away without the authority of law.
The appellant contended that the orders made by the Administrator arose out of and during an act of State and were not justiciable in the municipal courts.
The respondent contended that the ,question as to when the change over of sovereignty took place was a political question which should be referred to the Government of India for its Opinion and the Court should abide by that opinion and that the facts of this case showed that there was complete change over of sovereignty on November 9, 1947, and the act of State was complete.
I Held, (per C. J., Das and Ayyangar, jj.) that the impug ned orders arose out of and during an act of State and they could not be questioned before municipal tribunals.
There was no change over of de jure sovereignty on November 9,1947 when the administration was taken over and junagadh continued to exist as such even after this date.
junagadh was not a State which acceded to the Dominion nor was its territory included within the territory of the Dominion as from November 9, 1947.
It was only on January 20, 1949, that the Dominion of India assumed de jure sovereignty over junagadh by its integration into the United State of Saurashtra and the act of State came to an end.
It was not necessary to seek information from the Government of India as to the date of the change over as there was no uncertainty about it and also as the Government of India had spoken with sufficient clarity in the White Paper on Indian States.
State of Saurashtra vs Memon Haji Ismail Haji, ; and M/s. Dalmia Dadri Cement Co. Ltd. vs The Commissioner of lncome tax, (1959) S.C.R. 729, followed.
In re: Southern Rhodesia, and Samaut vs Strickland , referred to.
Per Sarkar and Mudholkar JJ.
Even if it be accepted that junagadh was annexed on November 9, 1947, and the respondents became citizens of India they could assert and establish, in the municipal courts of the new sovereign only such rights as were recognised by the Indian Dominion.
The burden of showing that they were so recognised lay on the respondents.
The orders passed by the Administrator show that far from recognizing the grants in favour of the respondents they were repudiated.
The respondents could not claims the benefit of section 299 (1) of the Government of India Act; 1935, as they had to establish that on or after November 9, 1947, they possessed legally enforceable right against the Dominion of India, which they could only do by showing that their pre existing rights had been recognized by the Dominion of India; s.299(1) did rut enlarge any rights to property but only protected those which a person already had.
972 M/s Dalmia Dadri Cement Co., Ltd. vs The Gommissioner of Income tax, (1959) S.C.R. 729, In Re,.
Southern Rhodesia, Samaut vs Strickland, , United States vs Percheman, ; , Cook vs Sprigg, , Phacker vs State of Saurashtra, A.I.R. 1954 S.C. 680 and Virendra Singh vs State of Uttar Pradesh, ; |
Appeal Nos. 1173 to 1175 of 1976.
Appeals by Special Leave from the Judgment and Order dated the 1 3 1975 of the, Bombay High Court (Nagpur Bench) in Special Civil Application No. 695 of 1971.
L.N. Sinha, Sol Genl., M.N. Shroff for the Appellants in CA 1173/76 for R. 3 in C.A. 1174/76 and 1175/76.
M.N. Phadke, V. M. Phadke and ,4.
G. Ratnaparkhi for RR.
J. and 2 in CA 1173/76 and CAs.
1174 75/76.
Nilofer (Mrs.).Bhagwat, S.C. Agrawal and V. J. Fran cis for R. 5 in C.A. 1174 and 1175/76.
V.J. Francis for RR.
No. 6 in CA 1175/76.
The Judgment of the Court was delivered by SINGHAL J.
These appeals arise out of a judgment of the Bombay High Court dated March 11, 1975, by which the High Court quashed that part of Government resolution dated January 15, 1970, "which holds that the respondents Nos.
3 to 5 should not be compelled to go back to their respective lists.
and which gives a further option to these three respondents to indicate whether they wanted to go back to the department of History.
" The High Court has further held that the writ petitioners will be entitled to be considered for promotion to Class I posts in the department of Politi cal Science and the seniority of respondents Nos. 3 to 5 "will be considered in the seniority list relating to the Department of History".
The controversy arose because of a writ petition filed by Bhalchandra Khanderao Joshi and Padmakar Siddhanath Kane.
Both of them were members of the Maharashtra Educational Service, Class II (Collegiate Branch).
Bhalchandra Khande rao Joshi was M.A. in Political Science as well as in History.
He was appointed Lecturer in Political Science in 1958, and was confirmed in that capacity.
Padmaliar Siddhanath Kane passed M.A. Examination in Political Science in 1956 and was appointed Lecturer in Political Science in 1958.
He was also confirmed on that post.
Both of them filed a writ 784 petition and challenged the resolution of the State Govern ment, in the Education and Social Welfare Department, No. SCP No. 1064 D dated January 15, 1970, in pursuance of which respondents Smt.
K.A. Parekh, S.A. Bari and Smt.
R.S. Dossal were promoted as Professors of Political Science and were given the option to opt for the History or the Political Science department.
It may be mentioned that after the reorganisation of States, a combined seniority list was prepared on November 1, 1956, for History and Political Science teachers.
In that list respondent No. 3 was; shown at serial No. 3, and respondent No. 4 at serial No. 5.
One S.R. Nanekar was appointed as Lecturer in Political Science on June ' 26, 1954.
Respondents Nos. 3 and 5 were M.A. in History.
It was not disputed in the High Court that Political Science was not a separate subject until 1956, in Bombay, because out of the eight papers for post graduation in History, four were in Political Science.
K.A. Parekh was M.A. in History and was recruited as Lecturer on August 5, 1946.
She however taught both History and Political Science upto 1963, when she was appointed officiating Professor of Political Science on February 27, 1963.
Dr. S.A. Bari was recruited as Lecturer in History on October 1, 1947.
He was thereafter promoted as Professor in that subject.
M.G. Sonnal, who. was M.A. in History, was appointed as Professor of Political Science.
R. S, Dassal was recruited as Assistant Lecturer in History on August 5, 1946, and taught both History and Political Science upto 1956.
Thereafter she taught only Political Science, and was promoted as Profes sor in that subject in 1968.
She was confirmed in that capacity in 1972.
These facts are quite sufficient for purposes of the present appeals.
The controversy relates to the question whether the Director of Education, Maharashtra State, had the authority to issue the letter dated August 20, 1963, which was ad dressed to all the Principals of he Government Colleges.
It was stated by the Director in that letter as follows, "It has been decided to amalgamate the two lists of lecturers in 'History ' and 'Political Science ' and to combine the two lists under the common subject of 'History ' and 'Political Science '.
The revised seniori ty list so prepared is enclosed herewith.
Please bring this decision of Government to the notice of the officers concerned.
" The Director thus conveyed the decision to amalgamate the lists .of
Lecturers in History and Political Science and to prepare a single seniority list for both the subjects.
It was expressly stated in the letter that it had been issued in pursuance of the decision of the State Government.
A revised seniority list was therefore prepared in which respondent No. 3 was placed at serial No,. 4, respondent No. 4 at serial No. 5, and S.R. Nanekar at serial No. 7.
Nanekar challenged that order in the High Court by Special Civil Application No. 120 of 1964, mainly on the ground that when two separate seniority lists had been prepared for the.
departments of History and Political Science, 785 in accordance with the earlier Government Order of 1960, the new list was invalid.
The High Court however took the view that the existence of the Government resolution dated February 27, 1963, which was said to be the authority for the issue of the Director 's letter dated August 20, 1963, had not been proved.
It therefore held that there was no such resolution or order requiring the preparation of a combined seniority list.
It decided that the earlier order of 1960, requiring the preparation of separate lists for History and Political Science, continued to be opera tive and that as Nanekar could not claim to be the senior most person in his department, he had no cause of action.
It therefore dismissed the writ petition.
The High Court, in the present case, went by the deci sion in Nanekar 's case, and held that there was no order or decision dated February 27, 1963, so that the action of amalgamating the lists of History and Political Science departments was invalid.
The High Court made a reference to the Director 's letter dated July 27, 1967 asking the Principals to forward information in the prescribed pro forma in respect of those Professors and Lecturers of Histo ry in their respective colleges who were qualified to teach Political Science and had been recognised therefore.
It also made a reference to the impugned resolution dated January 15, 1970 which reads as follows, "A decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in 'History ' and Lecturers in 'Political Science ' into one common list of Lecturers in 'History and Political Science '.
According ly, a combined seniority list was prepared with reference to the date of appointment of the officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of "History" and "Political Science" or in any one of the two.
The decision to amalgamate the two lists into one was taken because it was noticed that some of the Lecturers in the seniority list of the subject "History" also possessed the qualifications in the subject "Political Science".
Similarly, some of the Lecturers in "Political Science" possessed the qualifications in "History".
But they were not considered eligible for appointment to a post of Professor in a subject other than the subject under which their names were included in the seniority list of their subject.
In order to remove this anomaly, decision to amalgamate the seniority lists of Lecturers in "History" and "Political Science" and to make appointment to the posts of Professors on the basis of the combined seniority list in the subjects of "History" and "Political Science" was taken by Government.
However, in view of the difficulties experienced with regard to the implementation of the decision of Government referred to above, Government on reconsideration decided in the year 1967 to revert to the old practice of having separate seniority lists of Lecturers for the two subjects.
, 'History ' and 'Political Science '.
786 2.
Some of the teaching members of the Department of History brought to the notice of Government that in the western Maharashtra formerly there were no separate posts for Political Science as "Political Science" did not exist as distinct subject.
All teachers were designated as Lecturers/ Professors in History, but they used to teach the subject "Political Science" also.
The question of giving option to those Lecturers/Professors, who were qualified to teach both, the sub jects, viz., "History" and "Political Science" and recognised as such, to elect either of the two subjects, was under consideration of Government for some time past.
While re verting to the decision to split up the combined seniority list of "History and Polit ical Science", Government considers that those who were promoted to the posts of professors on the basis of the combined seniority list should not be compelled to go back to their respective .lists.
Government has now decided that an option should be given to those Lecturers/Professors of the Old Bombay State, who were recruited as Lecturers/Professors of History but have been recognised as teachers of Political Science and also those who have been promoted to the posts of Professors in M.E.S.C. II (Collegiate Branch) on the basis of the combined seniority list, to elect either of the two Departments, viz. 'Histo ry ' or 'Political Science '.
Accordingly the concerned Lecturers/Professors were asked to exercise" their option.
The following offi cers have opted for their being treated as belonging to the Department of Political Science: (i) Smt.
K.A. Parekh, Officiating Profes sor of Political Science, I. Y. College, Jogeshwari.
(ii) Shri S.A. Bari, Officiating Profes sor of History, Government Arts and Science College, Aurangabad.
(iii) Smt.
R.S. Dossal, Officiating Pro fessor of Political Science, Elphistone Col lege, Bombay.
The option exercised by these officers have been accepted by Government and their senior ity in the Department of Political Science should be as shown in the accompanying state ment." (Emphasis added).
It therefore gave option to respondents Nos.
3 to 5 to go back to the department of History or not, and stated further that the option had been accepted and their seniority finalised in the Political Science department.
It is this resolution of the Government dated January 15, 1970 which has been challenged in the present petition.
The reason is that if respondents Nos. 3 to 5 had not been, given the option to continue in the Political Science department, the petitioners would have been promoted to a Class I Post.
They have stated that they would then not have been deprived of that chance in violation of article 16 of the Constitu tion.
787 Respondents Nos. 4 and 5 did not enter appearance in the High.
Court, but it was urged on behalf of respondent No. 3 that in view of the curriculam for the Master 's degree in History, upto 1956, a person obtaining the Master 's degree in History was equally qualified to teach Political Science.
It was also urged that the respondent taught Political Science and had been recognised by the University as a teacher of Political Science.
The High Court examined the effect of the Government resolution dated January 15, 1970, and held that in the absence of the earlier resolution dated February 27, 1963, the Director of Education was not compe tent to combine or amalgamate the seniority lists of the History and Political Science departments.
It assumed that "legally there was no amalgamation at all and any action taken on the basis of such amalgamation would also consequently have to fall on the ground." In that view of the matter, the High Court held that promotions were not permissible on the basis of the combined list.
It accord ingly held that the Government resolution dated January 15, 1970 proceeded on a "misapprehension" that the respondents.
had been promoted as Professors on the basis of the combined seniority list, which was itself invalid.
The High Court 'held that there was "no valid reason why persons who were qualified in the Department of Political Science itself could be prevented from having their names considered for the post 'of Professor in Class I." That led: the High Court to hold further that the option which was given by the resolution dated January 15, 1970 had the effect of perpetu ating the effect of the working of the invalid list, and amounted to violation of article 16 of the Constitution.
This is why the State of Maharashtra, Smt.
K.A. Parekh and Smt.
R.S. Dossal have come up in appeal by special leave to this Court.
The controversy therefore is whether the State govern ment passed.
the aforesaid resolution dated February 27, 1963, to amalgamate the lists of Lecturers in History and Political Science, as stated in the Director 's aforesaid letter dated August 20, 1963, or whether there was no such resolution and the Director 's order was unauthorised ? The High Court has taken the view that as no attempt was made to produce the resolution dated February 27, 1963 in Nanekar 's case, there was no such, resolution at all.
On that basis, it held that the Director had no authority to take the decision to amalgamate the lists.
We find however that in taking that view ' the High Court lost sight of the intrinsic evidence which was available on the record, to prove beyond doubt that Government had passed the aforesaid resolution dated February 27, 1963, to amalga mate the two lists.
We have extracted the Government reso lution dated January 15, 1970 and the underlined portions thereof clearly show that the Government itself reiterated the fact that "a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in "History" and Lecturers in "Political Science" into one common list of Lecturers in "History and Political Science".
" It has further been stated in that resolution of the Government that "accordingly, a combined seniority list was prepared with reference to the date of appointment of the 788 officer concerned in the M.E.S. Class 11, irrespective of the fact as to whether the Lecturers are qualified in both the subjects of 'History ' and 'Political Science ' or in any one of the two".
The reason for taking that "decision to amalgamate the two lists" has also been stated in the reso lution.
Then it has been stated that in ':view of the difficulties experienced with regard to the implementation of the decision of Government referred to above," the Government "on reconsideration" had decided to revert to the old practice of having separate seniority lists of Lecturers of History and Political Science.
It has also been stated that the decision had been taken for "reverting to the decision to split up" the combined seniority list which formed the basis of promotion of some of the teachers.
It would thus appear that the resolution dated January 15, 1970, repeatedly refers to the earlier decision of the State Government of 1963 for amalgamating the lists, states the reason for the amalgamation, makes a mention of the diffi culties experienced in the implementation of that decision, and gives the reasons for the government 's decision to, revert to the old practice of having separate seniority lists.
As it was not challenged in the High Court that the resolution dated January 15, 1970 was genuine, the High Court should have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution dated February 27, 1963.
If it had done so, it would have inevitably reached the conclusion that the Government had really decided in 1963 to amalgamate the lists, and that the Director had rightly conveyed that decision in his order dated August 20,1963, and it was therefore an authorised communication.
In fact the Director specifically stated in that order that the "decision of Government" to amalgamate the two lists had to be.
brought to the notice of all concerned.
The combined seniority list was therefore fully authorised, and there was nothing wrong if it formed the basis of the promotions which were given to the persons mentioned above.
We have no doubt that the High Court did not read the relevant document carefully and that was why it arrived at a contrary conclusion.
The resolution dated January 15, 1970 shows that as the Government had decided to split up the seniority list for the department of ' History and Political Science, it thought it desirable to.
give an ".option" to those Lecturers/Pro fessors of the old Bombay State, who were recruited as Lecturers/Professors of History, but were recognised by the University as teachers of Political Science, to elect for either of the two departments.
No exception can be taken to that decision to give ' the option to the Lecturers/Pro fessors concerned for, in the absence of such an option, they would have been deprived of the opportunity of express ing their desire to serve in the one or the other department on the basis of their experience and prospects of promotion.
It was to be appreciated that the decision to amalgamate the seniority lists of the two departments was not taken in consultation with them, and if they were required to.
teach History, or Political Science, and were promoted as Profes sors of History or Political Science, on the basis of a combined seniority list for which.
they themselves were not responsible, it would have been unfair if they had been required to serve in another department by a unilateral executive fiat.
789 It may be mentioned that Mr. Phadke tried to argue that even if the resolution dated January 15, 1970 were held to be valid, it would not be permissible for the teachers concerned to take advantage or ' it because they did not fulfill its. requirements.
We do not find any merit in this argument.
As has been stated, those teachers were promoted to posts of Professors on the basis of the combined list, they were ,recognised as such teachers by the Univer sity, and were recruited initially as Lecturers in History.
They were therefore entitled to take the benefit of the resolution dated January 15, 1970, as there is nothing wrong with it.
We have no doubt that in the facts and circum stances mentioned above, there could be no justification for the view taken by the High Court that there was violation of article 16 of the Constitution.
The appeals are allowed, the impugned judgment of the High Court dated March 11, 1975 is set aside and the writ petition is dismissed.
The State of Maharashtra will pay the costs of respondents Nos. 1 and 2 (Bhalchandra K. Joshi and Padmakar Sidharath Rao) in Special Leave Petition No. 915 of 1976, as directed by this Court October 8, 1976. | After the reorganisation of the States a separate sen iority list was prepared by the State of Bombay for History and Political Science teachers.
On 20.8.1963, the Director of Education issued a letter conveying the decision of Government to amalgamate the list of lecturers in History and Lecturers in Political Science and to prepare a single seniority list for both the subjects.
It was expressly stated in the letter that it was issued in pursuance of the decision of the State Government.
Thereafter a revised seniority list was prepared.
One Nanekar filed a writ petition in the High Court challenging the said order on the ground that when two separate seniority lists had been prepared for the departments of History & Political Science in accordance with the earlier Government Order of 1960.
the new list was invalid.
The High Court took the view that the existence of the Government resolution dated 27.2.1963, which was said to be the authority for the issue of Direc tor 's letter dated 20.8.1963, had not been proved.
It therefore held that there Was no such resolution or.
order requiring the preparation of a combined seniority list.
It decided that the earlier order of 1960 requiring the prepa ration of separate list of History and Political Science continued to be operative.
It however dismissed the writ petition filed by Nanekar on the ground that he could not claim to be the seniormost person in his department In the present writ petition filed by B.K. Joshi and P.S. Kane the High Court followed its decision in Nanekar 's case and held that there was no order or decision dated 27.2.1963 so that the action of amalgamating the list of ' History and PoLit ical Science departments was invalid.
A resolution was taken on 15.1.1970 in which it was mentioned that the earli er decision to amal gainate the two categories was given up on account of the difficulties which were experienced and an option was given by the 1970 resolution in order to obviate those difficulties.
That resolution was challenged in the present proceedings.
The High Court examined the effect of the Government Resolution dated 15.1.1970 and held that in the absence of the earlier resolution dated 27.2.1963 the Director of Education was not competent to combine or amal gamate the seniority lists of History and Political Science Departments.
It assumed that legally there was no amalga mation at all and any action taken on the basis of the amalgamation would also consequently have to fall on that ground.
The High Court held that the option given by the 1970 resolution had the effect of perpetuating the effect of the working of the invalid list and amounted to violation of article 16 of the Constitution.
The High Court held that in Nanekar 's case no attempt was made to produce the resolution of 27.2.1963: Allowing the appeals, Held: 1: The High Court erred in observing that the resolution of 27.2.1963 did not exist.
The High Court lost sight of the intrinsic evidence which was available on the record to prove beyond doubt that Government had passed the resolution on 27.2.1963 to amalgamate the two lists.
In the 1970 resolution, the Government itself reiterated the act that a decision was taken by Government in the year 1963 to amalgamate the lists of Lecturers in History and the Lecturers in Political Science into one common list.
The reason for taking that decision to amalgamate the two lists was also stated in that resolution. ' In fact the 1970 reso lution made a mention of the difficulties experienced in working the 1963 resolution and that was why it was decided to revert to the decision to split up the combined seniority 'list which formed the basis of promotion of some of the teachers.
As the genuineness of the resolution of 1970 was 783 not challenged, the High Court ought to have taken notice of its intrinsic evidentiary value for the purpose of proving the earlier resolution of 1963.
In fact the Director in his order specifically stated that the decision of the Government to amalgamate the two lists had to be brought to the notice of all concerned.
The combined seniority list, was therefore fully authorised and there was nothing wrong if it formed the basis of the subsequent promotions.
[787 G H, 788 A E] 2.
No exception could be taken to the decision of the Government to give option to the Lecturers to elect either of the two departments.
The decision to amalgamate the seniority lists of the two departments was not taken in consultation with them and if they were required to teach History or Political Science and were promoted as Professor of History or Political Science on the basis of combined seniority list for which they themselves were not responsi ble, it would have been unfair if they had been required to serve in another depart.meat by a unilateral executive fiat. |
: CrimitIal Appeal No. 22 of 1976.
(Appeal by Special Leave from the Judgment and Order dated the 12th September 1975 of the Punjab and Haryana High Court in Criminal Revision No. 314 of 1973).
R.L. Kohli, for the appellant.
O.P. Sharma, for respondent.
The Judgment of the Court was delivered by BHAGWATI, J.
We made an order on 28th January, 1977 immediately after the conclusion of the hearing of the appeal and by that order, we allowed the appeal and set a 'side the order of conviction and sentence recorded against the appellant.
We now proceed to give our reasons for making that order.
The appellant was tried and convicted by the Judicial Magistrate, 1st Class, Ludhiana for offences under sections 468, 411 and 420 read with section 109 of the Indian Penal Code.
He carried an appeal to the Sessions Court but the appeal was unsuccessful.
A further revision application followed but that too was rejected by the High Court.
Hence the present appeal by special leave. 1009 The facts giving rise to the prosecution are set out in great detail in the judgment of the High Court and hence it is not necessary to reiterate them.
It is enough to state that 354 black iron sheets worth Rs. 17,701.91 were des patched by Hindustan Steel Plant from Munda near Bhilai to M/s. Shiv Rattan Mohatta at Bikaner in Wagon No. SEKC 4075.
The Railway Receipt in respect of this consignment was sent to M/s Shiv Rattan Mohatta through the State Bank of Bikaner and M/s Shiv Rattan Mohatta took delivery of the Railway Receipt against payment to the Bank.
The consignment, however, did not reach Bikaner and on enquiries being made, it was found by the Railway authorities that the wagon containing the goods had reached Agra en route Bikaner but at some point of time before it reached Agra, the labels attached to the wagon were either changed or removed and the entry in the vehicle summary guidance was also tempered with and Changed to exhibit LAR indicating that the wagon was des patched from Lalitpur and its destination was Ludhiana.
The result was that wagon, instead of going to Bikaner, was carried to Ludhiana and it reached there on 1st August, 1964.
The prosecution case was that round about this time, one person.
styling himself .as
Umedi Lal, resident of Agra, approached a firm called M/s Jindal Khemka & Co. which was carrying on business as dealers in iron sheets in Ludhi ana.
Umedi Lal produced a Railway Receipt exhibit PW 10/A before Joginder Lal and Ram Nath, partners of this firm and offered to sell the goods covered by this Railway Receipt to M/s Jindal Khemka & Co. This Railway Receipt was a forged document written out on a blank form stolen from the Railway Receipt Book maintained at a railway station called Banmore.
Joginder Lal went to Ludhiana Railway Station with this Railway Receipt on 2nd August, 1964 for taking delivery of the goods and presented the Railway Receipt to Teja Singh Sodhi, who was the Goods Clerk on duty at the goods sheet.
Teja Singh entertained some doubt about the genuineness of the Railway Receipt and he told Joginder Lal that the Rail way Receipt appeared to be defective.
In view of this, Joginder Lal, according to the prosecution, returned the Railway Receipt to Umedi Lal on the following day when he came to enquire about the receipt of the goods.
Umedi Lal then went to the railway station accompanied by one Shoja Ram, who was a Washing Soap dealer in Ludhiana, and present ed the Railway Receipt to Teja Singh Sodhi for taking deliv ery of the goods.
Curiously enough, though only a day before, Teja Singh Sodhi had entertained doubt about the genuineness.
of the Railway Receipt, his doubts suddenly seemed to have vanished and he delivered the consignment of 354 black iron sheets which had come in wagon No. SEKG 40765 to Umedi Lal.
It does not appear from the record us to where this consignment of 354 black iron sheets was kept by Umedi Lal, but out of it, 200/250 iron sheets Were taken to the premises of M/s Jindal Khemka & Co. for sale On commis sion basis.
Joginder Lal and Ram Nath were, however, ac cording to the prosecution, advised by some broker that since iron sheets were controlled items, they should insist on production of a bill showing purchase of these iron sheets by Umedi LaI. Joginder Lal and Ram Nath according asked Umedi Lal to produce 1010 the bill in connection with the purchase of these iron sheets, but Umedi Lal pleaded his inability to do so on the ground that these iron sheets represented 'surplus goods remaining after execution of a works contract by his firm of M/s Bansidhar & Sons of Lalitpur.
When this talk took place between Joginder Lal and Ram Nath on the one hand and Umedi Lal on the other, Umedi Lal was, according to the prosecu tion, accompanied by the appellant who was at the material time employed as a Guard in the Northern Railway.
Since Joginder Lal and Ram Nath refused to purchase the iron sheets, Umedi Lal removed the same in three carts and passed a receipt in, respect of the same in favour of M/s Jindal Khemka & Co. The prosecution case was that at this time also Umedi Lal was accOmpanied by three or four persons who included the appellant.
It appears that since M/s Shiv Rattan Mohatta did not re ceive delivery of the iron sheets consigned to them in Wagon No. SEKC 40765, they lodged a claim with the Railway Admin istration and this led to enquiries being made by the Rail way Administration.
Ultimately, the Railway Administration filed a first information report with the Special Police Establishment, Ambala Branch, and following upon the first information report, the police started investigation.
During the course of investigation, the police entertained suspicion against the appellant and they obtained from 'the appellant specimen handwritings PW 27/37 to PW 27/57 for the purpose of comparing them with the handwriting on the Rail way Receipt exhibit PU 10/A which was a forged document.
The Police also requested the Railway authorities to direct the appellant and one Ameeruddin, who was also an employee of the Railway Administration, to subject themselves to test identification parade at the hands of the Special Railway Magistrate, Patiala.
The appellant and Ameeruddin accord ingly went to Patiala and they were taken to the Central Jail and there, a test identification parade was held, at which Joginder Lal failed to identify the appellant but Ram Nath, after some hesitation, managed to identify him.
The specimen handwritings of the appellant Exs.
PW 27/ 37 to PW 27/57 were sent, along with the Railway Receipt exhibit PW 10, 'A, to B. Lal, Government Examiner of Questioned Docu ments and B. Lal gave his opinion that the writing marked at A1 on the Railway Receipt exhibit PW 10/A and the specimen handwritings PW 27/37 to 27/57 were all by One and the same person.
The appellant was, on the basis of this material, put up for trial before the Judicial Magistrate, 1st Class, Ludhiana.
The learned Magistrate convicted the appellant and his conviction was maintained in appeal as well as revision.
The question is whether the material on record was sufficient to justify the conviction of the appellant.
We have carefully gone through the evidence but we find it difficult to sustain the conviction of the appellant.
The only two pieces of evidence against the appellant are the evidence of B. Lal, the handwriting expert, who identi fied the handwriting on the forged Railway Receipt exhibit PW 10/A as that of the same person who wrote the specimen signatures Exs.
PW 27/37 to PW 27/57 and the evidence show ing the presence of the appellant with Umedi Lal at Ludhiana when the talk took place between Umedi Lal on the one 1011 hand and Joginder Lal and Ram Nath on the other in connec tion with the sale of the iron sheets.
We do not think that these two pieces of evidence are at all satisfactory and in any event on conviction can be rounded on them.
In the first place, it may be noted that the appellant was at the material time a Guard in the employment of the Rail way Administration with his Headquarters at Agra and he had nothing to do with the train by which Wagon No. SEKG .40765 was despatched from Munda to Bikaner, nor with the train which carried that wagon from Agra to Ludhiana.
He was not a Guard on either of these two trains.
There was also no evidence to connect the appellant with the theft of the blank Railway Receipt at Banmore Station.
It is indeed difficult to see how the appellant, who was a small employee in the Railway Administration,. could have possibly come into possession of the blank Railway Receipt from Banmore Station which was not within his jurisdiction at any time.
It is true that B. Lal, the handwriting expert, deposed that the handwriting on the forged Railway Receipt exhibit PW 10/A was that of the same person who wrote the specimen handwrit ings exhibit 27/37 to 27/57, that is the appellant, but we think it would be extremely hazardous to candemn the appel lant merely on the strength of opinion evidence of a hand writing .expert.
It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.
There is a profusion of precendential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration.
This rule has been universally acted upon and it has almost become a rule of law.
It was held by this Court in Ram Chandra vs State(1) that it is unsafe to treat expert hand writing opinion as sufficient basis for conviction, but it may be relied upon when supported by other items o[ internal and external evidence.
This Court again pointed out in Ishwari Prasad vs Md. Isa(2) that expert evidence of hand writing can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar vs Subodh Kumar (3) where it was pointed out by this Court that expert 's evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear_ direct evidence or by Circumstantial evidence.
This Court had again occasion to consider the evidentiary value o[ expert opinion in regard to handwriting in Fakhruddin vs State(4) and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evi dence of a handwriting expert and before acting upon such evidence.
the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.
It is interesting to note that the same view is also echoed in the judgments of English and American courts.
Vide Gurney vs Langlands(5) and Matter of Alfred (1) AIR 1957 SC 381.
(2) ; (3) AIR 1964 SC 529 (4) AIR1967 SC 1326 (5) 1822, 5B & Qld 330 1012 Fogter 's Will(1).
The Supreme Court of Michigan pointed out in the last mentioned case: Every one knows how very unsafe it is to rely upon any one 's opinion concerning the nice ties of penmanship Opinions are necessarily evil" and may be valuable, but at best this kind of evidence, vii".
We need not subscribe to the extreme view expressed by the Supreme Court of Michigan, but there can be no doubt that this type of evidence being opinion evidence, is by its very nature, weak and infirm and cannot of itself form and the basis for a conviction.
We must, therefore, try to see whether,in the present case, there is, apart from the evi dence of the hand.
writing expert B. Lal, any other evidence connecting the appellant with the offence.
The only other evidence which was sought to be relied upon on behalf of the prosecution was that showing the presence of the appellant with Umedi Lal at Ludhiana when there was talk between Umedi Lal on the one hand and Jogind er Lal and Ram Nath on the other in regard to the sale of the iron sheets.
But this evidence is wholly unsatisfactory and does not inspire any confidence at all.
In the first place, it is difficult to see why the appellant should have one with Umedi Lal to Ludhiana for the purpose of selling the iron sheets.
The appellant was a mere railway Guard and even if it be assumed for the purpose of argument that his service were utilised for the purpose of forging the railway receipt exhibit PW 10/A, there is no reason why he should have been persuaded to accompany Umedi Lal to Ludhiana.
It is true that the appellant was on leave from 1st August, 1964 to 16th August, 1964 but from that circumstance, it does not follow that he had gone to Ludhiana in connection with the sale of the iron sheets.
Even according to the prosecution, the appellant was in Ludhiana only on 6th August, 1964 and that would not necessitate the appellant taking such a long leave from 1st August, 1964 to 16th August, 1964.
The leave taken by the appellant from 1st August, 1964 to 16th August, 1964would not necessarily support the inference that the appellant was present in Ludhiana on 6th August, 1964.
The appellant might have taken this long leave for some other purpose.
Moreover, it may be noted that Joginder Lal could not identify the appel lant at the rest identification parade held at the Central Jail, PatiaIa.
Ram Nath, of course, did identify the appel lant but that was after some hesitation. 'The Special Rail way Magistrate (PW 39) stated in cross examination that Ram Nath took some time in identifying the appellant.
The appellant in fact raised an objection before the Special Railway Magistrate, prior to the test identification parade, that he had a. doubt that he had been shown to the witnesses by the police.
The identification made by Ram Nath at the test identification parade can therefore.
inspire any confi dence in the mind of the Court.
Moreover, it is diffi cult to imagine how Ram Nath who is supposed to have seen the appellant for the first time on 6th August, 1964 on a stray occasion could identify him at a test identification parade held after about two and a half years on 25th Febru ary, 1967.
It not as if the appellant had any direct talk with Rain Nath on this 1013 solitary occasion.
The appellant was supposed to have merely accompanied Umedi Lal along with one or two other persons and it is impossible to believe that Ram Nath could have remembered his fact after such a long period as two and a half years.
We are not ' at all satisfied that the appel lant was with Umedi Lal when the latter is supposed to have negotiated with Joginder Lal and Ram Nath in connection with the saIe of the iron sheets.
It is indeed strange that the police could not trace Umedi Lal or even Bhoja Ram.
Bhoja Ram, according to the prosecution evidence, was frequently going to the Railway Station for taking delivery of goods on behalf of M/s Jindal Khemka & Co. and yet he could not be caught hold of by the police.
That is indeed a sad commentary on the efficiency of the police.
We fail to understand why the police did not try to find out what happened to the iron sheets where they went from the shop of M/s Jindal Khemka & Co. If the prosecution story is true, these iron sheets were removed by Umedi Lal from the shop of M/s Jindal Khemka & Co. and they must have been removed by some cartmen.
We find it difficult to believe that the police could not have pursued the matter and traced the iron sheets by making enquiries from the cartmen.
It is also intriguing why the police did not try to find out the where.
abouts of Bhoja Ram.
SureIy he could not have disappeared into the thin air.
It is not right for us to speculate but we cannot help feeling that M/s Jindal Khemka & Co. were not absolutely innocent in so far as this transaction is concerned.
Umedi Lal was a stranger to both Joginder Lal and Ram Nath and yet, accord ing to the prosecution case, Umedi Lal handed over the forged Rail.
way Receipt PW 10/A to Joginder Lal for the purpose of taking delivery of the goods without insisting on payment and even without settling the bargain.
The Railway Receipt Ex PW 10/A was found to be defective by Teja Singh Sodhi, Goods Clerk on 2nd August, 1964 and yet on the next day, strangely enough, he was, for some inexplicable reason, persuaded to accept the same Railway Receipt and deIivered the iron sheets against it at the instance of Bhoja Ram, who was a person frequently acting on behalf of M/s Jindal Khemka & Co. Then again, Joginder Lal and Ram Nath are supposed to have returned the iron sheets to Umedi Lal because some broker told them that they should insist on the production of a bill of purchase by Umedi Lal which Umedi Lal was unable to do.
This also appears to be a rather 'ngenuous story made up by Joginder Lal and Ram Nath for the ose of showing as if the iron sheets did not remain with them.
indeed strange why they should have taken a receipt from Umedi ,7hen the latter removed the goods from their shop.
The iron belonged to Umedi Lal and if Umedi Lal took them back from der Lal and Ram Nath, there was no reason why the latter d have insisted on taking a receipt from him.
Presumably the .t was fabricated for the purpose of support ing their case that id not keep the iron sheets with them, because otherwise they have nO account for them.
It does appear to us prima facie edi Lal was a fictitious person and the iron sheets were taken of by M/s Jindal Khemka & Co. for themselves on the 1014 strength of the forged Railway Receipt PW 10/A.
But some how or the other, due to police inaction, they appear to have escaped and a small man like the appellant seems to have been made a scape goat.
We are of the view that the prosecution has totally failed to bring some the charge against the appellant and hence our order dated 28th January, 1977 setting aside the order of conviction and sentence recorded against the appel lant and acquitting him of the offences charged against him.
S.R. Appeal allowed. | A certain consignment of iron sheets despatched by M/s. Hindustan Steel Plant EXBNDM (Banda Bunda, near Bhilai) to Bikaner in wagon No. SEKG 4875 was carried to Ludhiana via.
Agra because at some point of time before it reached Agra, the labels attached to the wagons were either changed or removed and the entry in the vehicle summary guidance was also tampered with and changed to EXLAR to LDH indicating that the wagon was despatched from Lalitpur and its destina tion was Ludhiana.
One Umedi Lal, a resident of Agra, approached a firm called M/s. Jindal Khemka & Co. represent ed by its partners Joginder Lal and Ram Nath with a forged railway receipt exhibit PW 10/A written on a blank form stolen from the Railway Receipt Book maintained at Ban more Railway Station and offered to sell to them the iron sheets covered by the aforesaid consignment sent by M/s. Hindustan Steel Co. Ltd. to Bikaner.
Umedi Lal represented himself as the partner of M/s. Bansi Dhar & Sons.
, Lalitpur_ since the forged RR (to self) bore the name of the consignor as M/s. Bansi Dhar & Sons, Lalitpur.
After negotiations when one of the partners, Mr. Joginder Lal presented the RR and claimed the goods, a goods clerk on duty, by name Teja Singh Sodhi, entertained a doubt and returned the RR as defective.
Thereafter, Umedi Lal accompanied by one Bhoja Ram, a wash ing soap dealer presented exhibit PW10A himself and obtained the delivery of the goods from the very same goods clerk, Teja Singh, who entertained the suspicion about the RR earlier.
Joginder Lal later on refused to purchase the iron sheets being a controlled item, in the absence of bill of purchase, but, however, took a receipt exhibit PW45/A from Umedi Lal to the effect that the latter has taken back the iron sheets brought by him to their godown.
The appellant, a guard working in the Northern Railway, was stated to have accompa nied and been present on the day i.e., 6 8 1964 when Jogind er Lal asked Umedi Lal to produce the original purchase bill.
On this basis coupled with the circumstances, namely, (a) his absence on leave from 1 8 1964 to 16 8 1964; (b) the tally of his handwriting given before the Police during the investigation with that of exhibit PW10/A as opined by the handwritten expert and (c) his identification by Ram Nath, one of the partners of M/s. jindal Khemka & Co. at the identification parade the appellant was put on trial for the offences under sections 109/420, 411,468, 471 but convicted for offences under sections 468, 411, 109/420 I.P.C. and sentenced to 2 years R.I. with a fine of Rs. 1,000/ or in default to undergo further R.I. for six months under section 468 and to R.I. for one year each under section 411 and 109/420 LP.C. the substantive sentences to run concurrently.
The appeals before the Sessions Judge and the revision before the High Court were dismissed.
Allowing the appeal by special leave, the Court, HELD: (1) It is well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert.
It is unsafe to base a conviction solely on expert 's opinion without substantial corroboration.
In the instant case, it would be extremely hazrdous to condemn the appellant merely on the strength of opinion 'evidence of a handwriting ' expert.
[1011C D] Ram Chandra vs State AIR 1957 SC 361; Ishwari Prasad vs Md. Isa ; ; Shashi Kumar vs subodh Kumar AIR 1964 SC 529 and Fakhruddin vs State AIR 1967 SC 1326, reiterated.
1008 Curnev vs Langlande (1622) 5 B & AId.
330; Morllar of Alfred Foster 's Will , quoted with approval.
(2) In the instant case, the circumstance that the appellant was on leave from 1st August 1964 to 16th August 1964 does not lead to the inferences that he had gone to Ludhiana in connection with the sale of iron sheets and that he was present in Ludhiana on 6th August 1964.
The identification by Ram Nath after some hesitation, the improbability of identifying after 21/2 years a person who is supposed to have merely accompanied another only once and the inability of Joginder Lal to identify him all these are circum stances, which militate the prosecution theory of the appel lant 's presence.
No conviction can therefore, be founded on such evidence.
[lO12D A, 1013 A B] (3) In the instant case the various facts, namely, inability of the Police to trace Umedi Lal or even Bhoja Ram who was frequently going to the Railway Station for taking delivery of goods on behalf of M/s. Jindal Khemka & Co. and apprehend them, the passing on of the forged exhibit PW10/A to joginder Lal by Umedi Lal, a stranger without insisting on payment and even without settling the bargain, the delivery of the goods the next day to Umedi La1 by Teja Singh who earlier suspected the genuineness of the RR when presented by Joginder Lal,the return of the iron sheets on the advice of some, broker on the non production by Umedi Lal of a bill of purchase, taking a receipt exhibit PW45/A when Umedi Lal removed back his goods etc.
prima facie indicate that Umedi Lal was a fictitious person and M/s. Jindal Khemka & Co. were not absolutely innocent in so far as this transaction was concerned.
This iron sheets appeared to have been taken delivery of by.
M/s. Jindal Khamka & Co. for themselves on the strength of the forged Railway Receipt No. PWIO/A.
But some how or the other, due to police inaction, they appear to have escaped and a small man like the appellant seems to have been made a scape goat.
The prosecution has totally failed to bring home the charge against the appellant.
[1013C H, 1014 A B] [Their Lordships expressed their dissatisfaction in the way the case was investigated and observed that "it was indeed a sad commentary on the efficiency of the Police".] [1013B C] |
Civil Appeal No. 364 of 1969.
From the Judgment and order dated 7 8 1968 of the Punjab and Haryana High Court in Civil Writ No. 2199/68.
section N. Anand and R. N. Sachthey for the Appellant.
Arvind Minocha for the Respondent.
The Judgment of the Court was delivered by UNTWALIA, J.
The Chief Commissioner, Union Territory, Chandigarh, has preferred this appeal by certificate from the decision of the High Court of Punjab & Haryana allowing the Writ Petition of the respondent and declaring the amendment of item 30 in Schedule to the Punjab General Sales Tax Act, 1948, hereinafter referred to as the Act, invalid.
The composite and the then existing State of Punjab was re organised by the , Central Act 31 of 1966.
The Union Territory of Chandigarh was carved out as one of the States on and from November 1, 1966.
Under section 6 of the Act no tax was payable on the sale of goods specified in Schedule B.
The State Government could amend this Schedule and at the relevant time the power so conferred on the State Government was in the following terms: "The State Government after giving by notification not less than three months ' notice of its intention so to do may, by like notification add or delete from Schedule and there upon Schedule shall be deemed to be amended accordingly.
" Item 30 of Schedule exempted from sales tax: "All varieties of cotton, woollen or silken textiles, including rayon, artificial silk or nylon, whether manufactured by handloom or powerloom or otherwise, but not including car pets, druggets, woollen durees and cotton floor durees." On August 24, 1966 the State Government of the composite State of Punjab issued a notification giving three months ' notice of its intention to amend Schedule to exclude pure silken fabrics from the list of tax; free goods.
But before the expiry of three months and before 136 any further notification could be issued by the State Government as required by section 6 of the Act, the Union Territory of Chandigarh came into existence on November 1, 1966.
The Government of the Union Territory issued a notification dated January 4, 1968 amending item 30 as intended to be amended by the notification dated August 24,1966 issued by the State Government of the composite State of Punjab.
The respondent filed a writ petition in the High Court challenging this notification as being invalid on the ground that the earlier notification could not be availed of by the new Government for amending Schedule B.
The stand taken on behalf of the appellant was that the earlier notification was a "law in force" within the meaning of section 88 of Central Act 31 of 1966.
The High Court repelled this argument, and in our opinion, rightly.
It is plain on the wordings of section 6 of the Act, extracted above, that a notification merely notifying the intention of the State Government to add or delete from Schedule any article, by itself, had no force of law until and unless on the expiry of the period of three months a like notification was issued amending the Schedule.
The erstwhile State Government of Punjab could not issue a second notification in respect of the Union Territory after it ceased to be a part of the State of Punjab.
Sales tax could not be charged on pure silken fabrics by the said State Government on October 31, 1966 merely by virtue of the notification dated August 24, 1966.
It was, therefore, not a law in force when the composite State was re organised.
Section 88 of the runs as follows: "The provisions of shall not be deemed to have f effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent .
Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day.
" It is clear that there was no law in force on November 1, 1966, which could enable the Union Territory to levy any sales tax on pure silken fabrics.
Mr. section N. Anand endeavoured to attack the judgment of the High Court by taking a new stand in this Court that the notification dated August 24, 1966 could enure to the benefit of and be availed by the Union Territory Government.
But he failed to point out any provision L in Act 31 of 1966 or any other law to substantiate this argument.
No 137 "deeming" provision could be brought to our notice, as there is none, to show that the notification issued by the erstwhile State Government of Punjab could be deemed to be one issued by the new Government of the Union Territory.
For many other purposes there are "deeming" provisions in Central Act 31 of 1966 e.g. sections 59(1), 74(1) and 92.
But no provision is to be found to show that by a legal fiction the first notification of intention issued by the erstwhile State Government could be deemed to be a notification issued by the new Government. 'The argument thus presented by Mr. Anand must be rejected.
Learned counsel for the appellant placed reliance upon the principle of law enunciated in paragraph 12 at page 1749 in the decision of this Court in M/s. Ratan Lal and Co. and another etc., vs The Assessing Authority, Patiala and another, etc.(1).
The principle stated therein is that the new legislature of the new State after the re organisation of the composite State could amend the existing law retrospectively from a date anterior to the date of reorganisation.
Obviously the view expressed in the decision aforesaid is so very different that it cannot be of any help to the appellant in this case.
For the reasons stated above, we dismiss the appeal with costs.
P.B.R. Appeal dismissed. | Section 6 of the Punjab General Sales Tax Act, 1948 provides that the State Government, after giving by notification, not less than three months ' notice of its intention so to do, may, by like notification add or delete from Schedule and thereupon Schedule shall be deemed to be amended accordingly.
The State Government of the composite State of Punjab issued a notification under section 6 giving its intention to delete from Schedule pure silken fabrics from the list of tax free goods.
Before the issue of any further notification, however, the composite State was reorganised and the Union Territory of Chandigarh was formed.
The Government of the Union Territory of Chandigarh issued a notification amending item 30 of Schedule as intended to be amended by the notification issued by the former government.
In a writ petition filed before the High Court the respondent challenged the notification as invalid on the ground that the earlier notification could not be availed of by the new Government for amending Schedule B.
The appellant claimed that the earlier notification was "law in force".
But the High Court repelled this argumenet It allowed the respondent 's writ Dismissing the appeal, ^ HELD: 1.
There was no "law in force" enabling the newly formed Union 'Territory of Chandigarh to levy any sales tax on pure silken fabrics.
The notification merely notifying the intention of the State Government to add or delete from Schedule any article by itself had no force of law until and unless, on the expiry of the period of three months, a like notification was issued amending the Schedule.
The erstwhile State Government of Punjab could not issue the second notification in respect of the Union Territory after it ceased to be a part of the State of Punjab.
Sales Tax could not be charged on pure silken fabrics by the said State Government merely by virtue of the notification.
It was therefore not a law in force when the composite State was reorganised.
[136D E] 135 3.
No provision is to be found in the Act to show that by a legal fiction the A first notification of intention issued by the erstwhile State Government could be deemed to be a notification issued by the new Government.
[137 B] M/s. Rattan Lal and Co. and another etc.
vs The Assessing Authority, Patiala and another, etc.
AIR 1970 S.C 1742 held inapplicable. |
Civil Appeal No. 1926 of1969.
(From the Judgment and Decree dated S 2 68 of the Bombay High Court in First Appeal No. 4S1 of 1964).
Shaukat Hussain and Mohd. Mian for the appellant.
R. H. Dhebar and M. N. Shroff for the respondent.
The Judgment of the Court was delivered by SEN, J.
This appeal by certificate is directed against a judgment of the Bombay High Court, and it involves an important question namely, whether a court in dealing with a reference under s.14, Sub section
(1) of the Hyderabad Land Acquisition Act, 1309 Fasli, corresponding to section 18, sub section
(1) of the Land Acquisition Act, 1894, can go behind the reference made by the Collector if the application on which the reference has been made is beyond the period of limitation prescribed therein.
The material facts giving rise to this appeal are as follows: The case arises from that part of the erstwhile princely State of Hyderabad, known as Marathwada, which merged in the State of Bombay under the States Re organisation Act, l956.
The land belonging to the appellant admeasuring 2057 sq. yards in the city of Aurangabad, has been acquired by the State Government under s.5 of the Hyderabad Land Acquisition Act for the construction of a building for the medical college at Aurangabad.
The Government published a Notification under section 3 (1) on the 28th of February, 1958.
On the 13th of January, 1962 the Land Acquisition officer, Aurangabad made an award directing payment of Rs. 1,318.11 P. inclusive of 15 per cent solatium as compensation to the appellant at the rate of 37 np.
per sq. yard, as against his claim for payment of compensation at the rate of Rs. 10/ per sq. yard.
The said award was communicated to the appellant on the 20th of January, 1962.
The appellant instead of making an application for reference under section 14, sub section
(1) of the Act, filed an application for review before .he
Land Acquisition officer on the 5th of February, 1962 requesting him 'to revise the award ' stating further that in case it was not revised he would seek his remedy in a court of law '.
The Land Acquisition 268 officer obviously felt that the amount fixed by him was too low and accordingly on the 17th of February, 1962 made a recommendation, through the Collector, to the Secretary to the State Government that the award be reconsidered.
But, the Collector by his order dated the 23rd of March, 1962 declined to forward the same and informed the appellant that he must seek his remedy in! a court of law.
Eventually, on the 14th of May, 1962 the appellant made an application for reference under section 14, sub section
(1) of the Act and prayed that the period spent in the proceedings for the review before the Land Acquisition Officer subsequent to the date of the award be excluded while considering the question of limitation under section 14 of the Limitation Act.
A reference was made under section 14, sub section
(1) of the Act to the District Court of Aurangabad.
The Assistant Collector, Aurangabad, who was the Land Acquisition officer, while making a reference made no expression of his opinion whether the application was time barred or not, evidently taking the view that the point should be left for the decision of the court.
He, however, while making the reference gave a complete narration of facts and left the question open.
A preliminary objection was raised by the Government that the reference was incompetent, the application being time barred.
This objection prevailed and the contention of the appellant based on1 section 14 of the Limitation Act was negatived both by the Civil Judge, Senior Division Aurangabad by his order dated the 28th of June, 1962, and by the High Court of Bombay by its order dated the 5th of February, 1968 holding that the time taken between the 5th of February, 1962 and the 23rd of March, 1962 could not be excluded while computing the period of limitation prescribed under section 14, sub section
(1) of the Act inasmuch as section 14 of the Limitation Act was not applicable to the proceedings, and further, that even if it applied the appellant was not entitled to the benefit of section 14 of the Limitation Act, stating that good faith, which is also a necessary ingredient under section 14, was not established.
The learned Civil Judge raised an issue whether the application for reference was barred by limitation under section 14, sub section
(1) of the Act, and he answered that issue in the affirmative, and we have no doubt, whatever that his decision on that point, as well as that of the High Court affirming it, was right.
The application was clearly out of time.
Section 14, Sub section
(1) of the Hyderabad Land Acquisition Act, 1309 Fasli provides that: "Every person interested, who is displeased with the Taluqdar 's award may, within two months from the date of receiving notice of the award, apply to the Taluqdar in writing to refer 269 the case to the court for determination, whether his objection be to the measurement of the land, or to the amount of the compensation, or to the persons to whom it is payable or to the apportionment of the compensation among the persons interested.
" Section 15, sub section (1) enjoins that the Taluqdar in making the reference shall forward to the Court a statement in writing, containing certain particulars.
Sub section (2) there of provides that to the said statement shall be attached a schedule giving the particulars of the notices served upon, and of the statements in writing made or delivered by the parties interested respectively.
It is conceded for our present purposes that section 14, sub section
(1) of the Hyderabad Land Acquisition Act is in pari materia with the provisions of section 18 of the Land Acquisition Act, 1894.
Hence hereinafter reference will be made only to the provisions contained in the Land Acquisition Act, 1894, 'the Act '.
Learned counsel for the appellant rested his submission on the .ground that the court while dealing with a reference under section 14, sub section
(1) of the Act, cannot go behind the reference and decline to answer it.
The point regarding applicability of section 14 of the Limitation Act was rightly not pressed before us.
Nor was any contention raised by him that the application for review made by the appellant before the Land Acquisition officer on the 9th of February, 1962, asking him to revise the award should, in law, be regarded as an application under section 14, sub section
(1) of the Act.
The short question that falls for determination in the appeal is whether the court can go into a question that the application for reference was not made to the Collector within the time prescribed in section 18, sub section
(2) of the Land Acquisition Act; and if so, can it refuse to entertain the reference if it finds it to be barred by time.
There was at one time a great divergence of judicial opinion on the question.
But almost all the High Courts have now veered round to the view that the court has the power to go into the question of limitation.
It not only has the power but also the duty to examine whether the application for reference was in accordance with law i.e., whether it was made within time prescribed under the proviso to sub section
(2) of section 18 of the Act or not.
The view taken by them is that a Collector 's jurisdiction is circumscribed by the conditions laid down in section 18, sub section
(1), that if he makes a reference even though the application for reference was not in accord 270 ance with the provisions of section 18, the court acquires no jurisdiction to hear the reference and that it can refuse to hear it if it was made on a time barred application.
The matter came up twice before this Court in State of Punjab vs Mst.
Qaiser Jehan Begum & Anr.(1) and the State of U.P. vs Abdul Karim(2) in which the conflict of judicial opinion in the High Courts was noticed but not resolved as the Court in both the case,s rested its decision on a narrower ground namely that the application for a reference was not barred by time.
In Mst.
Qaiser Jehan Begum 's case (supra) it was observed: "In the view which We have taken on the question of limitation, it is unnecessary for us to decide the other question as to whether the civil court, on a reference under section 18 of the Act, can go into the question of limitation.
We have al ready stated that there is a conflict of judicial opinion on that question.
There is no one side a line of decisions following the decision of the Bombay High Court in re.
Land Acquisition Act, which have held that the civil court is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference.
There is, on the other side, a line of decisions which say that the jurisdiction of the civil court is confined to considering and pronouncing upon any one of the four different objections to an award under the Act which may have been raised in the written application for the reference.
The decision of the Allahabad High Court in Secretary of State vs Bhagwan Prasad is typical of this line of decisions.
There is thus a marked conflict of judicial opinion on the question 'This conflict, we think, must be resolved in a more appropriate case on a future occasion".
In the case before us the question doe6 not really arise and is merely academic and we prefer not to decide the question in the present case.
That question now directly arises.
It is contended on behalf of the appellant that a reference to the Court having been made by the Collector, the court had no jurisdiction to question the validity of that reference and was bound to decide the matter on merits.
In support of this contention certain authorities have been cited to us, in which it has been laid down that it is for the Collector, and the Collec tor alone, to determine whether to make a reference under section 18, sub section
(1), and if he decides to make a reference, it is not (1) ; (2) Civi] Appeal No. 2434 of 1966 decided on 23 9 1969.
271 open to the court to go behind the decision of the Collector, and hold the reference to be out of time.
Illustrative of this line of decisions is that of Allahabad High Court in Secretary of State vs Bhagwan Prasad(1).
That view has been reiterated by the Full Bench of the same High Court in the State of U.P. vs Abdul Karim(2) and in its earlier decision in Panna Lal vs The Collector of Etah(3), and the decisions in Venkateswaraswami vs Sub Collector, Bezwada(4), Hari Kishan Khosla vs State of Pepsu(5).
Chandravarkar J. in re Land Acquisition Act(6) held that it is clear from section 18 that the formalities are matters of substance and their observance is a condition precedent to be Collector 's power of reference.
He held that the court is bound to go into the question whether the reference under section 18 was within time.
He also held that the court was not only entitled, but bound, to satisfy itself that the conditions laid down in section 18 have been complied with.
In stating the principle, Chandravarkar J. Observed: "These are the conditions prescribed by the Act for the right of the party to a reference by the Collector to come into existence.
They are the conditions to which the power of the Collector to make the reference is subject.
They are also the conditions which must be fulfilled before the court can have jurisdiction to entertain the reference.
" The principle laid down by him in that case was acted upon in Sukhbir Singh vs Secretary of State(7).
In that case the Collector had made a reference, although there was no application before him as required by section 18 and the Division Bench held that being so, there was no valid reference.
But in a latter case which came before another Division Bench in Secretary of State vs Bhagwan Prasad (supra), it was held that it was not open to the court under section 18 to go behind the reference, that it was for the Collector to decide whether the conditions justifying reference have been complied with and if he thought that they had been, the court was bound to answer the reference.
This view found favour with a Single Judge of the Madras High Court in Venkateswaraswami vs Sub Collector Bezwada (supra) and a Single Judge of the Punjab High Court in Hari Krishan Khosla vs State of Pepsu (supra).
All these decisions clearly do not lay down good law.
(1) ILR 52 All.
(2) AIR.
1963 All.
(3) ILR [1959] 1 All.
(4) AIR 1943 Mad.
(5) ILR [1958] 1 Punj.
(6) I.L.R. , 285, All. 212.
272 In State of U.P. vs Abdul Karim (supra) the Full Bench of the Allahabad High Court, on its view of the scheme of the Act, declined to follow the decision of Chandavarkar, J. in re Land Acquisition Act (supra) and the long line of decisions taking the same view.
It preferred to rest its decision on the earlier view of its Full Bench in Panna Lal vs The Collector of Etah (supra) and that in Secretary of State vs Bhagwan prasad (supra).
In the light of these decisions, it held that the Collector 's jurisdiction to make a reference is not circumscribed by the conditions laid down in section 18, sub section
(1) and (2), that if he makes a reference even though the application for reference was not in accordance with the provisions of section 18, the court acquires jurisdiction to hear the reference, and that it cannot refuse to hear it even if it was made or.
a time barred application.
Upon its view, it held that the court has no power to determine or consider a question of limitation as its jurisdiction is strictly limited by the terms of the section as laid down by the Privy Council in Pramatha Nath vs Secretary of State(1).
It further held that the legislature having contemplated the Collector to be an agent of the Government, as that is the position assigned to him by the Privy council in Ezra vs Secretary of State for India(2), his status is certainly not changed by the mere fact that he is required to make a reference under section 18 if the application is within prescribed time and complies with certain conditions.
That being so, even if the Collector wrongly decides that an application is within time or satisfies other conditions, the Government as its principal, may have a remedy against him but was bound by his act so long as it remains.
The act being of the agent is their own and they are bound by it.
The Government cannot, therefore, be permitted to contend at the hearing of the reference before the court that it was illegally made.
In view of all this, the Full Bench was of the view that this class of case does not fall within the class of cases where the jurisdiction of an inferior authority depends upon the existence of a certain state of facts, as indicated by Lord Eshar, M. R. in The Queen vs Commissioners for Special Purposes of the Income tax(1).
On principle, apart from authority, it is difficult to accept the line of reasoning of the Allahabad High Court, namely, whatever might be the defects and imperfections in the reference made, once it is before the court, the court is debarred from enquiring into its validity or otherwise.
The decision in Abdul Karim 's case (supra) proceeds on a com (1) ILR (2) ILR (3) 273 plete misunderstanding of the decision of the Privy Council in Pramatha Nath vs Secretary of State (supra), where the Judicial Committee interpreting section 21 observed: "Their Lordships have no doubt that the jurisdiction of the Courts under this Act is a special one and is strictly limited by the terms of these sections.
It only arises when a specific objection has been taken to the Collector 's award, and it is confined to a consideration of that objection.
Once therefore it is ascertained that the only objection taken, is to the amount of compensation, that alone is the "matter" referred, and the Court has no power to determine or consider anything beyond it.
" All that the Privy Council intended to lay down was that the jurisdiction of the court in dealing with a reference under section 18 is restricted by the terms of the section, as enjoined by section 21.
That decision cannot be interpreted to mean that the court while, hearing a reference under section 18 cannot enquire into competency or otherwise of the reference made by the Collector, i.e., whether the conditions precedent to the exercise of power by the Collector, and, therefore, of the court, and in particular the condition regarding limitation, are fulfilled or not.
In Ezra vs Secretary of State for India (supra) the Privy Council, while dealing with the functions of the Collector in making an award under section 11 laid down that the functions of the Collector are not judicial but administrative and all that he does is to make an offer to the claimants with regard to the, valuation of the property to be acquired.
In that context, it did not think it necessary to repeat the reasoning of the judgment under appeal where the sections and the questions as a whole were very satisfactorily stated, and observed: "The proceedings of the Collector resulting in the 'award ' are administrative and not judicial.
The award in which the enquiry results is merely a decision (binding only on the collector) as to what sum I shall be tendered to the owner of the lands and if a judicial ascertainment is decided by the owner, he can obtain it by requiring the matter to be referred by the Collector to the Court.
" These observations, however, related to proceedings under Part II of the Act and not under Part III.
Ameer Ali and Stephen JJ.
, in delivering the judgment under appeal, explained the functions of the Collector under section 11 in Ezra vs Secretary of State for India(1) where they said: (1) ILR 274 "throughout the proceedings the Collector acts as the agents of Government for the purposes of acquisition.
He is in a sense of the term, a judicial officer, nor is the proceeding before him a judicial proceeding. he is not a Court.
The Government . at whose instance the land is being taken up is not entitled to demand a reference.
The reason of this is plain.
The Collector acts as the agent of the Government. and they are accordingly bound by the award of their agent.
. the Collector acts in the matter of the enquiry and the valuation of the land only as an agent of the Government and not as a judicial officer; and . consequently, although the Government . is bound by his proceedings, the persons interested are not concluded by his finding regarding the value of the land or the compensation to be awarded.
" On the basis of the Privy Council decision in Ezra 's case (supra), this Court in Harish Chandra vs Deputy Land Acquisition officer(1) held that the Collector in making an award acts as an agent of the Government, and that the legal character of the award made by the Collector was that of a tender or offer by him on behalf of the Government.
The Allahabad High Court has read more into the decision of the Privy Council in Ezra 's case (supra) than is there.
Merely because the Collector while making an award under section 11 or in serving a notice of the owner of the land under section 12, acts as an agent of the Government, it does not necessarily imply that while making a reference to the court under section 18, he acts in the capacity of an agent of the Government.
While it is true that the Collector in making the award under section 11 acts as an agent of the Government, he in making a reference to the court under section 18 acts as a statutory authority.
Section 18, sub section
(1) of the Act entrusts to the Collector the statutory duty of making a reference on the fulfilment of the conditions laid down therein.
The Collector, therefore, acting under section 18, is nothing but a statutory authority exercising his own powers under the section.
In the context, we may advert to the controversy that had arisen as a result of the Privy Council 's decision in Ezra 's case (supra) holding.
that the Legislature had assigned to the Collector the position of an: (1) [1962] 1 S.C.R. 676.
275 agent of the Government while making an award under section 11.
The problem that arose was that the claimants were left with no remedy where the Collector improperly declines to make a reference although the application fulfilled the requirements of section 18.
In The Administrator General of Bengal vs The Land Acquisition Collector, 24 Parganas(1) the Calcutta High Court while dealing with the question tried to draw a distinction between the functions of the Collector under Part Il of the Act land that under Part III, and observed: "It is admitted that up to and including the time of making his award the Collector was in no sense a judicial officer and that the proceedings before him were not judicial proceedings(Ezra vs Secretary of State) and however irregular his proceedings were, we cannot interfere with his award made under section 11 of the Act.
But when an application is made to the Collector requiring him to refer the matter to the Civil Court, the Collector may have to determine and, it seems to us, determine judicially whether the person making the application was represented or not when the award was made, or whether a notice had been served upon the applicant under sec.
12(2) and what period of limitation applies and whether the application is under the circumstances made within time.
The Collector 's functions under Part III of the Act are clearly distinguishable from those under Part II.
Part III of the.
Act relates to proceedings in Court.
In our opinion the Collector in rejecting the application was a Court and acting judicially and his order is subject to revision by this Court.
To hold otherwise would be to give finality to an award under sec.
11 even in cases in which the Collector acts irregularly and contrary to law and then refuses on insufficient grounds to make a reference under Part III of the Act.
The party aggrieved may be left without remedy which is implied by a judicial trial before the Judge.
" These observations were no doubt made in a different context but they bear some relevance to the point at issue.
The question at issue was whether the Collector 's order refusing to make a reference could be interfered with by the High Court under section 115 of the Code of Civil Procedure or section 107 of the Government of India Act, 1919.
The Calcutta High Court 's view that the Collector 's power was a judicial power and that the Collector was a Court subordinate to the High Court was obviously wrong but it persisted in taking (1) 276 that view to obviate injustice: Krishna Das Roy vs Land Acquisition Collector, Pabna;(1) Upendra Nath Roy vs Province of Bengal,(2) Leeth Elias Joseph Solomon vs H. C. Stork(3).
The Calcutta High Court tried to exercise its supervisory jurisdiction to provide the subject with a remedy.
The power of the Collector to make an order under section 18 was not judicial in nature, nor was the Collector a court subordinate to the High Court.
The other High Court, therefore, expressly dissented from the view of the Calcutta High Court: Abdul Sattar Sahib vs Special Deputy Collector, Vizagapatnam Harbour Acquisition, (4) Balkrishna Daji Gupta vs The Collector, Bombay Suburban,(5) Jagarnath Lall vs Land Acquisition Deputy Collector, Patna,(6) section G. Sapra vs Collector, Saugar;(7) Amar Nath Bhardwaj vs The Governor General in Council,(8) Kashi Pershad vs Notified Area of Mahoba.(9).
Even the Calcutta High Court later changed its view: Bhagwan Das Shah vs First Land Acquisition Collector,(10) Gopi Nath Shah vs First Land Acquisition Collector.(11) It was held that the functions of the Collector under section 18 were statutory or quasi judicial in nature.
The construction placed by the Allahabad High Court on section 18 of the Act is not borne out either by the plain language of the section itself or by accepted principles.
The following observations appear in Abdul Karim 's case (supra): "There is no support for the proposition that the necessary sine qua non of a reference is an application for Reference made in accordance with the provisions of section 18." "There is no provision.
which bars the Collector 's power to make a reference, if he is inclined to make one on a time barred application.
"If the Collector decides to make a reference the Land Acquisition Court cannot go behind the reference.
" "A Collector and a Collector alone has jurisdiction to make a reference and a reference by him is not a nullity merely because it is based on a time barred application.
" (1) (2) (3) (4) I.L.R. (5) ILR (6) I.L.R. Pat. 321.
(7) ILR (8) ILR (9) ILR 54 All. 282.
(10) (11) 277 "The facts regarding limitation of an application for reference are not required to be stated by the Collector in his reference, and indeed he is not bound to send the application along with the reference.
All that the Court has to do on receipt of the reference or can do is to hear it after giving notice of the date.
The word 'thereupon ' in Section 19 must be interpreted to mean "as soon as the collector makes a reference and states for the information of the Court various matters set out in Section 19." "A District Judge gets jurisdiction not from the Collector but from the receipt of a reference from him.
It is the receipt of the reference that confers jurisdiction upon him and not any finding of the Collector." "The Court has to perform a ministerial act of causing a notice to he given to the objector.
There is no provision entitling it to examine the question whether the Collector 's order was correct on the question of the application having been made within the prescribed time.
" The jurisdiction of the Court under the Act is a special one and strictly limited by the terms of section 18 to 21.
It only arises when a specific objection has been taken to the Collector 's award, and it is confined to a consideration of that objection.
A Court undoubtedly has certain jurisdiction over the reference, but it does not include any appellate jurisdiction over the Collector in respect of the reference made by him without statutory sanction.
" It is difficult to subscribe to these propositions which are not warranted by law.
In his celebrated judgment in The Queen vs Commissioners for Special Purposes of the Income Tax (supra) Lord Esher, M.R., while dealing with statutory Tribunals, divided them into two categories, namely: (i) "When an inferior court or tribunal or body which has to exercise the power of deciding facts, is first established by Act of Parliament, the Legislatures has to consider what powers it will give that tribunals or body.
It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise.
There it is not for them conclusively to decide 278 whether that state of facts exists, and if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction.
(ii) The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more.
When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for other wise there will be none.
" The law as enunciated by Lord Eshar has been accepted by this Court as laying down the true principle in Jagdish Prasad vs Ganga Prasad (1) The word "require" in section 18 of the Act implies.
It carries with it the idea that the written application makes it incumbent on the Collector to make a reference.
The Collector is required to make a reference under section 18 on the fulfilment of certain conditions.
The first condition is that there shall be a written application by a person interested who has not accepted the award.
The second condition is as to the nature of the objection is which may be taken, and the third condition is as to the time within which the application shall be made.
The power of the Collector to make a reference under section 18 is thus circumscribed by the conditions laid down therein, and one condition is the condition regarding limitation to be found in the proviso.
The conditions laid down in section 18 are 'matters of substance and their observance is a condition precedent to the Collector 's power of reference ', as rightly observed by Chandavarkar J. in re Land Acquisition Act (supra).
We are inclined to the view that the fulfilment of the conditions, particularly the one regarding limitation, are the conditions subject to which the power of the Collector to make the reference exists.
It must accordingly be held that the making of an application for reference within the time prescribed by proviso to section 18.
Sub section
(2) is a sine qua non for a valid reference by the Collector.
From these considerations, it follows that the court functioning under the Act being a tribunal of special jurisdiction, it is its duty to see that the reference made to it by the Collector under section 18 complies with the conditions laid down therein so as to give the court jurisdiction (1) [1959] Supp. 1 S.C.R. 733. 279 to hear the reference.
In view of these principles, we would be extremely reluctant to accept the statement of law laid down by the Allahabad High Court in Abdul Karim 's case (supra).
Every tribunal of limited jurisdiction is not only entitled but bound to determine whether the matter in which it is asked to exercise its jurisdiction comes within the limits of its special jurisdiction and whether the jurisdiction of such tribunal is dependent on the existence of certain facts or circumstances.
Its obvious duty is to see that these facts and circumstances exist to invest it with jurisdiction, and where a tribunal derives its jurisdiction from the statute that creates it and that statute also defines the conditions under which the tribunal can function, it goes without saying that before that tribunal assumes jurisdiction in a matter, it must be satisfied that the conditions requisite for its acquiring seisin of that matter have in fact arisen.
As observed by the Privy Council in Nusserwanjee Pestonjee vs Meer Mynoodeen Khan,(1) wherever jurisdiction is given to a court by an Act of Parliament and such jurisdiction is only given upon certain specified terms contained in that Act it is a universal principle that these terms must be complied with, in order to create and raise the jurisdiction for if they be not complied with the jurisdiction does not arise.
If an application is made which is not within time, the Collector will not have the power to make a reference.
In order to determine the limits of his own power, it is clear that the Collector will have to decide whether the application presented by the claimant is or is not within time, and satisfies the conditions laid down in section 18.
Even if a reference is wrongly made by the Collector the court will still have to determine the validity of the reference because the very jurisdiction of the court to hear a reference depends on a proper reference being made under section 18, and if the reference is not proper, there is no jurisdiction in the court to hear the reference.
It follows that it is the duty of the court to see that the statutory conditions laid down in section 18 have been complied with, and it is not debarred from satisfying itself that the reference which it is called upon to hear is a valid reference It is ` only a valid reference which gives jurisdiction to the court, and, therefore, the court has to ask itself the question whether it has jurisdiction to entertain the reference.
In deciding the question of jurisdiction in a case of reference under section 18 by the Collector to the court, the court is certainly not acting as a court of appeal; it is only discharging the elementary duty of satisfying itself that a reference which it is called upon to decide is a valid and (1) LR (1855) 6 M.I.A. 134.
280 proper reference according to the provisions of the Act under which it is made.
That is a basic and preliminary duty which no tribunal can possibly avoid.
The court has, therefore, jurisdiction to decide whether the reference was made beyond the period prescribed by the, proviso to sub section
(2) of section 18 of the Act, and if it finds that it was so made, decline to answer reference Beaumont C. J., delivering the judgment of the Division Bench in Mahadeo Krishna vs Mamlatdar of Alibag,(1) agreed with the view of Chandavarkar J. and observed: "It seems to me that the Court is bound to satisfy itself that the reference made by the Collector complies with the specified conditions, so as to give the Court jurisdiction to hear the reference.
It is not a question of the Court sitting in appeal or revision on the decision of the Collector; it is a question of the Court satisfying itself that the reference made under the Act is one which it is required to hear.
If the reference does not comply with the terms of the Act, then the Court cannot entertain it.
I have myself some difficulty in seeing on what principle the Court is to be debarred from satisfying itself mat the reference, which it is called upon to hear, is a valid reference.
I am in entire agreement with the view expressed by Chandavarkar J. that it is the duty of the Court to see that the statutory conditions have been complied with.
" The same view has been reiterated by almost all the High Courts except the Allahabad High Court :G. J. Desai vs Abdul Mazid Kadri(2) A. R. Banerjee vs Secretary of State,(3) K. N. Narayanappa Naidu vs Revenue Divisional Officer, Sivakasi;(4) State of Rajasthan vs L. D 'Silva,(5) Sheikh Mohommad vs Director of Agriculture, Madhya Pradesh;(6) Ramdeval Singh vs State of Bihar,(7) Anthony D 'Silva vs Kerala State;(8) Swatantra L. & F. Pct.
Ltd. vs State of Haryana,(9) and Swami Sukhanand vs Samaj Sudhar Samiti.(10) This is also the (1) TLR (2) AIR ' 1951 Bom 156.
(3) A.I.R. 1937 Cal.
(4) A.I.R. 1955 Mad.
(5) I.L.R. (6) (7) A.I.R. 1969 Pat.
(8) A.I.R. 1971 Ker. 51.
(9) I.L.R. (1974) 2 Punj.
(10) A.I.R. 1962 J. & K. 59 281 view expressed by a Full Bench of the Lahore High Court in Abdul Sattar vs Mt. Hamida Bibi.(1) The view to a contrary effect taken by the Allahabad High court in Secretary of State vs Bhagwan Prasad (supra), Panna Lal vs The Collector of Etah (supra) and State of U.P. vs Abdul Karim (supra) and by a Single Judge of the Madras High Court in Venkateswaraswami vs Sub Collector, Bezwada (supra) and by a Single Judge of the Punjab High Court in Hari Krishan Khosla vs State of Pepsu (supra) clearly do not lay down good law and these decisions are" therefore, over ruled.
It is impossible not to feel sorry for the appellant in this case, who was guilty of almost incredible folly by not filing an application for reference under section 14, sub section
(1) of the Hyderabad Land Acquisition Act, 1309 Fasli within the time prescribed therein, and is thus precluded from claiming what may be legitimately due to him by way of compensation.
But, the decision must depend upon the construction of the section and the law must take its course.
We trust that, as assured by its counsel, the State Government of Maharashtra will be generous enough to consider whether it should make an ex gratia payment to the appellant of a sufficient amount by way of compensation which will be Commensurate with the market value of the land acquired as on the 28th of February, 1958.
It certainly was a piece of land of some value as it was situate in the city of Aurangabad.
The result, therefore, is that the appeal must fail and is dismissed.
There shall be no order as to costs of this appeal and of the courts below.
M. R. Appeal dismissed. | The appellant 's land was acquired by the State Government under section 5 of the Hyderabad Land Acquisition Act, A notification under section 3(1) was published on the 28th February, l958 and on the 13th of January, 1962 the Land Acquisition officer, Aurangabad, made an award directing payment of compensation inclusive of 15% solatium to the appellant at the rate of 37 n.p.
per sq. yard as against his claim for payment of compensation at the rate of RS.10/ per sq. yard.
the award was communicated to the appellant on the 20th of January, 1962 and on the 5th February, 1962 he filed an application for review before the Land Acquisition officer who made a recommendation through the Collector to the Secretary to the State Government that the award be reconsidered.
But, the Collector by his order dated the 23rd of March, 1962 declined to forward the same.
On the 14th of May, 1962 the appellant applied for reference under section 14(1) of the Hyderabad Land Acquisition Act which is in pari materia with section 18 of the Land Acquisition Act, 1894, praying that the period spent in the proceedings for the review be excluded while computing the period of limitation prescribed under section 14 of the Limitation Act.
The Assistant Collector, Aurangabad, who was the Land Acquisition officer, made a reference to the District Court of Aurangabad, .without opining Whether the application was time barred or not.
The Government raised a preliminary objection the application being time barred.
the reference was incompetent.
The objection prevailed, both the District Court and the High Court.
The appellant contended that while dealing with a reference under section 14(1) of the Hyderabad Act, the court cannot go into the question that the application was time barred under section 18(2) of the and Acquisition Act, 1894 and tbereby refuse to entertain the reference.
Dismissing the appeal, the Court ^ HELD: (1) The power of the Collector to make a reference under section 18 is circumscribed by the conditions laid down therein.
These conditions are matters of substance and their observance is a condition precedent to the Collector 's power of reference.
The fulfilment of these conditions, particularly the one regarding limitation are the conditions, subject to which the power of the Collector to make the reference exists.
Therefore, the making of are application for reference within the time prescribed by proviso to section 18(2) is a sine qua non for a valid reference by the Collector.
[269G H, Z71B, 278FGl Abdul Sattar `Sahib vs Special Dy.
Collector, Vizagapatam Harbour Acquisition, ILR ; BalKrishna Daji Gupta vs The Collector,Bom 18 817SCI 79 266 bay Suburban, ILR ; Jagarnath Lall vs Land Acquisition Dy.
Collector Patna, ILR Pat. 321; section G. Sapre vs Collector Saugar, ILR ; Amar Nath Bhardwaj vs The Governor General in Council, ILR ; Kashi Parshad vs Notified Area of Mahoba, ILR 54 All 282, Bhagwan Dass Shall vs First Land Acquisition Collector, , and Gopi Nath Shah vs first Land Acquisition Collector, ; approved.
Of State vs Bhagwan Prasad, ILR 51 All. 96; State of U.P. vs Abdul Karim, AIR 1963 All.
556; Panna Lal vs The Collector of Etah, ILR [l959] 1 All.
628; Venkateshwarasawami vs Sub Collector, Bezwada, AIR 1943 Mad. 327 and Hari Krishan Khosla vs State of Pepsu, ILR [19S8] 1 Punj.
844; over ruled.
Krishna Das Roy vs Land Acquisition Collector Pabna, ; Upendra Nath Roy vs Province of Bengal, ; Leath Elias Joseph Solomon vs H. C. Stork, ; disapproved.
Pramatha Nath vs Secretary of State, ILR ; Ezra vs Secretary of State for India ILR and ILR ; Harish Chandra vs Deputy Land Acquisition officer, [1962] 1 SCR 676; and The Administrator General of Bengal vs The Land Acquisition Collector, 24 Parganas, ; referred to.
Where the tribunal derives its jurisdiction from the statute that creates it and that statute also defines the condition under which the tribunal can function, it is bound to see that such statutory conditions have been complied with.
The court functioning under the Act, being a tribunal of special juris diction, it us its duty to see that the reference made to it by the Collector under section 18 complies with the conditions laid down therein.
[279B C, D] Even if a reference is wrongly made by the Collector the court will still have to determine its validity, because the very jurisdiction of the court to hear a reference depends on a proper reference being made under section l8 and if the reference is not proper, there is no jurisdiction in the court.
to hear the reference.
The court has jurisdiction to decide whether the reference was made beyond the period prescribed by the proviso to sub section
(2) of section 18 of he Act, and if it finds that it was so made, deoline to answer reference.
[279EG] The Queen vs Commissioner for Special Purposes of the Income Tax, LR ; Jagdish Prasad vs Ganga Prasad, [1959] Supp. 1 SCR 733 and Nusserwanfee Pestonjee vs Meer Mynoodeen Khan, LR [1855] 6 M.I.A. 134; applied.
Land Acquisition Act, ILR ; Sukhbir Singh vs Secretary of State, ILR 49 All. 212; Mahadeo Krishna vs Mamlatdar of Alibag, ILR ; G. J. Desai vs Abdul Mazid Kadri, AIR l951 Bom.
156; A. R. Banerjee vs Secy.
of State, AIR 1937 Cal.
680, K. N. Narayanappa Naidu vs Revenue Divisional officer Sivakasi, AIR 195S Mad. 20; State of Rajasthan vs L. D. Silva, ILR [19S6] ; Sheikh Mohommad vs Director of Agri culture; M.P., ; Ramdeval Singh vs State of Bihar AIR 1969 Pat. 131; Anthony D ' Silva vs Kerala State, AIR l971 Ker. 51; Swatantra L. & F. Pvt. Ltd., vs State of Haryana, ILR [1974] 2 Punj.
7S; Swami Sukhanand vs Samaj Sudhar Samiti, AIR 1962 J & K 59; and Abdul Sattar vs Mt. Hamida Bibi Pak.
L.R. l95O Lah.
568 (FB); approved.
267 State of Punjab vs Cst.
Qaisar Jahan Begam & Anr. ; , and A State of U.P. vs Abdul Karim, [CA No. 2434/1966 decided on .
3 9 1969] referred to.
Secretary of State vs Bhagwan Prasad, ILR 52 All. 96; State of U.P. vs Abdul Karim, AIR 1963 All. 556; Pannalal vs True Collector of Etah, ILR 11959] 1 All.
628; Venkateswaraswami vs Sub Collector, Bezwada, AIR 1943 Mad. 327; and Hari Krishna Khosla vs State of Pepsu, ILR [1958] 1 Punj. 8S4; over ruled. |
N: Criminal Appeal No. 144 of 1972.
Appeal by Special Leave from the Judgment and order dated 1 2 1972 of the Madhya Pradesh High Court in Criminal Revision No. 709/71.
R. Nagarathnam for the Appellant.
section K. Gambhir, Miss B. Ramrakhiani and J. M. Khanna for the Respondent.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is preferred by Dr. section L. Goswami by special leave granted by this Court against the judgment of the High Court of Madhya Pradesh at Jabalpur in Criminal Revision No. 709 of 1971.
Criminal Revision No. 709 of 1971 was filed by the appellant 387 before the High Court for quashing the order of the Magistrate, 1st , Class, Jabalpur committing the appellant to Sessions for trial under section 466 read with section 120 B of the Indian Penal Code.
The appellant was prosecuted before the Special Judge, Jabalpur, in Criminal Case No. S of 1967 for an offence under section 5 (1) (d) of the Prevention of Corruption Act, 1947, in connection with the defalcations of Government funds.
In that case one Dr. section C. Barat was examined as a defence witness.
The appellant was convicted and an appeal against his conviction before the High Court failed.
The appellant obtained special leave from this Court to appeal against the order of the High Court.
During the pendency of the appeal before the Supreme Court the High Court was required to prepare a paper book for use in the Supreme Court.
It is alleged that when the paper book was being prepared in the Supreme Court section of the High Court the appellant Dr. Goswami entered into a conspiracy with two of the translators and tampered with the original deposition of Dr. section C. Barat, D.W. 1.
The Additional Registrar of the High Court field a complaint before the First Class Magistrate, Jabalpur, against the appellant for an offence under section 466 read with section 120 B of the Indian Penal Code.
The case was taken on file by the Magistrate as Criminal Case No. 1924 of 1971.
Against the two persons who were alleged to have conspired with the appellant in tampering with the deposition of Dr. Barat a challan was filed by the police before the same First Class Magistrate.
The Magistrate by a common order on 15th November, 1971 committed the appellant as well as two others to the Sessions Court to take their trial for offences under section 466 read with section 120 B of the Indian Penal Code.
The appellant and another with whom we are not concerned preferred a revision petition against the order of his committal before the High Court.
The High Court dismissed the Fr revision filed by the appellant and hence this appeal.
The main contentions that are raised in this appeal are: (i) The Magistrate erred in taking cognizance of an offence under section 466 of the Indian Penal Code read with section 120 B, Indian Penal Code.
without sanction of the Government under section 196 A (2) of the Criminal Procedure Code; and (2) the offence, if any, was not committed in any court in respect of a document produced or given in evidence in such proceeding as required under section 195(i) (c) of the Code of Criminal Procedure.
We will take up the first contention urged by the learned counsel for 11 the appellant, namely that the trial court was in error in taking cognizance of the offence without a complaint by the State Government when the 388 offence charged is one of conspiracy under section 120 B of the Indian Penal Code as required under section 196 A(2) of the Criminal Procedure Code.
Section 196 A(2) reads as follows: "196 A. No court shall take cognizance of the offence! of criminal conspiracy punishable under section 120 B of the Indian Penal Code.
(1) * * * * (2) in a case where the object of the conspiracy is to commit any non cognizable offence, or a cognizable offence not punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards unless the State Government, or a Chief Presidency Magistrate or District Magistrate empowered in this behalf by the State Government had by order in writing consented to the initiation of the proceedings; Provided that where the Criminal Conspiracy is one to which the provisions of sub section (4) of section 195 apply no such consent shall be necessary.
" Section 466 deals with a non cognizable offence and the sub clause (2) to section 196A provides that where the object of the conspiracy is to commit a non cognizable offence an order in writing consenting to the initiation of proceedings is necessary by the State Government or the Chief Presidency Magistrate or the District Magistrate empowered in this behalf by the State Government.
No such consent in writing was obtained in this case.
An exception to this requirement is Made by the Proviso which states that if the criminal conspiracy is one to which the provisions of sub section (4) of section 195 apply no such consent shall be necessary.
It is, therefore, necessary to determine whether the offence complained of is one that falls under section 195(4) in which case consent for initiation of the proceedings is not necessary.
Section 195(1) (c) and section 195(4) which are necessary for the discussion may be extracted. "195.
(1) No Court shall take cognizance (a) * * * * (b) * * * * (c) of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been 389 committed by a party to any proceeding in any Court in respect of a 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.
(2) * * * * (3) * * * * (4) The provisions of sub section (1), with reference to the offences named therein, apply also to criminal conspiracies to commit such offences and to the abetment of such offences, and attempts to commit.
(5) * * * * Sub section (4) makes the provisions of sub section (1) with reference to the offences named applicable to criminal conspiracy to commit such offences also.
If the offence falls under provisions of subsection (1) to Section 195 then criminal conspiracy to commit such offences would also fall under section 195(1) and require the complaint in writing by the court before the offence can be taken cognizance of.
The requirements of section 195(1)(C) are: (1) The offence must be one as described in section 463 or punishable under sections 471, 475 or 476 of the I.P.C. (2) Such offences Should be alleged to have been committed by a party to any proceeding in any court; (3) Such offence should be in respect of a document produced or given in evidence in such proceeding.
The offence for which the appellant is committed to take his trial is that there was consent of the appellant also in committing the conspiracy for committing forgery of the record by tampering the evidence of Dr. Barat while the records were being prepared by the High Court for being sent to the Supreme Court for use in the appeal pending before the Supreme Court.
The first requirement is that the offence should be one as described in section 463 or punishable under section 471, section 475 or section 476 of the Indian Penal Code.
It was submitted that as section 466, Indian Penal Code, is not one of the sections mentioned, the offence will not fall under the provisions of section 195(1) (c) 390 and the section will not apply.
In support of this view a decision of his Court in Govind Mehta vs State of Bihar(1), was relied on.
In that case, on a complaint by the District Public Prosecutor the appellant before this Court was committed to the Sessions to take trial under sections 167, 466 and 467 of the Indian Penal Code.
One of the contentions raised before this Court was that the offence under section 466, Indian Penal Code, is not covered by clauses (b) and (c) of section 195(1) and therefore section 195 does not operate as a bar to taking cognizance of an offence under section 466, Indian Penal Code.
this Court after agreeing with the view of the High Court that section 195(1) (b) or (c) is no bar to the Magistrate taking cognizance for an offence under section 167 observed: "The offence under section 466 of the Penal Code is, admittedly, not covered by clause (b) or clause (c) of section 195(1) of the Code.
therefore, that section does not operate as a bar in respect of this office.
" Again at p. 785 this Court observed: "Section 463 of the Penal Code is, no doubt, taken in by Clause (c) of Section 195(1) of the Code.
Even on the basis that Section 465 of the Penal Code will also be covered by Clause (c) as the offence, under Section 463 is dealt with therein, nevertheless, Clause (c) will not operate as a bar to the jurisdiction of the Magistrate in taking cognizance of the said offence is not alleged to have been committed 'by a party to any proceeding in any court. ' We have also referred to the fact that the appellant has been committed only for the offence under Sections 167, 466 and 471 of the Penal Code.
Section 465 of the Penal Code is not the subject of the committal order.
" We have given our careful consideration to the view expressed in the above decision that section 466 of the Indian Penal Code is not covered by clause (c) of section 195(1) of the Criminal Procedure Code.
We regret our inability to subscribe to this view.
At p.785 of the Report the Court took the view that the section 465 of the Indian Penal Code is not specifically mentioned in section 195(1) (c) of the Criminal Procedure Code as the offence under section 463 Indian Penal Code is dealt with in section 465, Indian Penal Code, clause (c) of section 195(1) will not operate as a bar to the Magistrate taking cognizance the offence.
The Court, though section 465 is not specifically mentioned in section ;195(1) (c), held that section 195(1) (c) Is applicable as an offence under section 463 is dealt with under section 465, Indian Penal Code.
On the same reasoning section 466 should also be held to come within the purview of section 195(1)(c), Criminal Procedure Code, as the offence under section 463 is dealt with in section 466.
Section 463, Indian Penal Code, defines forgery.
The elements of (1) [1971] Supp.
S.C.R. 777.
391 forgery are: (1) The making of a false document or part of it; (2) Such making should be with such intention as is specified in the section.
Section 464 states when a person is said to make a false document which is one of the requirements under section 463.
Section 465 provides the punishment for an offence under section 463.
Section 466 is an aggravated form of forgery in that the forgery should relate to a document specified in the section.
One of the documents specified is a document purporting to be a record or proceeding of or in a Court of Justice.
Section 466, Indian Penal Code, is therefore an offence as described in section 463 which is committed in relation to a record or proceeding of or in a court of justice.
The offences that fall within the purview of section 195(1)(c) are offences described in section 463 and offences punishable under sections 471, 475 or 476 of the Indian Penal Code.
The language of section 195(1)(c) is very significant for while referring to sections 474, 475 or 476, Indian Penal Code, it uses the word publishable, in the case of section 463 the words used are the 'offences described in section 463 '.
An offence under section 466 is an offence which falls within the description of section 463 as the offence under section 463 is dealt with therein.
Section 195(1)(a) of the Criminal Procedure Code uses the words "of any offence punishable under section 172" while in clause (b) the words used are "offence punishable under any of the following sections" mentioned therein.
In clause (c) as already pointed out the words used are "of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same Code".
Thus a clear distinction is maintained in the section between offences punishable under various sections mentioned and the offences described in section 463.
Even on the test laid down by this Court in Govind Mehta vs State of Bihar (supra) section 466 would be included within the purview of section 195(1) (c).
We are, therefore, of the view that the decision that section 466 of the Indian Penal Code is not covered by clause (b) or clause (c) of section 195(1) is erroneous and not good law.
The question of law was not considered and the decision was reached on an admission made by the parties.
We will now deal with the other requirements of section 195 (1) (c) namely that The offence should be alleged to have been committed by a party to any proceeding and that it should be in respect cf a document produced or given in evidence in such proceeding.
It is admitted that the appellant was a party in the appeal that he preferred against his conviction before the High Court but the appeal was decided against him and the conviction confirmed.
Special leave was granted against his conviction and for hearing of the appeal before the 392 Supreme Court the paper book was being prepared by the High Court.
It was during that time that it is alleged that the appellant entered into a conspiracy and tampered with the evidence of one of the defence witnesses which is a record of the court.
The appellant was a party to a proceeding in the High Court when the appeal was heard but the document complained of as having been tampered with i.e. the evidence of the defence witness, was not produced or giver in evidence in the appeal before the High Court.
The document was certainly not produced or given in evidence in the High Court proceedings.
The alleged tampering was after the hearing of the appeal was concluded.
No doubt, the tampering was in a proceeding in relation to the preparation of the record whether such tampering would be in relation to a proceeding in Supreme Court in respect of a document produced or given in evidence before it does not arise for consideration before us as the complaint in the case is filed only by the High Court.
In Abdul Khader and ors.
vs Meera Saheb(1) a Bench of the Madras High Court held that where a decree against Certain defendants had been passed upon the oath of the plaintiffs and where 'the documents alleged to be forgeries have been put into Court but were not given in evidence it would not be an offence committed by a party lo any proceeding in any court in respect of a document given in evidence in such proceeding though the documents were put in court in a suit pending before it but were not given in evidence Subsequent to this decision section 195(1)(c) was amended so as to include documents "produced" in addition to documents given in evidence.
In Pendyala Subbarayudu vs (Gudivada) Gopayya(2) if was held that it was indispensable that the offence committed must in some manner have affected the proceedings or had been designed to effect them or come to light in the course of them but an offence committed after their close is wholly outside the scope of the provision.
We agree with the view expressed in the decision.
In Nirmaljit Singh Hoon vs The State of West Bengal and Anr.(3) it was held that a document produced in a proceeding before the court during the investigation by the police ordered under section 156(3) of the Criminal Procedure Code would not be a document produced ill a proceeding before the court so as to attract the ban under section 195(1) (c) of the Criminal Procedure Code.
This Court in a recent decision in Legal Remembrancer of Government of West Bengal vs Haridas Mundra(4) held that the requirement of section 195(1) (c) is that the document in question should be produced or given in evidence in the (1) I.L.R. 15 M d. 224.
(2) A.l.
R. (3) ; (4) ; 393 proceeding before the court.
We find on the facts of the case that it has not been established that the document was produced or given in evidence in a proceeding before the court.
The requirements of section 195(1)(c) having not been satisfied a complaint by the court in writing is not necessary.
Equally, under sub section (4) to section 195 relating to criminal conspiracy to commit such offence a complaint by the court is not necessary.
Therefore, section 196 A(2) is attracted and a complaint by the State Government or the Chief Presidency Magistrate or a District Magistrate compowered in this behalf by the State Government in writing consenting to the initiation of the proceedings for an offence under section 120 B, Indian Penal Code is necessary.
As in this case no such order consenting to the initiation of proceedings was passed we accept the contention of the learned counsel for the appellant that the Magistrate had no jurisdiction to take cognizance of the offence against the appellant.
In the result, we allow the appeal, reverse the judgment of the High Court and quash the order of committal passed by the Magistrate.
First Class, Jabalpur.
S.R. Appeal allowed. | On a complaint by the Additional Registrar of the Madhya Pradesh High Court alleging that, while the Paper Book in the Supreme Court appeal was being prepared, the appellant entered, into a conspiracy with two of the translators of the Court and tampered with the of original deposition of one Dr. section C. Barat (D.W. 1) in an earlier criminal case against the appellant which was under appeal in the Supreme Court for which the aforesaid paper book was being prepared, the First Class Magistrate committed the appellant and two others to the Sessions Court to take their trial for offences under section 466 read with section 120 B of the Penal Code.
The appellant and another preferred a revision petition before the High Court against the said order of committal.
The High Court dismissed the revision petition.
Allowing the appeal by special leave, the Court ^ HELD : 1.
An offence under section 466 I.P.C is covered by clause (c) of section 195(1) of the Criminal Procedure Code and comes within the purview of that section, as the offence under section 463 I.P.C. is dealt within section 466 I.P.C. Section 466 I.P.C. is on aggravated form of forgery in that the forgery should relate to a document specified in that section.
Section 466 I.P.C., is therefore an offence as described in section 463 I.P.C. which is committed in relation to a record or proceeding of or in a court of justice.
[390F, H, 391 A B] The offences that fall within the purview of section 195(1)(c) Criminal P C. are offences described in section 463 I.P.C. and offences punishable under section 471, 475 or 476 of the Penal Code.
The language of section 195(1) (c) of the Crl.
P.C. is very significant for while referring to sections 471, 475 or 476 I.P.C., it uses the word punishable in the case of section 463 I.P.C. the words are 'the offences described in section 463 '.
An offence under section 466 I.P.C. is an offence which falls within the description of section 463 I.P.C., as the offence under section 463 I.P.C. is dealt with therein.
[391B D] Section 195(1)(a) of the Criminal Procedure Code uses the words "of any offences punishable under section 172. " while in clause (b), the words used are "offences punishable under any of the following sections mentioned therein".
In clause (e) the words are "of any offence described in section 463 or punishable under section 471, section 475 or section 476 of the same code".
Thus a clear distinction is maintained in the section between offences 386 punishable under various sections mentioned and the offence described in section 463.
Even on the test laid down in Govind Mehta vs State of Bihar , section 466 I.P.C. would be included within the purview of section 195(1)(c) of the Criminal Procedure Code.
[391D E] Govind Mehta vs State of Bihar ; explained and over ruled.
The requirement; of section 195 (1)(c) is that the document in question should be produced or given in evidence in the proceeding before the Court.
The offence committed must in some manner have affected the proceedings or had been designed to affect them or come to light in the course of them, but an offence committed after their conclusion is wholly outside the scope of the provision.
[392F H, 393A] Legal Remembrancer of Govt.
Of West Bengal vs Hari Das.
Mundra ; , applied.
Pendyala Suhbarayudu vs Gudivada Gopayya A.I.R. 1932 Madras 290; approved.
Nirmal Jit Singh Hoon vs State of West Bengal and Anr. ; and Abdul Khadar and ors.
vs Meera Saheb I.L.R. ; referred to.
In the instant case (a) section 196A(2) of the Criminal Procedure Code is attracted and a complaint by the State Government or the Chief Presidency Magistrate empowered in this behalf by the State Government in writing consenting to the initiation of the proceedings for an offence under section 120 l.
P.C. is necessary.
[393B] (b) The requirement of section 195(1)(c) having not been satisfied a complaint by the Court in writing is not necessary.
[393A] (c) Equally under sub section (4) to section 195 relating to criminal conspiracy to commit such offence a complaint by the Court is not necessary.
[393A] |
ivil Appeal Nos.
3694 3695 of 1989.
From the Judgment and Order dated 22.9.
1987 of the Kerala High Court in O.P. Nos.
4932 of 1983 and 1091 of 1982.
T.S. Krishnamurthy Iyer and E.M.S. Anam for the Appel ants.
P.S. Poti and P.K. Pillai for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Special leave granted.
We have heard learned counsel for the parties.
In disposing of the appeal against a decision of the Forest Tribunal under the provisions of the Kerala Private Forests (Vesting & 39 Assignment) Act, 1971, a Division Bench of the Kerala High Court in MFA No. 401/78 disposed of on 14th of July, 1980, directed: "It follows that out of 102 acres 25 acres over which teak was planted in 1967 and euca lyptus was planted in 1955 will be private forest coming within the Private Forests (Vesting & Assignment) Act.
But since this area is under the personal cultivation of the respondent she will be entitled to 15 acres under Section 3(2) of the Act.
The rest 10 acres will vest with the Government.
In the result the appeal is partly allowed and the order of the lower court is modified as follows: It is declared that 75 acres over which the respondent had planted teak wood, orange and soft wood prior to 14th December, 1949, is held to be not a private forest under the Madras Preservation of Private Forests Act, 1949 and Kerala Private Forests (Vesting & Assignment) Act, 26 of 197 1.
But of the rest 2 acres over which the respondent had planted cashew is declared to be not a private forest under Section 2(f)(1)(i)(A) and (C) of the Act.
Another 15 acres under the personal cultivation of the respondent is also held not to vest under the above Act under Section 3(2) of the Act.
The Custodian shall demarcate this 15 acres in such a manner that it will be convenient for the enjoyment of the respond ent.
The balance 10 acres will vest.
with the Government.
With the demarcation and identifi cation of that 10 acres the case is sent back to the Forest Tribunal.
If the Custodian has taken possession of the area declared not to vest, he will surrender the same to the re spondent forthwith . ." In terms of this judgment 92 acres (being the total of 75 acres + 15 acres + 2 acres) were to be given back to the appellants.
In the process of implementation of this direc tion certain lands were returned to the appellants by the Forest officials.
These lands constituted thick forests and had valuable trees thereon.
This fact was realised by the higher officers of the Department and timber transit permits were not issued to the appellants when applied for.
There upon the appellants filed a writ petition before the High Court for a direction to the State Government and its offi cers to issue the requisite transit permits to enable the appellants to transport the rosewood trees and other 40 timber.
The claim contested.
The High Court came to the conclusion: "It is made clear that the petitioners are not entitled to any relief with regard to rosewood and other trees cut from the lands which do not form part of the lands ordered to be restored to the petitioner in O .P.
No. 4832 of 1983 and are vested in the Government.
With respect to the trees cut from the properties ordered to be restored to the petitioner, respondents 1 to 3 are directed to consider the applications filed by the petitioner for issue of transit permits and pass appropriate orders according to law.
Before determining this question also the respondents may give an opportunity to both the petitioners to put forward their contentions and a final decision may be taken after considering their objec tions.
" This order of the High Court is the subject matter of the present appeal.
In an affidavit filed in this appeal by the conservator and Custodian of Vested Forests it has been accepted that in terms of the judgment of the High Court in MFA No. 40 1/78, 92 acres were found not to vest in the State under the Act.
In the judgment the survey numbers with the respective extents had been furnished.
It is stated that 12 acres had not been taken possession of and, therefore, surrender had to be made of 80 acres only.
A further affidavit has been filed by the said Custodian where it has been said: "Hence only 80 acres are to be restored and out of this 56.31 acres have admittedly been restored already.
For the remaining 23.69 acres, Government are pleased to restore the same as follows vide G.O. Rt.
No. 1345/82/AD dated 24.5.82, in lieu of the land wrongly handed over to the petitioner.
Survey No. Area to be restored.
1518 10.19 acres 1580 6.03 acres 1580 7.47 acres" It has been further stated therein that in case any part of such land is not available, the Government are prepared to pay reasonable compensation for such shortfall as if the same had been acquired by the State for a public purpose.
41 We are of the view that the High Court was right in refusing to act upon the footing that pursuant to the direc tion by the High Court about 36 acres of land containing forest growth had been surrendered to the appellants and, therefore, they were entitled to appropriate the trees.
In fact within the ambit of the writ petition as filed before the High Court, the only question that fell for considera tion was whether timber transit permits should or should not be issued to the appellants to enable them to transport the felled timber from the area which should not have been delivered to the appellants.
Since we do not intend to differ from the High Court on that issue this appeal de serves to be dismissed but with a view to doing complete justice to the parties and give a final verdict in the matter we had enquired from Mr. Poti appearing for the respondent State on 27.3.1989 as to how Government proposed to comply with the binding direction of the High Court given in the first appeal.
The affidavit of 24th of June, 1989 by the Custodian of Vested Forests is in answer to that query.
We would like to reiterate that the appellants are entitled to return of 92 acres of land and not 80 acres.
This is on the ground that the direction of the High Court in the first appeal became final and in terms of such direc tion 92 acres were to go back to the appellants.
Government had no authority to alter the decision by an .administrative order as has been done on 22.5.1982.
There is no dispute that 56.31 acres have been restored to the appellants.
By the affidavit of 24th of June, 1989, 23.69 acres have been offered to be restored from three survey numbers indicated therein.
With the restoration of 23.69 acres the appellants would have got back 80 acres of land.
There would still be 12 acres to be returned to the appellants.
The respondents shall have a direction to trace these 12 acres in the local ity and make over vacant possession to the appellants there of within four months hence.
In case 23.69 acres or any part thereof as indicated in the affidavit cannot be delivered possession and the balance 12 acres are not identified and possession thereof cannot be delivered, the appellants shall be entitled to compensation in respect of the shortfall out of 35.69 acres in all which remain to be delivered and compensation for such shortfall shall be determined as if it were acquisition under the provisions of the Land Acquisi tion Act, the date of the preliminary notification being deemed to be the date of judgment in MFA 401/78.
The direc tions indicated above shall be worked out by the respondents within a total period of six months from today.
The High Court called upon the respondents to consider the appellants ' plea for timber transit permits in respect of trees cut from 42 certain other lands.
There is no material on record as to whether that has been complied with.
In case the respondents have not done the same yet they are directed to comply with the order of the High Court within three months from today.
The appeal is allowed in part.
Parties are directed to bear their respective costs.
Appeal allowed partly. | The High Court, in an appeal against a decision of the Forest Tribunal, under the provisions of the Kerala Forests (Vesting & Assignment) Act, 1971, held that 92 acres of forest land were to be given back to the appellants.
Accord ingly, the Forest Department returned certain lands.
Later on they realised that the lands constituted thick forests and had valuable trees thereon and refused the timber trans it permits applied for by the appellants.
Aggrieved against the decision, the appellants ap proached the High Court by way of a Writ Petition.
The High Court held that the appellants were not entitled to any relief with regard to rosewood and other trees cut from the lands that did not form part of the land ordered to be restored to them.
The High Court directed the Forest Depart ment to consider the application of the appellants and pass appropriate orders after giving an opportunity to the appel lants to put forward their contentions.
This appeal, by special leave, is against the said order of the High Court.
Allowing the appeal in part, HELD: 1.1 The appellants are entitled to return of 92 acres of land and not 80 acres.
This is on the ground that the direction of the High Court in the first appeal became final and in terms of such direction 92 acres were to go back to the appellants.
Government had no authority to alter the decision by an administrative order as has been done in this case.
[41D] 1.2 There is no dispute that 56.31 acres have been restored to the appellants.
By the affidavit of 24th June, 1989, 23.69 acres have been 38 offered to be restored from three survey numbers indicated therein.
With the restoration of 23.69 acres the appellants would have got back 80 acres of land.
There would still be 12 acres to be returned to the appellants.
The respondents shall have a direction to trace these 12 acres in the local ity and make over vacant possession to the appellants there of within four months.
[41E] 1.3 In case 23.69 acres or any part thereof as indicated in the affidavit Cannot be delivered possession and the balance 12 acres are not identified and possession thereof cannot be delivered, the appellants shall be entitled to compensation in respect of the shortfall out of 35.69 acres in all which remain to be delivered and compensation for such shortfall shall be determined as if it were acquisition under the provisions of the Land Acquisition Act, the date of the preliminary notification being deemed to be the date of judgment of the Division Bench in MFA 401/78.
The direc tions indicated above shall be worked out by the respondents within a total period of six months.
[41F G] 2.
The High Court called upon the respondents to consid er the appellants ' plea for timber transit permits in re spect of trees cut from certain other lands.
There is no material on record as to whether that has been complied with.
In case the respondents have not done the same yet, they are directed to comply with the order of the High Court within three months.
[41H; 42A] |
Civil Appeal Nos. 12 and 13 of 1977.
From the Judgement and order dated 17 11 1976 of the Andhra Pradesh High Court in Writ Appeal Nos.
591 592/76.
U. R. Lalit R. N. Sachthey and Girish Chandra for the Appellant in C. A. 12/77.
M. Abdul Khadar and G. Narayana Rao for the Appellant in C.A. 13/177.
T. section Krishna Murthy Iyer and A. Subba Rao for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
These two appeals (one by the State of Andhra Pradesh and the other by the Union of India) by certificate are directed against a Division Bench Judgment of the Andhra Pradesh High Court dated 17 11 1977 confirming the decision of a Single Judge by which an order passed by the Central Government compulsorily retiring M. E. Reddy, respondent No. I (hereinafter referred to 740 as Reddy) from service in public interest was quashed in a writ petition filed before the High Court.
The facts of the case lie within a very narrow compass particularly in view of the fact that we have decided not to go into the question of malafide alleged against respondent No. 3, Mr. K. Brahmanand Reddy before the High Court because Reddy in a previous Writ filed in the High Court against the order of suspension had expressly withdrawn all the allegations against Mr. K. Brahmanand Reddy respondent No. 3 in the High Court.
We shall, however, touch the fringes of this question so far as it directly affects the order impugned passed by the Government of India.
Reddy started his career in the Police Service as Deputy Superintendent of Police in the year 1948.
In the year 1958 Reddy was appointed to the Indian Police Service and 1952 was the year of his allotment.
On 31 7 1958 Reddy was promoted as Superintendent of Police in the State of Andhra Pradesh and held charge of a number of Districts from time to time.
Reddy was also awarded the President Police Medal near about the 14th August, 1967, but the award of the President Police Medal was withheld as Reddy was placed under suspension by the Government on 11 8 1967 pending departmental enquiry into a number of allegations made against him.
It is not necessary for us to detail those allegations which are not germane for the purpose of deciding these appeals.
In 1969 Reddy filed a writ petition in the Andhra Pradesh High Court praying that the order of suspension passed against him dated 11 8 1967 may be quashed as it was passed on false allegations and at the instance of Mr. K. Brahmanand Reddy who was the Chief Minister of Andhra Pradesh at that time.
A large number of Limitations in support of the plea of malice were made by Reddy.
The writ petition was admitted by the High Court which passed an order dated 17 7 1969 staying all further proceedings including the written statement by Reddy to the six charges framed against him by the department.
When the writ came up for hearing before the single Judge, the State Government represented to the High Court that it had decided to withdraw the order of suspension and reinstate the respondent No. 1, Reddy.
The State Government accordingly withdrew the order of suspension and directed that the period of suspension may be treated as on duty.
Thereafter Reddy filed an application before the High Court seeking permission to withdraw the petition as also the allegations made in the petition against the Chief Minister respondent No. 3 in the High Court.
The High Court accepted the 741 prayer of Reddy and allowed the petition to be withdrawn and passed A the following order: "It seems that orders reinstating the petitioner and virtually cancelling the suspension order are being issued.
The learned Advocate for the petitioner therefore desires to withdraw the writ petition.
The writ petition is therefore dismissed as withdrawn".
As a result of these developments the departmental proceedings against Reddy were dropped and he was given Selection Grade which appears to have been withheld because of the order of suspension passed against Reddy.
On 27 4 1971 Reddy was given the Selection Grade with retrospective effect from 6 6 1969.
Thereafter by an order dated 28 4 1971 Reddy was promoted to the Rank of Deputy Inspector General of Police by the State Government.
It appears that during the course of the departmental enquiry the following entry appears to have been made in the Annual Confidential Report of Reddy: "He is under suspension.
Allegation against him is that he concocted a case against Venugopala Reddy (attempt to rape) to please the Inspector General of Police K. K. Nanmbiar.
There is also a strong suspicion about his integrity.
The Anti corruption Branch are enquiring into the allegations.
In this enquiry allegations are proved".
After the proceedings were dropped and Reddy was promoted as Deputy Inspector General of Police he made a representation to the Government that the adverse entry contained in the Annual Confidential Report may be expunged.
The Government of Andhra Pradesh after considering the representation of Reddy passed the following order dated 20 4 1974: "The Government, after careful consideration, have decided that as the statements are factual it would be sufficient if a suitable entry is made in the said confidential report to the effect that the suspension was subsequently lifted and the period was treated duty and that further action was stayed as there were no good grounds to hold him guilty of any of the charges levelled against him.
(3) A suitable entry has accordingly been made in the confidential report for the year ending 31 3 1968".
We have expressly referred to this order of the Government to show that it completely demolishes the case of malafide pleaded by 11 625SCI/79 742 Reddy against Mr. K. Brahmanand Reddy, respondent No. 3 in the High Court because if Mr. K. Brahmanand Reddy had any animus against the officer he would not have accepted his representation and denuded the effect of the adverse entry made at the time when Reddy was suspended.
According to the allegations made by the State of Andhra Pradesh on the 7th August, 1975 a Review Committee consisting of the Chief Secretary, Home Secretary and the Inspector General of Police considered various cases of police officers including the case of Reddy and made their recommendations.
On 11th September, 1975 the Government of India after considering the report of the Review Committee ordered compulsory retirement of Reddy in public interest on the expiry of three months ' notice from the date of service of order on him.
This order was passed by the Central Government in consultation with the State Government hereinafter referred to as the impugned order) as may be extracted thus: "In exercise of the powers conferred by Sub rule 3 of Rule 16 of the All India Service (Death cum Retirement) Rules, 1958, the President, in consultation with the Government of Andhra Pradesh, is pleased to order the retirement of Sri M. E. Reddy a member of the Indian Police Service borne on the cadre of Andhra Pradesh, in the public interest, on the expiry of three months from the date of service of this order on him".
This order purports to have been passed under sub rule (3) of Rule 16 of the All India Service (Death cum Retirement) Rules, 1958 which reads as follows: "16(3) The Central Government, in consultation with the State Government, may require a member of the Service who has completed 30 years of qualifying service or who has attained the age of 55 years to retire in the public interest provided that at least three months ' previous notice in writing will be given to the member concerned".
An analysis of this Rule clearly shows that the following essential ingredients or the Rule must be satisfied before an order compulsorily retiring a Government servant is passed: 1.
That the member of the Service must have completed 30 years of qualifying service or the age of SO years (as modified by notification dated 16 7 1969), 2.
That the Government has an absolute right to retire the Government servant concerned because the word require" clearly confers an unqualified right on the Central Government; 743 3.
That the order must be passed in public interest; 4.
That three months ' previous notice in writing shall be given to the Government servant concerned before the order is passed.
It may be noted here that the provision gives an absolute right to the Government and not merely a discretion, and, therefore, impliedly it excludes the rules of natural justice.
It is also not disputed in the present case that all the conditions mentioned in Rule referred to above have been complied with.
It is a different matter that the argument of Reddy is based on the ground that the order is arbitrary and mala fide with which we shall deal later.
On a perusal of the impugned order passed by the Government of India it would appear that the order fully conforms to all the conditions mentioned in Rule 16 (3).
It is now well settled by a long catena of authorities of this Court that compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract the provisions of article 311 (2) of the Constitution.
In fact, after an employee has served for 25 to 30 years and is retired on full pensionary benefits, it cannot be said that he suffers any real prejudice.
The object of the Rule is to weed out the dead wood in order to maintain a high standard of efficiency and initiative in the State Services.
It is not necessary that a good officer may continue to be efficient for all times to come.
It may be that there may be some officers who may possess a better initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement.
In such a case compulsory retirement of an officer who fulfils the conditions of Rule 16 (3) is undoubtedly in public interest and is not passed by way of punishment.
Similarly, there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in public interest, since they have almost reached the fag end of their career and their retirement would not cast any aspersion nor does it entail any civil consequences.
Of course, it may be said that if such officers were allowed to continue they would have drawn their salary until the usual date of retirement.
But this is not all absolute right which can be claimed by an officer who has put in 30 years of service or has attained the age of 50 years.
Thus, the general impression which is carried by most of the employees that compulsory H retirement under these conditions involves some sort of stigma must he completely removed because rule 16 (3) does nothing of the sort.
744 Apart from the aforesaid considerations we would like to illustrate the jurisprudential philosophy of rule 16 (3) and other similarly worded provisions like Rule 56 (j) and other rule relating to the Government servants.
It cannot be doubted that rule 16 (3) as it stands is but one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution and is controlled only by those contingencies which are expressly mentioned in Article 311.
If the order of retirement under rule 16 (3) does not attract Article 311 (2) it is manifest that no stigma of punishment is involved.
The order is passed by the highest authority, namely, the Central Government in the name of the President and expressly excludes the application of rules of natural justice as indicated above.
The safety valve of public interest is the most powerful and the strongest safeguard against any abuse or colourable exercise of power under this Rule.
Moreover, when the Court is satisfied that the exercise of power under the rule amounts to a colourable exercise of jurisdiction or is arbitrary or made it can always be struck down.
While examining this aspect of the matter the Court would have to act only on the affidavits, documents, annexures, notifications and other papers produced before it by the parties.
It cannot delve deep into the confidential or secret records of the Government to fish out materials to prove that the order is arbitrary or mala fide.
The Court has, however, the undoubted power subject to any privilege or claim that may be made by the State, to send for the relevant confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence.
It seems to us that the main object of this Rule is to instil a spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the Services are one of the pillars of our great democracy.
Any element or constituent of the Service which is found to be lax or corrupt, inefficient or not up to the mark or has outlived his utility has to be weeded out.
Rule 16 (3) provides the methodology for achieving this object.
We must, however, hasten to add that before the Central Government invokes the power under Rule 16 (3), it must take particular care that the rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the Service and defeat the laudable object which the rule seeks to subserve.
If any such case comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt 745 with.
Compulsory retirement contemplated by the aforesaid rule is designed to infuse the administration with initiative and activism so that it is made poignant and piquant, specious and subtle so as to.
meet the expanding needs of the nation which require exploration of "fields and pastures now".
Such a retirement involves no stain or stigma nor does it entail any penalty or civil consequences.
In fact, the rule merely seeks to strike a just balance between the termination of the completed career of a tired employee and maintenance of top efficiency in the diverse activities of the administrating.
An order of compulsory retirement on one hand causes no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the Services.
The employees should.
try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the Service made in the larger interest of the country.
Even if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to his country for every good cause claims its martyr.
These principles are clearly enunciated by a series of decisions of this Court starting from Shyam Lals(1) case to Nigams (2) case which will be referred to hereafter.
In the case of Shyam Lal vs The State cf Uttar Pradesh & Anr.(1) This Court clearly held that compulsory retirement does not amount to removal or termination nor does it involve any stigma.
In this connection, a Bench of 5 Hon 'ble Judges of this Court observed as follows: "There is no such element of charge or imputation in the case of compulsory retirement.
The two require ments for compulsory retirement are that the officer has completed twentyfive years ' service and that it is in the public interest to dispense with his further services.
It is true that this power of compulsory retirement may be used when the authority exercising this power cannot substantiate the misconduct which may be the real cause for taking the action but what is important to note is that the directions in the last sentence in Note l to article 465 A 746 make it abundantly clear that an imputation or charge is not in terms made a condition for the exercise of the power.
In other words, a compulsory retirement has no stigma or implication of misbehaviour or incapacity".
"The more important thing is to see whether by compulsory retirement the officer loses the benefit he has earned as he does by dismissal or removal.
The answer is clearly in the negative.
The second element or determining whether a termination of service amounts to dismissal or removal is, therefore, also absent in the case of termination of service brought about by compulsory retirement.
The foregoing discussion necessarily leads us to the conclusion that a compulsory retirement does not amount to dismissal or removal and, therefore, does not attract the provisions of Article 311 of the Constitution or of rule 55".
The same principle was reiterated by another Bench of S Hon 'ble Judges of this Court in the case of T. G. Shivacharan Singh & Ors.
vs The State of Mysore.(1) In this case, the Court was considering the scope of rule 285 which was almost in the same terms as rule 16 (3) and provided that a Government servant could be retired, after completing qualifying service of 30 years or on attaining the age of 50 years if such retirement was considered in public interest.
In this connection, the Court observed as follows: "It would thus be clear that though the normal age of retirement under R. 95 (a) is 55 years, under R. 285 it is competent to the Government to retire compulsorily a government servant prematurely if it is thought that such premature retirement is necessary in the public interest . . .
Mr. Venkataranga Iyengar contends that this Rule is invalid, because it contravenes article 14 as well as article 16 (1) of the Constitution.
In our opinion this contention can no longer be entertained.
because it is concluded by a long series of decisions of this Court".
Even the constitutionality of the provisions concerned was upheld by this Court.
The leading case on the subject which has been decided some years before and has been consistently followed by latter decisions 747 of this Court is the case of Union of India vs Col. J. N. Sinha & Anr.(1).
This Court was considering the scope and ambit of rule 56 (j) which is also worded in the same terms as rule 16 (3).
Rule 56 (3) runs thus: "Notwithstanding anything contained in this Rule the appropriate authority shall, if it is of the opinion that it is in the public interest so to do have the absolute right to retire any Government servant by giving him notice of not less than three months in writing or three months ' pay and allowances in lieu of such notice.
(i) if he is in Class I or Class II Service or post the age for the purpose of direct recruitment to which is below 35 years, after he has attained the age of 50 years.
(ii) In any other case after he has attained the age of 55 years.
D Provided that nothing in this clause shall apply to a Government servant referred to in clause (e) who entered Government service on or before 23rd July 1966 and to a Government servant referred to in clause (f)".
After considering the various shades, aspects, purpose and object E of such provision this Court observed as follows: "But if on the other hand a statutory provision either specifically or by necessary implication excludes the application of any or all the principles of natural justice then the court cannot ignore the mandate of the legislature or the statutory authority and read into the concerned provision the principles of natural justice".
"The right conferred on the appropriate authority Is an absolute one.
That power can be exercised subject to the conditions mentioned in the rule, one of which is that the concerned authority must be of the opinion that it is in public interest to do so.
If that authority bona fide forms that opinion, the correctness of that opinion cannot be challenged before courts.
It is open to an aggrieved party to contend that the requisite opinion has not been formed or the decision is based on collateral grounds or that it is 748 an arbitrary decision Compulsory retirement involves no civil consequences.
The aforementioned rule 56 (j) is not intended for taking any penal action against the government servant.
That rule merely embodies one of the facets of the pleasure doctrine embodied in Article 310 of the Constitution.
Various considerations may weigh with the appropriate authority while exercising the power conferred under the rule.
In some cases, the government may feel that a particular post may be more usefully held in public interest by an officer more competent than the one who is holding.
It may be that the officer who is holding the post is not inefficient but the appropriate authority may prefer to have a more efficient officer.
It may further be that in certain key posts public interest may require that a person of undoubted ability and integrity should be there.
There is no denying the fact that in all organisations and more so in government organisations, there is good deal of dead wood.
It is in public interest to chop off the same.
Fundamental Rule 56 (j) holds the balance between the rights of the individual government servant and the interests of the public.
While a minimum service is guaranteed to the government servant, the government is given.
power to energies its machinery and make it more efficient by compulsorily retiring those who in its opinion should not be there in public interest".
The observations made above clearly reveal the object of this rule and lay down that where an officer concerned is of doubtful integrity he can be compulsorily retired under this rule.
Mr. Krishnamurthy Iyer appearing for Reddy submitted that the order impugned is passed on materials which are non existent in as much as there are no adverse remarks against Reddy who had a spotless career throughout and if such remarks would have been made in his confidential reports they should have been communicated to him under the rules.
This argument, in our opinion, appears to be based on a serious misconception.
In the first place, under the various rules on the subject it is not every adverse entry or remark that has to be communicated to the officer concerned.
The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact.
Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that a particular officer enjoys.
It will indeed be difficult if not impossible to prove by positive evidence 749 that a particular officer is dishonest but those who has had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the reputation that he enjoys.
The High Court has also laid great stress on the fact that as adverse entries had not been communicated to Reddy, therefore, the order impugned is illegal.
We find ourselves unable to agree with the view taken by the High Court or the argument put forward by learned counsel for Reddy.
Moreover, the appellant had denied in their counter affidavit at page 59 Vol.
II that there was no adverse entry against the officer concerned prior to 1968.
This averment is contained in para 6 of the counter affidavit filed by Under Secretary to the Government of India in the High Court.
This aspect as considered by this Court in the case of R. L. Butail vs Union of India ors.(l) and the matter is concluded by the very apt observations made by Hidayatullah, C.J. who spoke for the Court and observed as follows: "These rules abundantly show that a confidential report is intended to be a general assessment of work performed by a Government servant subordinate to the reporting authority, that such reports are maintained for the purpose of serving as data of comparative merit when questions of promotion, confirmation etc.
arise.
They also show that such reports are not ordinarily to contain specific incidents upon which assessments are made except in cases Where as a result of any specific incident a censure or a warning is issued and when such warning is by an order to be kept in the personal file of the Government servant.
In such a case the officer making the order has to give a reasonable opportunity to the Government servant to present his case.
The contention, therefore, that the adverse remarks did not contain specific instances and were, therefore, contrary to the rules, cannot be sustained.
Equally unsustainable is the corollary that because of that omission the appellant could not make an adequate representation and that there fore the confidential reports are vitiated".
G "It may well be that in spite of the work of the appellant being satisfactory, as he claimed it was, there may have been other relevant factors, such as the history of the appellant 's entire service and confidential reports through out the period of his service, upon which the appropriate authority may still decide to order appellant 's retirement under F.R. 56 ( j ) ".
750 In this case the Court followed and endorsed the decision of this Court in the case of J. N. Sinha (supra).
Here we might mention that the appellants were fair and candid enough to place the entire confidential personal file of Reddy before us starting from the date he joined the Police Service and after perusing the same we are unable to agree with Mr. Krishnamurthy Iyer that the officer had a spotless career.
The assessment made by his superior officers from the very beginning of his service until the impugned order was passed show that at best Reddy was merely an average officer and that the reports show that he was found to be sometimes tactless, impolite, impersonated and suffered from other infirmities though not all of them were of a very serious nature so as to amount to an adverse entry which may be communicated to him.
We might also mention that before passing an order under rule 16(3) it is not an entry here or an entry there which has to be taken into consideration by the Government but the overall picture of the officer during the long years of his service that he puts in has to be considered from the point of view of achieving higher standard of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service.
Even in the last entry which was sought to be expanded through a representation made by Reddy and other entries made before it appears that the integrity of Reddy was not above board.
Even in the case of State of Uttar Pradesh vs Chandra Mohan Niganm & Ors.(1) on which great reliance has been placed by Mr. Krishnamurthy Iyer, it was observed thus: "We should hasten to add that when integrity of an officer is in question that will be an exceptional circumstance for which orders may be passed in respect of such a person under rule 16(3), at any time, if other conditions of that rule are fulfilled, apart from the choice of disciplinary action which will also be open to Government.
Thus, even according to the decision rendered by this Court in the aforesaid case the fact that an officer is of doubtful integrity stands on a separate footing and if he is compulsorily retired that neither involves any stigma nor any error in the order.
We might also refer to an observation made by the Single Judge of the High Court whose judgment was confirmed by the Division Bench, who appears to have misconstrued a judgment of this Court and by the process of such misconception seems to have ignored the later decisions of this Court given by small Benches on the exact question at 751 issue.
The learned Judge relied on the decision in the case of Madan Mohan Prasad vs State of Bihar & Ors.(1) in support of the view that the order of retirement even if it is in public interest violates Article 311 (2) of the Constitution even though no punishment was intended.
The learned Judge observed as follows: "In Madan Mohan vs State of Bihar (supra) the Supreme Court considered the validity of retirement order of a Judicial officer who for the reason that he worked for seventeen years asserted was permanent member of the service when his retirement was ordered under Bihar pension Rules of 1950 questioned the order under article 32 of the Constitution of India that it was a punishment within the meaning of article 311 (2) of the Constitution of India".
and then relies on certain observations of this Court in order to hold that the termination of service of the officer casts a stigma on his character and attracts Article 311(2) of the Constitution.
The learned Judge further relied on a decision of this Court in support of the proposition that a judgment rendered by S Judges of the Supreme Court would prevail over a judgment of a smaller Bench.
So far this part of the observation is concerned, there can be no doubt.
But the learned Judge appears to have completely misconstrued the decision in Madan Mohan 's case (supra) which was not a case of compulsory retirement at all, nor was it a case where the officer concerned was retired under a rule like rule 56(j) or 16(3) as we have indicated in this case.
On the other hand, in that case what happened was that the officer was appointed as a temporary Munsif and under the terms of the notification by which he was appointed it was provided that the appointment of temporary Munsif could be terminated by giving one month 's notice.
The High Court it appears, was not satisfied with the work of Munsif and accordingly decided to terminate his services.
But the Chief Minister in one of his speeches on the floor of the House had made certain observations implying that the services of the Munsif were being terminated on account of inefficiency and misconduct.
In these peculiar circumstances, therefore, this Court held that the termination of the Munsif even though he was a temporary servant cast a stigma and, therefore, attracted Article 311 of the Constitution.
In this connection, the Court observed as follows: "It seems to us that on the facts of this case, the order dated January 15, 1972 violates Article 311(2) of the Constitution.
The petitioner had first been holding a temporary post and then a permanent post for nearly seventeen 752 years.
The Chief Minister s statement in the Assembly that his services were not satisfactory and the Government was considering serving show cause notice and the fact that his services were terminated without any enquiry being held would inevitably lead the public to believe that his services had been terminated on account of inefficiency or misconduct.
This did cast a stigma on his character".
It is, therefore, manifest that the facts of this case and the points involved were absolutely different from the facts of the present case.
The aforesaid case relied upon by the High Court would have absolutely no application to the present case where Reddy was neither a temporary servant nor was his service terminated.
The Single Judge of the High Court was, therefore, absolutely wrong in equating the principles of compulsory retirement under rule 16(3) with termination of the services of a temporary employee under the rules.
Similarly, the case of J. N. Sinha (supra) was followed and relied on by later decisions of this Court in the case of N. V. Puttabhatta vs The State Mysore & Anr.(1) as also in the case of State of Assam and Anr.
vs Basanta Kumar Das etc.
etc.(2) Again, in the case of Tara Singh etc.
vs State of Rajasthan & Ors(8) it was pointed out that compulsory retirement under the provisions similar to rule 16(3) cannot amount to a stigma, and the incidents of compulsory retirement were adroitly summed up by Ray, C.J. who observed as follows: "The right to be in public employment is a right to hold it according to rules.
The right to hold is defeasible according to rules.
The rules speak of compulsory retirement.
There is guidance in the rules as to when such compulsory retirement is made.
When persons complete 25 years of service and the efficiency of such persons is impaired and yet it is desirable not to bring any charge of Inefficiency or incompetency, the Government passes order of such compulsory retirement.
The Government servant in such a case does not lose the benefits which a Government servant has already earned.
These orders of compulsory retirement are made in public interest.
This is the safety valve of making such orders so that no arbitrariness or bad faith creeps in".
753 "There is no stigma in any of the impeached orders of compulsory retirement".
The learned Chief Justice pointed out that having regard to the safeguards contained in the rules particularly the fact that the retirement was in public interest the safety valve of safeguarding malafide or arbitrariness in the order was clearly contained in the provision itself.
J. N. Sinha 's case (supra) was endorsed and followed in this case also.
In a recent decision of this Court in the case of Mayenghoan Rahamohan Singh vs The Chief Commissioner (Admn.) Manipur & Ors.
the Court observed as follows: "Compulsory retirement is not a punishment.
There is no stigma in compulsory retirement".
"The affidavit evidence is that the order of compulsory retirement was made in public interest.
The absence of recital in the order of compulsory retirement that it is made in public interest is not fatal as long as power to make compulsory retirement in public interest is there and the power in fact is shown in the facts and circumstances of the case to have been exercised in public interest".
In this case, the Court was considering the scope of rule 56(j) which, as already indicated, is couched in the same terms as rule 16(3).
Learned counsel for Reddy heavily relied on the decision of this Court in the case of State of Uttar Pradesh vs Chandra Mohan Nigam & Ors.
(supra) and contended that as the Government of India while passing the impugned order had not considered the report of the Review Committee the order is vitiated by an error of law.
We have gone through this decision and we are unable to agree with the contentions put forward by learned counsel for Reddy.
The decision referred to above is not an authority for holding that the decision of the Review Committee is binding on the Government of India.
All that is necessary is that the Government of India should, before passing an order under rule 16(3) consider the report of the Review Committee which is based on full and completed analysis of the history of the service of the employee concerned.
In the instant case, it is clearly pleaded by the appellants in the High Court that the report of the Review Committee was in fact considered by the Government of India before passing the impugned order.
The confidential file placed before us also clearly shows that on the note sheet the notes by the 754 Secretary on the recommendations of the Review Committee the Home Minister, Mr K. Brahmananda Reddy has appended his signatures and has passed the order that Reddy should be compulsorily retired.
Furthermore, in Nigam 's case (supra) referred to above what had weighed with the Court was that after the Review Committee had submitted its report to the Government, the Government ordered a second Review Committee just in order to enable the Review Committee to give an adverse report against the officer concerned.
Such a course of action was condemned and deprecated by this Court.
In the instant case, however, there is no allegation by Reddy that any second Committee was ever appointed.
Even so in Nigam 's case (supra) this Court did not depart from the ratio laid down in Sinha 's case (supra) and followed by later cases but observed as follows: "As stated earlier, even in the case of compulsory retirement under rule 16(3), an order may be challenged in a court if it is arbitrary or mala fide.
If, however, the Government reaches a decision to prematurely retire a Government servant, bona fide the order, per se, cast any stigma on the employee nor does the employee forfeit any benefit which he has already earned by his service, nor does it result in any civil consequences".
The Court at page 531 of the Report clearly pointed out that the instructions issued by the Government for constituting the Review Committee were not mandatory.
We have already indicated above that this Court made it absolutely clear that where a person was retired under Rule 16(3) on the ground that his integrity was in question, the observations made by this Court would have no application.
in the instant case, it has been clearly averred by the appellants that the integrity of Reddy was not beyond suspicion and the remarks were rot expressly expunged by the Chief Minister.
Reliance was also placed by learned counsel for Reddy on a recent decision of this Court in the case of Smt.
S.R. Venkataraman vs Union of India & Anr.
The facts of this case, however, are, clearly distinguishable from the facts of the present case.
In that case there was a finding of fact by this Court that the order of retirement was mala fide and amounted to victimisation and the allegation made by the appellant before this Court were not only not disputed but counsel for the Union of India went to the extent of saying that he was not in a position to support the impugned order which was 755 unfair.
It was in the background of these circumstances that the Court held that the order was malafide and observed as follows: "The appellant has pointed out in this connection that her service record was examined in March, 1976 by the Departmental Promotion Committee, with which the Union Public Service Commission was associated, and the Committee considered her fit for promotion to the selection grade subject to clearance in the departmental proceedings which were pending against her, and that she was retired because of bias and animosity.
Our attention has also been invited to the favourable entry which was made in her confidential report by the Secretary of the Ministry.
Mr. Lekhi, learned counsel for the Union of India, produced the relevant record of the appellant for our perusal.
While doing so he frankly conceded that there was nothing on the record which could justify the order of the appellant 's premature retirement.
He went to the extent of saying that the Government was not in a position to support that unfair order" "The influence of extraneous matters will be undoubted where the authority making the order has admitted their influence.
It will therefore he a gross abuse of legal power to punish a person or destroy her service career in a manner not warranted by law by putting a rule which makes a useful provision for the premature retirement of government servants only in the 'public interest ', to a purpose wholly unwarranted by it, and to arrive at quite a contradictory result.
An administrative order which is based on reasons of fact which do not exist must therefore be held to be infected with an abuse of power".
These observations, however, do not apply to the facts of the present case.
Lastly, Mr. Krishnamurthy Iyer, learned counsel for Reddy heavily relied on a decision of the Calcutta High Court in the case of Chief Security Officer, Eastern Railway & Anr.
vs Ajay Chandra Bagchi on a perusal of this decision we are of the opinion that this case was not correctly decided as it is directly opposed to the ratio decidendi of J. N. Sinha 's case (supra) where this Court held that the rule in question expressly excludes the principles of natural justice and, therefore, it is manifest that the Calcutta High Court was in error in basing 756 its decision on rules of natural justice.
The Calcutta High Court in this case had observed as follows: "Thus even if the Railway authorities had absolute right to retire the Respondent petitioner subject to the requirements as mentioned hereinbefore and in terms of paragraph 3 of Chapter XVII of the Regulations read with item 6 of the instructions in the Form in Appendix XVlI in the admitted position of the case, viz., certain adverse entries were taken into consideration in having him compulsorily retired, the action as taken is thus certainly against all principles of natural justice and norms of fair play and as such the action so taken cannot be supported.
The said right under paragraph 3 of Chapter XVII read with item 6 of the instructions in the Form in Appendix XVIII can be used and those principles can be applied or resorted to subject to the principles of natural justice, which incidentally is the restraint put on the pretended misuse of power".
The High Court seemed to rely on certain adverse entries which were taken into consideration when the order of retirement was passed.
We have already pointed out relying on the dictum of this Court laid down by Hidayatullah, C.J. that the confidential reports can certainly be considered by the appointing authority in passing the order of retirement even if they are not communicated to the officer concerned.
Thus, the two grounds on which the Calcutta decision was based are not supportable in law.
For these reasons, therefore, we hold that the decision of the Calcutta High Court referred to above was wrongly decided and is hereby overruled.
On a consideration of the authorities mentioned above we are satisfied that there is no legal error in the impugned order passed by the Government of India retiring Reddy.
It was, however, contended by counsel for Reddy that reading the order as a whole it contains an odour of victimisation, so as to make the order arbitrary.
We are, however, unable to find any material on the record to show that the order was in any way arbitrary.
The Government of India acted on the orders passed by the Home Minister concerned who had considered the report of the Review Committee in its various aspects.
There is nothing to show that Reddy was victimised in any way.
On the other hand, the history of his service shows that he was always given his due.
He was taken in the I.P.S. and allotted the year 1952.
He was promoted to the selection grade also at the proper time.
The order of suspension was withdrawn and the departmental enquiry was dropped 757 and the officer was reinstated and later promoted as D.I.G. These facts completely militate against the concept of victimisation.
It appears that on an overall consideration of the entire history of the service of Reddy and the various stages through which he had passed it was considered in the interest of administration and to ensure better initiative and efficiency to retire him in public interest.
We are also unable to find any element of arbitrariness in the impugned order.
For these reasons, therefore, the first contention raised by learned counsel for Reddy must be rejected.
It was then contended that the order was mala fide and passed because Respondent No. 3, the Chief Minister of Andhra Pradesh bore serious animus against Reddy and wanted him to do certain things which he refused to do, hence he was compulsorily retired.
Apart from the fact that all the allegations regarding mala fide stood withdrawn as indicated in the earlier part of the judgment it is alleged in the counter affidavit and this averment has not been disputed before us that on 5 1 1970 the following Memo was filed on behalf of Reddy before the High Court: "The petitioner withdraws the writ petition including the allegations against the Hon 'ble Chief Minister of Andhra Pradesh.
The writ petition may kindly be dismissed as with drawn".
Furthermore, the counter affidavit at p. 73 Vol.
IV contains a letter submitted by the Second Go Pleader on 5 1 1970 the relevant part of which runs thus: "I have discussed the matter with the Advocate for the petitioner.
He agrees to withdraw the writ petition as also the allegations made thereunder against the Hon 'ble Chief Minister and is prepared to file a Memo.
Copy of which is enclosed herewith" Once Reddy had withdrawn the allegations of malafide against respondent No. 3 in the High Court, it is not open to him to revive those allegations in these proceeding when the impugned order is passed.
The impugned order as held by us is a bona fide order and does not suffer from any legal infirmity, and, therefore, we cannot permit Reddy to play a game of hide and seek with the Court by withdrawing the allegations of mala fide against respondent No. 3 in the High Court and then reviving them when after some time an adverse order against him was passed.
Moreover, if respondent No. 3 was really inimically disposed towards Reddy he would not have either dropped the departmental enquiry or reinstated him, or have promoted him to the rank 758 of D.I.G. Furthermore, the Chief Minister Mr. K. Brahmananda Reddy has himself filed a personal affidavit before the High Court which is contained at page 235 Vol.
III wherein he has categorically denied all the allegations made against him by Reddy.
The assertions made in the affidavit are fully supported by circumstantial evidence and the conduct of Reddy himself.
For these reasons, therefore, the second contention regarding the impugned order being mala fide is also rejected.
The result is that all the contentions raised by counsel for Reddy fail.
We are clearly of the opinion that the High Court committed a clear error of law in quashing the impugned order which was fully justified by rule 16(3), and did not suffer from any legal infirmity and was also in consonance with the law laid down by this Court starting from Shyamlal 's case upto Sinha 's and Nigam 's case (supra) discussed above.
We, therefore, allow the appeals, set aside the order of the High Court and restore the impugned order retiring Reddy.
In the peculiar circumstances of the case there will be no order as to costs.
S.R. Appeal allowed. | The respondent in the two appeals was compulsorily retired by an order dated 20 4 74 under Rule 16(3) of the All India Services (Death cum Retirement) Rules, 1958.
The respondent challenged the said order by filing a Writ Petition before the Andhra Pradesh High Court.
A single Judge of that Court allowed the petition.
The said decision was affirmed by the Division Bench in appeal.
Allowing the appeals by certificate the Court, ^ HELD: 1.
An analysis of Rule 16(3) of the All India Services (Death cum Retirement) Rules, 1958 clearly shows that the following essential ingredients of the Rule must be satisfied before an order of compulsory retiring a Government servant is passed: (i) that the member or the service must have completed 30 years of qualifying service or the age of SO years (as modified by notification dated 16 7 1969); (ii) that the Government has an absolute right to retire the Government servant concerned because the word "require" confers an unqualified right on the Central Government servant; (iii) that the order must be passed in public interest; and (iv) that three months ' previous notice in writing shall be given to the Government servant concerned before the order is passed.
[742 G H. 713 A B] .
The provision gives an absolute right to the Government and not merely a discretion, and, therefore implied it excludes the rules of natural justice.
[743 B] 2.
Compulsory retirement after the employee has put in a sufficient number of years of service having qualified for full pension is neither a punishment nor a stigma so as to attract the provisions of Article 311(2) of the Constitution.
In fact, after an employee has served for 25 or 30 years and is retired on full pensionary benefits, it cannot be said that he suffered any real prejudice.
[743 C D] 3.
The object of Rule 16(3) is to weed out the dead wood in order to maintain a high standard of efficiency and initiative in the State service.
It is not necessary that a good officer may continue to be efficient for all times to come.
It may be that there may be some officers who may possess a better initiative and higher standard of efficiency and if given chance the work of the Government might show marked improvement.
In such a case compulsory retirement of an officer who fulfils the conditions of Rule 16(3) is undoubtedly in public interest and is not passed by way of punishment.
Similarly, there may be cases of officers who are corrupt or of doubtful integrity and who may be considered fit for being compulsorily retired in public interest.
Since 737 they have almost reached the fag end of their career and their retirement would A not cast any aspersion, nor does it entail any civil consequences.
Of course, it may be said that if such officers were allowed to continue they would have drawn their salary until the usual date of retirement.
But, this is not an absolute right which can be claimed by an officer who has put in 30 years of service or attained the age of 50 years.
Rule 16(3) does nothing of the sort of attaching stigma.
[743 D H] 4.
The jurisprudential philosophy of Rule 16(3) and other similarly worded provisions like F.R. 56(j) and other rules relating to Government servants is noteworthy.
Rule 16(3) as it stands is one of the facets of the doctrine of pleasure incorporated in Article 310 of the Constitution and is controlled only by those contingencies which are expressly mentioned in Article 311.
If the order of retirement under Rule 16(3) does not attract Article 311(2), it is manifest that no stigma of punishment is involved.
The order is passed by the highest authority, namely, the Central Government in the name of the President and expressly excludes the application of rules of natural justice.
[744A C] The safety valve of public interest is the most powerful and the strongest safeguard against any abuse or colourable exercise of power under this Rule.
Moreover, when the Court is satisfied that the exercise of power under the rule amounts to a colourable exercise of jurisdiction or is arbitrary or malafide, it can always be struck down.
While examining this aspect of the matter the Court would have to act only on the affidavits, documents annexures, notifications and other papers produced before it by the parties.
It cannot delve deep into the confidential or secret records of the Government to fish out materials to prove that the order is arbitrary or malafide.
The court, has, however, the undoubted power subject to any privilege or claim that may be made by the State.
to send for the relevant.
confidential personal file of the Government servant and peruse it for its own satisfaction without using it as evidence.
[744 C E] The main object of Rule 16(3) is to instil a spirit of dedication and dynamism in the working of the State Services so as to ensure purity and cleanliness in the administration which is the paramount need of the hour as the services are one of the pillars of our great democracy.
Any element or constituent of the service which is found to be lax or corrupt, inefficient or not up to the work or has outlived his utility has to be weeded out.
Rule 16(3) provides the methodology for achieving the object.
[744 E G; Before the Central Government invokes the power under Rule 16(3), it must take particular care that the rule is not used as a ruse for victimisation by getting rid of honest and unobliging officers in order to make way for incompetent favourites of the Government which is bound to lead to serious demoralisation in the service and defeat the laudable object which the rule seeks to sub serve.
If any such case comes to the notice of the Government the officer responsible for advising the Government must be strictly dealt with.
[744 G H] Compulsory retirement contemplated by Rule 16(3) is designed to infuse the administration with initiative and activism so that it is made poignant and piquant, specious and subtle so as to meet the expanding needs of the nation which require explanation of "fields and pastures now".
Such a retirement 738 involves no stain or stigma nor does it entail any penalty or civil consequences.
In fact the rule merely seeks to strike a just balance between the termination of the completed career of a tired employee and maintenance of top efficiency in the diverse activities of the administration.
[745 A B] An order of compulsory retirement on one had causes no prejudice to the Government servant who is made to lead a restful life enjoying full pensionary and other benefits and on the other gives a new animation and equanimity to the services The employees should try to understand the true spirit behind the rule which is not to penalise them but amounts just to a fruitful incident of the service made in the larger interest of the country.
Even, if the employee feels that he has suffered, he should derive sufficient solace and consolation from the fact that this is his small contribution to the country for every good cause claims its martyr.
[745 B D] Shyam Lal vs State of U.P., ; ; T. G. Shivcharan Singh and Ors.
vs The State of Haryana A.I.R. ; Union of India vs Col. J. N. Sinha and Anr., [1971] 1 SCR 791; M. V. Puttabhatta vs The State of Mysore and Anr., ; ; State of Assam & Anr. etc.
vs Prasanta Kumar Das etc.
[19731 3 S.C.R. 158 & 167; Tara Singh etc.
vs State of Rajasthan and Ors. ; ; Mayenghaon Rahamohan Singh vs The Commissioner (Admn.) Manipur and Ors., ; ; applied.
Before passing an order under Rule 16(3), it is not an entry here or an entry there which has to be taken into consideration by the Government but the overall picture of the officer during the long years of his service that he put in has to be considered from the point cf view of achieving higher standards of efficiency and dedication so as to be retained even after the officer has put in the requisite number of years of service.
[750 C D] Under the various rules on the subject, it is not every adverse entry or remark that has to be communicated to the officer concerned.
The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact.
Some of these remarks may be purely innocuous or may be connected with general reputation of honesty or integrity that a particular officer enjoys.
It will indeed be difficult if not possible to prove by positive evidence that a particular officer is dishonest but those who have had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character, not only of his performance but also of the reputation he enjoys.
Therefore on the ground of non communication of adverse remarks, the impugned orders cannot be set aside.
[748? G H, 749 A] R. L. Butail vs Union of India and ors., and union of India vs Col. J. N. Sinha and Anr., [1971] 1 SCR 791; applied.
State of Uttar Pradesh vs Chandra Mohan Nigam & Ors., ; referred to.
Madan Mohan Prasad vs State of Bihar and Ors., ; distinguished.
All that is necessary is that the Government of India, before passing an order under Rule 16(3) should consider the report of the Review Committee 739 which is based on full and complete analysis of the history of the service of A the employee concerned.
[753 F G] In the instant case, it was clearly pleaded by the appellants ill the High Court that the report of the Review Committee was in fact considered by the Government of India before passing the impugned order.
An examination of the confidential file also confirms this.
[753 G H 754 A] State of U.P. vs Chandra Mohan Nigam and Ors. and section R. Venkataraman vs Union of India and Anr., [19,9] 2 SCR 202; distinguished.
Chief Security officer, Eastern Railway & Anr.
vs Ajay Chandra Bagchi ; overruled.
In the instant case (a) there is no legal error in the impugned order passed by the Government of India, retiring Mr. Reddy.
The order is not arbitrary as could be seen from the material of the record.
The Government of India acted on the orders passed by the Home Minister concerned who had considered the report of the Review Committee in its various aspects.
There is nothing to show that Reddy was victimised in any way.
On the other hand, the history Of his service shows that he was always given his due.
He was taken by the I.P.S. and allotted the year 1952.
He was promoted to the selection grade also at the proper time.
The order of suspension was withdrawn and the department enquiry was dropped and the officer was reinstated and later promoted as D.I.G. These facts completely militate against the concept of victimisation.
[756 F H, 757 A] (b) The impugned order is a bonafide order and does not suffer from any legal infirmity.
[757 G] |
ION: Criminal Appeal No. 15 of 1955.
Appeal by special leave from the judgment and order dated the 24th March, 1953 of the Calcutta High Court in Criminal Appeal No. 94 of 1952 arising out of the Judgment and order dated the 22nd April 1952 373 of the Court of Sessions Judge, Murshidabad in Sessions Trial No. 1 of 1952.
Jai Gopal Sethi, (C. F. Ali and P. K. Ghosh, with him) for the appellants.
B.Sen, (I. N. Shroff, for P. K. Bose, with them) for the respondent.
April 18.
The Judgment of the Court was delivered by JAGANNADHADAS J.
This is an appeal by special leave against the judgment of the High Court of Calcutta confirming the conviction and sentence of each of the two appellants before us, by the Sessions Judge of Murshidabad.
The appellants were tried on a charge under section 302/34 of the Indian Penal Code by the Sessions Judge with a jury.
The jury returned a unanimous verdict of guilty against each under the first part of section 304 read with section 34 of the Indian Penal Code.
The learned Judge accepted the verdict and convicted them accordingly and sentenced each of the appellants to rigorous imprisonment for ten years.
In order to appreciate the points raised before us, it is desirable to give a brief account of the prosecution case.
The two appellants jointly made a murderous assault on one Saurindra Gopal Roy at about 6 30 p.m. on the 3rd November, 1951.
There was, owing to litigation, previous enmity between the deceased and the appellants.
All of them belonged to a village called Mirzapur which is within the police station Beldanga, district Murshidabad.
The deceased along with two friends of his, of the same village, examined as P.Ws. 1 and 2, attended a foot ball match that evening at Beldanga.
The match was over by 5 p.m. and all the three of them were returning together to their village.
In the course of the return they were passing at about 6 30 p.m. through a field, nearly half a mile away from the village.
The two appellants each having a lathi and a Hashua (sickle) in his hand, emerged from a bush nearby and rushed towards the deceased and his companions.
P.W. 1 49 374 was first struck with a lathi and thereupon both P.Ws. 1 and 2 moved away to a distance.
The appellants assaulted the deceased and inflicted on him a number of serious injuries.
The two companions of the deceased, P.Ws. 1 and 2, ran towards the village and shouted for help whereupon a number of people from the village came and collected at the spot.
Information was also carried to the son as well as to the brother of the deceased.
They also came on the scene.
The brother, by name Radhashyam, proceeded at once to the Beldanga police station and lodged the first information report at about 7 30 p.m.
The police officer came to the scene and recorded a statement from the deceased who was then still alive.
He was thereafter taken to the hospital at Beldanga.
At the hospital the Medical Officer also took a statement from him (exhibit 4).
He died some time thereafter.
P.Ws. 1 and 2, the companions of the deceased, were the only eye witnesses to the murderous assault.
The prosecution relied also on certain statements said to have been made by the deceased after the assault.
The deceased is said to have stated to P.W. 7 one of the villagers who first came on the scene, after hearing the shouts of P. Ws. 1 and 2, that the two appellants were his assailants.
A little later, when his son and his brother, P.W. 3 came there, he is also said to have stated to P.W. 3 that the two appellants were the assailants.
Accordingly the first information report gave the names of the two appellants as the assailants.
Similar statements are said to have been made by the deceased to the police officer when he came on the spot and later to the Medical Officer when he was taken to the hospital.
The evidence, therefore, in support of the prosecution case was mainly, that of the two eye witnesses, P.Ws. 1 and 2, and of the four dying declarations, two of them oral and two written.
There was considerable scope for criticism about the evidence of the two eye witnesses.
The evidence relating to the dying declarations was also open to attack in view of the nature of the injuries inflicted on the deceased.
These included incised wounds on the occipital region and an incised wound 375 in the brain from out of which a piece of metal was removed on dissection.
This, as was urged, indicated the likelihood of the deceased having lost his consciousness almost immediately and hence the improbability of any statements by the deceased.
But the medical evidence on this point was indecisive.
There can be no doubt however that the reliability of the prosecution evidence was open to serious challenge in many respects.
But learned counsel for the appellants has not been able to raise either before the High Court or before us any objection to the verdict, on the ground of misdirection or non direction, of a material nature, in the charge to the jury by the Sessions Judge. 'On the other band, the charge brought out every point in favour of the appellants and against the prosecution evidence.
It erred, if at all.
in that the learned Judge involved himself in a great deal of elaboration.
The only flaw in the charge which, learned counsel for the appellants could attempt to make out, was that the exposition therein of the legal concept underlying section 34 of the Indian Penal Code was obscure and that it would not have been correctly appreciated by the jurors.
It may be that this could have been expressed in more lucid terms.
But we are unable to find that there was any misdirection or non direction therein.
Nor do we see any reason to think that the jury has been misled.
Thus there was no real attack either in the High Court or here as against the learned Judge 's charge to the jury.
Accordingly, the only points urged before us are the following.
1.The circumstances of the case and the nature of the charge to the jury made it incumbent on the learned Judge to disagree with the jury and to refer the case to the High Court under section 307 of the Code of Criminal Procedure.
2.In the alternative, the learned Sessions Judge having expressed himself in his charge to the jury, definitely for acquittal, he should not have accepted its verdict, though unanimous, without giving satisfactory reasons for such acceptance.
The learned Judge having, in his charge speci 376 fically cautioned the jury against communal prejudice in the following terms "your deliberations and verdict should not be influenced by any communal considerations,", should have refused to accept the verdict as having been vitiated by communal bias.
It may be stated that all the jurors were Hindus and that the accused were both Muhammadans.
The suggestion is that in view of the fact that thescene Of occurrence was near the border between West and East Bengal, it should have been appreciated that communal bias was, at the time, almost inevitable.
4.There has been virtually no examination of the accused by the Sessions Judge under section 342 of the Code of Criminal Procedure and the trial has been vitiated thereby.
In advancing the first two of the above contentions learned counsel for the appellants assumes and asserts that the Sessions Judge in his charge to the jury was unequivocally of the opinion that there was no reliable evidence on which the conviction could be based and that the appellants should be acquitted.
On this assumption, he urges that, when in the circumstances the jury gave a unanimous verdict of guilty, his obvious duty was either to express his dis agreement with the verdict of the jury and refer the whole case for the consideration of the High Court under section 307 of the Code of Criminal Procedure, or, at the least, to have placed on record his reasons why in spite of his clear opinion against the prosecution case, he did not consider it necessary to disagree from the verdict of the jury.
In order to substantiate this point of view, learned counsel took us through various portions of the charge to the jury and we have ourselves perused carefully the entirety of it.
As already stated, the learned Judge undoubtedly pointed out in his charge all the weaknesses of the prosecution evidence in great detail.
It is also likely that be was inclined for an acquittal.
But we are not satisfied that he came to a definite and positive conclusion that there should be acquittal.
While pointing out the weakness of the prosecution evidence with a leaning against its reliability he has not specifically 377 rejected every important item of the prosecution evidence.
It was only in some places that he stated categorically that he would not accept a particular item of evidence and would advise the jurors to reject it.
In other places, while pointing out the infirmities of the evidence, he was not so categorical and positive, as to what his own opinion on that item of evidence was.
For instance, out of the two eye witnesses, P.Ws. 1 and 2, the learned Judge said, so far as P.W. 2 is concerned, as follows: "Personally speaking I am not satisfied with the evidence of recognition of the accused persons as the assailants of Sourindra Gopal furnished by P.W. 2, Satyapada.
You will be advised, gentlemen, not to rely upon the evidence of P.W. 2".
As regards the evidence of the other eye witness, P.W. 1, however he summed it up as follows: "You should take a comprehensive view of all matters and then decide whether you should act upon the evidence of recognition of the accused persons as the assailants of Sourindra furnished by P.W. 1, Bhupati".
There was similar difference in the expression of his opinions with reference to the evidence of the dying declarations of the deceased.
It may be recalled that the evidence of the oral dying declarations is of statements to P.W. 7, Phani, and P.W. 3, Radhashyam.
The evidence of statement to P.W. 7 was given by a number of witnesses, viz. P.Ws. 6, 7, 8, 9, 10, 11) 12 and 13.
Out of these so far as the evidence of P. W. 9 is concerned, the learned Judge specifically stated as follows: "I should tell you that you should not believe P.W. 9 when he stated on being questioned by Phani, Sourindra mentioned Moseb and Sattar as his assailants".
But he did not rule out the evidence of the others on this item in the same manner.
Then again, when he dealt with the question whether the slip of paper, exhibit 4, is genuine the learned Judge noticed that the said paper was shown to have been taken from the medical officer P.W. 17 into the possession of the In 378 vestigating Officer, P.W. 35, about a month later and commented on it as follows: "Personally speaking I see no reasonable explanation as to why the I.O. should not have seized exhibit 4 from P.W. 17 immediately after it was recorded, if it was recorded on 3rd November, 1951, and sent it to the Magistrate forthwith".
All the same, the learned Judge also remarked thus: "You will consider very seriously whether you have any reason to disbelieve the evidence of P. Ws. 17, 32 and 33".
P.Ws. 32 and 33 are witnesses who spoke to the statement of the deceased said to have been taken by the Doctor, P. W. 17.
Taking the charge to the jury, therefore, comprehensively we are unable to find that the learned Judge rejected the prosecution evidence and arrived at a clear and categorical conclusion in his own mind that the appellants were not guilty.
We are, therefore, unable to accept the assumption of learned counsel for the appellants that the Judge agreed with the unanimous verdict of the jury against his own personal conviction, as to the guilt of the accused.
It appears to us, therefore, that there is no foundation, as a fact, for the argument that the learned Judge should have made a reference to the High Court under section 307 of the Code of Criminal Procedure or that, in any case, he should have placed on record his reasons for agreeing with the verdict of the jury notwithstanding his own personal opinion to the contrary.
Assuming however that the charge to the jury in this case can be read as being indicative of a definite opinion reached by the Sessions Judge in favour of the appellants, it does not follow that merely on that account he is obliged to make a reference under section 307 of the Code of Criminal Procedure.
What is required under that section is not merely disagreement with the verdict of the jury but the additional factor that the learned Sessions Judge "is clearly of opinion that it is necessary for the ends of justice to submit the case to the High Court".
It is now well settled, since the decision of the Privy Council in 379 Ramnugrah Singh vs King Emperor(1) that under section 307 of the Code of Criminal Procedure a Session,, Judge, even if he disagrees with the verdict of the jury must normally give effect to that verdict unless he is prepared to hold the further and clear opinion "that no reasonable body of men could have given the verdict which the jury did".
We are certainly not prepared to say that the present case satisfies that test or that the charge to the jury indicated any such clear conclusion.
Indeed it is to be noticed that on intimation by the jury of its unanimous verdict, the learned Judge has recorded that he "agreed with and accepted the verdict".
We have no doubt that it was perfectly competent for him to do so.
Learned counsel urges that this acceptance is a judicial act and that having regard to the whole tenor of the Judge 's charge to the jury, he was at least under a duty to himself and to the appellate court to record his reasons for acceptance of the verdict of the jury.
We are unable to agree with this contention.
It may be that in a case where a Judge in his charge to the jury has clearly and definitely expressed himself for acquittal, it would be very desirable, though not imperative, that he should give his reasons why be changed his view and accepted the verdict of the jury.
But we can find no basis for any such contention in this case.
The two further contentions that remain which are enumerated above as 3 and 4, were not raised before the High Court.
We are reluctant to allow any such contentions to be raised on special leave.
The point relating to the possibility of the verdict having been the result of bias has no serious basis.
It appears to us that the learned Sessions Judge had no justification in this case for imagining the possibility of such bias and giving a warning to the jury in this behalf.
This is not a case which arose out of any incident involving communal tension.
The likelihood of any such bias is not to be assumed merely from the fact of the appellants being Mubammadans and the jurors being Hindus.
Nor is it right to take it (1) [1946] L.R. 73 I.A. 174.
380 for granted merely from the fact of proximity of the place of trial to the border between West and East Bengal.
On the other hand, it is not without some relevance that when the jury was empanelled at the commencement of the trial, there was absolutely no such objection taken.
Nor was the right of challenge to the jurors exercised.
Learned counsel for the appellants has very strenuously argued before us, the point relating to the inadequacy of the examination of the appellants under section 342 of the Code of Criminal Procedure.
Now, it is true that the examination in this case was absolutely perfunctory.
The only questions put to each of the accused in the Sessions Court, and the answers thereto were the following: "Q. You have heard the charges made and the evidence adduced against you.
Now say, what is your defence? What have you got to say? A.
I am innocent.
Will you say anything more? A. No. Q. Will you adduce any evidence in defence? A. No." There can be no doubt that this is very inadequate compliance with the salutary provisions of section 342 of the Code of Criminal Procedure.
It is regrettable that there has occurred in this case such a serious lacuna in procedure notwithstanding repeated insistence of this Court , in various decisions commencing Tara Singh 's case(1) on a due and fair compliance with the terms of section 342 of the Code of Criminal Procedure.
But it is also well recognised that a judgment is not to be set aside merely by reason of inadequate compliance with section 342 of the Code of Criminal Procedure.
It is settled that clear prejudice must be shown.
This court has clarified the position, in relation to cases where accused is represented by counsel at the trial and in appeal.
It is up to the accused or his counsel in such cases to satisfy the Court that such inadequate examination has resulted in miscarriage of justice.
This Court in its judgment (1)[1951] S.C.R. 729.
381 in the latest case on this matter, viz. K. C. Mathew and Others vs The State of Travancore Cochin(1) (delivered on the 15th December, 1955) has laid down that "if the counsel was unable to say that his client had in fact been prejudiced and if all that he could urge was that there was a possibility of prejudice, that was not enough".
Learned counsel could not, before us, make out any clear prejudice.
All that learned counsel for the appellants urges is, that this might be so in a case where the trial was with the assessors and the Judge 's view on the evidence was the main determining factor.
But he contends that the same would not be the case where the trial is with the aid of a jury.
Learned counsel urges that a full and clear questioning in a jury trial does not serve the mere purpose of enabling the accused to put forward his defence or offer his explanation, which may be considered along with the entire evidence in the case.
The jury would, he suggests also, have the opportunity of being impressed one way or the other by the method and the manner of the accused, when giving the explanation and answering the questions and that the same might turn the scale.
Learned counsel urges, therefore, that the non examination or inadequate examination under section 342 of the Code of Criminal Procedure in a jury trial must be presumed to cause prejudice and that a conviction in a jury trial should be set aside and retrial ordered, if there is no adequate examination under section 342 of the Code of Criminal Procedure.
We are not prepared to accept this contention as a matter of law.
The question of prejudice is ultimately one of inference from all the facts and circumstances of each case.
The fact of the trial being with the jury may possibly also be an additional circumstance for consideration in an appropriate case.
But we see no reason to think that in the present case this would have made any difference.
We are, therefore, not Prepared to accept the argument of the learned counsel for the appellants in this behalf.
In any case, an argument of this kind which would, if accepted, (1)[1955] 2 S.C.R. 1057.
50 382 necessitate a retrial, is one that ought to be put forward at the earliest stage and at any rate at the time of the regular appeal in the High Court.
This cannot be entertained for the first time in an appeal on special leave.
For all the above reasons this appeal is dismissed. | A Sessions Judge, even if he disagrees with the verdict of the Jury, must normally give effect to that verdict unless he is clearly of opinion that no reasonable body of men could have given the verdict which the Jury did.
Ramnugrah Singh vs King Emperor, ([1946] L.R. 73 I.A. 174), relied on.
A Sessions Judge need not record his reasons for accepting the verdict of the Jury.
In a case where a Judge in his charge to the Jury, has clearly and definitely expressed himself for acquittal, it would be desirable though not imperative, that he should give his reasons why he changed his view and accepted the verdict of the Jury finding the accused guilty.
Even where the examination of the accused under section 342 Cr.
P.C. is perfunctory the judgment cannot be set aside unless clear prejudice is shown.
Tara Singh 's case, ([1951] S.C.R. 729), referred to.
K.C. Mathew and Others vs The State of Travanore Cochin, ([1955] 2 S.C.R. 1057), relied on.
Prejudice cannot be presumed from the fact that the trial is by a jury though that is a circumstance which may be taken into consideration.
An argument which would, if accepted, necessitate a retrial, ought to be put forward at the earliest stage and at any rate before the High Court in appeal and cannot be entertained for the first time in an appeal on special leave. |
Civil Appeal No. 854, of 1977.
Appeal by Special Leave from the Judgment and order dated 2 8 1976 of the Madhya Pradesh High Court in S.A. No. 440/71.
section section Khanduja and Lalit Kumar Gupta for the Appellant.
T. P. Naik and section K. Gambhir for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The respondent landlord sought eviction of the appellant tenant from the suit premises an two grounds: (i) failure to pay arrears of rent of Rs. 158.25 despite service of notice of demand and (ii) bonafide requirement of premises for landlord 's personal occupation.
The second ground was rejected by all the sub ordinate courts and we are no longer concerned with that ground.
In regard to the first ground, the trial Court found that the tenant was 336 in arrears of payment of rent but that the tenant was entitled to the Protection of section 12(3) of the Madhya Pradesh Accommodation Control Act, 1961, as the tenant had deposited the arrears of rent within the time allowed by the Court on his application.
When the appeal preferred by the landlord was pending before the Additional District Judge, Satna, the tenant filed an application for condonation of delay R in depositing the rent, month by month, which had become payable after the filing of the suit, as stipulated by section 13(1) of the Act.
It appears that, on several occasions, when the suit and the appeal were pending before the trial court and the appellate court respectively, the tenant had deposited the monthly rent a day or two or three, beyond the prescribed date.
The amount had been received by the court and drawn out by the landlord, apparently without any protest.
Taking advantage of the filing of the tenant 's application for condonation of delay, the landlord contended that the court had no power to extend the time for deposit of the monthly rent and that he was entitled to a decree for eviction consequent on the non compliance with the provisions of section 13 ( 1 ) of the Madhya Pradesh Accommodation Control Act.
The appellate court negatived the landlord 's contention and dismissed the appeal.
The landlord preferred a Second Appeal to the High Court of Madhya Pradesh.
The High Court, holding that the court had no power to extend time, decreed the suit for eviction.
The tenant, having obtained special leave, has appealed to this Court.
Shri Khanduja, learned counsel for the appellant, raised two contentions before us.
The first contention was that the High Court was wrong in holding that the Court had no power to condone the delay in depositing the monthly rent falling due after the filing of the suit for eviction.
The second contention was that, in the circumstances of the case.
the respondent must be considered to have waived or abandoned the right to insist on dis entitling the tenant of the protection to which he was otherwise entitled.
Shri Naik, learned counsel for the respondent, contended to the contrary on both the questions.
The Madhya Pradesh Accommodation Control Act, 1961, was enacted, as recited in the statement of objects and reasons, "for the purpose of controlling, letting of and rents of residential and nonresidential accommodation and giving adequate protection to tenants of such accommodation in areas where there is dearth of accommodation".
Section 12(1) of the Act provides that no suit shall be filed ill any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds specified therein.
Several grounds are specified, such as, failure to pay the arrears of rent after the service of notice of demand, unlawful sub letting of the whole or 337 part of the accommodation, creation of a nuisance, bonafide requirement of the accommodation by the landlord for his own occupation, causing of substantial damage to the accommodation etc.
The ground with which we are concerned is that mentioned in section 12(1) (a) and it is: "that the tenant has neither paid nor tendered the whole of the arrears of rent legally recoverable from him within two months of the date on which a notice of demand for the arrears of rent has been served on him by the landlord in the prescribed manner".
Thus, where a tenant is in arrears of rent, a landlord is obliged, before instituting a suit for eviction on that ground, to serve a notice of demand calling upon the tenant to pay or tender the whole of the arrears of rent within two months of the date of service of the notice.
section 12(3) provides that an order for the eviction of a tenant shall not be made on the ground specified in section 12(1) (a), if the tenant makes payment or deposit as required by section 13.
section 13,sub sections
(1), (5) and (6) which are relevant for the present purpose are as follows: "13.
(1) on a suit or proceeding being instituted by the landlord on any of the grounds referred to in section 12, the tenant shall, within one month of the service of the writ of summons on him or within such further time as the Court may, on an application made to it, allow in this behalf, deposit in the Court or pay to the landlord an amount calculated at the rate of rent at which it was paid, for the period for which the tenant may have made default including the period subsequent thereto up to the end of the month previous to that in which the deposit or payment is made and shall thereafter continue to deposit or pay, month by month, by the 15th of each succeeding month a sum equivalent to the rent at that rate.
xx xx xx xx xx (5) If a tenant makes deposit or payment as required by sub section (1) or sub section (2), no decree or order shall be made by the Court for the recovery of possession of the accommodation on the ground of default in the payment of rent by the tenant, but the Court may allow such cost as it may deem fit to the landlord.
(6) If a tenant fails to deposit or pay any amount as required by this section, the Court may order the defence against eviction to be struck out and shall proceed with the hearing of the suit.
" 338 It is true that in order to entitle a tenant to claim the protection of section 12(3), the tenant has to make a payment or deposit as required by section 13, that is to say, the arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may be allowed by the court, and should further deposit or pay every month by the 15th, a sum equivalent to the rent.
It does not, however, follow that failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing of the suit for eviction, will entitle the landlord, straight away, to a decree for eviction.
The consequences of the deposit or payment and non payment or non deposit are prescribed by sub sections
(5) and (6) of section 13.
Since there is a statutory provision expressly prescribing the consequence of non deposit or non payment of the rent, we must look to and be guided by that provision only to deter mine what shall follow.
section 13 (6) does not clothe the landlord with an automatic right to a decree for eviction; nor does it visit the tenant with the penalty of a decree for eviction being straightaway passed against him.
section 13(6) vests, in the court, the discretion to order the striking out of the defence against eviction.
In other words, the Court, having regard to all the circumstances of the case, may or may not strike out the defence.
If section 13 were to be construed as mandatory and not as vesting a discretion in the Court, it might result in the situation that a tenant who has deposited the arrears of rent within the time stipulated by section 13(1) but who fails to deposit thereafter the monthly rent on a single occasion for a cause beyond his control may have his defence struck out and be liable to summary eviction.
We think that section 13 quite clearly confers a discretion, on the court, to strike out or not to strike out the defence, if default is made in deposit or payment of rent as required by section 13(1).
If the court has the discretion not to strike out the defence of a tenant committing default in payment or deposit as required by section 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit.
Such a discretion is a necessary implication of the discretion not to strike out the defence.
Another construction may lead, in some cases, to a perversion of the object of the Act namely, 'the adequate protection of the tenant '.
section 12(3) entitles a tenant to claim protection against eviction on the ground specified in section 12(1) (a) if the tenant makes payment or deposit as required by section 13.
On our construction of section 13 that the Court has the power to extend the time for payment or deposit, it must follow that payment or deposit within the extended time will entitle the tenant to claim the protection.
of section 12(3).
One of the arguments advanced before us was that there was no express provision for extension of time for deposit or payment.
339 of monthly rent subsequent to the filing of the suit whereas there was such express provision for payment or deposit of arrears of rent that had accrued before the filing of the suit.
Obviously, express provision for extension of time for deposit or payment of rent falling due after the filing of the suit was not made in section 13(1) as the consequence of non payment was proposed to be dealt with by a separate sub section.
namely section 13(6).
Express provision had to be made for extension of time for deposit or payment of rent that had accrued prior to the filing of the suit, since that would ordinarily be at a very early stage of the suit when a written statement might not be filed and there would.
therefore, be no question of striking out the defence and, so, there would be no question of section 13(6) covering the situation.
In Jagdish Kapoor vs New Education Society, a full bench of the Madhya Pradesh High Court held that section 13((6) of the Madhya Pradesh Accommodation Control Act did not make it obligatory for the court to strike out the defence but vested in the court a discretion to strike out or not to strike out the defence.
Having so held, the full bench stopped short of giving full effect to their conclusion by holding D. that the Court could condone the default and refuse to strike out the defence but it could not give the benefit of section 12(3) or 13(5) to the tenant.
We do not see any justification for adopting this narrow construction of sections 12 and 13.
In our view the discretion given to the court under section 13(6) must be held to imply a discretion to condone the delay and extend the time in making deposit or payment under section 13(1).
In B. C. Kame vs Nem Chand Jain, a tenant had committed default both in payment of arrears as well as in payment of the monthly rent which became payable after the filing of the suit.
This Court took the view that on an application made by the tenant time for deposit or payment could be extended.
Though the observations made by the Court read as if they were made with reference to the default in payment.
Of arrears, a reference to the facts of the case as set out in the very judgment shows that there was default both in payment of the arrears of rent that had accrued before the filing of the suit and in payment of the monthly rent that fall due after the filing of the suit.
We are accordingly of the opinion that the Court has the jurisdiction to extend time for deposit or payment of monthly rent falling due after the filing of the suit.
In that view it is not necessary to express our opinion on the question of waiver or abandonment.
The appeal is allowed with costs and the suit for eviction is dismissed.
N.V.K. Appeal allowed. | The respondent landlord sought eviction of the appellant tenant from the suit premises for failure to pay arrears of rent, despite service of notice of demand.
The trial court found that the tenant was in arrears o. payment of rent, but the tenant having deposited the arrears of rent within the time allowed by the court on his application the tenant was entitled to avail the protection of section 12(3) of the Madhya Pradesh Accommodation Control Act.
and dismissed the suit for eviction.
The landlord preferred an appeal and while the same was pending? the tenant filed an application under section 13(1) of the Act for condonation of delay in depositing,, the rent, month by month.
which had become payable after the filing of the suit.
On several occasions, when the suit and the appeal were pending before the trial court and the appellate court respectively, the tenant had deposited the monthly rent a day or two or three beyond the prescribed date, and the same had been received by the court and drawn out by the landlord, without any protest.
The landlord, taking advantage of the filing of the tenant s application for condonation of delay, contended that the court had no power to extend the time for deposit of the monthly rent and that he was entitled to a decree for eviction consequent on the non compliance with the provisions of section 13(1) of the Act.
The appellate court negatived this contention and dismissed the appeal.
In the second appeal preferred by the landlord, the High Court held that the Court had no power to extend time and decreed the Suit for eviction.
In the tenant 's appeal to this Court on the question whether the Court ha(l.
the power to condone the delay in depositing the monthly rent falling due after the filling of the suit for eviction.
^ HELD :1.
The court had the jurisdiction to extend time for deposit or payment of monthly rent falling due after the filing of the suit.
[338 G] 2.
In order to entitle a tenant to claim the protection of section 12(3).
the tenant had to make payment or deposit as required by section 13.
The arrears of rent should be paid or deposited within one month of the service of the writ of summons on the tenant or within such further time as may he allowed by the court, and should further deposit or pay every month by the 15th.
a sum equivalent to the rent.
[338 A B].
335 3.
Failure to pay or deposit a sum equivalent to the rent by the 15th of every month, subsequent to the filing of the suit for eviction will not entitle the landlord, straightaway, to a decree for eviction.
The consequences of the deposit or payment and non payment or non deposit are prescribed by subsection and (6) of section 13.
[338 B] 4.
A discretion is vested in the court under section 13(6) to order the striking out of the, defence against eviction.
[338 D] 5.
If the court has the discretion not to strike out the defence or a tenant committing default in payment or deposit of rent as required by section 13(1), the court surely has the further discretion to condone the default and extend the time for payment or deposit.
Such a discretion is a necessary implication of the discretion not to strike out the defence.
Any other construction may lead, to a perversion of the object of the Act.
namely, 'the adequate protection of the tenant. ' [338 F G] 6.
Section 12(3) entitles a tenant to claim protection against eviction on the ground specified in section 12(1)(a) if he makes payment or deposit as required by section 13.
As the court has under section 13, the power to extent: the time for payment or deposit, payment or deposit, within the extended time will entitle the tenant to claim the protection of section 12(3).
[338 H] 1 7.
Express provision for extension of time for deposit or payment or rent falling due after the filing of the suit was not made in section 13(1! as the consequence of non payment was dealt with by a separate sub section, section 13(6).
The discretion given to the court under section 13(6) must imply a discretion to condone the delay and extend the time in making deposit or payment under section 13(1).
[339A, E] Jagdish Kapoor vs New Education Society disapproved.
B. C. Kame vs Nem Chand Jain, A.I.R. 1970 S.C. 981.
referred to. |
ivil Appeal Nos.
216 217 of 1970.
Appeals by special leave from the Judgment and Order dated 3 12 1968 of the Bombay High Court in Second Appeal Nos.
1232 and 1214/1961.
V. section Desai, R. B. Datar and Lalit Bhardwaj and Naveen Sinha for the Appellants.
section V. Tambwaker for the Respondent.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
On April 15, 1930 Parisa Chougule, executed Exhibit 93, a deed of mortgage in favour of Ganesh, Dattatraya Kulkarni (father of the appellants) for a sum of Rs. 1600 in respect of single item of land.
On August 25, 1933, Parisa Chougule executed Exhibit 92 another deed of mortgage in favour of the same mortgagee for a sum of Rs. 1,000 in respect of ten items of land including the land previously mortgaged under Exhibit 93.
Both the mortgages were possessory mortgages but it appears from evidence that the land was leased back to the mortgagor for a stipulated rent.
Parisa Chougule died on June 15, 1934 leaving behind him three sons, Bhupal an adult and Anna and Dhanpal, minors.
On July 11, 1934, Bhupal borrowed a further sum of Rs. 131 and executed a simple mortgage Exhibit 91 in respect of the very ten 818 items of land covered by Exhibit 92.
On May 1, 1935, Bhupal purporting to act as the Manager of the joint family and the guardian of his minor brother executed a deed of sale Exhibit 90 in favour of Ganesh Dattatraya Kulkarni in respect of four out of the ten items of land mortgaged under Exhibits 93, 92 and 91.
The consideration for the sale was Rs. 3050 and was made up of the amounts of Rs. 1600 Rs. 1000 and Rs. 131/ due under three mortgages Exhibits 93, 92 and 91 respectively and a sum of Rs. 200 received in cash by Bhupal on the date of sale.
Six of the items which were mortgaged were released from the burden of the mortgages.
On September 23, 1946, Anna second son of Parisa became a major.
On August 31, 1951, Dhanpal third son of Parisa became a major.
On August 27, 1953 Anna and Dhanpal filed the suit out of which this appeal arises for a declaration that the sale deed dated May 1, 1935 was not for legal necessity and not for the benefit of the estate and therefore, not binding on them.
They also prayed that joint possession of their two third share may be given to them.
The Trial Court found that there was legal necessity for the sale to the extent of Rs. 2600 only, that the consideration of Rs. 3050 for the sale was inadequate as the lands were worth about Rs. 4000, that there was no such compelling pressure on the estate as to justify the sale and therefore, the sale was not for the benefit of the family and hence not binding on the two plaintiffs.
A decree was granted in favour of the two plaintiffs for joint possession of two third share of the lands subject to their paying a sum of Rs. 133/5 ans/4 ps.
to the second defendant.
On appeal by the second defendant the Assistant Judge, Kolhapur affirmed the finding of the Trial Court that there was legal necessity to the extent of Rs. 2600 only, that the value of the land was Rs. 4,000 and that there was no pressure on the estate justifying the sale.
The Assistant Judge found that there was no evidence to show that the defendant made any bonafide enquiry to satisfy himself that there was sufficient pressure on the family justifying the sale.
He however, held that the suit of the first plaintiff was liable to be dismissed as it was barred by limitation.
He, therefore, modified the decree of the Trial Court by granting a decree in favour of the second plaintiff only for possession of a one third share in the lands subject to payment of a sum of Rs. 866.66 ps.
to the second defendant.
The first plaintiff as well as the second defendant preferred second appeals to the High Court.
The High Court allowed the appeal filed by the first plaintiff and dismissed the appeal filed by the second defendant.
The legal representatives of the second defendant have preferred these appeals after obtaining special leave from this Court under Article 136 of the Constitution.
819 It is clear that these appeals have to be allowed.
The facts narrated above show that out of the consideration of Rs. 3050 for the sale there was undoubted legal necessity to the extent of Rs. 2600 the total amount due under the two deeds of mortgage executed by the father of the plaintiffs.
Out of the ten items of land which were mortgaged, only four were sold and the remaining six items were released from the burden of the mortgages.
The family was also relieved from the burden of paying rent to the mortgagee under the lease deed.
Surely all this was for the benefit of the family.
The value of the land sold under the deed of sale was found by the Courts below to be Rs. 4000.
Even if that be so it cannot possibly be said that the price of Rs. 3000 was grossly inadequate.
It has further to be remembered that there were continuous dealings between the family of the plaintiffs and the family of the second defendant, over a long course of years.
In those circumstances it is impossible to agree with the conclusion of the courts below that the sale was not binding on the plaintiffs.
The courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale.
We are unable to see any substance in the view taken by the courts below.
When the mortgagee is himself the purchaser and when the greater portion of the consideration went in discharge of the mortgagors, we do not see how any question of enquiry regarding pressure on the estate would arise at all.
Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale.
In Gauri Shankar & Ors.
vs Jiwan Singh Ors.(1) it was found that Rs. 500 out of the price of Rs. 4000 was not fully accounted for and that there was legal necessity for the balance of Rs. 3500.
The Privy Council held that if the purchaser had acted honestly, if the existence of a family necessity for a sale was made out and the price was not unreasonably low, the purchaser was not bound to account for the application of the whole of the price.
The sale was upheld.
In Niamat Rai and Ors.
vs Din Dayal and Ors.(2) the manager of a joint family sold family property for Rs. 34,500 to satisfy pre existing debts of the extent of Rs. 38,000.
It was held that it was sufficient to sustain the sale without showing how the balance had been applied.
820 In Ram Sunder Lal & Anr.
vs Lachhmi Narain and Anr.(1).
, the vendee the sale in whose favour was questioned fourteen years after the sale, was able to prove legal necessity to the extent of Rs. 7744 out of a total price of Rs. 10,767.
The Privy Council after quoting a passage from the well known case of Hanoomanpersaud Pandey vs Mt. Babooee Munrai Koonweree,(2) upheld the sale.
The principle of these decisions has been approved by this Court in Radhakrishandas and Anr.
vs Kaluram.(3).
The learned counsel for the respondents relied upon the decision of this Court in Balmukand vs Kamla Wati & Ors.(4) That was a suit for specific performance of an agreement of sale executed by the manager of the family without even consulting the other adult members of the family.
The object of the sale was not to discharge any antecedent debts of the family nor was it for the purpose of securing any benefit to the family.
The only reason for the sale of the land was that the plaintiff wanted to consolidate his own holding.
The Court naturally found that there was neither legal necessity nor benefit to the estate by the proposed sale and the agreement therefore, could not be enforced.
We do not see what relevance this case has to the facts of the present case.
We accordingly allow the appeals and dismiss the suit with cost throughout.
N.K.A. Appeals allowed. | A mortgagor executed two deeds of mortgage in favour of the father of the appellants for Rs. 1600 and Rs. 1000 in respect of certain lands.
Both the mortgages were possessory mortgages but the land was leased back to the mortgagor for a stipulated rent.
The mortgagor died leaving behind him three sons, one adult and two minors.
The adult son borrowed a further sum of Rs. 131 by executing a simple mortgage and purporting to act as the Manager of the joint family and the guardian of his minor brothers, executed a deed of sale in favour of the father of the appellants in respect of four out of ten items of land previously mortgaged.
The consideration for the sale was Rs. 3050 which was made up of Rs. 1600.
Rs. 1000 and Rs. 131 due under three previous mortgages respectively and Rs. 200 received in cash on the date of sale.
The minor sons on becoming major filed a suit out of which this appeal arises, for a declaration that the sale deed executed was not for legal necessity, nor for the benefit of the estate and, therefore, not binding on them.
They also prayed for joint possession of their 2/3rd share.
The trial court found that there was legal necessity for the sale to the extent of Rs. 2600 only, the consideration of Rs. 3050 for the sale was inadequate as the lands were worth about Rs. 400 and that there was no compelling pressure on the estate to justify the sale and therefore the sale was not for the benefit of the family and hence not binding on the plaintiffs.
A decree was granted in their favour for joint possession of 2/3rd share of the lands subject to certain payment to the second defendant.
On appeal by the second defendant, the Assistant Judge held the suit of the first plaintiff to be barred by time and therefore modified the decree in favour of the second plaintiff.
On appeal by the first plaintiff and second defendant, the High Court allowed the appeal by the first plaintiff and dismissed the appeal filed by the second defendant.
Accepting the appeal of the legal representatives of the second defendant.
^ HELD: Out of the sale consideration of Rs. 3050 there was undoubted legal necessity to the extent of Rs. 2600 the total amount due under the two deeds of mortgage executed by the father of the plaintiffs.
Out of the ten items which were mortgaged, only four were sold and the remaining six items were released from the burden of the mortgages.
The family was also relieved from one burden of paying rent to the mortgagee under the lease.
All this 817 was for the benefit of the family.
The value of the land sold under the deed of sale was found by the Courts below to be Rs. 4000.
Even if that be so it cannot possibly be said that the price of Rs. 3000 was grossly inadequate.
Further there were continuous dealings between the family of the plaintiffs and the family of the second defendant over a long course of years.
In these circumstances it is impossible to say that the sale was not binding on the plaintiffs.
The Courts below appeared to think that notwithstanding the circumstance that there was legal necessity to a large extent it was incumbent on the second defendant to establish that he made enquiry to satisfy himself that there was sufficient pressure on the estate which justified the sale.
When the mortgagee was himself the purchaser and when the greater portion of the consideration went in discharge of the mortgages no question of enquiry regarding pressure on the estate would arise at all.
Where ancestral property is sold for the purpose of discharging debts incurred by the father and the bulk of the proceeds of the sale is so accounted, the fact that a small part of the consideration is not accounted for will not invalidate the sale.
[819 A E] Gauri Shankar & Ors.
vs Jiwan Singh & Ors.
A.I.R. 1927 P.C. 246 Niamat Rai & Ors.
vs Din Dayal & Ors.
1927 A.I.R. P.C. 121, Ram Sunder Lal & another vs Lacchmi Narain and another ; Hanooman Persaud Pandey vs Mt. Babooee Munrai Koonweree ; Radhakrishendas and another vs Kaluram A.I.R. 1967 S.C. 574, referred to.
Balmukand vs Kamla Wati & Ors.
A.I.R. 1964 S.C. 1385 held inapplicable. |
Civil Appeals Nos.
1303 of 1972 and 1538 of 1971.
Appeals by Special Leave from the Judgment and Orders dated 13 4 1971 of the Assam and Nagaland High Court in Civil Rule No. 368/68 and 174/68.
M. N. Phadke and section N. Choudhary for the appellant in CA.
No. 1538 and Respondent in CA No. 1303/72.
P. R. Mridul and K. P. Gupta for Respondent No. 1 in CA 1538 and Appellant in CA No. 1303/72.
The Judgment of the Court was delivered by KRISHNA IYER, J.
These two appeals, turning on the validity of the retrenchment of 23 workmen way back in 1966, are amenable to common disposal.
Mr. Phadke, appearing for the Management, argued straight to the point; so did Shri Mridul, with the result that we could get the hang of the case without much wrestling with time or getting paper logged.
Since, in substance, we are inclined to leave undisturbed the Award of the Industrial Tribunal, affirmed, as it were, by the High Court, both these appeals will be given short shrift with brief reasons.
968 The facts, to the extent necessary to appreciate the issues canvassed, are brief.
The Management of a tea plantation by name Jorehaut Tea Co., Ltd., retrenched 23 workmen, 16 of whom were paid retrenchment compensation allegedly in terms of s.25F of the Industrial Disputes Act (for short, the Act) and in the order of 'last come, first go ', while the services of the other seven were terminated, although on payment of retrenchment compensation, allegedly in breach of section 25G of the Act, i.e. out of turn.
The dispute that was raised was decided by the Tribunal which upheld the validity of the retrenchment of the 16 but set aside the termination of the other 7.
Consequently it directed their reinstatement with some back wages.
The Award granted the following relief: In respect of the workmen, viz., Sri Bhogeswar Saikia Sri Nandeswar Bora, Sri Gunai Bora, Sri Premodhar Sarma, Sri Alimuddin Ahmed, Sri Deven Sarma and Shri Harlal Biswas whose retrenchment has been found to be not justified they are entitled to reinstatement with continuity of service.
These workmen have not come forward to say that they remained unemployed from the date of their retrenchment.
In the circumstances of the case, I think they may be given wages at half the rate from the date of retrenchment till the date of publication of the award in the Gazette.
We may first dispose of the workers ' appeal.
In all, 23 persons were retrenched.
In respect of 16 the rule of 'last come, first go ' was applied.
Thus homage was paid to s.25G of the Act.
But then, the workmen in their appeal, contended before us that section 25F had been breached and, therefore, the termination was bad in law.
The Management 's case is that, as a fact, all or most of them had been reinstated when fresh vacancies had arisen, although neither party is able to assert with certainty this case of reinstatement.
That apart, if there be non compliance with s.25F, the law is plain that the retrenchment is bad.
However, when probed further as to how s.25F had been violated, Shri Mridul argued that the amount paid by way of retrenchment compensation envisaged in s.25F fell short of what was legally due and hence there was non compliance.
Under more searching interrogation, Shri Mridul stated that the compensation had been computed on the basis of wages previously paid and in derogation of the Wage Board Award which had been implemented by the Management with effect from 1 4 1966.
The retrenchment was on November 5, 1966, i.e. months after April 1, 1966.
Therefore, the revised pay scales as per the Wage Board Award should have been adopted in calculating the retrenchment compensation.
This spinal flaw rendered 969 the tender of compensation insufficient and, therefore, the retrenchment itself was invalid.
Maybe, there is apparent force in this contention.
But Shri Phadke countered it by saying that it was not open to the workmen to spring a surprise on the Management especially when the question was one of fact.
He urged that before the Tribunal no plea based on the Wage Board Award was made and it was quite possible that the Management would have adequately met the contention if such a plea had been raised.
The fact is that before the Tribunal the contention pressed before us was neither pleaded nor proved.
There is no hint of it in the Award.
In the High Court this new plea based on the facts was not permitted.
Had there been some foundation laid at least in the written statement of the workmen, we might have been inclined to explore the tenability of the plea, especially because there is no dispute about the Wage Board Award and the fact that it had been given effect to from 1 4 1966 and the further fact that in the retrenchment notice the wages were not calculated according to the Wage Board 's Award.
It must be remembered, however, that the Wage Board 's Award was subsequent to the retrenchment although retroactively applied and the workmen had accepted the retrenchment compensation on the wages prevalent at the time of the retrenchment.
In the absence of any basis for this new plea we are unable to reopen an ancient matter of 1966 and, agreeing with the High Court, dismiss the appeal.
But the 16 workmen, being eligible admittedly for the Wage Board scale, will be paid the difference for the period between 1 4 1966 to 5 11 1966.
Now, we will take up the merits of the Management 's appeal which relates to the retrenchment of seven workmen.
Admittedly, the rule in s.25G of the Act, which postulates that ordinarily the 'last come, first go ' will be the methodology of retrenchment, has not been complied with provided we treat all the workmen in the category as one group.
It makes for better appreciation of the point if we read section 25G at this stage: Where any workman in an industrial establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of workmen in that establishment, in the absence of any agreement between the employer and the workman in this behalf, the employer shall ordinarily retrench the workman who was the last person to be employed in that category, unless for reasons to be recorded the employer retrenches any other workman.
The key note thought of the provision, even on a bare reading, is evident.
The rule is that the employer shall retrench the workman who came last, first, popularly known as 'last come first go '.
Of 970 course it is not an inflexible rule and extra ordinary situations may justify variations.
For instance, a junior recruit who has a special qualification needed by the employer may be retained even though another who is one up is retrenched.
There must be a valid reason for this deviation, and obviously, the burden is on the Management to substantiate the special ground for departure from the rule.
Shri Phadke brought to our notice the decision in M/s Om Oil & Oilseeds Exchange Ltd., Delhi vs Their Workmen to make out that it was not a universal principle which could not be departed from by the Management that the last should go first.
The Management had a discretion provided it acted bona fide and on good grounds.
Shah, J. in that very ruling, while agreeing that a breach of the rule could not be assumed as prompted by mala fides or induced by unfair labour practice merely because of a departure or deviation, further observed that the Tribunal had to determine in each case whether the Management had acted fairly and not with ulterior motive.
The crucial consideration next mentioned by the learned Judge is that the Management 's decision to depart from the rule must be for valid and justifiable reasons, in which case "the senior employee may be retrenched before his junior in employment.
" Surely, valid and justifiable reasons are for the Management to make out, and if made out, section 25G will be vindicated and not violated.
Indeed, that very decision stresses the necessity for valid and good ground for varying the ordinary rule of 'last come first go '.
There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance with section 25G grade wise.
Absence of mala fides by itself is no absolution from the rule in section 25G.
Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the 'last come first go ' principle.
It must be remembered that the above provision which we have quoted insists on the rule being applied category wise.
That is to say, those who fall in the same category shall suffer retrenchment only in accordance with the principle of last come first go.
The short point raised is that the seven workmen are not in the same category.
The finding of the Tribunal, concurred in by the High Court is that they fell in the same category.
We quote the award: "It will be seen that when there is no trade test or anything to mark efficiency, there is no basis for placing the workmen in different grades and when all the workmen of the same category are to do the same work inasmuch as by the management 's own evidence there is no gradewise allo 971 cation of duty within the same category.
Although in the evidence the Management wanted to justify their departure from the principle of 'last come first go ' there is nothing to show that such a reason was recorded for deviating from the principle.
In the circumstances of the case it cannot be said that the management 's selection of persons to be retrenched leaving the juniormost in some category was justified and the reason now adduced for deviating from the principle cannot be accepted in the absence of the reason being not recorded at the time of retrenchment.
Further it will be also noticed that although there is classification of workmen into grades (?) within the category, there is nothing to distinguish one workman of one grade from another workman of another Grade inasmuch as there is no allocation of duties amongst the workmen of different Grades in the category.
" The seniority list is the same, which is a telling circumstance to show that they fell in the same category.
Grading for purposes of scales of pay and like considerations will not create new categorisation.
It is a contusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories.
This fallacy has been rightly negatived by a detailed discussion in the Award.
The High Court has avoided the pitfall and we decline to accept the submission.
The result is that the Award must hold good in regard to the illegally retrenched seven workmen.
What remains to be considered is the last submission of Shri Phadke that the engineering establishment wherein these seven workmen are to be reinstated is no longer in existence.
Further, he pleads that on account of long lapse of time on account of the pendency of the appeal is this Court the compensation payable by way of full wages may amount to a huge sum disproportionate to the deviance from the law.
He, therefore, pleads for moulding the relief less harshly.
We cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble.
The Award had given convincing reasons for reinstatement and even reduced the back wages to half.
Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend their pittance.
The logistics of litigation for indigent workmen is a burden the Management tried to use by a covert blackmail through the judicial process.
972 Misplaced sympathy is mirage justice.
We cannot agree.
Even so, we take note of the inordinate delay due to long pendency which is part of the pathology of processual justice in the Supreme Court.
So we direct that half the back wages between the date of retrenchment and the publication of the Award shall be paid, as directed in the Award itself.
For the post Award period, full wages will be paid until the High Court 's judgment on 13 4 71 and thereafter 75% of the wages will be paid until 30 4 1980.
Counsel contends that the Workshop is not in existence now and reinstatement is physically impossible.
Sri Mridul, for the workmen, states that a just solution by the court in the given circumstances is acceptable.
We direct that, in lieu of reinstatement, one year 's wages calculated on the scale sanctioned by the Wage Board recommendations for each such workman be paid.
All the sums, if not paid before 15 5 80, shall carry 12% interest.
And upto 15 5 80 they shall carry 9% interest in supersession of the interim order dated 5 5 72.
Rough and ready justice, for want of full information, is not satisfactory but cannot be helped.
We dismiss the workmen 's appeal.
No costs.
We dismiss the Management 's appeal, subject to the above directions, with costs quantified at Rs. 5,000/ .
section R. Appeals dismissed. | The Management Tea Co. Ltd. appellant in C. A. 1538/71 retrenched on November 5, 1966, 23 workmen, 16 of whom were paid retrenchment compensation allegedly in terms of section 25F of the Industrial Disputes Act based on wages obtaining prior to Wage Board Award, which came into force on 1 4 66 retroactively and in the order of 'last come, first go ', while the services of other seven were terminated, although on payment of retrenchment compensation, allegedly in breach of Section 25G of the Act, i.e. out of turn.
The dispute that was raised was decided by the Tribunal which upheld the validity of the retrenchment of the 16, but set aside the termination of the other seven.
The High Court agreed with the Tribunal 's Award and hence the appeals both by the workmen and the management after obtaining special leave.
Dismissing both the appeals, the Court ^ HELD: 1.
The plea that the amount paid by way of retrenchment compensation envisaged in Section 25F of the Industrial Disputes Act, not having been computed as per the revised pay scales as per the Wage Board Award, fell short of what was legally due and hence there was non compliance is not tenable because before the Tribunal this contention was neither pleaded nor proved.
There was no hint of it in the Award.
In the High Court this new plea based on the facts was not permitted.
Further the Wage Boards ' Award was subsequent to the retrenchment although retroactively applied and the workmen had accepted the retrenchment compensation on the wages prevalent at the time of the retrenchment.
In the absence of any basis for this new plea Supreme Court cannot reopen an ancient matter of 1966.
But the 16 Workmen, being admittedly eligible for the Wage Board scale, would be paid the difference for the period between 1 4 66 to 5 11 66.
[969 A E] 2.
Section 25G of the Industrial Disputes Act postulates that ordinarily the 'last come, first go ' will be the methodology of retrenchment.
Of course, it is not an inflexible rule and extra ordinary situations may justify variations.
There must be valid reason for this decision, and, obviously, the burden is on the Management to substantiate the special ground for departure from the rule.
Surely, valid and justifiable reasons are for the management to make our, and if made out, section 25G will be vindicated and not violated, varying the ordinary rule of 'last come first go. ' There is none made out here, nor even alleged, except the only plea that the retrenchment was done in compliance 967 with section 25G grade wise.
Absence of mala fides by itself is no absolution from the rule in s.25G.
Affirmatively, some valid and justifiable grounds must be proved by the Management to be exonerated from the 'last come first go ' principle.
The above rule can be applied category wise.
That is to say those who fell in the same category shall suffer retrenchment only in accordance with the principle of last come first go.
[969 E, H, 970 A, B, D F] M/s. Om Oil & Oil Seeds Exchange Ltd., Delhi vs Their Workmen, , followed.
Grading for purposes of scales of pay and like considerations will not create new categorisation.
It is a confusion or unwarranted circumvention to contend that within the same category if grades for scales of pay, based on length of service etc., are evolved, that process amounts to creation of separate categories.
In the instant case, the seniority List is the same which is a telling circumstance to show that they fell in the same category.
[971 C E] 4.
Supreme Court cannot sympathise with a party who gambles in litigation to put off the evil day and when that day arrives prays to be saved from his own gamble.
The Award had given convincing reasons for reinstatement and even reduced the back wages to half.
Still, the workmen were dragged to the High Court and, worse, when worsted there, were driven from Assam to Delhi to defend their pittance.
The logistics of litigation for indigent workmen is a burden the management tried to use by a covert blackmail through the judicial process.
Misplaced sympathy is a mirage justice.
[971 G H, 972 A B] |
N: Criminal Appeal No. 362 of 1979.
Appeal by Special Leave from the Judgment and Order dated 28.2.79 of the Allahabad High Court at Allahabad in Crl.
Appeal No. 3500/78 and murder reference No. 33/78.
section K. Bisaria for the Appellant.
H. R. Bhardwaj and R. K. Bhatt for the Respondent.
The Judgment of the Court was delivered by CHANDRACHUD, C. J.
The appellant 's land was auctioned on December 26, 1976 in a revenue sale held to recover arrears of land revenue.
On the same day, the land of one Mool Chand was also sold for a similar reason.
The deceased Bhagwan Singh, who was 269 an Amin, acted as an officer of the Court in effecting the aforesaid sales.
After the sale proceedings were over, Bhagwan Singh was returning home on a bicycle, with his peon Shripat, who is examined in the case as P.W.4 The appellant, Mool Chand and the latter 's son Daya Ram lay in wait for the deceased and while he was passing along on his bicycle, Daya Ram fired three shots at him; two out of these hit Bhagwan Singh, as a result of which he fell down.
A split second thereafter, the appellant emerged with a sword and chopped off the neck of Bhagwan Singh.
Daya Ram is still absconding but the appellant was convicted by the Sessions Court under section 302 read with section 34 of the Penal Code and was sentenced to death.
He was also convicted under section 307 of the Penal Code.
The sentence of death having been confirmed by the High Court, the appellant has filed this appeal by special leave.
The leave is limited to the question of sentence.
We see no reason for commuting the sentence of death imposed upon the appellant to the lesser sentence of imprisonment for life.
The fact that Daya Ram is absconding does not reduce the gravity of the offence committed by the appellant.
Bhagwan Singh had but performed his ministerial duty as an Amin in putting the appellant 's land to sale.
He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the lands of the appellant and of Daya Ram.
Such crimes committed against public servants for reasons arising out of the performance by them of their public duties must be discouraged and put down with a firm hand.
We, therefore, confirm the sentence of death passed on the appellant and dismiss the appeal.
P.B.R. Appeal dismissed. | The deceased Bhagwan Singh who was working as an Amin put the appellant 's lands to sale for recovering certain arrears.
The appellant and his two companions Mool Chand and Daya Ram lay in wait for the deceased while he was on his way back home.
Daya Ram first fired three shots at the deceased as a result of which he fell down.
Immediately thereafter the appellant emerged with a sword and chopped off the head of Bhagwan Singh.
The appellant was convicted under section 302 read with section 34, I.P.C. and sentenced to death.
The second accused was still absconding.
On the question of sentence ^ HELD: There is no reason for commuting the sentence of death to the lesser sentence of imprisonment for life.
The deceased had to perform his ministerial duties as an amin in putting the land to sale.
He bore no personal grudge against the appellant nor had he anything to gain for himself by selling the appellant 's lands.
Such crimes against public servants for reasons arising out of the performance by them of their public duties must be put down with a firm hand.
[269E] The fact that the second accused was absconding does not reduce the gravity of the appellant 's offence.
[269D] |
Civil Appeal No. 1678 of 1973.
From the Judgment and Order dated 4.7.1973 of the Bombay High Court in Appeal No. 142/72.
F. section Nariman, Y. section Chitale, O. C. Mathur, K.J. John, Sri Narain, Narayan B. Shetya and M. Mudgal for the Appellant.
F. D. Damania, B. R. Agarwala and P. G. Gokhale for Respondents 1 2.
M. K. Ramamurthy and Jatinder Sharma for Respondent 3.
Janardhan Sharma for the Interveners.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by certificate is directed against the judgment dated 4th of July, 1973 of the High Court of Bombay in a Letters Patent Appeal arising out of a petition under Article 226 of the Constitution.
The facts leading up to this appeal lie in a narrow compass.
The appellant the Ahmedabad Manufacturing and Calico Printing Co. Ltd. (hereinafter called the Company) is predominantly a textile manufacturer but has also factories in Bombay manufacturing 215 heavy chemicals and engages about 750 workmen in three such factories.
A dispute arose between the Company and the said workmen in respect of seventeen demands raised by them through their union.
The dispute was referred to the Industrial Tribunal under section 10(2) of the .
Out of the demands of the workmen the Tribunal took up for consideration only four demands, that is, demands Nos. 1, 2, 15 and 16 respectively for basic wages and adjustment, dearness allowance, gratuity and retrospective effect of the demands.
The Tribunal gave its award on 30th of November 1971 and sent a copy thereof to the parties.
The award was published on 20th of January, 1972 in the Maharashtra Government Gazette.
Under the rules it was to be effective after one month of its publication in the Gazette.
The Company, feeling aggrieved by the award, filed with this Court a petition for special leave to appeal under Article 136 of the Constitution (the leave petition, for short).
Pursuant to a notice, the respondent union put in appearance and filed a counter affidavit.
It appears that after some arguments the appellant chose to withdraw the leave petition.
As much turns upon the order of this Court dated 21st of August, 1972 permitting withdrawal, it would be appropriate to quote the same: "Upon hearing counsel the Court allowed the special leave petition to be withdrawn.
" Four days thereafter the Company filed a petition under Article 226 of the Constitution before the High Court challenging the award.
That petition was virtually based on the same facts and grounds as were taken in the leave petition before this Court.
The respondent union appeared and filed a counter affidavit urging that the petition be dismissed in limine.
A rejoinder affidavit was filed on behalf of the Company.
On the date of hearing three preliminary objections were raised on behalf of the union respondent.
In the present appeal we are, however, concerned only with one of them, namely, that the High Court should not exercise discretion in granting relief to the Company under Article 226 of the Constitution, after the withdrawal of the leave position unconditionally.
This objection prevailed with the High Court.
The learned Single Judge determined the circumstances on the basis of the respective affidavits filed by the parties, in which the Company 216 unconditionally withdrew its leave petition and in view of those circumstances he equated the withdrawal of the leave petition with the dismissal of the same.
Relying on Vasant Vithal Palse and Ors.
vs The Indian Hume Pipe Co. Ltd. and Anr.
he held that it was not a fit case for exercise of the Court 's discretionary power to admit the writ petition and accordingly dismissed the same in limine.
The Company filed a Letters Patent Appeal but the Division Bench dismissed the same and confirmed the order of the learned Single Judge.
The preliminary objection which weighed with the High Court was repeated on behalf of the union respondent before the Division Bench in appeal with two contentions: (1) the unconditional withdrawal by the company of its leave petition in the circumstances found by the learned Single Judge is a bar to the competence of the Court to entertain the petition under Article 226 of the Constitution.
In other words, the High Court has no jurisdiction to grant rule nisi under Article 226 in view of the withdrawal of the petition under Article 136 of the Constitution; (2) The learned Single Judge has rightly dismissed the petition in limine under Article 226 of the Constitution in the exercise of his discretion on the ground that the leave petition based on the same contention was unconditionally withdrawn.
Although the Division Bench discussed the first contention but refused to decide it as it was taken for the first time before it in appeal.
The second contention was, however, accepted by the Division Bench.
The High Court did not consider the other cases cited on behalf of the Company as it thought that the point in question was concluded by a Division Bench of that Court in Vasant Vithal Palse 's case (supra).
The Company thereafter moved a petition under Article 133 of the Constitution for a certificate of fitness to appeal to the Supreme Court which was granted by the High Court and this is how the present appeal comes before us.
Two questions arise for consideration in this appeal :(1) Whether unconditional withdrawal of the leave petition would amount to its dismissal ? (2) If so, what would be its impact on the petition under article 226 of the Constitution ? It was contended for the appellant that the order of this Court permitting the appellant to withdraw the leave petition should be read as it is and that so read the order only means that 217 the Company had withdrawn the leave petition.
It was urged that the mere fact that the appellant chose to withdraw the leave petition after some arguments will not alter the nature of the order and that by no stretch of imagination can it be said that the leave petition had been dismissed by this Court.
It may be, it was argued that the Company chose to withdraw the leave petition on the ground that this Court was not favourably inclined to grant it or that the Company chose to avail of a better remedy before the High Court under Article 226 of the Constitution, which had a wider scope.
The High Court perused the affidavits filed by the parties to know the circumstances under which the leave petition was withdrawn, but in our opinion that is not a correct approach.
The order of a Court has to be read as it is.
If this Court intended to dismiss the petition at the threshold, it could have said so explicitly.
In the absence of any indication in the order itself, it will not be proper to enter into the arena of conjecture and to come to a conclusion on the basis of extraneous evidence that this Court intended to reject the leave petition.
If the Order of this Court is read as it is there is not the slightest doubt that this Court had allowed the Company to withdraw the leave petition, and if that be so, it would be idle to argue that the leave petition had been dismissed at the threshold.
Reliance was placed on behalf of the appellant on Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust & Anr.
In that case a special leave petition had been dismissed in limine with a non speaking order.
This Court dealing with the impact of that order observed as follows: "If by any judgment or order any matter in issue has been directly and explicitly decided the decision operates as res judicata and bars the trial of an identical issue in a subsequent proceeding between the same parties.
The principle of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on that issue is directly applicable.
" 218 Then the Court proceeded to consider whether the matter in issue has been either explicitly or implicitly decided.
Dealing with that aspect of the matter the Court further observed: "Indisputably nothing was expressly decided.
The effect of a non speaking order of dismissal without anything more indicating the grounds or reasons of its dismissal must by necessary implication, be taken to have decided that it was not a fit case where special leave should be granted.
It may be due to several reasons.
It may be one or more.
It may also be that the merits of the award were taken into consideration and this Court felt that it did not require any interference.
But since the order is not a speaking order, one finds it difficult to accept the argument put forward on behalf of the appellants that it must be deemed to have necessarily decided implicitly all the questions in relation to the merits of the award.
A writ proceeding is a different proceeding.
Whatever can be held to have been decided expressly, implicitly or even constructively while dismissing the special leave petition cannot be re opened.
But the technical rule of res judicata, although a wholesome rule based on public policy, cannot be stretched too far to bar the trial of identical issues in a separate proceeding merely on an uncertain assumption that the issues must have been decided.
It is not safe to extend the principle of res judicata to such an extent so as to found it on mere guesswork.
If the writ petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availability of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata.
Of course, a second writ petition on the same cause of action either filed in the same High Court or in another will not be maintainable because the dismissal of one petition will operate as a bar in the entertainment of another writ petition.
Similarly even if one writ petition is dismissed in limine by a non speaking order 'dismissed ', another writ petition would not be maintainable because even the one word order, as we have indicated above, must necessarily be taken to have decided impliedly that the case is not a fit one for exercise of the writ jurisdiction of the High Court.
Another writ petition from the same order or decision will not lie.
But the position is substantially different when a writ petition is dismissed either at the threshold or 219 after contest without expressing any opinion on the merits of the matter; then no merit can be deemed to have been necessarily and impliedly decided and any other remedy of suit or other proceeding will not be barred on the principle of res judicata.
" If a non speaking order of dismissal cannot operate as res judicata, an order permitting the withdrawal of the leave petition for the same reason cannot so operate.
The case in hand stands on a still better footing than the case of Workmen of Cochin Port Trust (supra).
Next reliance was placed on Punjab Beverages Pvt. Ltd. vs Suresh Chand & Anr.
In that case one of the contentions raised was that no application for approval was made by the appellant to the Industrial Tribunal and that there was thus contravention of section 33 (2) (b) of the .
An application for approval was in fact made under section 33 (2) (b), but that was withdrawn and the argument advanced was that the withdrawal was tantamount to refusal of approval, that the ban imposed by section 33 (2) (b), therefore, continued to operate and that the order of dismissal passed by the appellant was void and inoperative.
The contention was, however, repelled and this Court observed: "Where, however, the application for approval under section 33 (2) (b) is withdrawn by the employer and there is no decision on it on merits, it is difficult to see how it can be said that the approval has been refused by the Tribunal.
The Tribunal having had no occasion to consider the application on merits there can be no question of the Tribunal refusing approval to the employer.
It cannot be said that where the application for approval is withdrawn, there is a decision by the Tribunal to refuse to lift the ban.
The withdrawal of the application for approval stands on the same footing as if no application under section 33 (2) (b) has been made at all." In Hoshnak Singh vs Union of India & Ors. an earlier petition was dismissed by a non speaking one word order 'dismissed '.
A second petition after pursuing the alternative remedy was filed.
A question arose whether the same would be barred by the principles analogous to res judicata.
This Court held that the second petition would not be so barred because the cause of action was entirely 220 different and the dismissal could not stand in the way of the petitioner invoking the jurisdiction of the High Court under Article 226 of the Constitution.
Reliance was next placed on Daryao & Ors.
vs The State of U.P. & Ors.
In that case the previous petition for a writ filed by the petitioner before the High Court was withdrawn.
The High Court, therefore, dismissed the said petition with the express observation that the merits had not been considered by the High Court in dismissing it and that, therefore, no order as to costs was passed.
It was held by this Court that the order dismissing the writ petition as withdrawn could not constitute a bar of res judicata.
Counsel for the respondent union has contended that the order of rejection may be either explicit or implicit and that it can be shown from the circumstances of the present case that the leave petition was withdrawn only after full arguments when the appellant found that this Court was not favourably inclined to grant it.
In these circumstances it is argued that the order of withdrawal would amount to the dismissal of the leave petition and that in this view of the matter the High Court in the sound exercise of its discretion was justified in dismissing the writ petition in limine.
In support of this contention the learned counsel relied upon Shankar Ramchandra Abhyankar vs Krishnaji Dattatreya Bapat.
In that case the respondent first filed a revision under section 115 of the Code of Civil Procedure.
The revision was, however, dismissed.
Thereupon the respondent moved a petition under Articles 226 and 227 of the Constitution challenging the same order of the appellate court.
The High Court held that in spite of the dismissal of the revision petition, it could interfere under Articles 226 and 227 of the Constitution on a proper case being made out.
This Court, however, reversed the order of the High Court holding that even on the assumption that the order of the appellate court had not merged in the order of the Single Judge who had disposed of the revision petition, a writ petition ought not to have been entertained by the High Court when the respondent had already chosen the remedy under section 115 of the Code of Civil Procedure and that if there are two modes of invoking the jurisdiction of the High Court and one of those modes has been chosen and exhausted it would not be proper and sound exercise of discretion to grant relief in the other set of proceedings in respect of 221 the same order of the subordinate court.
The facts of that case are materially different from those of the case in hand and that case is not of much assistance in solving the problem before us.
In Vasant Vithal Palse 's case (supra) the trade union filed an application for special leave to appeal to this Court and the same was rejected.
Thereafter the individual workmen filed a petition under Article 226 of the Constitution challenging the award without disclosing the fact that application for special leave made to the Supreme Court by the trade union had been rejected.
The writ petition was dismissed on the grounds: (1) that the material facts had been concealed, and (2) that the leave petition filed by the trade union had been dismissed by the Supreme Court.
That case is also distinguishable on facts, firstly because there is no concealment of facts in the present case, and, secondly, the Supreme Court in that case had dismissed the application for special leave.
In the case in hand the petition has only been permitted to be withdrawn.
It is on the basis of that decision that the High Court had dismissed the petition in limine.
Next, reliance was placed on A. M. Allison vs B. L. Sen.
This Court dealing with the writ of certiorari observed as follows: "A writ of certiorari cannot be issued as a matter of course.
The High Court is entitled to refuse the writ if it is satisfied that there was no failure of justice.
The Supreme Court declines to interfere, in appeal, with the discretion of the High Court unless it is satisfied that the justice of the case requires such interference.
" There is no quarrel with the proposition that a writ of certiorari is not issued as a matter of course and that the petitioner has to satisfy the Court that his rights have been infringed so that there has been failure of justice.
In the instant case the appellant chose to file a petition for leave to appeal to the Supreme Court but eventually withdrew the petition and thereafter invoked the jurisdiction of the High Court under Article 226 of the Constitution and the High Court in its discretion chose to dismiss the writ petition in limine only on the ground that the petitioner had moved an application for special leave before the Supreme Court and withdrew the same unconditionally.
In view of the law laid down by this Court in a recent decision in the case of Workmen of Cochin Port Trust (supra) the decision in Allison 's case has lost its efficacy.
222 In the Management of Western India Match Co. Ltd., Madras vs The Industrial Tribunal, Madras & Anr., the Supreme Court had declined to exercise its discretion in favour of the petitioner by granting leave under Article 136 of the Constitution against an award of the Industrial Tribunal without giving any reasons.
The Madras High Court held that in the circumstances of the case it would not be a proper exercise of its discretion in admitting the writ petition despite the evidence that the Industrial Tribunal failed to give opportunity to the petitioner to produce evidence and thus violated a principle of natural justice, when the Supreme Court had dismissed the leave petition against the award.
In that case the Supreme Court had dismissed the leave petition.
The facts were thus materially different from the facts of the present appeal.
Besides, this Court has taken a different view in the recent case of Workmen of Cochin Port Trust (supra), After having analysed the various cases cited, we are of the view that permission to withdraw a leave petition cannot be equated with an order of its dismissal.
We also come to the conclusion that in the circumstances of the case the High Court has not exercised a proper and sound discretion in dismissing the writ petition in limine on the sole ground that the application for special leave on the same facts and grounds had been withdrawn unconditionally.
We accordingly allow the appeal and set aside the impugned order and the order of the learned Single Judge dated 9th November, 1972 in writ petition No. 583 of 1972 and send the case back to him for considering the writ petition on merits.
There is, however, no order as to costs.
S.R. Appeal allowed. | The Industrial Tribunal, Ahmedabad, on a dispute referred to it under section 10(2) of the took up for consideration four demands for basic wages and adjustment, dearness allowance, gratuity and retrospectivity of the demands of the workmen.
The Tribunal gave its award on 30th of November 1971 which was published on 20th January, 1972 in the Maharashtra Government Gazette.
The appellant company, feeling aggrieved by the award, filed in the Supreme Court a petition for special leave to appeal under Article 136 of the Constitution.
Pursuant to a notice, the respondent workmen put in appearance and filed a counter affidavit.
After some arguments the appellant Company at its request was permitted to withdraw the leave petition as per the order of the Court dated 21st of August, 1972 which reads: "Upon hearing counsel the Court allowed the special leave petition to be withdrawn".
Four days thereafter the company filed a petition under Article 226 of the Constitution before the High Court challenging the award.
The petition was virtually based on the same facts and grounds as were taken in the special leave petition before the Supreme Court.
The learned single Judge who heard the petition determined the circumstances on the basis of the respective affidavits filed by the parties in which the company unconditionally withdrew its special leave petition and in view of those circumstances equated the withdrawal of the leave petition with the dismissal of the same.
Relying on Vasant Vithal Palse and Ors.
vs The Indian Hume Pipe Co. Ltd. and Anr. , a decision of that court, the learned Judge dismissed the writ petition in limine.
A Letters Patent Appeal against the said order of dismissal also met the same fate.
However, a petition under Article 133 of the Constitution for a certificate of fitness to appeal to the Supreme Court was accepted by the said Division Bench and a certificate was granted and hence the appeal.
Allowing the appeal, the Court ^ HELD: 1. Permission to withdraw a special leave petition cannot be equated with an order of dismissal.
If a non speaking order of dismissal cannot operate as res judicata for entertaining a fresh writ petition on the same facts and grounds taken in the special leave petition, an order permitting the withdrawal of the writ petition for the same reason cannot so operate.
[219B,222C D] 214 Workmen of Cochin Port Trust vs Board of Trustees of Cochin Port Trust and Anr., ; , followed.
Punjab Beverages Pvt. Ltd. vs Suresh Chand and Anr.
, ; ; Hoshnak Singh vs Union of India and Ors., ; ; Daryao and Ors.
vs The State of U.P. and Ors., ; , discussed.
Vasant Vithal Palse and Ors, v The Indian Hume Pipe Co. Ltd. and Anr.
, ; Management of Western India Match Co. Ltd., Madras vs The Industrial Tribunul, Madras and Anr.
A.I.R. 1958 Mad. 398, distinguished.
The order of a court has to be read as it is.
If the Supreme Court intended to dismiss the petition at the threshold.
it could have said so explicitly.
In the absence of any indication in the order itself, it will not be proper to enter into the arena of conjecture and to come to a conclusion on the basis of extraneous evidence that the Supreme Court intended to reject the leave petition.
If the Order of the Supreme Court is read as it is there is not the slightest doubt that the Supreme Court had allowed the company to withdraw the leave petition, in the instant case.
The approach of the High Court in having perused the affidavits filed by the parties to know the circumstances under which the leave petition was withdrawn is not correct.
[217 C D] |
Civil Appeal No. 2922 of 1981.
Appeal by Special leave from the Judgment and Order dated the 23rd June, 1981 of the Karnataka High Court in Misc.
Petition No. 1 of 1981 in Election Petition No. 76 of 1978.
Petitioner in person.
P.R. Mridul, H.R. Bhardwaj, N. Nettar, G.S. Narayana, S.N. Bhatt and Hemant Sharma for the Respondent.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
This appeal by special leave is directed against the order dated June 23, 1981 passed by the Karnataka High Court in Miscellaneous No. 1/81 arising out of Election Petition No. 76 of 1978.
On November 5, 1978, polling took place for electing a member to the Lok Sabha from No. 20 Chikmaglur Constituency and the result of the election was declared on November 8, 1978.
Respondent No. 2 was declared elected.
In all 28 candidates had participated in the election.
One of the contenders for the seat filed Election Petition No. 76 of 1978 before the Karnataka High Court on December 20, 1978 impleading the returned candidate as all other contesting candidates and three outsiders asking for setting aside the election of respondent 2 under section 100(1)(b) of the Representation of the People Act, 1951 ( 'Act ' for short), declaring Shri Virendra Patil, respondent 5 of the election petition, as the duly elected candidate from the constituency and for an order declaring respondents 2, 3 and 4 of the election petition to have been guilty of corrupt practices within the meaning of section 123 of the Act.
In view of the reliefs claimed it became necessary to implead all the contesting candidates as required under section 82 of the Act.
On March 26, 1979, respondent 29 of the election petition filed his written statement as also a petition of recrimination within the meaning of section 97 of the Act as against respondent 5 whom the election petitioner wanted to be declared as the duly elected candidate.
On October 4, 1979 the present appellant who was respondent 19 in the election petition filed his written statement.
The election petitioner who is respondent 1 in the appeal applied to the Court for deleting the 692 prayer in regard to the declaration of Shri Virendra Patil as the returned candidate.
On November 16, 1979, the court allowed the application and prayer (c) of the election petition under which the declaration of Shri Virendra Patil as the returned candidate was asked for was deleted.
The order of the High Court shows that there was no opposition to the request for deletion.
On November 23, 1979, a memorandum was filed for the deletion of respondents 5 to 31.
On July 23, 1980, on his own prayer respondent 2 of the election petition was deleted.
Simultaneously the names of the two other outsiders to the election petition being respondents 3 and 4 of the election petition were also deleted.
Respondent 29 filed a memorandum on August 1, 1980 for withdrawal of the prayer for recrimination as against Shri Virendra Patil.
This was a necessary sequel of the deletion of prayer (c) of the election petition.
On September 12, 1980 the High Court directed that names of respondents 5 to 31 excepting respondents 13 and 19 to the election petition would stand dropped.
Thus, in all three respondents were left in the election petition being original respondents 1, 13 and 19.
On September 30, 1980 the Court directed withdrawal of the recrimination petition as against Shri Virendra Patil by allowing the memorandum dated August 1, 1980.
The present appellant had objected to the request for withdrawal of the recriminatory petition.
Separate orders, viz., the order dated November 16, 1979 allowing deletion of prayer (c) of the election petition, the order dated September 12, 1980 deleting all the respondents excepting respondents 1, 13 and 19 of the election petition from the record, and the order dated September 30, 1980, permitting withdrawal of the recrimination petition, were all allowed to become final in the absence of any challenge.
On November 23, 1980 written statement was filed on behalf of original respondent 1 and issues were settled on January 5, 1981.
The Court indicated a trial schedule by requiring the documents to be filed on February 16, 1981 and recording of evidence was also directed to begin from the date and the trial was to proceed day to day.
On February 16, 1981, the election petitioner wanted adjournment.
The High Court was justified in giving only one adjournment as a last chance and fixing the trial on March 9, 1981, in view of the statutory mandate that an election petition shall be disposed of as far as practicable within six months from the date of presentation of the election petition as required by section 86 (7) of the Act.
On March 9, 1981, the election petitioner again asked for adjournment.
The High Court declined the prayer for adjournment and said: "On 693 the previous occasion, i.e. February 16, 1981, it was posted for commencement of evidence but neither the petitioner nor his witnesses were present.
However, at the request of the petitioners counsel the matter was adjourned to today as a last chance.
The list of witnesses and list of documents were also at the request of the petitioner 's counsel permitted to be filed before February 2, 1981 with notice to respondents.
This has not been done.
However, when the matter was called today the petitioner is absent; none of his witnesses is also present.
Shri K. Channabasappa, learned counsel for petitioner wanted to file the list of documents and witnesses today in Court and stated that the matter may be adjourned for trial to some other date.
In view of the circumstances that petitioner is absent in spite of the fact that this is the second date fixed for trial of the petition, I have no option except to dismiss this petition for non prosecution.
This election petition is accordingly dismissed.
There are three contesting respondents in this election petition viz., R 1, R 13 and R 19 Respondent 1 and R 13 are represented by Shri G. V. Shanta Raju, and Sri Vyas Rao respectively.
R 19 who appears in person is however absent. " On the same day respondent 19 to the election petition made an application praying for "recall of the order dated 9th March 1981 with reference to Election Petition No. 76 of 1978, and this respondent No. 19 may please be permitted to prosecute this election petition, and to submit his evidence, and this respondent may please be permitted to be substituted and to continue the proceedings of this election petition".
Respondent 19 amended this application and asked for restoration of the election petition.
The original respondent 1 filed objection to the request for restoration contending that the application for restoration was not maintainable and that respondent 19 had no locus standi to ask for restoration of the case.
There was no provision for transposition when an election petition was dismissed and, therefore, respondent 19 who could have filed an independent election petition within the time admissible under the Act could not ask for transposition.
On June 23, 1981, the High Court rejected the application after negativing the stand of respondent 19 that an election petition could not be dismissed for default and that a case of abandonment should be treated at par with abatement and withdrawal of the election petition.
On September 14, 1981, a petition for special leave was filed and upon leave being granted, this appeal by respondent 19 has come before us for final hearing.
694 At the hearing the appellant appeared in person.
Respondent 1 who was the election petitioner and respondent 3 who was respondent 13 before the High Court did not appear.
Thus the appellant has been heard in person and respondent 2 has been heard through counsel.
The appellant contended: (1) the earlier orders passed by the High Court, namely, the order dated November 16, 1979 by which prayer (c) was allowed to be deleted and the order dated September 30, 1980 by which respondent 29 was allowed to withdraw his prayer for recrimination as against original respondent 5, are in the nature of partial withdrawal of the election petition and the statutory provision for withdrawal having not been followed, it must be held that the orders are a nullity and no party would be entitled to rely on them.
The appellant is, therefore, free to contend that these orders must be ignored and the High Court should be called upon to comply with the statutory provision relating to withdrawal of election petition before such permission can be granted; (2) an election petition once filed does not mean a contest only between the parties thereto but continues for the benefit of the whole constituency and cannot come to an end merely by the withdrawal thereof by the petitioner or even by his death or by the death or withdrawal of opposition of the respondent but is liable to be continued by any person who might have been a petitioner.
Therefore, an election petition cannot be dismissed for default and when the appellant who was himself entitled to file an election petition applied for permission to continue the case, the High Court should have given him the opportunity to continue the election petition; (3) the view taken by this Court in some cases that except in cases of withdrawal and abatement, the special provisions contained in the Act for notifying to the constituency so that any other person may apply for being allowed to continue the election petition, are not applicable.
Apart from these contentions which we propose to examine, it is also necessary to consider whether the appellant, not being the election petitioner, could ask for the restoration within the ambit of Order IX, Rule 9 of the Code of Civil Procedure ( 'Code ' for short).
This Court has consistently taken the view that elections and election pisputes are a matter of special nature and that though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity.
As 695 early as 1952 when the first election under the Constitution took place, a Constitution Bench of this Court in N.P. Ponnuswami vs Returning Officer, Namakkal Constituency & Ors., (1) observed: "The right to vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it." while dealing with an appeal in an election dispute arising out of the first series of elections under the Constitution, Mahajan, C.J., speaking for a Constitution Bench of this Court stated in Jagan Nath vs Jaswant Singh & Ors.(2): "The general rule is well settled that the statutory requirements of election law must be strictly observed and that an election contest is not an action at law or a suit in equity but is a purely statutory proceeding unknown to the common law and the Court possesses no common law power.
It is also well settled that it is a sound principle of natural justice that the success of a candidate who has won at an election should not be lightly interfered with and any petition seeking such interference must strictly conform to the requirements of the law.
" In Charan Lal Sahu vs Nandkishore Bhatt & Ors.,(3) this Court observed: "The right conferred being a statutory right, the terms of that statute had to be complied with.
There is no question of any common law right to challenge an election, Any discretion to condone the delay in presentation of the petition or to absolve the petitioner from payment of security for costs can only be provided under the statute governing election disputes.
If no discretion is conferred in respect of any of these matters, none can be exercised under any general law or on any principle of equity.
This Court has held that the right to 696 vote or stand as a candidate for election is not a civil right but is a creature of statute or special law and must be subject to the limitations imposed by it.
" In N.P. Ponnuswami 's case it was pointed out that strictly speaking it is the sole right of the Legislature to examine and determine all matters relating to the election of its own members and if the legislature takes it out of its own hands and vests in a special tribunal an entirely new and unknown jurisdiction, that special jurisdiction should be exercised in accordance with the law which creates it.
In Jyoti Basu & Ors.
vs Debi Ghosal & Ors.,(1) this Court said: "A right to elect, fundamental though it is to democracy.
is, anomalously enough, neither a fundamental right nor a Common Law Right.
It is pure and simple, a statutory right.
So is the right to be elected.
So is the right to dispute an election.
Outside of statute, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation.
An election petition is not an action at Common Law, nor in equity.
It is a statutory proceeding to which neither the common law nor the principles of equity apply but only those rules which the statute makes and applies.
It is a special jurisdiction, and a special jurisdiction has always to be exercised in accordance with the statute creating it.
Concepts familiar to Common Law and Equity must remain strangers to Election Law unless statutorily embodied.
A Court has no right to resort to them on considerations of alleged policy because policy in such matters, as those, relating to the trial of election disputes, is what the statute lays down.
In the trial of election disputes, Court is put in a straight jacket Thus the entire election process commencing from the issuance of the notification calling upon a constituency to elect a member or members right up to the final resolution of the dispute, if any, concerning the election is regulated by the Representation of the People Act, 1951, different stages of the process being dealt with by different provisions of the Act." 697 That view has been endorsed in Arun Kumar Bose vs Mohd. Furkan Ansari & Ors.,(1) where two of us were parties to the decision.
The legal position is, therefore, well settled that election disputes are strictly statutory proceedings.
Chapter VI in Part III of the Act makes provision for the trial of election petitions.
Sub section (1) of section 87 provides: 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 (5 of 1908) to the trial of suits.
" The same section makes provision for application of the Indian Evidence Act to trial of election petitions, subject to the provisions of the Act.
Keeping in view the detailed provisions in the Act for the trial of election petitions, a three Judge Bench in Inamati Mallappa Basappa vs Desai Basavaraj Ayyappa & Ors.
,(2) indicated: "The effect of all these provisions (which previously were included in certain other sections of the Act) really is to constitute a self contained Code governing the trial of election petitions.
" We have already found that an election petition is a strict statutory proceeding.
An appeal lies to this Court under section 116A of the Act both on questions of law and/or fact from every order made by the High Court under sections 98 and 99 of the Act.
No other order is open to appeal under the statute.
When the application of the appellant to restore the election petition was rejected, an application under article 136 of the Constitution for grant of special leave was made.
In that the petitioner clearly prayed for leave against the order dated June 23, 1981.
Leave has, therefore, been granted to him to appeal against the order of the High Court made on that day.
The earlier orders dated November 16, 1979, September 12, 1980, and September 30, 1980, are not open to challenge in this appeal and Mr. Mridul for the respondent has rightly contended that these orders 698 have become final and cannot be assailed at this stage unless they can be shown to be nullity.
The appellant has taken the stand that an election dispute is not one between two sets of parties who are before the Court, but it is a dispute concerning the entire constituency.
That is the pronounced view of this Court.
In Inamati Mallappa Basappa 's case this Court observed: "Once this process has been set in motion (an election petition has been filed (by the petitioner he has released certain forces which even he himself would not be able to recall and he would be bound to pursue the petition to its logical end. ." This observation goes to show that an election petition once filed does not remain a contest only between the parties thereto but becomes a dispute in which the whole constituency is interested.
The Act makes provisions to meet certain eventualities in the course of the trial in Chapter IV of Part VI.
Two situations which have been covered by the statute are withdrawal and abatement of election petitions.
Sections 109 and 110 deal with withdrawal of election petitions, and sections 112 and 116 deal with the eventuality of death and non substitution leading to abatement.
Section 109 provides: "109.
Withdrawal of election petitions (1) An election petition may be withdrawn only by leave of the High Court; (2) where an application for withdrawal is made under sub section (1), notice there of fixing a date for the hearing of the application shall be given to all other parties to the petition and shall be published in the official Gazette.
" Section 110 reads thus: "110.
Procedure for withdrawal of election petition (1) If there are more petitioners than one, no application to withdraw an election petition shall be made except with the consent of all the petitioners; 699 (2) No application for withdrawal shall be granted if in the opinion of the High Court, such application has been induced by any bargain or consideration which ought not to be allowed; (3) If the application is granted (a) X X X (b) the High Court shall direct that the notice of withdrawal shall be published in the Official Gazette and in such other manner as it may specify and thereupon the notice shall be published accordingly; (c) a person who might himself have been a petitioner may, within fourteen days of such publication, apply to be substituted as petitioner in place of the party withdrawing, and upon compliance with the conditions, if any, as to security, shall be entitled to be so substituted and to continue the proceedings upon such terms as the High Court may deem fit.
The question of abatement does not arise in this case.
It is, therefore, sufficient to state without extracting the provisions of sections 112 and 116 of the Act, that even in the case of death and non substitution, the Court is required to publish the notice in the official gazette.
Two questions become relevant at this stage: firstly, it has to be decided whether the earlier orders allowing prayer (c) to be deleted and the relief of recrimination to be omitted amounted to withdrawal of the election petition within the meaning of sections 109 and 100 of the Act; and secondly, whether on that account the orders are a nullity.
Prayer (c) in the election petition was concerned with the declaration of respondent 5, Shri Virendra Patil as duly elected from the constituency in question.
This relief was asked to be deleted.
No objection was raised to its deletion and in due course the Court allowed this prayer to be omitted.
In opposition to the claim made in this prayer recrimination was filed by one of the respondents in the election petition.
But once prayer (c) was dropped, the relief 700 of recrimination could no more stand.
Consequently on the prayer of the recriminator that relief was also allowed to be omitted.
In view of the contention of the appellant, it is necessary to decide whether omission of prayer (c) comes within the ambit of section 109 of the Act.
Sub section (1) of section 109 provides that an election petition can be withdrawn only by leave of the High Court.
Omitting a prayer from the election petition strictly would not amount to withdrawal of the election petition.
There would be several instances where not withstanding the deletion of one relief, the election petition as such would continue to be alive.
In the cases which were cited before us referring to the applicability of Order XXIII, rule 1 of the Code, this aspect was examined with reference to withdrawal of the election petition.
We do not think that if one of the reliefs claimed in the election petition is asked to be omitted, it would come within the provisions of sub section
(1) of section 109 of the Act.
There is no reason why, if even after omission of a particular relief the election petition survives and is available to be tried in accordance with law, that omission or deletion should be treated as withdrawal of the election petition.
There may be cases where while asking for one definite relief as the main one in a lis several other reliefs are prayed for and after the pleadings are closed instances are not rare when untenable and unnecessary reliefs are asked to be omitted.
Amendment to omit such a relief does not amount to a prayer for withdrawal of the lis itself.
In this case the main relief of the election petitioner was setting aside of the election of respondent 2.
Along with it he had also claimed the relief that the original respondent 5 be declared to be duly elected.
Apart from the fact that no objection was raised when the prayer for deletion was made, the appellant did not challenge the order of the Court deleting the other parties and omitting the relief of recrimination and indeed he could not do so, since to the present appeal the other respondents are not parties and in their absence the validity of the Court 's order of deletion of the prayer for declaring respondent 5 as duly elected and the consequent deletion of the prayer for recrimination as also the omission of the other parties from the category of respondent to the election petition could not be allowed to be agitated as that would be contrary to rules of natural justice and likely to prejudice those parties without affording a reasonable opportunity to them of being heard.
Moreover, it may be noticed that special leave was obtained only against the subsequent order of June 23, 1981, and no challenge at all was raised against these previous orders.
It is, therefore, clear that the earlier orders 701 of the Court could not possibly be regarded as a nullity and the appellant is precluded from challenging those orders in this appeal.
When proceed next to examine whether the election petition could be dismissed in the absence of the election petitioner and whether the appellant could apply for its restoration though he himself was not the election petitioner, The basis of the appellant 's contention that the election petition cannot be dismissed for the absence of the election petitioner is that once an election petition is filed, it concerns the entire constituency.
Purity of the electoral process in a democracy, it is contended, is of paramount importance and an election petition cannot be permitted to be dismissed for default inasmuch as that would lead to situations brought about by manipulation, undue influence, fraud or winning over of the election petitioner.
The 2nd respondent 's counsel has not disputed before us and rightly in our view that purity of the electoral process is paramount in a democracy and an election petition should not be permitted to be abandoned by undue influence or pressure over the election petitioner.
It may be pointed out that there was no allegation of undue influence or pressure over the election petitioner to justify his conduct in this case.
It is relevant to mention that the 2nd respondent who was the elected candidate was expelled from the Lok Sabha in December 1978, and in August 1979, the Lok Sabha to which respondent 2 had been elected was dissolved.
It was after these supervening events that in October 1979 the request to delete prayer (c) was made and the other orders followed.
This explanation given by respondent 2 's counsel to justify the conduct of the election petitioner is a relevant feature.
There is no support in the statute for the contention of the appellant that an election petition cannot be dismissed for default.
The appellant contended that default of appearance or non prosecution of the election petition must be treated as on par with withdrawal or abatement and therefor, through there is no clear provision in the Act, the same principle should govern and the obligation to notify as provided in sections 110 or 116 of the Act should be made applicable.
We see no justification to accept such a contention.
Non prosecution or abandonment is certainly not withdrawal.
Withdrawal is a positive and voluntary act while non prosecution or abandonment may not necessarily be an act of volition.
It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute.
In the case of withdrawal steps are envisaged to be taken 702 before the Court in accordance with the prescribed procedure.
In the case of non prosecution or abandonment, the election petitioner does not appear before the Court and obtain any orders.
We have already indicated that the Act is a self contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy.
In fact, the terms of section 87 of the Act clearly prescribe that if there be no provision in the Act to the contrary, the provisions of the Code would apply and that would include Order 9, Rule 8 of the Code, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition.
In many cases it has been held that an election petition can be dismissed for default.
A full Bench of the Punjab High Court in Jugal Kishore vs Dr Baldev Prakash.
had occasion to consider this question when Grover, J. delivering the judgment of the Court spoke thus: "It has been repeatedly said that an election petition once filed is not a contest only between the parties thereto but continues for the benefit of the whole constituency.
It is for that purpose that in the Representation of the People Act, 1951, provisions have been made in sections 109 and 110 relating to withdrawal of an election petition and sections 112 and 116 relating to abatement of such a petition the effect of which is that the petition cannot come to an end by the withdrawal there of by the death of the petitioner or by the death or withdrawal of opposition by the respondent, but is liable in such cases to be continued by any person who might have been a petitioner.
There is nothing in the entire Act providing or indicating that a similar procedure is to be followed in the event of a petitioner failing to prosecute the petition.
such failure can be due to various causes.
The petitioner can, by force of circumstances, be genuinely rendered helpless to prosecute the petition.
For instance, he may find that his financial condition has suddenly worsened and that he can no longer afford the expenses of litigation.
He may even, owing to exigencies of business or vocation or 703 profession, have to go to such a distant place from the seat of the High Court where the election petition is being tried that he may find it impossible to prosecute the petition in a proper manner.
There would be two courses open to him and that will depend entirely on his volition.
He can either file an application for withdrawal of the petition disclosing the circumstances which have brought about such a situation in which case there would be no difficulty in following the procedure laid down in sections 109 and 110 of the Act, or he may choose to simply absent himself from the Court or cease to give any instructions to the counsel engaged by him or fail to deposit the process fee and the diet money for witnesses or take the necessary steps for summoning the witnesses in which case the Court will have no option but to dismiss the election petition under the provisions of the Code of Civil Procedure which would be applicable to the election petitions in the absence of any express provisions in the Act.
The dismissal will have to be under the provisions contained in Order 9 or Order 17 of the Code.
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 was 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 the inherent powers of a Court while trying election petitions.
" It is relevant to note the observations of Hidayatullah, CJ in Sunderlal Mannalal vs Nandramdas Dwarkadas & Ors. where he indicated: "Now the Act does not give any power of dismissal.
But it is axiomatic that no Court or tribunal is supposed to continue a proceeding before it when the party who has moved it has not appeared nor cared to remain 704 present.
The dismissal, therefore, is an inherent power which every tribunal possesses. ." Similar view has been expressed by another Full Bench of the Allahabad High Court in Duryodhan vs Sitaram & Ors.
A four Judge Bench of this Court in Rajendra Kumari Bajpai vs Ram Adhar Yadav & Ors.
referred to the Punjab case.
Fazal Ali, J. speaking on behalf of the Court quoted a portion of the judgment of Grover, J. which we have cited above and said: "We fully approve of the line of reasoning adopted by the High Court in that case.
" It, therefore, follows that the Code is applicable in disposing of an election petition when the election petitioner does not appear or take steps to prosecute the election petition.
Dismissal of an election petition for default of appearance of the petitioner under the provisions of either Order IX or Order XVII of the Code would, therefore, be valid and would not be open to challenge on the ground that these provisions providing for dismissal of the election petition for default do not apply.
The appellant was not the election petitioner.
Order IX, rule 9 of the Code (and not rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition.
That can be invoked in an appropriate case by the election petitioner only and not by a respondent.
By its own language, rule 9 provides that where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit but he may apply for an order to set the dismissal aside.
Under this rule, therefore, an application for restoration can be made only by the petitioner.
Since it is a provision for restoration, it is logical that the provision should be applicable only when the party on account of whose default in appearance the petition was dismissed makes an application to revive the petition to its former stage prior to dismissal.
In the instant case the election petitioner and not respondent 19 who is in appeal before us, could have asked for the relief of restoration.
The appellant contended that the statutory scheme authorises an elector at whose instance an election petition could have been filed to get substituted in the event 705 of withdrawal or abatement and applying that analogy, he urged that a petition for restoration would also lie at the instance of a respondent.
The ambit of the provisions relating to withdrawal and abatement cannot be extended to meet other situations.
Specific provisions have been made in the Act to deal with the two situations withdrawal and abatement and a person hitherto not a party or one of the respondents who was entitled to file an election petition has been permitted to substitute himself in the election petition and to pursue the same in accordance with law.
These provisions cannot be extended to an application under order IX, rule 9 of the Code and at the instance of a respondent or any other elector a dismissed election petition cannot be restored.
The fallacy in the logic advanced by the appellant in this behalf is manifest when we refer to a suit for partition.
In a suit for partition the position of the plaintiff and that of the defendant is interchangeable.
So long as the suit is pending a defendant can ask the Court to transpose him as a plaintiff and a plaintiff can also ask for being transposed as a defendant.
The possibility of transposition during the pendency of the suit would not permit a defendant to apply for restoration of a suit for partition which is dismissed for default and the right to apply for transposition would certainly come to an end when the suit is no more alive.
In our opinion the respondent 's position in an election petition would not be higher than that.
We therefore, conclude that an election petition is liable to be dismissed for default in situations covered by Order IX, or Order XVII of the Code and for its restoration an application under rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.
This Court in Dhoom Singh vs Prakash Chandra Sethi & Ors., held: "The legislature in its wisdom has chosen to make special provisions for the continuance of the election petition only in case of its withdrawal or abatement.
It has yet not thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original 706 election petitioner or otherwise.
It is not necessary for this Court to express any opinion as to whether the omission to do so is deliberate or inadvertent.
It may be a case of casus omissus.
It is a well known rule of construction of statutes that "A statute, even more than a contract, must be construed, ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air".
A second consequent of this rule is that "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made" (see Craies on Statute Law).
It seems plain that the High Court is enjoined to dismiss an election petition which does not comply with the provisions of section 81 or section 82 or section 117 of the Act.
In the true cases of non compliance with the said provisions of law a question of intervention by another person may not arise.
But there may be a case, as the instant one was alleged to be (we are expressing no opinion of ours in this regard even by any implication whether this was so or not), where as a result of the fraud or collusion between the election petitioner and the returned candidate the High Court is fraudulently misled to act under section 86 (1).
Even in such a situation we find no provision in the Act under which the High Court could permit a person like the appellant to intervene in the matter or to substantiate his allegations of fraud or collusion between the election petitioner and the returned candidate.
It is difficult to press into service the general principles of law governing an election petition as was sought to be done on behalf of the appellant for his intervention in the matter.
If there be any necessity of avoiding any such situation as the present one was said to be it is for the legislature to intervene and make clear and express provision of law for the purpose.
" The ratio of this decision as also the observations in Basappa 's case, the appellant contends, are wrong in view of the earlier decisions of this Court taking the view that an election dispute involves the entire constituency because of the paramount necessity of having purity of an election in a democracy safeguarded.
We do not think the appellant 's contention can be accepted The earlier 707 decisions of this Court do not in any way militate against the view taken in Dhoom Singh 's case (supra) and the observations made in Basappa 's case (supra).
Those decisions were not concerned with the question as to whether an election petition can be dismissed for default.
The concensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code would be applicable.
About eight years back this Court had occasion to point out that if the intention of the legislature was that a case of this type should also be covered by special provision, this intention was not carried out and there was a lacuna in the Act.
We find that even earlier in Shcodhan Singh vs Mohan Lal Gautam, this Court had stated: "From the above provisions it is seen that in an election petition, the contest is really between the constituency on the one side and the person or persons complained of on the other.
Once the machinery of the Act is moved by a candidate or an elector, the carriage of the case does not entirely rest with the petitioner.
The reason for the elaborate provisions noticed by us earlier is to ensure to the extent possible that the persons who offend the election law are not allowed to avoid the consequences of their misdeeds." (underlining is ours) We must assume that the legislature takes notice of the decisions of this Court and if it was of the view that its true intention had not been carried out or that a lacuna remained in the statute it could have removed the lacuna by amending the Act making its intention clear and manifest, particularly when many amendments have subsequently been made.
The fact that nothing has been done leaves an impression in our mind that this Court had not misread the situation.
At any rate it is not for the Court to fill up any lacuna in the legislation and as the law stands, the appellant has no right to contend that the view taken by this Court is not tenable in law.
We may recall the observation of Lord Denning in Seaford Estates vs Asher; 708 "A judge must not alter the material of which the Act is woven, but he can and should iron out the creases.
" All the three contentions advanced on behalf of the appellant fail.
We have already taken the view that at the instance of the appellant the application for restoration was not maintainable.
Therefore, the appeal cannot be allowed and we cannot direct restoration of the election petition.
Accordingly the appeal fails and is dismissed and the order of the High Court is confirmed.
We leave the parties to bear their respective costs.
N.V.K. Appeal dismissed. | Respondent No. 2 who was one of 28 candidates participating in an election to a Lok Subha seat was declared elected.
One of the contenders, (Respondent No. 1) filed an Election Petition for setting aside the election of Respondent No. 2, under section 100 (1) (b) of the Representation of the People Act, 1951, and declaring Respondent No. 5 of the Election Petition as the duly elected candidate, and also for an order declaring Respondent Nos. 2, 3 and 4 as been quilty of corrupt practices under sections 123.
The returned candidate as also all other contesting candidates and 3 outsiders were impleaded as 688 respondents.
Respondent No. 29 of the Election Petition filed his written statement as also a petition of recrimination under section 97 against Respondent No. 5.
Respondent No. 19 in the Election Petition (Appellant in the appeal) filed his written statement.
The Election Petitioner (Respondent No. 1 in the appeal) applied to the court for deleting prayer (c) in the election petition regarding the declaration of Respondent No. 5 as the returned candidate, and the court allowed the deletion.
Later Respondent No. 29 filed a memorandum for withdrawal of the prayer of recrimination against Respondent No. 5.
After the court allowed withdrawal of the recrimination petition the appellant objected to the request.
Written statement was filed on behalf of Respondent No. 1, issues were settled, documents directed to be filed and the case adjourned for trial.
The election petitioner wanted an adjournment on the date the case was posted for trial.
The court gave a last chance and fixed the trial peremptorily having regard to the statutory mandate under section 86 (7) requiring an election petition to be disposed of within 6 months from the date of presentation.
On the date when the case was fixed for trial the election petitioner neither filed his list of witnesses nor list of documents and prayed for an adjournment.
The court refused the adjournment and dismissed the Election Petition.
On the same day, Respondent No. 19 made an application praying for recall of the order of dismissal and also for permission to prosecute the election petition, submit his evidence, and that he may be substituted to continue the proceedings of the Election Petition.
The original Respondent No. 1 objected and contended that the application was not maintainable and that Respondent No. 19 had no locus standi to ask for restoration.
It was further contended that there was no provision for transposition when an election petition was dismissed and Respondent No. 19 who could have filed an independent Election petition within the time admissible under the Act, and not having done so, could not ask for transposition.
The High Court rejected the application.
In the appeal to this Court it was contended on behalf of the appellant that: (1) the earlier order of the High Court by which prayer (c) was allowed to be deleted and the order by which Respondent No. 29 was allowed to withdraw his prayer for recrimination as against original Respondent No. 5 were in the nature of partial withdrawal of the election petition and the statutory provision for withdrawal having not been followed, the order was a nullity and no party would be entitled to rely on them; (2) an election petition once filed does not mean a contest only between the parties there to but continues for the benefit of the whole constituency and cannot come to an end merely by withdrawn by the petitioner or by his death or by the death or withdrawal of opposition of the respondent, but is liable to be continued by any person who might have been a petitioner.
An election petition cannot be dismissed for default and when the appellant applied for permission to continue the case, the High Court should have given the opportunity to continue the election petition; and (3) that the view taken in some cases by this Court that except in cases of withdrawal and abatement, the special provision contained in the Act for 689 notifying to the constituency so that any other person may apply for being allowed to continue the election petition, are not applicable.
Dismissing the appeal: ^ HELD: 1 (i) An election petition is liable to be dismissed for default in situations covered by Order IX or Order XVII of the Code of Civil Procedure and for its restoration an application under Rule 9, Order IX of the Code would be maintainable but such application for restoration can be filed only by the election petitioner and not by any respondent.
[705 E F] In the instant case, at the instance of the appellant the application for restoration was not maintainable.
[708 B] (ii) Elections and election disputes are a matter of special nature and though the right to franchise and right to office are involved in an election dispute, it is not a lis at common law nor an action in equity.
Election disputes are strictly statutory proceedings.
[694 H, 697 A] N.P. Ponnususami vs Returning Officer Nanmakkal Constituency & Ors.[1952] S.C.R. 218; Jagan Nath vs Jaswant Singh & Ors. ; at 895; Charan Lal Sahu vs Nand kishore Bhatt & Ors. ; at 296; Jyoti Basu & Ors vs Debi Ghosal & Ors ; at 326 327; Arun Kumar Bose vs Mohl.
Furkan Ansari & Ors. ; referred to.
(iii) An election petition once filed does not remain a contest only between the parties there to but becomes a dispute in which the whole constituency is interested.
The Representation of People Act makes provisions to meet certain eventualities in the course of trial of election petitions in Chapter IV of Part VI.
Two situations which have been covered by the statute are withdrawal and abatement of election petitions.
Sections 109 and 110 deal with withdrawal of election petitions, and Sections 112 and 116 deal with the eventuality of death and non substitution leading to abatement.
Even in the case of death and non substitution, the Court is required to publish a notice, in the official gazette.
[693 C 698 E, 699 F] (iv) Sub section (1 of section 109 provides that an election petition can be withdrawn only by leave of the High Court.
Omitting a prayer from the election petition strictly would not amount to withdrawal of the election petition.
[700 B] In the instant case, prayer (c) in the election petition was concerned with the declaration of Respondent No. 5 as duly elected from the constituency.
This relief was asked to be deleted.
No objection was raised to its deletion and in due course the Court allowed this prayer to be omitted.
In opposition to the claim made in this prayer, recrimination was filed by one of the respondents in the election petition.
But once prayer (c) was dropped, the relief of recrimination could no more stand.
[799 G 700 A] 690 2(i) Non prosecution or abandonment is certainly not withdrawal Withdrawal is a positive and voluntary act while non prosecution or abandonment may not necessarily be an act of volition.
It may spring from negligence, indifference, inaction or even incapacity or inability to prosecute.
In the case of withdrawal steps are envisaged to be taken before the Court in accordance with the prescribed procedure.
In the case of non prosecution or abandonment, the election petitioner does not appear before the court and obtain any orders.
[701 H 702 A] (ii) The Act is a self contained statute strictly laying down its own procedure and nothing can be read in it which is not there nor can its provisions be enlarged or extended by analogy.
The terms of sec.
87 clearly prescribe that if there by no provision in the Act to the contrary, the provisions of the Code of Civil Procedure would apply and that would include Order IX Rule 8, under which an election petition would be liable to be dismissed if the election petitioner does not appear to prosecute the election petition.
[702 B] (iii) Dismissal of an election petition for default of appearance of the petitioner under the provisions of Order IX or Order XVII of the Code would be valid and would not be open to challenge on the ground that these provisions do not apply.
[704 D] Jugal Kishore vs Dr. Baldev Parkash.
AIR 1968 Punjab & Haryana 152 at 158 159; Duryodhan vs Sitaram & Ors.
AIR 1970 All.
1. approved.
Sunderlal Mannalal vs Nandramdas Dwarkadas & Ors.
A.I.R. 1958 M.P. 260 Rajendra Kumari Bajpai vs Ram Adhar Yadav & Ors at 260; referred to.
(iv) Order IX, Rule 9 (and not Rule 13 relied upon by the appellant) would be the relevant provision for restoration of an election petition, and it can be invoked in an appropriate case by the election petitioner only and not by a respondent.
[704 E] In the instant case the election petitioner and not the appellant could have asked for the relief of restoration.
[704 G] 3.
The consensus of judicial opinion in this Court has always been that the law in regard to elections has to be strictly applied and to the extent provision has not been made, the Code would be applicable.
The Court had occasion to point out that the Legislature had not thought it fit to make any provision in the Act permitting intervention of an elector of the constituency in all contingencies of failures of the election petition either due to the collusion or fraud of the original election petitioner or otherwise.
The legislature could have removed the lacuna by amending the Act, particularly when many amendments have been made.
The fact that has been done leaves an impression that the Court had not misread the situation.
It is not for the Court to fill up any lacuna in the legislation.
[707 B C; F G] Dhoom Singh vs Prakash Chandra Sethi & Ors. ; at 599; Sheodhan Singh vs Monan Lal Gautam.[1969] 3 S.C.R 416 at 421. referred to. 691 |
minal Appeal No. 115 of 1960.
Appeal from the judgment and order dated September 18, 1.959, of the Calcutta High Court in Government Appeal No. 14 of 1956.
48 B. L. Anand, Ganganarayan Chandra and D. N. Mukherjee and P. K. Bose, for the appellant.
K. B. Bagchi, section N. Mukherjee and P. K. BOSE for the respondent.
April 12.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal against the judgment and order of the High Court of Calcutta in which a preliminary objection has been taken that the certificate under article 134 (1) (e) is not a proper certificate and should therefore be cancelled.
A further question would arise as to whether it is a case in which special leave to appeal should be granted under article 136 if we find that the preliminary objection is well founded.
The appellant was tried for murder under section 302 of the lndian Penal Code in the court of the Additional Sessions Judge at Alipore sitting with a jury.
The jury returned a verdict of not guilty and the appellant was acquitted.
Against that order the State took an appeal to the High Court and the Division Bench found that there was mis direction in the charge to the jury and therefore after consideration of the evidence it set aside the verdict of the jury, allowed the appeal and sentenced the appellant to imprisonment for life.
The appellant then applied to the High Court for a certificate under article 134 (1) (c) which was granted by another Division Bench of the Court which had not heard the appeal.
Three points were urged before the Bench hearing the applioation for certificate; (1) that there was unusual delay in delivering the judgment and the Division Bench hearing the appeal forget to consider many of the question of fact which were raised and argued before it.
(2) that the High Court had no power to substitute its own estimate 49 of the evidence in an appeal against the order of acquittal in a trial by jury and (3) that as a matter of fact there were no such misdirection as caused a failure of justice or a mistrial and therefore the High Court was not entitled to examine the evidence.
The learned Judges were of the opinion that there was no substance in points Nos. 2 and 3 but the first points did raise a question of importance.
The learned Chief Justice observed: "The delay in delivering judgment is certainly a very unusual fact, and it may lead to the result that some of the points which were argued on behalf of the petitioner before the Division Bench were lost sight of by that learned judges while delivering their judgment.
As already stated, these points have been summarised by the petitioner in that paragraph 18 of the petition.
The points raised in that paragraph may or may not be good points, but if these points were advanced on behalf of the petitioner, the learned Judges of the Division Bench owed it to themselves to come to a decision on those points.
In the arguments before us, it is not denied on behalf of the State that the points which have been summarised in paragraph 18 of the petition were canvassed by the defence Counsel at the hearing of the appeal and having regard to that fact, I am inclined to hold that the petitioner is entitled to a certificate under Article 134 (1) (c) of the Constitution on that ground".
This is the ground on which the certificate was granted.
This Court has had occasion to consider the grounds on which a certificate can be granted under Art.134 (1) (c) of the Constitution.
hi Haripada Dey vs The State of West Bengal(1) it was held that the High Court has no jurisdiction to grant (1) ; , 641.
50 a certificate under article 134 (1) (c) on a mere question of fact and it is not justified in passing on such a question to the Supreme Court for further consideration thus converting the Supreme Court into a Court of Appeal on facts.
Bbagwati J., there said: "Whatover may have been the misgiving" of the Learned Chief Justice.
in the matter of a full and fair trial not having been held we are of the opinion that he had no jurisdiction to grant a certificate under article 134(1) (c) in a case where admittedly in his opinion the question involved was one of fact where in spite of a full and fair trial not having been vouchsafed to the appellant, the question was merely one of a further consideration of the case of the Appellant on facts".
In a later case Sidheswar Granguly vs The State of West Bengal(1) the High Court of Calcutta granted a certificate on the ground that because of the summary dismissal of the appeal the appellant did not have the satisfaction of having been fully heard and it was held by this Court that was no ground for the grant of a certificate and that no certificate should be granted on a mere question of fact.
In that case Sinha J., (as he then was) said ; "This Court has repeatedly called the attention of the High Courts to the legal pos ition that under article 134 (1) (c) of the Constitution, it is not a case of "granting leave" but of "certifying" that the case is a fit one for appeal to this Court.
"Certifying" is a strong word and therefore, it has been repeatedly pointed out that a High Court is in error in granting a certificate on a mere question of fact, and that the High Court is not justified in passing on an appeal for determination by this Court when there are no (1) ; 51 complexities of law involved in the case, requiring the authoritative interpretation by this Court.
" In the present case the High Court has granted leave on the mere ground that there was delay in delivering the judgment of the court and it may have led to the result that some of the points urged by counsel were lost sight of while delivering judgment.
Those points 'were all questions of fact.
The High Court observed that the questions which were sought to be raised in the petition might or might not be good points but if those points were advanced the judges " 'owed it to themselves to come to a decision on those points".
After the pronouncements of this Court in two judgments it is some what surprising that the High Court should have granted a certificate on the mere ground of delay in pronouncing a judgment and the equally slender ground that some of the questions which were raised were forgotten at the time of the judgment.
If the appellant did have any such real grievance it was open to him to apply to this Court under article ' 136 but the mere ground of delay is not a ground on which the High Court can certify a case to be fit one for appeal to this Court.
In Banarsi Parshad vs Kashi Krishna Narain (1) and Radhakrishna Ayyar vs Swaminatha Ayyer(2) the Privy Council in construing section 109 (c) of the Code of Civil Procedure pointed out that under that clause for a certificate to be granted a case had to be of great or wide public importance.
A mere ground of delay in giving a judgment does not, in our opinion, fall within the words "fit one for appeal to the Supreme Court" even if it is felt by the High Court that the delay might have led to omission to consider arguments on questions of fact and law.
It is not open to a High Court to give certificates of fitness under this clause merely (1) [1900] L.R. 28 1 A. 11 (2) (1920) L.R. 48 I. A. 31.
52 because in its opinion the judgment of the court delivered by another Bench suffers from an error in regard to certain facts.
In our view the certificate granted by the Calcutta High Court was not a proper certificate and must be cancelled.
It was then urged that special leave should be granted under article 136 and the appeal be beard as the record had been printed and on that material if leave were to be granted the appeal could be properly argued.
We have heard counsel for the appellant and we see no reason to grant special leave in this case.
The appeal is therefore dismissed.
Appeal dismissed. | The appellant.
was tried by the Sessions judge and acquitted of the charge of murder.
On appeal the High Court convicted him and sentenced him to imprisonment for life.
The appellant applied for and was granted a certificate under Art 134 (1) (c) of the Constitution for appeal to the Supreme Court on the ground that there was unusual delay in delivering the judgment of the High Court and that the judg ment failed to deal with certain questions of fact which were raised at the hearing of the appeal.
Held, that the certificate granted by the High Court was not a proper certificate.
The mere ground of delay in giving judgment did not fall within the words "fit one for appeal to the Supreme Court" in article 134 (1) (c).
The points raised in the appeal before the High Court were questions of fact and the High Court was not justified in passing such questions on to the Supreme Court for further consideration thus converting the Supreme Court into a court of appeal on facts.
Haripada Dev vs State of.
West Bengal; , and Sidheswar Ganguly vs State of West Bengal, [1958] section C. R. 749, followed.
Banaswmi Parshed vs Kashi Krishna Narain, (1900) L. R. 23 1.
A I I and Radhakrishna Ayyar vs Swaminathna Ayyar, (1920) L. R. 48 I. A. 31, referred to. |
Appeal No. 154 of 1952.
Appeal from the Judgment and Decree dated the 23rd June, 1949, of the High 131 1010 Court of Judicature at Bombay (chagla C. J. and Gajendragadkar J.) in Second Appeal No. 557 of 1945 against the Judgment and Decree dated the 19th March, 1945, of the Court of Small Causes, Poona, in Civil Appeal No. 175 of 1943, arising from the Decree dated the 31st March, 1943, of the Court of the Extra Joint Sub Judge of Poona in Suit No. 858 of 1941.
C. K. Daphtary, Solicitor General for India (J.B. Dadachanji, with him) for the appellant.
V. M. Tarkunde for the respondents.
February 27.
The judgment of the Court was delivered by MAHAJAN J.
This is an appeal by defendant No. I from the decree of the High Court of Judicature at Bombay in Second Appeal No. 557 of 1945, whereby the High Court confirmed the decree of the lower courts granting possession of land to the respondents on the forfeiture of a lease.
The appeal is confined to survey No. 86/2 at Mundhava in Poona district.
The principal question arising for decision in the ap.
peal is whether notice as contemplated by section III (g) of the is necessary for the determination of a lease for non payment of rent even where such lease was executed before the coming into force of the .
The only other question that falls for determination is whether the High Court should have interfered with the discretion of the lower courts in refusing relief against forfeiture in the circumstances of this case.
The present respondents are the daughter and grand sons of the original plaintiff Vinayakbhat.
His adoptive mother was Ramabai.
She owned two inam lands at Mundhava which were then numbered Pratibhandi Nos. 71 and 72.
Present survey Nos.
86/1 and 86/2 together correspond to old Pratibhandi No. 71.
On 1st July, 1863, Ramabai, while she was in financial difficulties, passed a permanent lease of both these numbers to one Ladha Ibrahim Sheth.
The lessee paid a premium of Rs. 999 for the lease, and also agreed to pay 1011 a yearly rent of Rs. 80 to Ramabai during her lifetime and after her death a yearly amount equal to the assessment of the two lands to the heirs of Ramabai.
The lease provided that in default of payment of rent the tenant 's rights would come to an end.
On 18th August, 1870, Ladha Ibrahim sold his tenancy rights to one Girdhari Balaram Lodhi for Rs. 7,999.
The sale deed provided that in default of payment of rent to Ramabai or her heirs, the purchaser would have no rights whatsoever left over the property.
On the same day the purchaser passed a rent note in favour of Ramabai.
The rent note provided for the payment of the agreed rent in the month of Pousb every year, and stated that in case of default the tenant or his heirs would have no right over the land.
Defendant No. 1 and the other defendants are the grandsons of Seth Girdhari Balaram.
In spite of the nullity clause in the lease it appears that the lessee has been more or less a habitual defaulter in the payment of rent.
In the year 1913, rent for six years was in arrears.
Vinayakbhat filed Suit No. 99 of 1913 in the court of the II Class Sub Judge, Poona, against the present defendants for possession of the demised premises on the ground of forfeiture.
A number of defences were raised by them.
Inter alia, it was pleaded that as no notice had been given to them the forfeiture was not enforceable.
These contentions were negatived but the court granted relief against forfeiture.
Defendant No. 1 was a minor at that time and became a major in or about 1925.
In the year 1928 again rent for two years was in arrears.
Vinayakbhat filed Civil Suit No. 258 of 1928 against the present defendants for possession on the ground of forfeiture.
The plaintiff subsequently waived the forfeiture by accepting three years ' rent which by then had fallen in arrears and costs of the suit.
In the year 1931 rent for three years again fell into arrears.
The amount was then sent by money order and the landlord accepted it.
In the year 1934 again rent for three years remained unpaid.
At that time proceedings were started by Government for the acquisition of the old survey No. 72.
1012 The landlord claimed that he was entitled to the whole compensation money as the tenant 's rights had ceased by forfeiture for non payment of rent.
Defendant No. 1 through his pleader sent a notice to Vinayakbhat to come and take the arrears of rent. 'He agreed and accepted the arrears of rent and the forfeiture was again waived.
As a result of this the defendants got Rs. 32,000 by way of compensation for the permanent tenancy rights in old survey No. 72, while Vinayakbhat got Rs. 1,400 for compensation for the acquisition of his rights as landlord in that land.
In 1938 rent for four years was again in arrears.
Vinayakbhat filed Civil Suit No. 982 of 1938 in the court of the I Class Sub Judge at Poona against all the present defendants for possession of survey Nos.
86/1 and 86/2 on the ground that the lease had determined by forfeiture for non payment of rent.
In that suit defendant No. 1 pleaded that there was no forfeiture because no rent was fixed in respect of the suit property and also because it was for the, plaintiff to recover rent and not for the defendants to go to the plaintiff and pay it.
These contentions were negatived.
It was held that forfeiture had occurred but relief against forfeiture was again granted.
On plaintiff 's appeal in this case, the learned District Judge refused to interfere with the discretion of the trial judge in granting relief against forfeiture but observed that the defendants having obtained relief against forfeiture thrice before should not expect to get it for a fourth time if they again make default in the payment of rent.
The default which has given rise to the present suit occurred on 28th January, 1941, and the plaintiff filed the suit out of which this appeal arises for possession on the ground of forfeiture and for the arrears of rent which remained unpaid.
It was alleged in the plaint that the rent due on 28th January, 1941, was not paid, though demanded.
Plaintiff asked for possession of survey Nos. 86/1 and 86/2 after removal of the structures thereon.
Defendant No. 1 pleaded that as a result of partition rights in survey No. 86/2 had fallen to 1013 his share, that according to the terms of the rent note it was for the plaintiff to approach the defendants and.
not for the defendants to go to the plaintiff and pay it, ' ' that as the plaintiff did not approach the defendants and no demand for rent was made, no forfeiture occurred, that defendant No. I did offer the rent to the plaintiff, but the plaintiff fraudulently refused to accept it, that the plaintiff ought to have sent a notice according to law if he wanted to enforce the right of forfeiture and that without prejudice to the above contentions he should be granted relief against forfeiture.
The trial court decreed the plaintiff 's suit and negatived the contentions raised by the defendants.
In awarding Possession of the entire property to the plaintiff the trial court imposed a condition that defendant No. I should continue to be in possession of the two structures in survey No. 86/2 till the end of March, 1950.
On the question whether a notice was necessary before the lease could be terminated, the trial court expressed the view that the provision in the rent note that on non payment of rent the rights of the tenant would come to an end was a clause of nullity and not merely a clause of forfeiture and that the lease was therefore determined under section 111 (b) and not under section III (g) of the and that no notice as required by section 111 (g) was necessary for terminating the lease in suit.
On the issue whether forfeiture should be relieved against, the trial court said that relief could have been given to the lessee against forfeiture under section 1 14 had it not been for the fact that the defendants had disentitled themselves to relief by contumacious conduct on their part, that even this paltry rent had never been paid in time during the last twenty years at any rate, and that after defendant No. I had attained majority and got the estate in his charge in 1922 23 he had uniformly defaulted in the payment of rent and that the defendants raised totally false defences and in every suit a false excuse was set up in an attempt to justify the arrears of rent.
1014 In pursuance of the trial court 's decree plaintiff took possession of all the suit lands in April, 1943, except one acre which he took possession on 13th September, 1943.
Defendant No. I remained in possession of the two structures on survey No. 86/2.
Against the decision of the trial judge defendant No. I alone filed an appeal to the District Judge of Poona.
The lower appellate court confirmed the decree of the trial court with two modifications.
Defendant No. I was allowed to remove the buildings on survey No. 86/2 and also the trees therein within three months.
On the issue whether a notice was necessary, the appellate court found that the lease came to an end not under section 111(b) but under section 111 (g) of the Transfer of Pro perty Act, but that no notice of forfeiture was necessary as the lease had been executed prior to the coming into force of the .
The appellate court saw no valid reason for interfering with the finding of the trial judge on the question concerning relief against forfeiture.
From this appellate decree defendant No. I filed a second appeal to the High Court of Judicature at Bombay.
The plaintiff filed cross objections in regard to the trees and costs.
The High Court dismissed the appeal and allowed the cross objections.
An application was made for leave to appeal to the Supreme Court and it was granted with reference to survey No.
The law with regard to the determination of a lease by forfeiture is contained is section III (g) of the .
Under that provision a lease is determined by forfeiture in case the lessee breaks an express condition which provides that on breach thereof the lessor may re enter, or in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself, or the lessee is adjudicated an insolvent and the lease provides that the lessor may reenter on the happening of such event and a certain further act is done by the lessor as thereinafter mentioned.
Prior to its amendment by Act XX of 1929, this sub section further provided 1015 "And in any of these cases the lessor or his transferee does some act showing his intention to determine the lease.
" By Act XX of 1929, this subsection was amended and the amended sub section now reads: "And in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease.
" Section 111 (g) in terms makes the further act an integral condition of the forfeiture.
In other words, without this act there is no completed forfeiture at all.
Under the old section an overt act evidencing the requisite intention was essential.
As the law stands today under the Act, notice in writing by the landlord is a condition precedent to a forfeiture and the right of re entry.
Section 63 of Act XX of 1929, restricts the operation of this amendment to transfers of property made after 1st April, 1930.
The lease in this case was executed before the came into force in 1882.
The amendment therefore made in this sub section by Act XX of 1929 not being retrospective, cannot touch the present lease and it is also excluded from the reach of the by the provisions of section 2.
The position was not seriously disputed in the High Court or before us that the statutory provisions of section 111(g) as such cannot be made to govern the present lease which was executed in the year 1870.
It was however strongly argued that the amendment made in 1929 to section 111(g) of the Act embodies a principle of justice, equity and good conscience and notwithstanding section 2 of the Act, that principle was applicable in this case and there can be no forfeiture unless notice in writing to the lessee of his intention to determine the lease by the lessor bad been given.
It is axiomatic that the courts must apply the principles of justice, equity and good conscience to transactions which come up before them for determination even though the statutory provisions of the Transfer of 1016 Property Act are not made applicable to these transactions.
It follows therefore that the provisions of the Act which are but a statutory recognition of the rules of justice, equity 'and good conscience also govern those transfers.
If, therefore, we are satisfied that the particular principle to which the legislature has now given effect by the amendment to section 111 (g) did in fact represent a principle of justice, equity and good conscience, undoubtedly the case will have to be decided in accordance with the rule laid down in the section, although in express terms it has not been made applicable to leases executed prior to 1929 or even prior to the coming into force.
The main point for consideration thus is whether the particular provision introduced in sub section (g) of section 111 of the in 1929 is but a statutory recognition of a principle of justice, equity and good conscience, or whether it is merely a procedural and technical rule introduced in the section by the legislature and is not based on any well established principles of equity.
The High Court held, and we think rightly, that this provision in sub section (g) of section III in regard to notice was not based upon any principle of justice, equity and good conscience.
In the first instance it may be observed that it is erroneous to suppose that every provision in the and every amendment effected is necessarily based on principles of justice, equity and good conscience.
It has to be seen in every case whether the particular provisions of the Act relied upon restates a known rule of equity or whether it is merely a new rule laid down by the legislature without reference to any rule of equity and what is the true nature and character of the rule.
Now, so far as section 111 (g) of the Act is concerned, the insistence therein that the notice should be given in writing is intrinsic evidence of the fact that the formality is merely statutory and it cannot trace its origin to any rule of equity.
Equity does not concern itself with mere forms or modes of procedure.
If the purpose of the rule as to notice is to indicate the intention of the lessor to 1017 determine the lease and to avail himself of the tenant 's breach of covenant it could as effectively be achieved by an oral intimation as by a written one without in any way disturbing the mind of a chancery judge.
The requirement as to written notice provided in the section therefore cannot be said to be based on any general rule of equity.
That it is not so is apparent from the circumstance that the requirement of a notice in writing to complete a forfeiture has been dispensed with by the legislature in respect to leases executed before 1st April, 1930.
Those leases are still governed by the unamended sub section (g) of section 1 1 1.
All that was required by that sub section was that the lessor was to show his intention to determine the lease by some act indicating that intention.
The principles of justice, equity and good conscience are not such a variable commodity, that they change and stand altered on a particular date on the mandate of the legislature and that to leases made between 1882 and 1930 the principle of equity applicable is the one contained in sub section (g) as it stood before 1929, and to leases executed after 1st April, 1930, the principle of equity is the one stated in the sub section as it now stands.
Question may also be posed, whether according to English law a notice is a necessary requisite to complete a forfeiture.
The English law on the subject is stated in Foa 's General Law of Landlord and Tenant (7th edition) at page 316 in these terms : " In no case can the lessee take advantage of the proviso for re entry in order to avoid the lease, even where it is in the form (not that the lessor may reenter, but) that the term shall cease, or that the lease shall be void for all purposes, or 'absolutely forfeited '; for expressions of this kind only mean that the tenancy shall determine at the option of the lessor. .
This has been usually expressed by saying that the lease is voidable and not void; but the true principle appears to be that the lease does become void to all intents and purposes, though this is subject to the condition that the party who is seeking to set up its invalidity 132 1018 is not himself in default, for otherwise he would be taking advantage of his own wrong.
It follows that where the proviso makes the lease void, the landlord must, in order to take advantage of it, do some unequivocal act notified to the lessee, indicating his intention to avail himself of the option given to him.
The service upon the lessee in possession of a writ in ejectment is sufficient".
The Law of Property Act, 1925, by section 146 has consolidated the law in England on this subject.
The provision with regard to the giving of notice before a right of re entry accrues to the landlord is expressly excluded by sub section (11) in cases of re entry on forfeiture for non payment of rent.
In England it is not necessary in case of non payment of rent for a landlord to give notice before a forfeiture results.
It cannot, therefore, be said that what has been enacted in sub section (g) of section II 1 is a matter which even today in English law is considered as a matter of justice, equity and good conscience.
In English law the bringing of an action which corresponds to the institution of a suit in India is itself an act which is definitely regarded as evidencing an intention on the part of the lessor to determine a lease with regard to which there has been a breach of covenant entitling the lessor to re enter : vide Toleman vs Portbury and Prakashchandra Das vs Rajendranath Basu(2).
In India there is a substantial body of judicial authority for the proposition that in respect of leases made before the forfeiture is incurred when there is a disclaimer of title or there is non payment of rent.
Any subsequent act of the landlord electing to take advantage of a forfeiture is not a condition precedent to the right of action for ejectment.
The bringing by a landlord of a suit for ejectment is simply a mode of manifesting his election.
The principle of these cases rests upon the ground that the forfeiture is complete when the breach of the condition or the denial of title occurs.
But as it is left to the lessor 's option to take advantage of it or not, the (1) L.R. 6 Q.B. 245.(2) (1931)58 cal.
1019 election is not a condition precedent to the right of action and the institution of the action is a sufficient manifestation of the election.
The same principle is applied for actions for relief on the ground of fraud.
[vide Padmabhaya vs Ranga(1) ; Korapalu vs Narayana(2)].
In Rama Aiyangar vs Guruswami Chetty(3),it was saidthat as the lease was not governed by the , the institution of the suit was a sufficient determination of the lease and no other previous act determining the same such as a notice to quit was necessary for maintaining the action.
The same view was expressed in Venkatachari vs Rangaswami Aiyar(4).
In Venkatarama Aiyar vs Ponnuswami Padayachi(5), it was observed that the forfeiture will not be produced merely by the unilateral act of ceasing to comply with the conditions upon which the property is held, but it must involve also some expression of intention to enforce the forfeiture on the part of the lessor.
In other words, the lessee cannot by his unilateral act terminate the lease, and cannot take advantage of his own wrong.
That is an intelligible principle and is based on a maxim of equity.
But the defaulting lessee cannot claim the benefit of a notice in writing to complete the forfeiture he has incurred.
The lessor has to simply express an intention that he is going to avail of the forfeiture and that can be done by the filing of a suit, as in English law, in all cases not governed by the .
Again in Ramakrishna Mallaya vs Baburaya (6), it was said that in an ejectment suit based on leases executed prior to the , no act on the part of the landlord showing that he elected to take advantage of the forfeiture for non payment of rent was necessary.
The contrary view expressed in Nourang Singh vs Janardan Kishor(7), that the institution of a suit for ejectment could not be regarded as a requisite act to show the intention of a (1) Mad. 161.
(2) Mad.
(3) (4) (1919) 36 M.L.J. 532.
(5) A.I.R. 1935 Mad.
(6) (7) Cal.
469, 1020 landlord to determine a lease within the meaning of section 111 (g), was dissented from in Prakashchandra Das vs Rajendranath Basu(1); and it was said that there is no special reason why the lessor 's election must be made at some time prior to the institution of a suit and that it was difficult to find a raison d 'etr for the view that the cause of action has not completely accrued if the election is made at the moment when the suit is instituted, i.e., the moment the plaint is presented.
The cause of action for the suit can arise simultaneously with the presentation of a plaint.
In our opinion the provision as to notice in writing as a preliminary to a suit for ejectment based on forfeiture of a lease is not based on any principle of justice, equity or good conscience and cannot govern leases made prior to the coming into force of the , or to leases executed prior to 1st April, 1930.
The rights and obligations under those leases have to be determined according to the rules of law prevailing at the time and the only rule applicable seems to be that a tenant cannot by his unilateral act and by his own wrong determine the lease unless the lessor gives an indication by some unequivocal expression of intention on his part of taking advantage of the breach.
On no principle of equity is a tenant entitled to a notice in writing telling him that the lease has been determined.
The High Court was therefore right in the view that it took of the matter and there are no valid reasons for taking a contrary view.
Considerable reliance was placed by Mr. Daphtary on the decision of Chandrasekhara Aiyar J. sitting singly in the case of Umar Pulavar vs Dawood Rowther(2), wherein the learned Judge said that section 111 (g) as amended in 1929 embodied a principle of justice, equity and good conscience and must be held to govern even agricultural leases and where there was a forfeiture by denial of the landlord 's title, a notice in writing determining the lease was necessary.
it was there observed that the principle so embodied (1) Cal.
(2) A.I.R. 1947 Mad.
1021 in the sub section as a result of the amendment becomes, so to say, a principle of justice, equity and.
good conscience.
The learned Judge for this view placed reliance on the decision in Krishna Shetti vs Gilbert Pinto( '), in which it was said that the was framed.
by eminent English lawyers to reproduce the rules of English law, in so far as they are of general.
application and rest on principle as well as authority and its provisions are binding on us as rules of justice, equity and good conscience.
With respect, we are constrained to observe that this is too broad a statement to make.
It seems that the attention of the learned judges was not drawn to the fact that the provision as to notice for determining a lease for nonpayment of rent was not a part of the English law.
It also does not seem to have been fully appreciated that the rule enunciated in sub section (g) of section 111 prior to its amendment in 1929 and which still governs leases executed before 1st April, 1930, OD the reasoning of the decision would also be a rule of justice, equity and good conscience and according to it the institution of a suit for ejectment would be sufficient indication on the part of the landlord for determination of the lease and a notice in writing as required by the amended section would not be a prerequisite for institution of such a suit.
In our judg ment, this case was wrongly decided and we are unable to support it.
As pointed out by Napier J. in Krishna Shetti vs Gilbert Pinto (1), the courts should be very careful in applying statutory provisions and the assistance of the as a guide on matters which have been excluded from the purview of the Act by express words should not be invoked, unless the provisions of the Act embody principles of general application.
Mr. Daplitary also placed reliance on certain observations contained in the Full Bench decision Brahmayya vs Sundaramma (1).
There it was said that although section 106 of the does not (1) Mad.
(2) A.I.R. 1948 Mad.
1022 apply to leases for agricultural purpose by virtue of section 117 of the Act, nevertheless the rules in section 106 and in the other sections (sections 105 to 11 6) in Chapter V of the Act are founded upon reason and equity and they are the principles or English law and should be adopted as the statement of the law in India applicable also to agricultural leases.
In our opinion, the above statement is again formulated in too wide a language.
Section 105 gives a statutory definition of the word "lease".
It enunciates no principle of equity.
The relation of lessor and lessee is one of contract and in Bacon 's Abridgement a lease is defined as a contract between the lessor and the lessee for the possession and profits of land on the one side and recompense by rent or other consideration on the other.
The statute has given a more comprehensive definition of the term.
Section 107 makes registration of a lease compulsory.
This section again does not concern itself with any princi ple of justice or equity.
Section 108 (j) enacts that the lessee may transfer absolutely by way of mortgage or sublease the whole or any part of his interest in the property and any transferee of such interest or part may again transfer it.
The law in India and England on this subject is not the same and it cannot be said that this sub section enacts or enunciates any general principle of equity.
Parts of sections 109, 1 10 and Ill contain mere rules of procedure or rules of a technical nature.
These certainly cannot be said to be based on any principles of equity.
In our judgment, therefore, the statement in this decision that sections 105 to 116 of the are founded upon principles of reason and equity cannot be accepted either as correct or precise.
Of course, to the extent that those sections of the Act give statutory recognition to principles of justice, equity and good conscience they are applicable also to cases not governed by the Act.
Reference was also made to the decision of the Bombay High Court in Tatya Savla Sudrik vs Yeshwanta Kondiba Mulay (1) where it was said that the (1) 1023 principle embodied in section 111 (g) of the that in the case of forfeiture by denial of landlord 's title a notice in writing determining them lease must be given is a principle of justice, equity and good conscience which must be held to govern even agricultural leases.
In that case it was contended that following upon forfeiture which had been incurred a suit was filed by the plaintiffs in eviction and nothing more needed to be done by the plaintiffs.
For this contention reliance was placed on two earlier decisions of the Bombay High Court, Venkaji Krishna Nadkarni vs Lakshman Devji Kandar (1) and Vidyavardhak Sang Co. vs Avvappa (2).
This contention was negatived in view of the decision of Chandrasekhara Aiyar J. above referred to, and also in view of a binding decision of a Division Bench of that court in Mahiboobkhan Muradkhan vs Ghanashyam Jamnaji(3).
The learned Chief Justice in the judgment under appeal has explained the distinction between the present case and that case and has not followed his own earlier decision in arriving at his conclusions here.
With respect we think that that decision did not state the law on the point correctly.
Under English law the institution of a suit for ejectment has always been considered an unequivocal act on the part of the landlord for taking advantage of the default of the tenant and for enforcing the forfeiture in case of non payment of rent, and even in other cases except where statutory provisions were made to the contrary.
Reference was also made to the observations of their Lordships of the Privy Council in Aditya Prasad vs Ramratan Lal (1).
Their Lordships dealing with the question whether a certain document created a charge upon a village observed that the appellant could not redeem it without paying both the mortgage debt and the amount subsequently raised and it was said that the provisions of the on the point were identical with the principles of justice, equity and good conscience.
The observation made in that case must be limited to that case and cannot be (1) Bom, 354 F.B. (2) (3) Unreported.
(4) (1930) 57 I.A. 173.
1024 held as applicable to all cases irrespective of the nature of the provisions involved.
Similar observations are contained in another decision of their Lordships of the Privy Council in Muhammad Raza vs Abbas Bandi Bibi (1), which concerned the provisions of section 10 of the which recognizes the validity of a partial restriction upon a power of disposition in the case of a transfer inter vivos.
It was held that there was no authority that a different principle applied in India before the Act was passed and that under English law a partial restriction was ' not repugnant even in the case of a testamentary gift.
Lastly, Mr. Daphtary drew our attention to the decision in Roberts vs Davey(2), which relates to a licence.
There it was observed that it was necessary for the licensor to have done some act showing his intention to determine the licence and until such act was shown, it continued in force.
Littledale J. in this case said that the instrument was "a mere licence to dig, and did not pass the land.
An actual entry, therefore, was unnecessary to avoid it; but by analogy to what is required to be done in order to determine a freehold lease which, by the terms of it, is to be void on the non performance of covenants, it seems to follow that, to put an end to this licence, the grantor should have given notice of his intention so to do".
The basis of the decision was that some act amounting to an exercise of the option had to be proved before the licence was determined.
This decision therefore does not in any way affect the decision of the High Court in this case.
On the question whether the tenant should have been given relief against forfeiture the High Court held that the matter was one of discretion and both the lower courts had exercised their discretion against the appellant and that being so, unless they were satisfied that the discretion was not judicially exercised or was exercised without proper materials they would not ordinarily interfere with it in second appeal.
It was said that the non payment in this case seems to have (1) (1932) 59 I.A. 236.
(2) ; 1025 become chronic and that this was not a case for the exercise of equitable jurisdiction.
Mr. Daphtary contended that the High Court failed to appreciate the rule applicable for the exercise of the discretion in such cases and that the rule is that if at the time relief is asked for the position has been altered so that relief cannot be given without causing injury to third parties relief will be refused, but if that position is not altered so that no injustice will be done there is no real discretion and the court should make the order and give the relief.
Reference was made to the decision of Page J. in Debendralal Khan vs F. M. A. Cohen (1), wherein it was said that the court normally would grant relief against forfeiture for non payment of rent under section 114 of the and that if the sun) required under the section was paid or tendered to the lessor at the hearing of the suit the court has no discretion.
in the matter and must grant relief to the tenant.
We do not think that the learned Judges intended to lay down any hard and fast rule.
Indeed the learned Judge proceeded to observe as follows: "In exercising the discretion with which it is invested under section 114 a court in India is not bound by the practice of a court of Chancery in England, and I am not disposed to limit the discretion that it possesses, Those who seek equity must do equity, and I do not think merely because a tenant complies with the conditions laid down in section 114 that he becomes entitled as of right to relief" In our opinion, in exercising the discretion, each case must be judged by itself, the delay, the conduct of the parties and the difficulties to which the landlord. has been put should be weighed against the tenant, This was the view taken by the Madras High Court in Appaya Shetty vs Mohammad Beari (2) , and the matter was discussed at some length.
We agree with the ratio of that decision.
It is a maxim of equity that a person (1) Cal. 485.
(2) Mad.
133 1026 who comes in equity must do equity and must come with clean hands and if the conduct of the tenant is such that it disentitles him to relief in equity, then the court 's hands are not tied to exercise it in his favour.
Reference in this connection may also be made to Ramakrishna Mallya vs Baburaya(1), and Ramabrahmam vs Rami Reddi (2).
The argument of Mr. Daphtary that there was no real discretion in the court and relief could not be refused except in cases where third party interests intervene is completely negatived by the decision of the House of Lords in Hyman vs Rose (3).
Relief was claimed in that case under the provisions of section 14(2) of the Conveyancing Act, 1881, against forfeiture for breaches of covenant in the lease.
The appellants offered as the terms on which relief should be granted to deposit a sum sufficient to ensure the restoration of the premises to their former condition at the end of the term and make full restitution.
It was argued that the matter was one of discretion and the court should lean to relieve a tenant against forfeiture and if full recompense can be made to the landlord the relief should be granted.
Lord Loreburn in delivering the opinion of the House observed as follows: "I desire in the first instance to point out that the discretion given by the section is very wide.
The court is to consider all the circumstances and the conduct of the parties.
Now it seems to me that when the Act is so express to provide a wide discretion, meaning, no doubt, to prevent one man from forfeiting what in fair dealing belongs to some one else, by taking advantage of a breach from which he is not commensurately and irreparably damaged, it is not advisable to lay down any rigid rules for guiding that discretion.
I do not doubt that the rules enunciated by the Master of the Rolls in the present case are useful maxims in general, and that in general they reflect the point of view from which judges would regard (1) (2) A.I.R. 1928 Mad. 250.
(3) 1027 an application for relief.
But I think it ought to be distinctly understood that there may be cases in which any or all of them may be disregarded.
If it were otherwise the free discretion given by the statute would be fettered by limitations which have nowhere been enacted.
It is one thing to decide what is the true meaning of the language contained in an Act of Parliament.
It is quite a different thing to place conditions upon a free discretion entrusted by statute to the court where the conditions are not based upon statutory enactment at all.
It is not safe, I think, to say that the court must and will always insist upon certain things when the Act does not require them, and the facts of some unforeseen case may make the court wish it had kept a free hand.
" With great respect we think that the observations cited above contain sound principles of law.
We are, therefore, unable to accede to the contention of Mr. Daphtary that though section 114 of the confers a discretion on the court, that discretion except in cases where third party interests intervene must always be exercised in favour of the tenant irrespective of the conduct of the tenant.
It is clear that in this case the tenant is a recalcitrant tenant and is a habitual defaulter.
For the best part of 25 years he has never paid rent without being sued in court.
Rent has been in arrears at times for six years, at other times for three years and at other times for four years and so on, and every time the landlord had to file a suit in ejectment which was always resisted on false defences.
No rule of equity, justice or good conscience can be invoked in the case of a tenant of this description.
He cannot always be allowed to take advantage of his own wrong and to plead relief against forfeiture on every occasion, particularly when he was warned by the court of appeal on a previous occasion.
He had already had relief three times on equitable grounds and it is time that the court withheld its hands and ordered his ejectment.
In this situation the High Court was fully justified in finding that in second appeal it would not interfere with the 1028 discretion of the courts below in refusing to, grant relief against forfeiture.
The result therefore is that this appeal fails is dismissed with costs.
Appeal dismissed.
Agent for appellant: R.A. Govind.
Agent for respondents: Rajinder Narain. | The provision as to notice in writing of the lessor 's intention to determine the lease, container in section 111(g) of the , as amended in 1929, is not based on any principle of justice, equity or good conscience and is not applicable to leases executed prior to 1st April, 1930.
Where a lease deed executed before the , came into force, provided that the lessee 's rights should come to an end on default of payment of rent, and, as rent was not duly paid, the lessor instituted a suit for ejectment of the lessee without giving him a notice in writing of his (the lessor 's) intention to determine the lease : Held, that the suit was maintainable.
Umar Pulavar vs Dawood Rowther (A.1,R. , Brahmayya vs Sundodaramma (A.I.R. , Tatya Savla Sudrik vs Yeshwanta Kondiba Mulay disapproved.
Toleman vs Portbury (L.R. 6 Q.B. 245), Prakash Chandra Das vs Rajendra Nath Basu (I.L.R. , Rama Aiyangar vs Guruswami Chetty , Venkatachari vs Rangaswami Aiyar (36 M.L.J. 532) and Krishna Shetti vs Gilbert Pinto (I.L.R. relied on.
Venkatarama Aiyar vs Ponnuswamy Padayachi (A.I.R. 1935 Mad. 918), Aditya Prasad vs Ram Ratanlal (57 I A. 173), Muhammad Raza vs Abbas Bandi Bibi (59 I.A. 236), Roberts vs Davey ; distinguished. |
ION: Civil Appeal No. 4359 (NCE) of 1986.
From the Judgment and Order dated 30th Sept. 1986 of the Madhya Pradesh High Court in Election Petition No. 43 of 1985.
R.B. Mehrotra for the Appellant.
S.S. Khanduja for the Respondents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The appellant was one of the 11 contestants from Niwadi Legislative Assembly Constituency No. 34 of Madhya Pradesh Vidhan Sabha.
The election was held in the months of February/March 1985, the polling date of which was on 2.3.1985.
The appellant was a nominee of the Janta Party.
The first respondent was sponsored by the Congress Party.
As the first respondent had secured majority of votes i.e. by a margin of 5,000 votes over and above his next rival candidate, namely the appellant herein the first respondent was duly declared on 6.3.1985 as successfully elected.
The appellant presented an election petition in the High Court Madhya Pradesh at Jabalpur, calling in question ' the election of the first respondent alleging that the first respondent was guilty of adopting corrupt practices within the meaning of sub sections (2), (3) and (3A) of Section 123 of the Representation of People 's Act, 1951 (hereinafter referred to as the 'Act ').
It is hardly necessary to stress 583 that the pleadings were traversed and denied by the first respondent in his statement.
The High Court dismissed the election petition and hence by this appeal under Section 116A of the Act, the appellant challenges the correctness of the decision of the High Court.
Of the several issues framed upon the pleadings of the parties only issues 3, 4 and 5 are pressed before us as the main grounds in support of the appeal and the rest are given up.
Hence for the purpose of the present appeal, we have to examine and deal with these three relevant issues alone as set out by the High Court.
These issues are: "(3) Whether the nomination paper of Shri Pratap Singh, son of Mitilal, the respondent No. 11 had been improperly re jected? If so, whether the election is liable to be set aside under Section 100(1)(c) of the R.P. Act, 1951? (4) Whether the respondent No. 1 held a meeting at Niwadi on 28.2.1985 and told the electors that he would present silver shield to the electors of the polling booth recording maxi mum number of votes in his favour? If so, whether respondent No. 1 is guilty of corrupt practices under Section 123(1) of the Act? (5) Whether Shri Shital Prasad Sharma, S.D.O. (Revenue) and Shri Dubey, S.D.O. police accompanied with respondent No. 1 at various places between 9.2.1985 and 2 3 1985 and asked the electors to vote for him? Whether Shri Sharma distribut ed money in village Teharka and asked voters to vote for respondent No. 17 If so, effect.
The High court which has dealt with on the various aspects of the matter has held that the appellant has not substantiated all the charges levelled by him against the first respondent challenging the declaration of the first respondent as having been duly elected.
Normally, this Court in an appeal as the one on hand does not interfere on a finding of facts of this type unless there are prima facie good grounds to show that the High Court has gravely erred resulting in serious prejudice to the appellant.
We, therefore shall now examine whether there are any compelling reasons justifying our interference with the findings of the High Court.
This Court in a catena of decisions has laid down the principles as to the nature of pleadings in election cases, the sum and substance of which being: 584 (1) The pleadings of the election petitioner in his petition should be absolutely precise and clear containing all neces sary details and particulars as required by law vide Dharti pakar Madan Lal Agarwal vs Rajiv Gandhi, [1987] (Supp.) SCC 93 and Kona Prabhakara Rao vs M. Seshagiri Rao & Anr., (2) The allegations in the election petition should not be vague, general in nature or lack of materials or frivolous or vexatious because the Court is empowered at any stage of the proceedings to strike down or delete pleadings which are suffering from such vices as not raising any triable issue vide Manphul Singh vs Surinder Singh, [1974] 1 SCR 52; Kona Prabhakara Rao vs M. Seshagiri Rao & Anr., and Dhartipakar Madan Lal Agarwal vs Rajiv Gandhi, [1987] (Supp.) SCC 93.
(3) The evidence adduced in support of the pleadings should be of such nature leading to an irresistible conclusion or unimpeachable result that the allegations made, have been committed rendering the election void under Section 100 vide Jumuna Prasad Mukhariya & Others vs Lachhi Ram & Others, ; and Rahim Khan vs Khurshid Ahmed and Oth ers; , (5) The evidence produced before the Court in support of the pleadings must be clear, cogent, satisfactory, credible and positive and also should stand the test of strict and scru pulous scrutiny vide Ram Sharan Yadav vs Thakur Muneshwar Nath Singh and Others, ; (5) It is unsafe in an election case to accept oral evidence at its face value without looking for assurances for some surer circumstances or unimpeachable documents vide Rahim Khan vs Khurshid Ahmed & Ors., ; ; M. Narayana Rao vs G. Venkata Reddy & Others, ; ; Lakshmi Raman Acharya vs Chandan Singh & Ors., [1977] 2 SCR 412 and Ramji Prasad Singh vs Ram BilasJha and Others, ; 6.
The onus of proof of the allegations made in the election petition is undoubtedly on the person who assails an elec tion which has been concluded vide Rahim Khan vs Khurshid Ahmed and Others, ; ; Mohan Singh vs Bhanwar lal & Others; , and Ramji Prasad Singh vs Ram Bilas Jha and Others, ; 585 In the light of the above principles, we shall now examine the pleadings and the evidence adduced to establish the allegations in the election petition.
Reverting to the case, the first question that arises for consideration in relation to issue No. (3) is whether the nomination papers of the 11th respondent, Pratap Singh has been improperly rejected rendering the election of the returned candidate (first respondent) as void.
The 11th respondent (Pratap Singh) filed his nomination paper for contesting the election from this Niwadi constitu ency and delivered the same to the Returning Officer by his proposer as contemplated under Section 33(1) of the Act.
He also made a request to the Returning Officer to send some authorised person thereby enabling him to make and subscribe the oath as he was seriously iII and could not present himself either before the Returning Officer or any other authorised officer for making or subscribing the oath of affirmation as required under Article 173(a) of the Constitution of India.
The Returning Officer did not comply with the request of Pratap Singh and rejected his nomination on 7.2.85.
According to the petitioner, this rejection is improper and as such the election is liable to be set aside as per Section 100(1)(c) of the Act.
The plea of the appellant that the nomination paper has been improperly rejected, is countered by the respondent No. 1 in his written statement denying the plea of the appellant that he was seriously ill and stating that under Article 173 of the Constitution, it is only for the Election Commission to authorise some person enabling the candidate to make and subscribe the oath according to the form set out for the purpose in the Third Schedule; that the Returning Officer has no authority to send any Officer to any ailing candidate enabling him to subscribe the oath and that the respondent No. 11 neither approached the Election Commission nor made any such request to the Returning Officer.
It is seen from the additional document No. 9 that the 11th respondent sent the letter of request to the Returning Officer to appoint some authorised officer at Newadi so that he could subscribe his oath and along with that letter he had enclosed a medical certificate given by PW 2.
The cer tificate is issued by PW 2 (Block Medical Officer PHC, Newadi) certifying that respondent No. 11 was under his treatment as an OPD patient from 6.2.83 for bronchitis for which the 586 patient was advised rest atleast for three days.
In his evidence, PW 2 has stated that he could not say about the condition of the patient without reference to the certifi cate or the OPD register and he might have 'advised the 11th respondent to take rest as he usually advised the patients.
In the cross examination, he has deposed that the 11th respondent had no other ailment and that he was moving in the town.
On consideration of the oral and documentary evidence, the High Court rejected the plea of the appellant holding bronchitis is not a disease which would incapacitate a person from moving about and under those circumstances, there was no justification, whatsoever, for Pratap Singh not taking oath as required under Article 173 of the Constitu tion.
On carefully going through the material on record, we also agree with the view taken by the High Court that the 11th respondent was not suffering from any serious ailment which disabled him to take the oath before the Returning Officer.
It is not the case of the appellant that the Re turning Officer had any enmity against the 11th respondent or was favourably disposed towards the first respondent.
It is apposite to refer to the decision in Harjit Singh Mann vs section Umraon Singh and Others, ; in which this Court while dealing with the mandatory require ment of taking oath as contemplated under Article 173(a) has observed thus: "It is not in controversy that it was obliga tory under clause (a) of Article 173 of the Constitution for the appellant to make and subscribe, before a person authorised in that behalf by the Election Commission, an oath or affirmation according to the form set out for the purpose in the Third Schedule, and that he cannot be qualified to be chosen to fill a seat in the legislature of a State without doing so.
The importance of that requirement of the Constitution has been reiterated in sub:section (2) of Section 36 of the Act for ground (a) thereof provides that the Returning Officer shall reject a nomination paper on the ground that on the date fixed for the scrutiny of nominations the candidate, was inter alia, not qualified to be chosen to fill the seat in the Legislative Assembly under Article 173 of the Constitution.
The requirement for the making and subscribing the oath or affirmation was, therefore, clearly mandatory." As the 11th respondent has not taken the oath, before the person 587 authorised in that behalf by the Election Commission for no valid reason, we are in full agreement with the conclusion arrived at by the High Court that the plea of the appellant that the nomination paper of Pratap Singh has been improper ly rejected, is devoid of any merit.
The next contention is that the election of the returned candidate (first respondent) is to be declared void as the said election was tainted with corrupt practices within the mischief of Section 100(1)(b) of the Act.
What are corrupt practices are enumerated and defined in.
Section 123 of the Act.
The pleading on this aspect in the election petition reads thus: "The respondent No. 1 had organised a rally and a procession on 28.2.1985 at Niwadi.
That procession evitimately culminated into a public meeting.
Shri Ramratan Chaturvedi, Respondent No. 1 made a speech in that public meeting and told the electors that he will present a silver shield to the electors of that polling booth which would record the maximum number of votes in his favour.
Several electors from Niwadi Legislative Constituency were present in that meeting.
The respondent No. 1 thus promised a gratification to the electors to vote for him.
As the promise was given by the respondent No. 1 himself, he is guilty of corrupt practice under Section 123(1) of the R.P. Act, 1951 and his election is liable to be set aside under Section 100(1)(b) of the R.P. Act, 1951.
" The first respondent though admitted in his written statement that there was a procession, has denied of having addressed any public meeting on 28.2.85 promising any grati fication in the form of a silver shield to the electors of the polling booth where a maximum number of votes would be cast in his favour.
The appellant in support of his plead ings besides examining himself as PW 1 examined three more witnesses.
PW 14, PW 17 and PW 18.
The first respondent examined himself with another as RWs 1 and 3 respectively.
The evidence of PW 1 is chat he was informed by PW 16 that the first respondent in a public meeting at Niwadi, organised in connection with the election, promised that he would present a silver shield to the electors of the polling booth which would record a highest number of votes in his favour.
It is to be noted that the appellant who examined himself on 29.10.85 on which date itself the cross examina tion was 588 over, further examined himself on 8.4.86 i.e. after six months of the first examination and then deposed about this alleged promise.
Indisputably, this evidence is in the nature of hear say.
PW 16 claims to have attended the meet ing and 'heard the first respondent making the speech prom ising the voters that the particular booth where he would secure a highest number of votes would be awarded with a silver shield by him.
His further evidence is that those who attended the meeting, generally talked amongst themselves that those who would vote for Congress party would get that shield.
This witness in his crossexamination states that he did not ask anyone as to who would get the shield and where it would be kept and that he did not inform anyone else except the appellant.
He has further deposed the first respondent did not say that the shield would be awarded to the workers.
He admits that his brother Nathuram Ahirwar was a Janta Party leader and Member of the Legislative Assembly.
Needless to say that the appellant herein was a nominee of the Janta Party.
PW 16 nowhere in his evidence has mentioned the date of the alleged meeting.
PW 17 falls in line with PW 16 and states that he too attended the meeting in which the first respondent made the promise of gratification of awarding silver shield.
The evidence of PW 17 that the first respondent promised that the shield would be given only to the person who would procure a large number of votes in his favour is diametrically opposite to the evidence of PW 16 that the promise of presentation of shield was not for the workers who would procure more votes but only to the partic ular booth where he would secure highest number of votes.
PW17 belongs to the same caste to which PW 16 belongs.
PW 18 who was a sarpanch of Murara village has stated that the first respondent announced in the public meeting that he would award a shield to the polling stating where he would secure highest number of votes.
Admittedly, he was in the Socialist Party and that he could not say as to what was meant by silver shield nor he was told by anyone about it.
Not even a suggestion was made to the first respondent (RW 1) during the cross examination that he made such a promise in the public meeting.
PW 3, who was the Superintendent of Pre matric Harijan Hostel, Niwadi has testified to the fact that there was no rally started from harijan ashram.
He has also stoutly denied the suggestion that on 28.2.1985 there was a meeting within the precincts of Harijan Ashram in which the first respondent promised the award of silver shield.
According to him, no such meeting was ever held.
The High Court on analysis of the above oral evidence, after observing that the evidence adduced by the appellant is 'sketchy and insufficient to prove the corrupt practice ' concluded.
"that the charge of corrupt practice under Sec tion 123(1)(A) of the Act is not proved.
" 589 The learned counsel appearing on behalf of the appellant herein assails the conclusion of the High Court contending that the High Court has not approached and evaluated the evidence on PWs 1, 16 to 18 in the proper perspective and this observations that the evidence is 'sketchy and insuffi cient to prove the corrupt practices ' is unjustifiable and bereft of sound reasoning, which submissions are opposed by the counsel for the first respondent.
Before adverting to the contesting contentions of the parties, we shall examine the legal position with regard to the nature of the proceedings and the quality of evidence required in proof of allegations of corrupt practices. 'Bribery ' which is one of the corrupt practices enumer ated under Section 123 of the Act is defined in sub section (1) of that Section.
For the purpose of this case, we re produce the relevant part of that Section as the allegations contained in the election petition that the promise of gratification was a silver shield to the voters in general of a particular booth where the appellant would secure the highest number of votes in his favour: (1) 'Bribery ', that is to say (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoev er, with the object directly or indirectly of inducing (b) an elector to vote or refrain from voting at an election, or as a reward to (ii) an elector for having voted or refrained from voting.
The word 'gratification ' is not defined in the Act, but the Explanation to sub section (1) of Section 123 furnishes an indication as to what amounts to gratification in the view of the Parliament.
In Mohan Singh vs Bhanwarlal & Others, ; the Constitution Bench of this Court after making a reference to this Explanation observed as follows: 590 "The Explanation extends the expression 'gratification ' to include all forms of enter tainment and all forms of employment for reward but not payment of bona fide expendi ture incurred at or for the purpose of elec tion if duly entered in the account of elec tion expenses.
Gratification in its ordinary connotation means satisfaction.
In the context in which the expression is used and its delim itation by the Explanation, it must mean something valuable which is calculated to satisfy a person 's aim, object or desire, whether or not that thing is estimable in terms of money; but a mere offer to help in securing employment to a person with a named or unnamed employer would not amount to such gratification.
" In lqbal Singh vs section Gurdas Singh & Ors., ; Alagiriswa J. speaking for the Bench taking aid of Sections 161, 17 I(B) and 17 i(E) of the Indian Penal Code stated thus: "It would be noticed that the Explanation to Section 123(1) of the Representation of the People Act and the Explanation to Section 161 of the Indian Penal Code relating to gratifi cation are similar.
In addition, the Represen tation of the People Act refers to all forms of entertainment and all forms of employment for reward.
The employment for reward is covered by illustration (a) to section 161 of the Indian Penal Code.
The words "all forms of entertainment" in the Explanation to Section 123(1) of the Representation of the People Act apparently refer to offence of treating found in section 171 E of the Indian Penal Code.
When Parliament enacted the provision regarding bribery in the Representation of the People Act, it should have had before it the compara ble provision in the Penal Code.
It is to be noticed that the giving of any gratification with the object of inducing the receiver or any other person to vote is an offence while acceptance of gratification by a person either for himself or for any other person or for inducing any other person to vote is an of fence.
In other words giving is an offence if paid to the voter or such giving induces another person to vote.
It is not giving a gratification in order that he may induce another person to vote that is an offence whereas receipt of a gratification in order to induce another person to vote is an offence.
" 591 According to Section 123(1)(A)(b)(ii) of the Act, any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing an elector to vote or refrain from voting at an election is a corrupt practice.
See Harjit Singh Mann vs
section Umrao Singh and Others, ; It is an accepted principle that an election petition where corrupt practices are imputed must be regarded as proceedings of a quasi criminal nature wherein strict proof is necessary.
Since, a charge of corrupt practices, the consequence of which is not only to render the election of the returned candidate void, but in some cases to impose him a disqualification must be proved on appraisal of the evi dence adduced by both the parties particularly by the elec tion petitioner who assails the election of a returned candidate.
This principle has been reiterated and approved in a series of decisions.
See Manphul Singh vs Surinder Singh, [1974] 1 SCR 52; Rahim Khan vs Khurshid Ahmed, ; ; M. Narayana Rao vs G. Venkata Reddy & Others, ; ; Ram Sharan Yadav vs Thankur Muneshwar Nath Singh & Others, ; ; Ramji Prasad Singh vs Ram Bilas Jha & Others, ; and Lalroukung vs Haokholal Thangjom & Anr., ELR Vol As pointed out in M. Narayana Rao vs G. Venkata Reddy, ; ; this Court ordinarily and generally does not, as it ought not to, interfere with the findings of fact recorded by the High Court unless there are compelling reasons for the same, especially findings recorded on appre ciation of oral evidence.
Bearing in mind the above proposi tion of law, we shall scrutinise the evidence available on record and find out whether the conclusions arrived at by the High Court suffers from any infirmity warranting inter ference of the said conclusions.
As we have pointed out in the earlier paragraph of the judgment, PW 1 (appellant) only after a period of 6 months of his first examination in the Court came forward with this allegation that the first respondent made a promise of gratification.
Indisputably his evidence is in the nature of hear say.
PW 16 whose brother was a Janata Party leader and an M.L.A. does not mention even the date of the meeting in which the first respondent is said to have made the promise.
The evidence of PW 16 and PW 17 is inconsistent and contra dictory as we have pointed out supra.
There is no consistent evidence as to the 592 nature of the statement said to have been made by the first respondent.
Whilst PW 16 and PW 18 state that the first respondent promised the award of the silver shield to the particular polling booth where he would secure the highest number of votes, PW 17 states that the promise was only to the person who would procure a large number of votes.
There fore, in view of this inconsistent, unsatisfactory and vague evidence, no conclusion could be arrived at that the first respondent made the promise to any particular person or persons who would secure the highest number of votes in his favour.
There is absolutely no evidence that the first respondent made any promise of gratification to any elector or electors who would vote in his favour.
Similarly there is no evidence that voters were influenced by the alleged promise of gratification or the first respondent obtained any promise from the voters in return as a condition for the shield alleged to have been presented.
Thus the element of 'bargaining ' is completely absent in the present case.
Needless to say that it is necessary for the purpose of proving the corrupt practice of bribery to establish that there was an element of 'bargaining '.
See Harjit Singh Mann vs section Umrao Singh and Others, ; In this connection, reference can be made to a decision of this Court in lqbal Singh vs Gurdas Singh & Ors., ; In that case the election of the returned candidate was challenged by the appellant therein on various grounds, one of which being that the returned candidate or his agent held out an inducement to get gun licences issued for people who would vote for the returned candidate.
The Court rejected the plea on the ground that there was no evidence regarding bargaining of votes by promise of gun licences and there was no evidence of obtaining promise of votes from the voters in return.
For the reasons above mentioned, we come to the conclu sion that the appellant has not discharged the onus of proof cast upon him by adducing cogent, reliable and satisfactory evidence, but on the other hand he has miserably failed to establish the charge of corruption.
Now, we shall pass on to the last contention.
The charge under issue No. (5) is that Shri Shital Prasad Sharma, Sub Divisional Officer (Revenue) and Shri Dubey, Sub Divisional Officer, (Police), accompanied the first respondent to various places between 9.2.1985 and 2.3.
1985 and requested the electors to vote in favour of the first respondent and that Shri Sharma distributed money in the village Teharka and asked the voters to vote in favour of the first respondent.
593 It is found from the judgment of the High Court that this issue was earlier declared vague and it was thereafter the first part of the issue which was re cast as per the particulars substituted in the amended pleadings in para graph 6(a) of the election petition.
These allegations relate to the charge of obtaining or procuring the assist ance of the Government servants in service for the further ance of the prospects of the election of the first respond ent failing within the mischief of Section 123(7) of the Act.
These allegations are stoutly opposed by the first respondent inter alia contending that "these pleadings are in violation of the provisions contained in Section 83(b) of the Act as no details of the date and place of commission of each such practice have been mentioned and in absence there of, it is not possible for this respondent to effectively rebute such vague allegations", and the allegations that Shri Sharma distributed money to the voters are also too vague to be rebutted properly as the names of the voters to whom money is said to have been paid and also lack of par ticulars with regard to the date, time and the amount of money allegedly distributed.
In support of the above allegations, the appellant examined himself and six other witnesses of PWs 1, 11, 12, 14, 15, 16 and 18.
Barring this oral evidence, there is absolutely no contemporaneous documentary evidence.
Though the appellant filed the application in August 1985 under Section 86(5) of the Act praying for amendment of his elec tion petition, he has not testified to the amended pleadings in his examination held on 9.10.1985, but tendered evidence only on 8.4.1986 that is after six months of his earlier examination.
He has deposed that on 24.2.85 he saw the first respondent and Dubey, SDO (Police) going together in a jeep towards Orchha and that PW 11, Nathu Ram Naik told him that Dubey had asked him to vote in favour of the first respond ent.
He continued his evidence stating that he saw Dubey walking along with the first respondent in a rally organised by the Congress party and headed by the first respondent, that PWs 12 and 13 informed him on 28.2.1985 at Niwadi that when these two witnesses refused to vote for the first respondent at his request, the first respondent asked Dubey to persuade them to vote for him, that thereupon Dubey asked PWs 12 and 13 to vote for the first respondent lest they would not be permitted to sit in a temple presumably in the village.
He further deposed that on 24.2.1985 when he visit ed Prithvipur, he saw rally headed by the first respondent accompanied by Dubey and Sharma.
Later on, Shri Chaturbhuj Naik informed that both Dubey and Sharma took the resigna tions of Naik and others from Janata Party.
According to PW 11, the SDO (police) by name Dvivedi 594 asked him as well PWs 14 and 15 to work for the first re spondent and also threatened them that they would be falsely implicated in criminal cases if they failed to do so and that in consequence of it he and PW 15 resigned from the Janata Party and joined Congress party though they subse quently worked for the Janata Party candidate.
When this witness was confronted whether he had any documentary evi dence in support of his version, he stated that his joining the Congress Party appeared in the local newspaper but he was not having a copy of the same.
The evidence of PW 14 is that the SDO (police), Chaturvedi and SDO (Civil) whose name he does not know, were leading the rally and those two were sitting on the dias of a public meeting organised by the Congress Party and that both them threatened him and PW 11 to work for the first respondent.
PW 15 also speaks to the fact that SDO (Police), Chaturvedi called him as well PW 11 and some others and threatened all of them to resign from the Janata Party and work for the Congress and that when they refused to do so, they were all threatened by these two government officials, stating that they would be falsely implicated in criminal cases and that they out of fear resigned from the Janata Party and worked for the Congress Party.
Be it noted, whilst the name of the SDO (police) is mentioned by PW 1 as 'Dubey ' as mentioned in the amended pleading as well in issue No. (5), PWs 14 and 15 mention the name of the said Police Officer as 'Chaturvedi '.
PW 11 gives the name of the Officer as 'Dvivedi '.
The police officer, RW 6 swears his name as 'Dvivedi '.
Therefore, it follows that the insertion of the name as 'Dubey ' in the amended pleading is incorrect.
Thus, we find material and irreconcilable contradictions not only amongst the evidence of PWs but also between the pleading and the evidence even in respect of the name of the SDO (police) which create a legitimate suspicion as to whether Dubey was in any way concerned with the elec tion.
PW 12 does not mention the name of the police officer who threatened him to vote for the Congress as well the date of the meeting.
It is evidence of PW 16 that Sharma, SDO (Civil) asked all those persons attending the meeting in favour of the first respondent so that they could get the silver shield.
PW 18 who admits to have been a member of the Socialist Party has given the evidence falling in line with that of PW 16.
On consideration of the evidence of the above witnesses, the High Court has held "In view of this statement of the election petitioner, it must be held that there is no one like Shri Dubey, SDO (police) and, therefore, there would be no question of respondent No. 1 procuring assistance of Shri Dubey.
The distinction between Shri 595 Dubey and Shri Dvivedi is rather well known and even the election petitioner is aware of it.
Under the circumstances, there is no justification why proper plea in that behalf was not taken".
If we have to accept the evidence of PW 1 that the SDO (police) Dubey assisted the first respondent, then the evidence of the other witnesses giving a different name either as 'Chaturvedi ' or 'Dvivedi ' has to be rejected.
On the contrary, if the evidence of the other witnesses is to be accepted then their evidence does not support the issue No. (5) that one Dubey assisted the first respondent in his election.
The learned counsel appearing for the appellant pleaded that no importance should be attached to the varia tion regarding the name of the SDO (police) as the fact remains that SDO (police) had assisted the first respondent and procured votes in his favour.
We are unable to see any force in this submission.
Next coming to the allegations made against Sharma, SDO (Civil), PW 1 does not allege anything against him and as such on the basis of the evi dence of PW 1, it cannot be said by any stretch of imagina tion that Sharma had assisted and procured votes in favour of the first respondent within the mischief of Section 123(7) of the Act.
The evidence of the other witnesses relating to the alleged participation of Sharma in the election does not inspire confidence.
No acceptable evidence is available that Sharma distributed money.
In opposition to the evidence, let in on the side of the appellant, RW 6 (SDO police by name Dvivedi) has deposed that he was assigned duty at Dabra on 24.2.1985 in connec tion with the visit of the Prime Minister and that he was not in the Headquarters on that date and the distance be tween Niwadi and Dabra is about 80 kms.
RW 4(SDO (Civil) Sharma) has denied all the allegations made against him by the appellant.
Much argument was advanced on the basis of Exh.
P 6, a photograph showing that in a meeting addressed by Chaturvedi this witness was also present, but RW 4 ex plains that it was not a meeting of the Congress Party but was a public meeting held to facilitate first respondent on his return from foreign trip.
RW 1 in his evidence totally denied all the allegations covered by issue No. (5).
On a scrupulous examination of the evidence of the witnesses examined on the side of the appellant, we arrive at an irresistible conclusion that the appellant has misera bly failed to establish the allegations of corrupt practices within the mischief of Section 123(7) of the Act relating to issue No. (5).
Even assuming that RWs 4 and 6 had accompa nied the rally, as pointed out by the High Court, no ines capable inference can be drawn that these two officials were assisting the first respondent in procuring votes and proba bly they might have ac 596 companied the rally for maintaining the law and order.
Further, when the learned Judge of the High Court, who has very carefully marshalled the evidence, has not found it possible to candidly accept the evidence of these witnesses for the reasons assigned in the judgment, we find no reason to take a contrary view.
Moreover, we too after a close scrutiny of the evidence and the pleadings especially relat ing to issue No. (5), are in agreement with the views of the High Court and are fully satisfied that the appellant has miserably failed in substantiating his charges covered by issue No. 3 to 5 which are alone pressed before us as indi cated in the earlier part of this judgment and the judgment under appeal does not suffer from any legal infirmity re sulting in serious prejudice to the appellant.
In the result, the judgment of the High Court is upheld and the appeal is dismissed with costs.
Y. Lal Appeal dis missed. | Elections to the Madhya Pradesh Vidhan Sabha were held in the months of February/March 1985.
The appellant and Respondent No. 1 were the contesting candidates from Niwadi Legislative Assembly constituency No. 34.
Respondent No. 1 having secured majority of votes, was declared elected on 6.3.1985 to the Madhya Pradesh Vidhan Sabha.
The appellant challenged the election of the respondent No. 1 in the High Court of Madhya Pradesh Jabalpur alleging that the first respondent was guilty of adopting corrupt practices within the meaning of sub sections (2), (3) and (3A) of Section 123 of the Representation of Peoples Act, 1951.
Respondent No. 1 denied the allegations made in the election petition.
The High Court dismissed the Election Petition holding that the appellant had not substantiated all the charges levered by him against respondent No. 1.
Hence this appeal by the appellant.
Before this Court the appellant pressed only issues 3, 4 and 5 and gave up the rest.
Dismissing the appeal, this Court, HELD: An election petition where corrupt practices are imputed must be regarding as proceedings of a quasi criminal nature wherein strict proof is necessary.
Since, a charge of corrupt practice, the consequence of which is not only to render the election of the returned candidate void, but in some cases to impose on him a disqualification it must be proved on appraisal of the evidence adduced by both the parties particularly by the election petitioner who assails the election of a returned candidate.
[591B C] The element of bargaining is completely absent in the present case.
Needless to say that it is necessary for the purpose of proving the corrupt practice of bribery to estab lish that there was an element of bargaining.
[592C] 582 Dhartipakar Madan Lal Agarwal vs Rajiv Gandhi, [1987] Supp.
SCC 93; Kona Prabhakara Rao vs M. Seshagiri Rao & Anr., ; Manphul Singh vs Surinder Singh, [1974] 1 SCR 52; Jamuna Prasad Mukheriya & Ors.
vs Lachi Ram & Ors., ; ; Rahim Khan vs Khurshid Ahmed & Ors., ; ; Ram Sharan Yadav vs Thakur Muneshwar Nath Singh & Ors., ; ; Rahim Khan vs Khurshid Ahmed & Ors.; , ; Lakshmi Raman Acharya vs Chandan Singh & Ors., [1977] 2 SCR 412 and Ramji Prasad Singh vs Ram Bilas Jha & Ors., ; ; Mohan Singh vs Bhanwar Lal & Ors., ; ; Harjit Singh Mann vs section Umraon Singh & Ors., ; ; lqbal Singh vs section Gurdas Singh & Ors., ; ; Lalroukung vs Haokholal Thangam & Anr., ELR Vol , referred to. |
Civil Appeal No. 1236 (Nce) Of 1975 Appeal under Section 116A of the R.P. Act from the order date 1.2.84 of the Gauhati High Court in E.P. No. 3 of 1983.
C. section Vaidyanathan for the Appellant.
Kapil Sibal, K K Lahiri and Mrs. Manik Karanjwala for the Respondent.
The Judgment of the Court was delivered by 344 VARADARAJAN, J.
This appeal by the respondent in Election Petition No. 3 of 1983 on the file of Gauhati High Court is directed against the judgment of a learned Single Judge, allowing the election petition and setting aside the election of the appellant Horangse from the Longkhim Chre constituency of the Nagaland Legislative Assembly on the ground of corrupt practice, namely, presentation of four red waist coats to three Gaon Burahs and one Barik of Lirise village on 27 10 1982 to induce them to cast their votes in his favour.
The respondent/election petitioner, M. Tsubongse who contested as a Congress (I) candidate lost to the appellant who contested as a Naga National Democratic Party candidate (for short 'NNDP ') by a margin of 133 votes in the election held on 10 11 1982.
He filed his election petition seeking the appellant 's election to be set aside on the ground that he was guilty of four instances of corrupt practice falling under section 123(1) of the Representation of People Act, 1951 (for short 'the Act ') and on three other grounds, namely: (1) display of a banner with the caption "Do not sell Nagaland to India", a corrupt practice within the meaning of section 123(3A) of the Act (2) exceeding the limit of expenditure amounting to corrupt practice within the meaning of section 123(6) of the Act and (3) use of government vehicles for the purpose of the election.
The learned Single Judge, who tried the election petition, found only one of the aforesaid grounds of corrupt practice, namely, presentation of four red waist coats proved and the other grounds not proved, and he allowed the election petition and set aside the appellant 's election on that ground.
It is, therefore, necessary to set out the case of the parties briefly in regard to this single ground.
The result of the election held on 10 11 1982 was announced on the day of counting 12 11 1982 by the Returning Officer, Tuesung.
The respondent had secured 3082 valid votes while the appellant, who was the Deputy Speaker of the last Legislative Assembly of Nagaland had secured 3215 valid votes and was declared elected by a majority of 133 votes.
The respondent alleged in the election petition that the appellant gave four red waist coats to the voters Lisechem, P.W. 11, Lithrongse, P.W. 12, Murimong, P.W. 13 and Lithsaba at 4.00 p.m.
On 27 10 1982 for inducing them to cast their votes in his favour in the presence of .
Tsarise, P.W. 14 and Tselongse, P.W. 15 of Lirise village who witnessed the offer and reported the matter later to the respondent.
345 The appellant denied that the waist coats were given either by himself or in order to induce the recipients to cast their votes in his favour.
His case was that he visited Lirise village some time prior to October 1982 and was received by the villagers who considered him as one of their leaders.
In view of the custom of Nagas to receive guests or others and exchange gifts, he sent five waist coats to be given to four Gaon Burabs and the eldest Barik of the village long before the election process started.
The waist coats ware not given to procure votes or to induce the recipients to cast their votes in his favour.
Thus he denied that he committed and corrupt practice and contended that the election petition is not bona fide and has been filed only to harass him.
During the trial the appellant 's case was that he sent the five waist coats as gifts through Tsarise, P.W. 14 in September 1982 and that he did not personally distribute them after the election process had started in order to induce the recipients to cast their votes in his favour.
The dispute was thus confined to the date of distribution of the waist coats, namely, whether they were given in September 1982 or on 27 10 1982, as to whether the appellant gave them personally or sent them through P.W. 14 and as to whether they were given to induce the recipients to cast their votes in favour of the appellant or only to keep up the appellant 's promise made in August 1982 to send some gifts in return for the gift made to him E earlier as per custom.
The respondent examined Lisechem, P.W, 11, Lithrongse, P.W. 12, Murimong P.W. 13, B. Tsarise, P.W. 14 and Tselongse, P.W. 15 for proving this item of corrupt practice.
On the side of the appellant there is the evidence of the appellant R.W. 1, Chupongse, R.W. 3, Krishna Kumar R.W., 4 and Yanstsasi R.W, 5 about this charge.
On a consideration of the oral and documentary evidence the learned Judge of the High Court found that this item of charge of corrupt practice is proved beyond reasonable doubt and he accordingly allowed the election petition and set aside the appellant 's election as stated above.
However, the learned Judge did not rule out that the appellant had distributed red waist coats in September 1982 as`observed by him in paragraph 15 of his judgement which will be extracted in due course.
346 The appellant, R.W. 1 has denied in his evidence that he went to Lirise village on 27 10 1982 or presented the waist coats personally.
He has stated that he visited that village two or three days after 15 8 1982 at the request of the Head Gaon Burah, R.W. 3, and was welcomed by the Gaon Burahs and others where P.W. 14, then a leading worker and member of the NNDP was also present and was taken to the house of R.W. 3 and presented with a shawl as per the custom of the Nagas and that as he had gone there urgently and had not taken anything to make a gift by way of return as per the custom, he promised to send some gifts later and he thereafter ordered under exhibit dated 2 9 1982 for the making of five red waist coats through Krishna Kumar, R.W. 4 and got them from him on 10 9 1982 and sent them in the same month through P.W. 14 being distributed to the Gaon Burahs of Lirise village.
He has stated that he filed the nomination paper on 13 10 1982 and that P.W. 14 who was Area Council Member joined the Congress (T) party in the midst of the election and supported the Congress (I) candidate.
Krishna Kumar, R.W. 4, the proprietor of a tailoring firm at Kohima has corroborated the evidence of R.W. I about placing of the order exhibit on 2 9 1982 and taking delivery of the waist coats on 10 9 1982.
He has stated that exhibit written by the appellant is signed by him and that as the appellant was a known person he delivered the waist coats though exhibit was not surrendered to him on 10 9 1982.
The Head Gaon Burah, R.W. 3 has corroborated the evidence of R.W. l that he met the appellant at Longkhim in August 1982 and requested him to visit Lirise village and that he accordingly came to Lirise village and was received in the Mong Mong month and presented with a cloth, and that the appellant regretted that he had not brought anything to be presented by way of return and promised to send waist coats later.
He has further stated that P.W. 14 subsequently told him that the waist coats had arrived and he thereupon asked him to distribute them and give one of them to him also and they were given to him and other Gaon Burahs.
Yanstasi, R.W. 5 has corroborated the evidence of R.W. 3 about the appellant 's visit, saying that two months before the election held in November 1982 he had gone to Lirise to meet the appellant, and that the appellant was received by the villagers and taken to the Head Gaon Burah 's house and presented with a sangtam cloth and that the appellant regretted that he had not brought any present to be given by him and assured that he would send waist coats later.
R.W. 5 was Head Gaon Burah and he became Special 347 D.B. at Seotsing from 15 9 1983.
He has denied that he had worked for the appellant in the elections held in 1977 and 1982, in both of which he had been declared duly elected.
R.W. 3 has not been cross examined seriously about the month of the appellants visit to Lirise village, namely, Mong Mong month, which according to the evidence of R.W.5 is September in which the Mong Mong festival is celebrated by the Nagas.
exhibit
C was not filed in the court at the earliest stage.
R.W I has stated in his evidence that his wife came across it after he had filed his written statement in the election petition and gave it to him for being Produced during the trial.
May be, noreliance could be placed on Ex to find out when the waist coats were ordered to be made and about when they were actually delivered by R.W.4 to the appellant.
P.W.14 has not been cross examined regarding the month in which he left the NNDP and joined Congress (I) party, which according to his evidence, was in August 1982.
Similarly R.W.
I has not been cross examined about when P.W.14 left the NNDP and joined the Congress (I) party, which according to his evidence, was in the midst of the election in which he filed the nomination paper on 13 10 1982.
It is not improbable that the appellant had sent the waist coats through P.W.14 who was a prominent member of the NNDP and the Area Council member at that time for being distributed to the Gaon Burahs by way of return of the present of the shawl made to him during his earlier visit as per the custom amongst Nagas to exchange gifts during the visit of important persons like M.L.As.
and others.
The appellant was the Deputy Speaker of the Nagaland Legislative Assembly at that time.
The said custom amongst the Nagas is spoken to even by respondent P.W.1 who has stated in his evidence that normally villagers also would present gifts to visiting M.L.As.
and the visiting M.L.As.
also would .
make presents to the villagers as per the custom of the Nagas.
We find no satisfactory reason for rejecting the evidence of R.Ws. 1 to 5.
As a matter of fact, even the learned counsel for the respondent in this appeal before the trial court does not appear to have seriously challenged the acceptability of the evidence of these witnesses in the course Or his arguments before the learned Judge.
The learned Judge has stated in his judgment in regard to this matter thus: "It has been contended that even if it is assumed that the respondent (appellant in this appeal) had taken delivery of five red waist coats on 10 9 1982 as reflected in exhibit C, this would not rule out the distribution in October 1982.
It is further submitted by the learned counsel for the petitioner (respondent in this appeal) that even if 348 distribution of some waist coats had taken place in September 1982 as deposed by R.Ws. 4 and 5, the same is not enough to discard the allegation of distribution of other waist coats in October 1982.
This submission is apparently right inasmuch as because some persons had been given in September 1982 in pursuance of assurance made in August 1982 it would not by itself rule out the giving of such gifts in October, more so when the price of one waist coat seems to be around Rs. 100" The sum of Rs. 100 per piece mentioned by R.W.1 in his evidence is the price of each of the blankets which he had distributed to some persons in the village in 1981 and not of each of the waist coats given in 1982.
It is not the case of any of the parties that waist coats were presented by or at the instance of the appellant once in September 1982 and again to the same Gaons Burah in October 1982.
Nor is it probable that only waist coat would have been presented on both the occasions to the same individuals Even if the evidence of R.Ws. 1 to 5 is considered to be unsatisfactory to prove that the red waist coats were presented only in September 1982 and not in October 1982, that does not mean that the respondent 's case that the red waist coats were given to P.Ws. 11, 12 and 13 on 27.10.1982 to induce them to cast t heir votes in favour of the appellant stands proved.
The respondent has to prove his case which is disputed by the appellant independently of the fact whether the appellant has proved his defence or not.
Now we proceed to consider the evidence of P.Ws.11 to 15.
Lisechem, P.W.11, a Gaon Burah of Lirise village mentioned the date of the appellant 's visit first as 27.9.1982 and then corrected it as 27.10.1982 and again stated that he does not remember the month or dale of receipt of the waist coat by him from the appellant and he has added that it was after the date of the election.
He has stated that the appellant came to his house on 27.10.1982 and gave him a red waist coat and asked him to cast his vote in his favour and not to inform others about the presentation of the waist coat and that soon after the appellant left his house, P.Ws. 14 and 15 came to his house and asked him about what had been given to him by the appellant and he thereupon showed that waist coat to them and told them that it was given to him.
Lithrongse ' P.W.12, another Gaon Burah of Lirise village has 349 stated that the appellant came to his house at 4.00 p.m.
On 27.10.1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that soon after the appellant left his house, P.Ws 14 and 15 came there and asked him as to what was given to him and he thereupon told them that the appellant gave him a waist coat and they asked him to remember it and not to deny it later.
He is unable to deny that appellant visited the village in August or September 1982 or to say whether it was in 1981 when admittedly he received a blanket from the appellant on a prior occasion when the appellant was the Deputy Speaker of the Legislative Assembly.
It is seen from his evidence that P.W. 15 belongs to the Congress (I) party and that P.W. 14 was previously in the NNDP and had subsequently joined the Congress (I) party.
Muri Mong, P.W. 13 of Lirise village has stated in his evidence that the appellant came to his village after 4.00 p.m. On 27.10.
1982 and presented a red waist coat to him and asked him to cast his vote in his favour and that a minute after the appellant left his house, P.Ws. 14 and 15 came there and asked him if a waist coat was presented to him by the appellant.
He has denied that P.W. 14 gave the waist coat to him in the first party of September 1982 and that the appellant did not visit his village or present the waist coat on 27.10.1982.
He has stated that he is an old man and that he does not remember months and dates.
Tsarise, P.W. 14 who was admittedly in the NNDP and a supporter of that party previously claims to have joined the Congress (I) party in August 1982.
He has stated in his evidence that the appellant came to Lirise village on 27.10.1982 and visited the houses of P.W.11, Lithsabha and P.Ws.
12 and 13 in that order at about 4.00 p m. and that he and P.W.15 went to those houses within a few minutes after the appellant 's departure from there and those persons individually told them that the appellant gave them a waist coat and asked them to cast their votes in his favour.
He has admitted that when he visited the house of P.Ws.11 to 13 and Lithsaba he asked them to remember the date and the time and not to deny it later.
He has denied that the appellant sent the red waist coats through him in the early part of September 1982 for distribution amongst Gaon Burahs of Lirise village.
Tsalongse, P.W. 15 does not remember the date of the appellant 's visit to Lirise village.
He has, stated in his evidence that the 350 appellant came to the village in the election period and asked the people to cast their votes in his favour.
He claims to have gone to `the house of P.W. 14 and to have seen from there the appellant visiting the houses of P.W. 11.
Lithsaba and P.Ws. 12 and 13 one after, the other.
He has stated that he and P.W. 14 went to those houses soon after the appellant left the places and they individually told them that the appellant gave red waist coats and asked them to cast their votes in his favour.
He has denied that the appellant neither visited Lirise village nor presented waist coat on 27.10.1982.
It is significant to note that though in the election petition it is clearly alleged that the appellant gave red waist coats to P.Ws. 11 to 13 and Lithsabha at 4.00 p.m.
On 27.10.1982 for inducing them to cast their votes in his favour in the presence of P.Ws.
14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent P.Ws.
14 and 15 do not claim in their evidence personal knowledge about the offer presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in his favour.
Admittedly, P. Al.
14 had asked P.Ws. 11, 12 and 13 to remember the date and time of the appellant 's visit to their houses where he claims to have gone alongwith P.W. 15 soon after the departure of the appellant from each of those places.
It is clear that these three witnesses.
I l to 13 have mentioned the date and month of the appellant 's visit only on the basis of what P.W. 14 told them to remember.
P W. 14, who was a staunch worker of the NNDP and had switched over to the Congress (I) party to which P.W. 15 belongs, some time before the election.
and P.W. 15 are the interested witnesses.
P.W. 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of P.Ws.
I l to 13 in Lirise village only thereafter.
If that is so, it is not likely that the appellant, then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour.
The evidence of P.Ws. 11 to 13 that P.Ws.
14 and 15 came to their houses within minutes after the appellant left the place and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to them with a request to 351 favour him with their votes, they asked them to remember the date and time and not to deny the matter later P.W. 14 has stated so in his evidence is artificial and unreliable.
We are, therefore, not impressed with the evidence of P.Ws.11 to 15 about the date of the appellant 's visit to Lirise village and the presentation of the red waist coats to P.Ws. 11 to 13 and others.
On the evidence of R.Ws. 1 to 5, which we accept, we find that the appellant got the waist coats distributed through P.Ws.
14 who was then a staunch worker of the NNDP in September 1982 long before the election process had started as per the custom of Nagas to make gifts in return for the gifts received by dignitaries.
The evidence let in by the respondent to prove this item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily.
We are, therefore, unable to uphold the judgment of the learned Judge, setting aside the appellant 's election on the ground of the alleged corrupt practice.
We accordingly allow the appeal with costs in both the courts and set aside the judgment of the learned Judge.
S.R. Appeal allowed. | Tsubongse the election petitioner and the respondent herein who contested from the Longkhim Chre constituency of the Nagaland Legislative Assembly as a Congress (I) candidate in the election held on 10.11.82 lost by a margin of 133 votes to Horangse the appellant and who was the Deputy Speaker of the last legislative Assembly.
The respondent filed an election petition on the ground that the appellant was guilty of four instances of corrupt practice falling under Section 123(1) of the Representation of People Act, 1951 and on three other grounds, namely; (1) display of a banner with the caption "do not sell Nagaland to India", a corrupt practice within the meaning of Section 123 (3A) of the Act; (2) exceeding the limit of expenditure amounting to corrupt practice within the meaning of Section 123(6) of the Act and (3) use of government vehicles for the purpose of the election.
The learned Single Judge, who tried the election petition, found only one of the aforesaid grounds of corrupt practice, namely, presentation of four red waist coats proved and the other grounds not proved, and therefore, he allowed the election petition and set aside the appellant 's election on that ground.
Hence the appeal.
Allowing the appeal, the Court ^ HELD :In an election petition, the petitioner who alleges corrupt practice must prove his case which is disputed by the returned candidate indepen 343 dently of the fact whether the returned candidate has proved his defence or not.
[348E] Here on the evidence of R.Ws. 1 to 5, the appellant got the waist coats distributed through P.W. 14 who was then a staunch worker of the Naga National Democratic Party in September, 1982 long before the election process had started, as per the custom of Nagas to make gifts in return for the gifts received by dignitaries.
The evidence let in by the respondent election petitioner to prove the item of alleged corrupt practice on the part of the appellant is wholly insufficient and unacceptable to prove the charge satisfactorily.
Though in the election petition it is clearly alleged that the appellant gave red waist coats to P.Ws. 11 to 13 and Lithsabha at 4 p.m.
On 27.10.82 for inducing them to cast their votes in his favour in the presence of P.Ws.
14 and 15 and they witnessed the offer and reported the matter subsequently to the respondent, P. Ws. 14 and 15 do not claim in their evidence personal knowledge about the offer on presentation of the waist coats by the appellant to these four persons and about the inducement of the appellant to cast their votes in favour.
Admittedly, P.W. 14 had asked P.Ws. 11, 12 and 13 to remember the date and time of the appellant 's visit to their houses where he claims to have gone alongwith P.W. 15 soon after the departure of the appellant from each of those places.
It is clear that these three witnesses, P.Ws. 11 to 13 have mentioned the date and month of the appellant 's visit only on the basis of what P.W. 14 told them to remember.
P. W. 14 who was a staunch worker of the NNDP and had switched over to the Congress (I) Party to which P.W. 15 belongs, sometime before the election, and P.W. 16 are interested witnesses.
P.W. 15 has stated in his evidence that the appellant appealed to the people of the village to cast their votes in his favour and that he went to the houses of P.Ws. 11 to 13 in Lirise village only thereafter.
If that is so, it is not likely that the appellant, then the Deputy Speaker would have carried the gunny or hessian bag containing the waist coats himself without being accompanied even by a single worker or sympathiser of the NNDP when he is stated to have visited those four houses for presenting the waist coats and inducing the recipients to cast their votes in his favour.
The evidence of P.Ws. 11 to 13 that P.Ws.
14 and 15 came to their houses within minutes after the appellant left the places and asked them about what had been given to them by the appellant and that when they told them that red waist coats have been given to then with a request to favour him with their votes, and they asked them to remember the date and time and not to deny the matter later P.W. 14 has stated so in his evidence is artificial and unreliable.
The evidence of P.Ws. 11 to 15 about the date of the appellant 's visit to Lirise village and the presentation of the red waist coats to P.Ws. 11 to 13 and another is equally not impressive.
Therefore, the appellant cannot be said to have committed any "corrupt practice".
[351B C; 350C H] |
Civil Appeal No. 149 of 1971.
On appeal by Certificate from the Judgment and Decree dated 28.4.69 of the Madhya Pradesh High Court in First Appeal No. 14 of 1963.
H. K.Puri for the Appellant.
UR.Lalit, S.K. Gambhir, Ashok Mahajan and section Kirplani for the Respondents.
The Judgment of the Court was delivered by MISRA J.
The present appeal by certificate is directed against the judgment deted 28th April, 1969 of the High Court of Madha Pradesh, Indore Bench.
The facts leading to this appeal are brief.
The respondents are the owners of Jaora Sugar Mills situated at Jaora in the earlier State of Madhya Bharat.
The erstwhile State of Jaora merged in the State of Madhya Bharat.
After the merger the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 came into force.
By a notification No. 5163/XXX (49) dated 5th September, 1949 the Madhya Bharat Government in exercise of the Powers vested under the said Act included 'sugar ' in the list of articles as an essential commodity By another notification l No. 563 5166/XXX(49) dated the 5th September, 1949 'the Madhya Bharat Government delegated its powers to issue orders under the said Act in favour of the Director, Civil Supplies, Madhya Bharat.
In exercise of the powers conferred on him under the Madhya Bharat Sugar Control Order, 1949 the Director of Civil Supplies issued a notification No. dated the 14th January, 1950 fixing ex factory prices for different sugar factories.
Under the said notification all sugar factories in Madhya Bharat were to supply and despatch sugar of Grade E 27 at Rs. 32.4.0 per maund F.O.R. destination.
The supply price was a little higher than the ex factory price.
The difference between the supply price and the ex factory price was to be credited of Madhya Bharat Government Sugar Fund.
The appellant made several demands on the respondents, the proprietors of the Jaora Sugar Mills, to credit such difference in the account of Madhya Bharat Government Sugar Fund and the respondents ultimately deposited Rs 50000 under protest.
On the 10th September, 1953 the respondents instituted a suit in the court of Fifth Additional District judge, Indore against the erstwhile State of Madhya Bharat for the refund of the sum of Rs. 50,000 which the respondents had deposited towards Sugar Fund and Rs. 10,000 towards interest at the rate of 6 per cent per annum from the date of deposit of the aforesaid sum of Rs. 50,000.
The suit continued against the newly formed State of Madhya Pradesh as provided by law.
The grievance of the respondent in the main was that the change and modification made by the Madhya Bharat Government in the definition of essential commodities given in the Act by including sugar therein was against the law, that the Director of Civil Supplies had no authority before 6th September, 1949 to issue the Sugar Control order, 1949 which had been issued on 5th September, 1949; that the State Government or the Director of Civil Supplies, Madhya Bharat had no power under the Essential Supplies (Temporary Powers) Act and the Sugar Control Order to impose a levy styled as 'Sugar Fund ' and to recover the same; that the levy and collection of tax/impost styled as 'Sugar Fund ' by the Director of Civil Supplies being violative of article 265 OF the Constitution, was illegal and invalid; that the provisions of Sugar Control Order, 1949 did not empower the Director of Civil Supplies to fix any price 564 other than ex factory wholesale or retail price or to fix a price which be called supply price or to impose and collect levy as 'Sugar Fund '; that is was illegal and unconstitutional for the Director of Civil Supplies to fix different ex factory prices for different sugar mills in the same State; that it was illegal and unconstitutional to collect money through certain mills for creating Sugar Fund when other factories in the same State were being exempted from doing so that there was clear discrimination in fixing ex factory price of sugar in respect of respondents ' mill lower than ex factory price fixed for; certain other mills in the State without there being a rational basis for the same; and that the levy and collection of certain money from the respondents being without lawful authority and without legislative competence, the State was bond to refund the same.
The State resisted the claim of the plaintiff respondents and refuted the allegation on the points.
The trial court decided all the issues against the plaintiffs and consequently it dismissed the suit.
On appeal by the plaintiffs the High Court set aside the judgment and decree of the trial court and decreed the suit for refund of Rs. 50,000 deposited by plaintiffs under protest and Rs. 10,000 as interest thereon calculated at the rate of 6 per cent from the date of suit till realisation.
The High Court repelled the contention of the State that the impost was not intended to augment general revenues of the State but was meant for a special purpose, i.e., for creating a fund which could be utilised for augmenting the production of sugarcane in the State so that the supply of sugar might be increased.
The High Court observed that legislative competence was necessary for such imposition irrespective of the fact whether the impost was intended to augment general revenues of the State or for a special purpose, i.e., for creating a fund for augmenting the production of sugar.
It further held that article 277 of the Constitution only saves such taxes, cesses or fees which immediately before the commencement of the Constitution were being lawfully levied by the Government of any State notwithstanding that those taxes, duties, cesses or fees are mentioned in the Union List.
But in the instant case levy of 'Sugar Fund ' was imposed by means of an order which was published for the first time in the Madhya Bharat Government Gazette dated 28th January, 1950 two days after the Constitution came into force.
The High Court proceeded further to hold that the power Conferred on the Director of Civil Supplies did not authorise him 565 to fix different prices in his discretion in different parts of Madhya Bharat under section 5 of the Sugar Control Order which in the case of some mills was higher than ex factory price.
The fixing of supply price higher than ex factory price had nothing to do with the enforcement of the order as it does not deal with licensing, ex factory sale price, movement or distribution of sugar.
Nor did sections 11 and 12 justify the Director of Civil Supplies recovering additional Amount apart from ex factory price from the purchasers.
Thus, in the opinion of the High Court the State had levied and collected under the purported legal authority certain money from the plaintiffs for which it had no legislative competence to do and therefore the State must restore the same to the persons from whom it was collected and cannot keep the same on the ground that plaintiffs too have been wrongly allowed to collect, and that the persons who could claim the same were the corresponding purchasers.
The High Court omitted to decide the question whether the particular purchasers can recover hereafter from the plaintiffs whatever they had collected in excess of the ex factory sale price on the ground that it need not be determined in this case.
Feeling aggrieved the State has come up in appeal.
It vainly tried to support its stand that the recovery of Rs. 50,000 from the respondents was perfectly lawful and proper and there was no discrimination as contemplated by article 14 of the Constitution.
On the question of refund of the amount to the plaintiffs respondents reliance was placed on The Orient Paper Mills Ltd. vs The State of Orissa & Ors (1).
In that case the appellants who were registered dealers under the Orissa Sales Tax Act, 1947 used to collect sales tax from the purchasers on all sales effected by them, including sales to dealers in other States.
They very assessed to and paid tax on their turnover which included sales outside the State of Orissa.
After the decision of this Court in State of Bombay vs The United Motors(India) Ltd (2).
the dealers applied under s.14 of the Act for refund of tax paid on the ground that sales outside the State were not taxable under cl.
(l)(a) of article 286 of (1) [1962]1 SCR 549.
(2) ; 566 the Constitution read with the Explanation.
Refund was refused by the Sales Tax Authorities and the Board of Revenue.
The High Court, however, ordered refund of tax paid for certain period but refused it in regard to other periods.
The Orissa Sales Tax Act was, however, amended in 1958 with retrospective effect incorporating s.14A which provided that refund could be claimed only by the person from whom the dealer had realised the amount by way of sales tax or otherwise.
On these facts it was held by this Court that under s.14A of the Act incorporated by the Orissa Sales Tax (Amendment) Act, 1958 refund of tax which the dealer was not liable to pay could be claimed by the person from whom the dealer had actually realised it whether as sales tax or otherwise and not by the dealer.
In Shiv Shankar Dal Mills etc.
vs State of Haryana (1) the appellants and the petitioners who had paid under mistake the excess sums demanded a direction to the effect that these amounts be refunded.
It, however, transpired that many of the traders had themselves recovered the excess percentage from the next purchasers.
It was held that to the extent the traders had paid out of their own, they were entitled to keep them, but not where they had in turn collected from elsewhere.
In Newabganj Sugar Mills vs Union of India & Ors (a).
this Court in a similar situation devised a new procedure to deal with a new situation where equity demanded redistribution but procedural expensiveness and cumbersomeness effectively thwarted legal action.
It directed the Registrar of the High Court to receive and dispose of claims from the ultimate consumers for excess price paid on proper proof, out of the security money.
In Sales Tax Officer, Banaras & Ors.
vs Kanhaiya Lal Mukundlal Saraf(3 the levy of sales tax on forward transaction was held to be ultra vires.
The respondents, therefore, applied for a refund of the amounts paid by a petition under article 226 of the Constitution.
This Court, however, took the view that the term 'mistake ' under section 72 of the Indian Contract Act comprises within its scope a mistake of law as well as a mistake of fact and that, under that section a party is entitled to recover (1) ; (2) ; (3) 567 money paid by mistake or under coercion and if it is established that the payment, even though it be of a tax, has been made by the party labouring under a mistake of law, the party receiving the money is bound to repay or return it though it might have been paid voluntarily subject, however, to questions of estoppel, waiver, limitation or the like.
Recently this Court in M/s Amar Nath Om Parkash & Ors.
v, The State of Punjab & Ors (1).
had the occasion to consider the question of refund to the dealers in a similar situation and it observed: '.
We do not see how a mere declaration that the levy and collection of fee in excess of Rs.2 per hundred would automatically vest in the dealer the right to get at the excess amount when in fact he did not bear the burden of it and when the moral and equitable owner of it was the consumer public to whom the burden had been passed on.
The primary purpose of sec.
23A is seen on the face of it; it prevents the refund of license lee by the market committee to dealers, who have already passed on the burden of such fee to the next purchaser of the agricultural produce and who went to unjustly enrich themselves by obtaining the refund from the market committes.
section 23A in truth, recognises the consumer public who have borne the ultimate burden as the persons who have really paid the amount and so entitled to refund of any excess fee collected and therefore directs the market committee representing their interests to retain the amount.
It has to be in this form because it would, in practice, be a difficult and futile exercise to attempt to trace the individual purchasers and consumer who ultimately bore the burden.
It is really a law returning to the public what it has taken from the public, by enabling the commitee to utilise the amount for the performance of services required of it under the Act.
Instead of allowing middlemen to profiteer by illgotten (1) ; 568 gains, the legislature has devised a procedure to undo the wrong that has been done by the excessive levy by allowing the committees to retain the amount to be utilised hereafter for the benefit of the very persons for whose benefit the marketing legislation was enacted.
" The principles laid down in the aforesaid cases were based on the specific provisions in those Acts but the same principles can safely be applied to the facts of the present case inasmuch as in the present case also the respondents had not to pay the amount from their coffers.
The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were not entitled to get a refund.
Only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same.
The amount deposited towards the Fund was to be utilised for the development of sugarcane.
If it is not possible to identify the persons on whom had the burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund Was created, namely, development of sugarcane.
There is no question of refunding the amount to the respondents who had not eventually paid the amount towards the Fund.
Doing so would virtually amount to allow the respondents unjust enrichment.
For the foregoing discussion the appeal must succeed.
It is accordingly allowed and the judgment and decree of the High Court for the refund of the amount of Rs.50,000 and interest thereon is set aside.
In the circumstances of the case the parties shall bear their own costs.
A.P.J. Appeal allowed. | Respondents are owners of sugar mill situated in erstwhile Jaora State which merged in the State of Madhya Bharat.
After the merger, the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 came into force.
By a notification dated 5th September, 1949 the said Act included 'sugar ' in the list of articles as an essential commodity.
By another notification dated 5th September, 1949 the Government delegated its powers to the Director, Civil Supplies to issue orders under the Act.
The Director of Civil Supplies by a notification dated 14th January, 1950 fixed ex factory prices for different sugar factories, which were to supply and despatch sugar of Grade E 27 at Rs. 32.400 per maund F.O.R. destination.
The supply price was higher than ex factory price.
The difference between the supply price and the ex factory price was to be credited to Madhya Bharat Government Sugar Fund.
On demand by appellants, the respondents deposited a sum of Rs. 50,000 under protest in the said Sugar Fund.
The respondents instituted a suit for the refund of the amount deposited by them towards Sugar Fund and Rs. 10,000 towards interest.
Tho suit was dismissed.
On appeal, the High Court set aside the Judgment and Decree of the trial Court and decreed the suit.
Allowing the appeal of the State, ^ HELD: 1.
The respondents had not to pay the amount from their coffers.
The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, they were not entitled to get a refund.
Only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same.[568C] 562 2.
The amount deposited towards the Fund was to be utilised for the development of sugarcane.
If it is not possible to identify the persons on whom had the burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund was created, namely, the development of sugarcane.
There is no question of refunding the amount to the Respondents who had not eventually paid the U amount towards the Fund.
Doing so would virtually amount to allow the respondents unjust enrichment.
[568D E] The Orient Paper Mills Ltd. vs The State of Orissa & Ors.
[1962] I SCR 549.
State of Bombay vs The United Motors (India) Ltd. , Shiv Shankar Dal Mills etc.
vs State of Haryana ; , Newabganei Sugar Mills vs Union of India & Ors. ; , Sales Tax Officer, Banaras & Ors.
vs Kanhaiya Lal Mukundlal Saraf, , M s Amar Nath Om Parkash & Ors.
vs The State of Punjab & Ors., ; , relied upon. |
Special Leave Petition (Civil) Nos.
14179 80 of 1985 385 From the Judgment and Order dated 11.7.1985 of the Andhra Pradesh High Court in Writ Appeal No. 1443 and 1467 of 1984.
T.U. Mehta and A. Subba Rao for the Petitioners.
Dr. Y.S. Chitale, T.V.S.N. Chari and Miss Vrinda Grover for the Respondent.
The Judgment of the Court was delivered by THAKKAR, J.
Does that part of the provision which provides for payment of a larger amount of gratuity with prospective effect from the specified date offend Article 14 of the Constitution of India? Whether gratuity must be paid on the stepped up basis, to all those who have retired before the date of the upward revision, with retrospective effect, even if the provision provides for prospective operation, in order not to offend Article 14 of the Constitution of India? A Division Bench of the High Court of Andhra Pradesh says 'no '.
In our opinion it rightly says so.
The petitioners, erstwhile Government employees who had retired "before" April 1, 1978, inter alia claimed and contended before the High Court that they were entitled to the benefit to the Government order No. 88 dated 26 March, 1980 providing that: "(b) Retirement gratuity may be 1/3rd of pay drawn at the time of retirement for every 6 monthly service subject to maximum of 20 months pay limited to Rs.30,000.
" The said order in so far as gratuity is concerned is made effective from 1st April, 1978.
Says the High Court: "Therefore, we are now only concerned whether this G.O. Ms. No. 88, dated 26 3 1980, should be made applicable to the pensioners that retired prior to 1 4 1978 by revising their gratuity payable to them.
The learned Advocate General, contends, that gratuity is something different from the other pensionary benefits like the pension and the family pension, which are continuing ones.
The Gratuity that accrued to the petitioners prior to 1 4 1978 was calculated on the then existing Rules and paid.
In that way, the pensioners retired prior to 1 4 1978 will form themselves into a distinct class for purposes of the pay 386 ment of benefit of gratuity from the others that retired after 1 4 1978, from which date, the revised pension rules are made to be applied by the Government.
On the other hand, it is the contention of the writ petitioners that gratuity is a part and parcel of the pensionary benefits and the same cannot be looked separately from the other pensionary reliefs.
The learned counsel for the Writ Petitioners, no doubt, cited two decisions (1) V.P. Gautama, IAS Retd.
vs Union of India (SLJ 1984 (1) 120) (2) M.P. Tandon vs State of U.P. , where their Lordships that decided the above two cases, held, that no distinction can be made in the pensionary benefits including death cum retirement gratuity benefit between the pensioners that retired prior to the stipulated date and after the stipulated date.
In the decision D.S. Nakara vs Union of India, (A.I.R. , their Lordships of the Supreme Court enunciated the principle as follows: "With the expanding horizons of socioeconomic justice, the Socialist Republic and Welfare State which the country endeavours to set up and the fact that the old man who retired when emoluments were comparatively low are exposed to vegaries of continuously rising prices, the falling value of the ruppe consequent upon inflationary inputs, by introducing an arbitrary eligibility criteria, 'being in service and retiring subsequent to the specified date ' for being eligible for the liberalised pension scheme and thereby dividing a homogeneous class, the classification being not based on any discernible rational principle and being wholly unrelated to the objects sought to be achieved by grant of liberalised pension and the eligibility criteria devised being throughly arbitrary, the eligibility for liberalised pension scheme of "being in service on the specified date and retiring subsequent to that date" in the memoranda Exs.
P 1 and P 2, violated article 14 and is unconstitutional and liable to be struck down." After thus enunciating the principle, their Lordships have taken care to observe as follows: "But we make it abundantly clear that arrears are not re 387 quired to be made because to that extent the scheme is prospective." In our opinion, the arrears relating to gratuity benefit computed according to the Revised Pension Rules of 1980 may not be paid to the pensioners that retired prior to 1 4 1978 because at the time of retirement, they are governed by the then existing Rules and their gratuity was calculated on that basis.
The same was paid.
Since the revised scheme is operative from the date mentioned in the scheme, i.e. 1 4 1978, the continuing rights of the pensioners to receive pension and family pension must also be revised according to that scheme.
But the same cannot be said with regard to gratuity, which was accrued and drawn.
The reason why their Lordships of the Supreme Court in Nakara 's case refused to grant arrears to the pensioners that retired prior to the stipulated date would ipso facto apply for refusing to grant the revised gratuity, since that would amount to asking the State Government to pay arrears relating to gratuity after revising them according to the new scheme for those that retired prior to 1 4 1978 and that would amount to giving retrospective effect to the A.P. Revised Pension Rules, 1980, which came into effect from 29 10 1979 and in the case of Part II of those Rules from 1 4 1978.
The scheme is prospective and not retrospective.
Moreover, we must remember that when the State Government appointed the Pay Revision Commissioner to review the then existing scales of pay under G.O. Ms. No. 745, General Administration (Spl.
A) Department, dated 3 11 1978, the Pay Revision Commissioner was asked to take into account, while making his recommendation, the economic conditions in the State, the financial implications of his recommendations, and the impact thereof on the resources avilable for the plan and other essential non plan expenditure.
Surely, the Pay Revision Commissioner, when he made his recommendations to revise the pensionary benefits, is not contemplating to make his recommendations retrospective.
Otherwise, he would have taken financial implications of those recommendations and the impact thereof on the resources available for plan and other essential non plan expenditure of the State.
For this reason also, we cannot direct the State Government to re 388 vise the gratuity benefit, which was already paid to these petitioners who retired prior to 1 4 1978.
The Supreme Court has clearly stated in Nakara 's case that arrears are not required to be paid because to that extent the scheme is prospective.
Similar is the case with regard to the case of gratuity that was accrued and paid prior to the stipulated day mentioned in the G.O. promulgating the Revised Pension Rules of 1980.
" We fully concur with the view of the High Court.
The upward revision of gratuity takes effect from the specified date (April 1, 1978) with prospective effect.
The High Court has rightly understood and correctly applied the principle propounded by this Court in Nakara 's case, AIR 1983 S.C. 130.
There is no illegality or unconstitutionality (from the platform of Article 14 of the Constitution of India) involved in providing for prospective operation from the specified date.
Even if that part of the Notification which provides for enforcement with effect from the specified date is struck down the provision can but have prospective operation not retrospective operation.
In that event (if the specified date line is effaced), it will operate only prospectively with effect from the date of issuance of the notification since it does not retrospectively apply to all those who have already retired before the said date.
In order to make it retrospective so that it applies to all those who retired after the commencement of the Constitution on 26 January, 1950 and before the date of issuance of the notification on 26 March, 1980, the Court will have to re write the notification and introduce a provision to this effect saying in express terms that it shall operate retrospectively.
Merely striking down (or effacing) the alleged offending portion whereby it is made effective from the specified date will not do.
And this, the Court cannot do.
Besides, giving prospective operation to such payments cannot by any stretch of imagination be condemned as offending Art 14.
An illustration will make it clear.
Improvements in pay scales by the very nature of things can be made prospectively so as to apply to only those who are in the employment on the date of the upward revision.
Those who were in employment say in 1950, 1960 or 1970, lived, spent, and saved, on the basis of the then prevailing cost of living structure and pay scale structure, cannot invoke article 14 in order to claim the higher pay scale brought into force say, in 1980.
If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made.
Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtained at the time of their respective dates of retirement.
The amount got crystallized on 389 the date of retirement on the basis of the salary drawn by him on the date of retirement.
And it was already paid to them on that footing.
The transaction is completed and closed.
There is no scope for upward or downward revision in the context of upward of downward revision of the formula evolved later on in future unless the provision in this behalf expressly so provides restrospectively (downward revision may not be legally premissible even).
It would be futile to contend that no upward revision of gratuity amount can be made in harmony with Article 14 unless it also provides for payment on the revised basis to all those who have already retired between the date of commencement of the Constitution in 1950, and the date of upward revision.
There is therefore no escape from the conclusion that the High Court was perfectly right in repelling the petitioners ' plea in this behalf.
For the sake of record we may mention that our attention was called to an order of a Division Bench of the High Court of Gujarat LPA 280 of 1983 dated 8.9.83 per P.D. Desai Acting C.J., which does not discuss the issues involved but is based on a concession said to have been made by the Advocate General who appeared for the State.
And also to a decision of the Allahabad High Court, (M.P. Tandon vs State of U.P., and (Punjab & Haryana High Court (V.P. Gautama vs Union of India, A.I.R. SLJ [1984] (1) 120.) In none ot these decisions the relevant passage from D.S. Nakara vs Union of India, , was considered.
Nor was the aspect regarding prospective operation considered on principle.
The High Court considered it shocking and was carried away by the fact that an employee who retired even one day before the enforcement of the upward revision would not get the benefit if the specified date of enforcement was not effaced by striking down the relevant provision.
But in all cases of prospective operation it would be so.
Just as one who files a suit even one day after the expiry of limitation would lose his right to sue, one who retires even a day prior to enforcement of the upward revision would not get the benefit.
This cannot be helped, there is nothing shocking in it unless one can say legislation can never be made prospective, and nothing turns on it.
These are the reasons which impelled us to dismiss the Special Leave Petition on 18 July, 1986.
A.P.J. Petition dismissed. | The Government Order No. 88 dated 26th March, 1980 provided that retirement gratuity may be 1/3rd of pay drawn at the time of retirement for every 6 monthly service subject to maximum of 20 months pay limited to Rs.30,000.
This order in so far as gratuity is concerned is made effective from 1st April, 1978.
The petitioners, erstwhile Government employees who had retired "before" April 1, 1978, filed petition under Article 226 in the High Court, contending that gratuity is a part and parcel of the pensionary benefits and the same cannot be looked separately from the other pensionary reliefs and therefore, they are also entitled to the benefit of gratuity retrospectively at the enhanced rate though they had retired before April 1, 1978 and had been paid gratuity at the then prevailing rate.
On behalf of the State the petition was contested and it was contended that gratuity is something different from the other pensionary benefits like pension and family pension, which are continuing ones.
The gratuity that accrued to the petitioners prior to 1.4.1978 was calculated on the then existing Rules and paid, and the pensioners who retired prior to 1.4.1978 form themselves into a distinct class for purposes of the payment of benefit of gratuity from the others who retired after 1.4.1978, the date from which, the revised pension rules are made applicable by the Government.
The High Court dismissed the petition holding that the upward revision of gratuity takes effect from the specified date (April 1, 1978) with prospective effect.
384 Dismissing the Special Leave Petition of the Pensioners ' Association this Court, ^ HELD: 1.
The upward revision of gratuity takes effect from the specified date (April 1, 1978) with 'prospective ' effect.
The High Court has rightly understood and correctly applied the principle propounded by this Court in Nakara 's case, wherein it was held that no arrears are required to be paid because to that extent the scheme is prospective.
[388B C] V.P. Gautama, IAS Retd.
vs Union of India (S.L.J. 1984(1) 120), and M.P. Tandon vs State of U.P., [1984] Lab.
I.C.677, referred to.
D.S. Nakara vs Union of India, (A.I.R. 1983SC 130), relied upon.
There is no illegality or unconstitutionality involved in providing for prospective operation from the specified date.
Even if that part of the Notification which provides for enforcement with effect from the specified date is struck down the provision can but have prospective operation not retrospective operation.
In that event it will operate only prospectively with effect from the date of issuance of the notification since it does not retrospectively apply to all those who had already retired before the said date.
[388C E] 3.
In order to make the notification retrospective so that it applies to all those who had retired after the commencement of the Constitution on 26 January, 1950 and before the date of issuance of the notification on 26 March 1980, the Court will have to re write the Notification and introduce a provision to this effect saying in express terms that it shall operate retrospectively.
Merely striking down or effecing the alleged offending portion whereby it is made effective from the specified date will not do.
And this, the Court cannot do.
Besides, giving prospective operation to such payments cannot by any stretch of imagination be condemned as offending Article 14.
[388D F] 4.
Those who were in employment say in 1950, 1960 or 1970, lived, spent, and saved, on the basis of the them prevailing cost of living structure and pay scale structure, cannot invoke Article 14 in order to claim the higher pay scale brought into force say, in 1980.
If upward pay revision cannot be made prospectively on account of Article 14, perhaps no such revision would ever be made.
Similar is the case with regard to gratuity which has already been paid to the petitioners on the then prevailing basis as it obtaind at the time of their respective dates of retirement.
And it was already paid to them on that footing.
The transaction is completed and closed.
[388F H; 389A] |
Civil Appeal Nos.
166870 of 1974 etc.
From the Judgment and order dated 17.8.1973 of the Allahabad High Court in W.T. Reference No. 371 of 1971 and I.T. Reference No. 452 of 1971.
V.S. Desai, and Miss A. Subhashini for the Appellants.
P.K. Mukharjee and A. K. Sengupta for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals arise by special leave from the decision of the High Court of Allahabad dated 17th August, 1973.
Two of these appeals are in respect of assessment years 1966 67 and 1967 68 arising out of the proceedings under the Wealth Tax Act, 1957.
The connected reference was under the Income Tax Act, 1961 and related to the assessment year 1968 69.
A common question of law arose in all these cases and these were disposed of by the High Court by a common judgment.
One Rangi Lal and his son Chander Sen constituted a Hindu 258 undivided family.
This family had some immovable property and the business carried on in the name of Khushi Ram Rangi Lal.
On October 10, 1961, there was a partial partition in the family by which the business was divided between the father and the son, and thereafter, it was carried on by a partnership consisting of the two.
The firm was assessed to income tax as a registered firm and the two partners were separately assessed in respect of their share of income.
The house property of the family continued to remain joint.
On July 17, 1965, Rangi Lal died leaving behind his son, Chander Sen, and his grandsons, i.e. the sons of Chander Sen.
His wife and mother predeceased him and he had no other issue except Chander Sen.
On his death there was a credit balance of Rs.1,85,043 in his account in the books of the firm.
For the assessment year 1966 67 (valuation date October 3, 1965), Chander Sen, who constituted a joint family with his own sons, filed a return of his net wealth.
The return included the property of the family which on the death of Rangi Lal passed on to Chander Sen by survivorship and also the assets of the business which devolved upon Chander Sen on the death of his father.
The sum of Rs.1,85,043 standing to the credit of Rangi Lal was not included in the net wealth of the family of Chander Sen (hereinafter referred to as 'the assessee family ') on the ground that this amount devolved on Chander Sen in his individual capacity and was not the property of the assessee family.
The Wealth tax officer did not accept this contention and held that the sum of Rs.1,85,043 also belonged to the assessee family.
At the close of the previous year ending on October 22, 1962, relating to the assessment year 1967 68, a sum of Rs.23,330 was credited to the account of late Rangi Lal on account of interest accruing on his credit balance.
In the proceedings under the Income tax Act for the assessment year 1967 68, the sum of R.S. 23,330 was claimed as deduction.
It was alleged that interest was due to Chander Sen in his individual capacity and was an allowable deduction in the computation of the business income of the assessee faimly.
At the end of the year the credit balance in the account of Rangi Lal stood at Rs.1,82,742 which was transferred to the account of Chander Sen.
In the wealth tax assessment for the assessment year 1967 68, it was claimed, as in the earlier year, that the credit balance in the account of Rangi Lal belonged to Chander Sen in his individual capacity and not to the assessee family.
The Income tax officer who completed the assessment disallowed the claim relating to interest on the ground that it was a payment made by Chander Sen to himself.
Likewise, in the wealth tax assessment, the sum of Rs.1,82,742 was included by the Wealth tax officer in the net wealth of the assessee family.
On appeal the Appellate Assistant Commissioner of Income tax accepted the assessee 's claim in 259 full.
He held that the capital in the name of Rangi Lalluded in the wealth of the assessee family.
He also directed that in the income tax assessment the sum of Rs.23,330 on account of interest should be allowed as deduction.
The revenue felt aggrieved and filed three appeals before the Income tax Appellate Tribunal, two against the assessments under the Wealth tax Act for the assessment years 1966 67 and 1967 68 and one against the assessment under Income tax Act for the assessment year 1967 68.
The Tribunal dismissed the revenue 's appeals.
The following question was referred to the High Court for its opinion: "Whether, on the facts and in the circumstances of the case, the conclusion of the Tribunal that the sum of Rs.1,85,043 and Rs.1,82,742 did not constitute the assets of the assessee Hindu undivided family is correct?" Similarly in the reference under the Income tax Act, the following question was referred: "Whether, on the facts and in the circumstances of the case, the interest of Rs,23,330 is allowable deduction in the computation of the business profits of the assessee joint family?" The answer to the questions would depend upon whether the amount standing to the credit of late Rangi Lal was inherited, after his death, by Chander Sen in his individual capacity or as a Karta of the assessee joint family consisting of himself and his sons.
The amount in question represented the capital allotted to Rangi Lal on partial partition and accumulated profits earned by him as his share in the firm.
While Rangi Lal was alive this amount could not be said to belong to any joint Hindu family and qua Chander Sen and his sons, it was the separate property of Rangi Lal.
On Rangi Lal 's death the amount passed on to his son, Chander Sen, by inheritance.
The High Court was of the opinion that under the Hindu Law when a son inherited separate and self acquired property of his father, it assumed the character of joint Hindu family property in his hands qua the members of his own family.
But the High Court found that this principle has been modified by section 8 of the .
260 Section 8 of the said Act provides, inter alia, that the property of a male Hindu dying intestate devolved according to the provisions of that Chapter in the Act and indicates further that it will devolve first upon the heirs being the relatives specified in class I of the Schedule.
Heirs in the Schedule Class I includes and provides firstly son and thereafter daughter, widow and others.
It is not necessary in view of the facts of this case to deal with other clauses indicated in section 8 or other heirs mentioned in the Schedule.
In this case as the High Court noted that the son, Chander Sen was the only heir and therefore the property was to pass to him only.
The High Court in the judgment under appeal relied on a bench decision of the said High Court rendered previously.
Inadvertently, in the judgment of the High Court, it had been mentioned that the judgment was in Khudi Ram Laha vs Commissioner of Income tax U.P, but that was a case which dealt with entirely different problem.
The decision which the High Court had in mind and on which in fact the High Court relied was a decision in the case of Commissioner of Income tax, U. P. vs Ram Rakshpal, Ashok Kumar, In the said decision the Allahabad High Court held that in view of the provisions of the , the income from assets inherited by a son from his father from whom he had separated by partition could not be assesssed as the income of the Hindu undivided family of the son.
The High Court relied on the commentary in Mulla 's Hindu Law, Thirteenth Edition page 248.
The High Court also referred to certain passages from Dr. Derret 's "Introduction to Modern Hindu Law" (paragraph 411, at page 252).
Reliance was also placed on certain observations of this Court and the Privy Council as well as on Mayne 's 'Hindu Law '.
After discussing all these aspects the Court came to the conclusion that the position of the Hindu Law was that partition took away by way of coparcenary the character of coparcener property which meant that the share of another coparcener upon the divisions although the property obtained by a coparcener by a partition continued to be coparcenary property for him and his unseparated issue.
In that case what had happened was one Ram Rakshpal and his father, Durga Prasad, constituted a Hindu undivided family which was assessed as such.
Ram Rakshpal separated from his father by partition on October 11, 1948.
Thereafter Ram Rakshpal started business of his own, income whereof was assessed in the hands of the assessee family.
Shri Durga Prasad also started business of his own after partition in the name and style of M/s Murlidhar Mathura Prasad which was carried on by him till his death.
261 Durga Prasad died on March 29, 1958 leaving behind him his widow, Jai Devi, his married daughter, Vidya Wati and Ram Rakshpal and Ram Rakshpal 's son, Ashok Kumar, as his survivors.
The assets left behind by Durga Prasad devolved upon three of them in equal shares by succession under the .
Vidya Wati took away her 1/3rd share, while Jai Devi and Shri Ram Rakshpal continued the aforesaid business inherited by them in partnership with effect from April, 1, 1958 under a partnership deed dated April 23, 1958.
The said firm was granted registration for the assessment year 1958 59.
The share of profit of Shri Ram Rakshpal for the assessment year under reference was determined at Rs.4,210.
The assessee family contended before the Income tax Officer that this profit was the personal income of Ram Rakshpal and could not be taxed in the hands of the Hindu undivided family of Ram Rakshpal, and held that Ram Rakshpal contributed his ancestral funds in the partnership business of Murli Dhar Mathura Prasad and that, hence, the income therefrom was taxable in the hands of the assessee family.
The High Court finally held on these facts in C.I.T vs Ram Rakshpal (supra) that the assets of the business left by Durga Prasad in the hands of Ram Rakshpal would be governed by section 8 of the .
The High Court in the Judgment under appeal was of the opinion that the facts of this case were identical with the facts in the case of Commissioner of Income tax, U.P. (supra) and the principles applicable would be the same.
The High Court accordingly answered the question in the affirmative and in favour of the assessee so far as assessment of wealth tax is concerned.
The High Court also answered necessarily the question on the income tax Reference affirmatively and in favour of the assessee.
The question here, is, whether the income or asset which a son inherits from his father when separated by partition the same should be assessed as income of the Hindu undivided family of son or his individual income.
There is no dispute among the commentators on Hindu Law nor in the decisions of the Court that under the Hindu Law as it is, the son would inherit the same as karta of his own family.
But the question, is, what is the effect of section 8 of the ? The lays down the general rules of succession in the case of males.
The first rule is that the property of a male Hindu dying intestate shall devolve according to the provisions of Chapter II and class I of the Schedule provides that if there is a male heir of class I then upon the heirs mentioned in class I of 262 the Schedule.
Class I of the Schedule reads as follows: "Son; daughter; widow; mother; son of a pre deceased son; daugther of a predeceased son; son of a pre deceased daughter, daughter of a pre deceased daughter; widow of a pre deceased son; son of a pre deceased son of a pre deceased son; daughter of a pre deceased son of a pre deceased son; widow of a pre deceased son of a pre deceased son.
" The heirs mentioned in class I of the Schedule are son, daughter etc.
including the son of a pre deceased son but does not include specifically the grandson, being a son of a son living.
Therefore, the short question, is, when the son as heir of class I of the Schedule inherits the property, does he do so in his individual capacity or does he do so as karta of his own undivided family? Now the Allahabad High Court has noted that the case of Commissioner of Income tax, U.P. vs Ram Rakshpal, Ashok Kumar (supra) after referring to the relevant authorities and commentators had observed at page 171 of the said report that there was no scope for consideration of a wide and general nature about the objects attempted to be achieved by a piece of legislation when interpreting the clear words of the enactment.
The learned judges observed referring to the observations of Mulla 's Commentary on Hindu Law, and the provisions of section 6 of the that in the case of assets of the business left by father in the hands of his son will be governed by section 8 of the Act and he would take in his individual capacity.
In this connection reference was also made before us to section 4 of the .
Section 4 of the said Act provides for overriding effect of Act.
Save as otherwise expressly provided in the Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in the Act and any other law in force immediately before the commencement of the Act shall cease to apply to Hindus in so far it is inconsistent with any of the provisions contained in the Act.
Section 6 deals with devolution of interest in coparcenary property and it makes it clear that when a male Hindu dies after the commencement of the Act having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not 263 in accordance with the Act.
The proviso indicates that if the deceased had left him surviving a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Section 19 of the said Act deals with the mode of succession of two or more heirs.
If two or more heirs succeed together to the property of an intestate, they shall take the property per capita and not per stripes and as tenants in common and not as joint tenants.
Section 30 stipulates that any Hindu may dispose of by will or other testamentary disposition any property, which is capable of being so disposed of by him in accordance with the provisions of the .
It is clear that under the Hindu law, the moment a son is born, he gets a share in the father 's property and becomes part of the comparcenary.
His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth.
Normally, therefore whenever the father gets a property from whatever source from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint family of his son and grandson and other members who form joint Hindu family with him.
But the question is; is the position affected by section 8 of the Succession Act, 1956 and if so, how? The basic argument is that section 8 indicates the heirs in respect of certain property and class I of the heirs includes the son but not the grandson.
It includes, however, the son of the predeceased son.
It is this position which has mainly induced the Allahabad High Court in the two judgments, we have noticed, to take the view that the income from the assets inherited by son from his father from whom he has separated by partition can be assessed as income of the son individually.
Under section 8 of the the property of the father who dies intestate devolves on his son in his individual capacity and not as karta of his own family.
On the other hand, the Gujarat High Court has taken the contrary view.
In Commissioner of Income tax, Gujarat I vs Dr. Babubhai Mansukhbhai (Deceased), the Gujarat High Court held that in the case of Hindus governed by the Mitakshara law, where a son 264 inherited the self acquired property of his father, the son took it as the joint family property of himself and his son and not as his separate property.
The correct status for the assessment to income tax of the son in respect of such property was as representing his Hindu undivided family.
The Gujarat High Court could not accept the view of the Allahabad High Court mentioned hereinbefore.
The Gujarat High Court dealt with the relevant provisions of the Act including section 6 and referred to Mulla 's Commentary and some other decisions.
Before we consider this question further, it will be necessary to refer to the view of the Madras High Court.
Before the full bench of Madras High Court in Additional Commissioner of Income tax, Madras vs P.L. Karappan Chettiar, , this question arose.
There, on a partition effected on March 22, 1954, in the Hindu undivided family consisting of P, his wife, their sons, K and their daughter in law, P was allotted certain properties as and for this share and got separated.
The partition was accepted by the revenue under section 25A of the Indian Income tax Act, 1922.
K along with his wife and their subsequently born children constituted a Hindu undivided family which was being assessed in that status.
P died on September 9, 1963, leaving behind his widow and divided son, K, who was the karta of his Hindu undivided family, as his legal heirs and under section 8 of the Hindu Seccession Act, 1956, the Madras High Court held, that these two persons succeeded to the properties left by the deceased, P, and divided the properties among themselves.
In the assessment made on the Hindu undivided family of which K was the karta, for the assessment year 1966 67 to 1970 71, the Income tax Officer included for assessment the income received from the properties inherited by K from his father, P. The inclusion was confirmed by the Appellate Assistant Commissioner but, on further appeal, the Tribunal held that the properties did not form part of the joint family properties and hence the income therefrom could not be assessed in the hands of the family.
On a reference to the High Court at the instance of the revenue, it was held by the Full bench that under the Hindu law, the property of a male Hindu devolved on his death on his sons and grandsons as the grandsons also have an interest in the property.
However, by reason of section 8 of the , the son 's son gets excluded and the son alone inherits the property to the exclusion of his son.
No interest would accrue to the grandson of P in the property left by him on his death.
As the effect of section 8 was directly derogatory of the law established according to Hindu law, the statutory provision must prevail in view of the unequivocal intention in the statute itself, 265 expressed in section 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu law.
Accordingly, in that case, K alone took the properties obtained by his father, P, in the partition between them, and irrespective of the question as to whether it was ancestral property in the hands of K or not, he would exclude his son.
Further, since the existing grandson at the time of the death of the grandfather had been excluded, an after born son of the son will also not get any interest which the son inherited from the father.
In respect of the property obtained by K on the death of his father, it is not possible to visualise or envisage any Hindu undivided family.
The High Court held that the Tribunal was, therefore, correct in holding that the properties inherited by K from his divided father constituted his separate and individual properties and not the properties of the joint family consisting of himself, his wife, sons and daughters and hence the income therefrom was not assessable in the hands of the assessee Hindu undivided family.
This view is in consonance with the view of the Allahabad High Court noted above.
The Madhya Pradesh High Court had occasion to consider this aspect in Shrivallabhdas Modani vs Commissioner of Income Tax, M.P. I, , and the Court held that if there was no coparcenary subsisting between a Hindu and his sons at the time of death of his father, property received by him on his father 's death could not be so blended with the property which had been allotted to his sons on a partition effected prior to the death of the father.
Section 4 of the , clearly laid down that "save as expressly provided in the Act, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of the Act should cease to have effect with respect to any matter for which provision was made in the Act".
Section 8 of the as noted before, laid down the scheme of succession to the property of a Hindu dying intestate.
The schedule classified the heirs on whom such property should devolve.
Those specified in class I took simultaneously to the exclusion of all other heirs.
A son 's son was not mentioned as an heir under class I of the schedule, and, therefore, he could not get any right in the property of his grandfather under the provision.
The right of a son 's son in his grandfather 's property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property "ceased to have effect".
The Court 266 further observed that in construing a Codification Act, the law which was in a force earlier should be ignored and the construction should be confined to the language used in the new Act.
The High Court felt that so construed, section 8 of the should be taken as a self contained provision lying down the scheme of devolution of the property of a Hindu dying intestate.
Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the , did not constitute HUF property consisting of his own branch including his sons.
It followed the full bench decision of the Madras High Court as well as the view of the Allahabad High Court in the two cases noted above including the judgment under appeal.
The Andhra Pradesh High Court in the case of Commissioner of Wealth Tax, A.P. II vs Mukundgirji, , had also to consider the aspect.
It held that a perusal of the would disclose that Parliament wanted to make a clean break from the old Hindu law in certain respects consistent with modern and egalitarian concepts.
For the sake of removal of any doubts, therefore, section 4(1)(a) was inserted.
The High Court was of the opinion that it would, therefore, not be consistent with the spirit and object of the enactment to strain provisions of the Act to accord with the prior notions and concepts of Hindu law.
That such a course was not possible was made clear by the inclusion of females in class I of the Schedule, and according to the Andhra Pradesh High Court, to hold that the property which devolved upon a Hindu under section 8 of the Act would be HUF property in his hands vis a vis his own sons would amount to creating two classes among the heirs mentioned in class I, viz., the male heirs in whose hands it would be joint family property vis a vis their sons; and female heirs with respect to whom no such concept could be applied or contemplated.
The intention to depart from the pre existing Hindu law was again made clear by section 19 of the which stated that two or more heirs succeed together to the property of an intestate, they should take the property as tenants in common and not as joint tenants and according to the Hindu law as obtained prior to two or more sons succeeding to their father 's property took a joint tenants and not tenants in common.
The Act, however, has chosen to provide expressly that they should take as tentants in common.
Accordingly the property which devolved upon heirs mentioned in class I of the Schedule under section 8 constituted the absolute properties and his sons have no right by birth in such properties.
This decision, however, 267 is under appeal by certificate to this Court.
The aforesaid reasoning of the High Court appearing at pages 23 to 26 of Justice Reddy 's view in 144 I.T.R. appears to be convincing.
We have noted the divergent views expressed on this aspect by the Allahabad High Court, Full Bench of the Madras High Court, Madhya Pradesh and Andhra Pradesh High Courts on one side and the Gujarat High Court on the other.
It is necessary to bear in mind the Preamble to the .
The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
In view of the preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion it is not possible when Schedule indicates heirs in class I and only includes son and does not include son 's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8 he takes it as karta of his own undivided family.
The Gujarat High Court 's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under section 8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlined in section 8.
Furthermore as noted by the Andhra Pradesh High Court that the Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre existing Hindu law.
It would be difficult to hold today the property which devolved on a Hindu under section 8 of the Hindu Succession would be HUF in his hand vis a vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis a vis son and female heirs with respect to whom no such concept could be applied or contemplated.
It may be mentioned that heirs in class I of Schedule under section 8 of the Act included widow, mother, daughter of predeceased son etc.
Before we conclude we may state that we have noted the obervations of Mulla 's Commentary on Hindu law 15th Edn.
dealing with section 6 of the at page 924 26 as well as Mayne 's on Hindu Law, 12th Edition pages 918 919.
The express words of section 8 of The , 268 1956 cannot be ingorned and must prevail.
The preamble to the Act reiterates that the Act is, inter alia, to 'amend ' the law, with that background the express language which excludes son 's son but included son of a predeceased son cannot be ignored.
In the aforesaid light the views expressed by the Allahabad High Court, the Madras High Court, Madhya Pradesh High Court, and the Andhra Pradesh High Court, appear to us to be correct.
With respect we are unable to agree with the views of the Gujarat High Court noted hereinbefore.
In the premises the judgment and order of the Allahabad High Court under appeal is affirmed and the appeals Nos.
1668 1669 of 1974 are dismissed with costs.
Accordingly Appeal No. 1670 of 1974 in Income tax Reference which must follow as a consequence in view of the findings that the sums standing to the credit of Rangi Lal belongs to Chander Sen in his individual capacity and not the joint Hindu family, the interest of Rs. 23,330 was an allowable deduction in respect of the income of the family from the business.
This appeal also fails and is dismissed with costs.
The Special Leave Petition No. 5327 of 1978 must also fail and is dismissed.
There will be no order as to costs of this.
A.P.J. Appeals and Petition dismissed. | Rangi Lal and his son Chander Sen constituted a Hindu undivided family.
They had some immovable property and the family business.
By a partial partition the HUF business was divided between the two and thereafter it was carried on by a partnership consisting of the two.
The house property of the family continued to remain joint.
The firm was assessed to income tax as a registered firm and the two partners were separately assessed in respect of their share of income.
The mother and wife of Rangi Lal having pre deceased him, when he died he left behind him his only son Chander Sen and his grandsons.
On his death there was a credit balance of Rs.1,85,043 in his account in the books of the firm.
In the wealth tax assessment for the assessment year 1966 67, Chander Sen, who constituted a joint family with his own sons, filed a return of his net wealth by including the property of the family which u on the death of Rangi Lal passed on to him by survivorship and, also the assets of the business which devolved upon him on the death of his father.
The sum of R.S. l ,85,0 13 standing to the credit of Rangi Lal was, however, not included in the net wealth of the assessee family.
Similarly, in the wealth tax assessment for the assessment year 1967 68 a sum of Rs.1,82,742 was not included, in the net wealth of the assessee family.
It was contended that these amounts devolved on Chander Sen 255 in his individual capacity and were not the property of the assessee family.
The Wealth tax officer did not accept this contention and held that these sums also belonged to the assessee family.
A sum of Rs.23,330 was also credited to the account of late Rangi Lal on account of interest accruing on his credit balance.
In the proceedings under the Income Tax Act for the assessment year 1367 68 this sum was claimed as deduction on the same ground.
The Income tax officer disallowed the claim on the ground that it was a payment made by Chander Sen to himself.
On appeal, the Appellate Assistant Commissioner of Income tax accepted the assessee 's claim in full and held that the capital in the name of Rangi Lal devolved on Chander Sen in his individual capacity and as such was not to be included in the wealth of the assessee family.
The sum of Rs.23,330 on account of interest was also directed to be allowed as deduction.
The Income tax Appellate Tribunal dismissed the appeals filed by the Revenue and its orders were affirmed by the High Court.
On the question: "Whether the income or asset which a son inherits from his father when separated by partition should be assessed as income of the Hindu Undivided Family consisting of his own branch including his sons or his individual income", dismissing the appeals and Special Leave Petition of the Revenue, the Court, ^ HELD: 1.
The sums standing to the credit of Rangi Lal belong to Chander Sen in his individual capacity and not the Joint Hindu Family.
The interest of Rs.23,330 was an allowable deduction in respect of the income of the family from the business.
[268C D] 2.1 Under section 8 of the , the property of the father who dies intestate devolves on his son in his individual capacity and not as Karta of his own family.
Section 8 lays down the scheme of succession to the property of a Hindu dying intestate.
The Schedule classified the heirs on whom such property should devolve.
Those specified in class I took simultaneously to the exclusion of all other heirs.
A son 's son was not mentioned as an heir under class I of the Schedule, and, therefore, he could not get any right in the property of his grandfather under the provision.
[265F G] 256 2.2 The right of a son 's son in his grandfather 's property during the lifetime of his father which existed under the Hindu law as in force before the Act, was not saved expressly by the Act, and therefore, the earlier interpretation of Hindu law giving a right by birth in such property "ceased to have effect".
So construed, section 8 of the Act should be taken as a self contained provision laying down the scheme of devolution of the property of a Hindu dying intestate.
Therefore, the property which devolved on a Hindu on the death of his father intestate after the coming into force of the Hindu Succession Act, 1356, did not constitute HUF property consisting of his own branch including his sons.
[265G H; 266A C] 2.3 The Preamble to the Act states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
Therefore, it is not possible when the Schedule indicates heirs in class I and only includes son and does not include son 's son but does include son of a predeceased son, to say that when son inherits the property in the situation contemplated by section 8, he takes it as Karta of his own undivided family.
[267C D] 2.4 The Act makes it clear by section 4 that one should look to the Act in case of doubt and not to the pre existing Hindu law.
It would be difficult to hold today that the property which devolved on a Hindu under section X of the Act would be HUF in his hand vis a vis his own son; that would amount to creating two classes among the heirs mentioned in class I, the male heirs in whose hands it will be joint Hindu family property and vis a vis sons and female heirs with respect to whom no such concept could be applied or contemplated.
[267E G] 2.5 Under the Hindu law, the property of a male Hindu devolved on his death on his sons and the grandsons as the grandsons also have an interest in the property.
However, by reason of section 8 of the Act, the son 's son gets excluded and the son alone inherits the properly to the exclusion of his son.
As the effect of section 8 was directly derogatory of the law established according to Hindu law, the statutory provisions must prevail in view of the unequivocal intention in the statute itself, expressed in section 4(1) which says that to the extent to which provisions have been made in the Act, those provisions shall override the established provisions in the texts of Hindu Law.
[264G H; 265A B] 2.6 The intention to depart from the pre existing Hindu law was again made clear by section 19 of the Hindu Succession Act which stated that 257 if two or more heirs succeed together to the property of an intestate, they should take the property as tenants in common and not as joint tenants and according to the Hindu law as obtained prior to Hindu Succession Act two or more sons succeeding to their father 's property took a joint tenants and not tenants in common.
The Act, however, has chosen to provide expressly that they should take as tenants in common.
Accordingly the property which devolved upon heirs mentioned in class I of the Schedule under section 8 constituted the absolute properties and his sons have no right by birth in such properties.
[266F H] Commissioner of Income tax, U. P. vs Ram Rakshpal, Ashok Kumar, ; Additional Commissioner of Income tax, Madras vs P.L. Karuppan Chettiar, 114 I.T.R. 523; Shrivallabhdas Modani vs Commissioner of Income Tax, M.P I., and Commissioner of Wealth Tax A.P. II vs Mukundgirji , approved.
Commissioner of Income tax, Gujarat l vs Dr. Babubhai Mansukhbai (Deceased), , overruled. |
Appeal No. 435 of 1961.
Appeal from the order dated September 7, 1959, of the High Court of Mysore at Bangalore, in Income tax Referred case No. 2 of 1955.
C. K. Daphtary, Solicitor General of India, N. D. Karkhanis, R. H. Dhebar, and P. D. Menon, for the appellant A.V. Viswanatha Sastri and K. B. Chaudhuri, for the respondent.
May 3.
The Judgment of the Court was delivered by HIDAYATULLAH, J.
This appeal by the Commissioner of Income tax, Mysore, on a certificate granted under a. 66A of the Indian Income tax Act, is directed against a judgment of the High Court of Mysore dated September 7, 1959, by which the 979 following question referred by the Income tax Appellate Tribunal, Madras Bench, was answered in favour of the respondent : "Whether there are materials for the tribunal to hold that the sum of Rs. 2,87,422/aforesaid represents a loss of capital." Originally two question were referred, but with the second question we are not now concerned.
The respondent is a limited liability Company called the Mysore Sugar Co. Ltd., in which a very large percentage of shares is owned by the Government of Mysore.
We shall refer to the respondent as the assessee Company.
The asseesee Company purchases sugarcane from the sugarcane,growers, and crashes them in its factory to prepare sugar.
As a part of its business operations, it enters into agreement with the sugarcane growers, who are known locally as "Oppigddars" and advances them sugarcane seedlings, fertilisers and also cash.
The Oppigedars enter into a written agreement called the "Oppige", by which they agree to sell sugarcane exclusively to the assessee Company at current market rates and to have the advances adjusted towards the price of sugarcane, agreeing to pay interest in the meantime.
For this purpose, an account of each Oppigeddar is opened.
by the assessee Company.
A crop of sugarcane takes about 18 months to nature, and these agreements take place at the harvest season each year, in preparation for the next crop.
In the year 1948 49 due to drought, the assessee Company could not work its sugar mills and the Oppigedars could not grow or deliver the sugarcane.
The advances made in 1948 49 thus remained unrecovered, because they could only be recovered by the supply of sugarcane to the assessee Company.
The Mysore Government realising the hardship appointed 980 a Committee to investigate the matter and to make a report and recommendations.
This report was made by the Committee on July 27, 1950, and the whole of the report has been printed in the record of this case.
The Oppige bond is not printed, perhaps because it was in Kaunada, but the substance of the terms is given by the Committee and the above description fairly represents its nature.
The Com mittee recommended that the assessee Company should ex gratia forego some of its dues, and in the year of account*ending June 30, 1952, the Company waived its rights in respect of Rs. 2,87,422/The Company claimed this is a deduction under sections 10 (3) (xi) and 10 (2) (xv) of the Indian Incometax Act.
The Income tax Officer declined to make the deduction, because, in his opinion this was neither a trade debt nor even a bad debt but an ex gratia payment almost like a gift.
An appeal to the Appellate Assistant Commissioner also failed.
Before the Income tax Appellate Tribunal, Madras.
Bench, these two arguments were again raised, but were rejected, the Tribunal holding that the payments were not with an eye to any commercial profit and could not thus be said to have been made out of commercial expediency, so as to attract section 10 (2) (xv) of the Act.
The Tribunal also held that these were not bad debts, because they were " 'advances, pure and simple, not arising out of sales" and did not contribute to the profits of the business.
From the order of reference, it appears that the Appellate Tribunal was also of the opinion that these advances were made to ensure a steady supply of quality sugarcane, and that the loss, if any, must be taken to represent a capital loss and not a trading loss.
The Appellate Tribunal, however, referred the question for the opinion of the High Court, and the High Court held that the expenditure was not in the nature of a capital expenditure, and was 981 deductible as a revenue expenditure.
It relied upon a passage from Sempath Ayyangar 's Book on the Indian Income tax Law and on the decision of this Court in Badridas Daga vs Commissioner of Incometax (1.), to hold that this amount was deductible in computing the profits of the business for the year in question under a. 10 (1) of the Income tax Act.
The case has been argued before us both under section 10 (1) and section 10 (2) (xv), though it appears that the case of the assessee Company ' has changed from a. 10 (1) to section 10 (2) .(xi) and section 10 (2) (xv) from time to time.
The question, as propounded, seems to refer sections 10 (2) (xv) and 10(1) and not to section 10 (2) (xi), We, however, do not wish to emphasise the nature of the question posed, because, in our opinion, the central point to decide is whether the money which was given up, represented a loss of capital, or must be treated as a revenue expenditure.
The tax under the head "Business" is payable under is.
10 of the Income tax Act.
That section provides by sub section
(1) that the tax shall be payable by an assessee under the head "Profits and gains of business, etc." in respect of the profits or gains of any business, etc.
carried on by him.
Under sub section
(2), these profits or gains are computed after making certain allowances.
Clause (xi) allows deduction of bad and doubtful business debts.
It provides that when the assessee 's accounts in respect of any part of his business are not kept on the cash basis, such sum, in respect of bad and doubtful debts, due to the assessee in respect of that part of his business is deductible but not exceeding the amount actually written off as irrecoverable in the books of the assessee.
Clause (1) ; 982 (xv) allows any expenditure not included in cls.
(1) to (xiv), which ;is not in the nature of capital expenditure or personal expenses of the assessee, to be deducted, if laid out or expended wholly and exclusively for the purpose of such business, etc.
The clauses expressly provide what can be deducted; but the general scheme of the section is that profits or gains must be calculated after deducting outgoings reasonably attributable as business expenditure but so as not to deduct any portion of an expenditure of a capital nature.
If an expenditure comes within any of the enumerated classes of allowances, the case can be considered under the appropriate class; but there may be an expenditure which, though not exactly covered by any of the enumerated classes, may have to be considered in finding out the true assessable profits or gains.
This was laid down by the Privy Council in Commissioner of Income tax vs Chitnavis (1) and has been accepted by this Court.
In other words, section 10 (2) does not deal exhaustively with the deductions, which must be made to arrive at the true profits and gains.
To find out whether an expenditure is on the capital account or on revenue, one must consider the expenditure in relation to the business.
Since all payments reduce capital in the ultimate analysis, one is apt I to consider a loss as amounting to a loss of capital.
But this is not true of all losses, because losses in the running of the business cannot be said to be of capital.
The Questions to consider in this connection are: for that was the money laid out? Was it to acquire an asset of an enduring nature for the benefit of the business, or was it an outgoing in the doing of the business? If money be lost in the first circumstance, it is a loss of capital, but if lost in the second circumstance, it is a revenue loss.
In the first, it bears the (1) (1932) L.R. 59 I.A. 290.
983 character of an investment, but in the second, to use a commonly understood phrase, it bears the character of current expenses.
This distinction is admirably brought out in some English cases, which were cited at the Bar.
We shall refer 'Only to three of them.
In English Crown Spelter Co. Ltd vs Baker 0), the English Crown Spelter Co. carried on the business of zinc smelting for which it required large quantities of 'blende '.
To get supplies of blende, a new Company called the) Welsh Crown Spelter 'Company was formed, which received assistance from the English Company in the shape of advances on loan.
Later, the English Company was required to write off pound 38,000 odd.
The question arose whether the advance could besaid to an investment of capital, because if theywere, the English Company would have no right to deduct the amount.
If on the other hand, it was money employed for the business it could be deducted.
Bray, J. who considered these questions, observed: "If this were an ordinary business transaction of a contrary by which the Welsh Company were to deliver certain trend, it may be at prices to be settled hereafter, and that this was really nothing more than an advance on account of the price of that blend, there "would be a great deal to be said in favour of the Appellants It is impossible to look upon this as an ordinary business transaction of an advance against goods to be delivered I can come to no other conclusion but that this was an investment of capital in the Welsh Company and was not an ordinary trade transaction of an advance against goods. . " (1) 984 The second case, Charles Marsdon & Sons.
Ltd vs The Commissioners of Inland Revenue (1), is under the Excess Profits Duty in England, and the question arose in the following circumstances: an English Company carried on the business of paper making.
To arrange for supplies of wood pulp, it entered into an agreement with a Canadian Company for supply of 3000 tons per year between 1917 1927.
The English Company made an advance of E. 30,000 against future deliveries to be recouped at the rate of E. I per ton delivered.
The Canadian Company was to pay interest in the meantime.
Later, the importation of wood pulp was stopped, and the Canadian Company (appropriately called the Ha Ha Company) neither delivered the pulp nor returned the money.
Bowlatt, J. held this to be a capital expenditure not admi ssible as a deduction.
He was of opinion that the payment was not an advance payment for goods, observing that no one pays for goods ten years in advance, and that it was a venture to establish a source and money was adventured as capital.
The last case, to which we need refer to illustrate the distinction made in such cases is Reid 's Brewery Co. Ltd vs Nale (2).
The Brewery Company there carried on, in addition to the business of a brewery, a business of bankers and money lenders making loans and advances to their customers.
This helped the customers in pushing sales of the product of the Brewery Company.
Certain sums had to be written off, and the amount was held to be deductible.
Pollock, B, said: "of course, if it be capital invested, then it comes within the express provision of the Income Tax Act, that no deduction is to be X X made on that account" (1) (1919) T. T.C. 217.
(2) 985 but held that: " . .no person who is 'acquainted with the habits of business ,loan doubt that this is not Capital invested.
What it is, is this.
It is capital used by the Appellants but used only in the sense that all money which is laid out by persons who are traders, whether it be in the purchase of goods be they traders along, whether it be in the purchase of raw material be they manufacturers. or in the case of money lenders, be they pawnbrokers or money lenders, whether it be money lent in the course of their trade, it is used and it comes out of capital, but it is not an investment in the ordinary sense of the word.
" It was thus held to be a use of money in the course of the Company 's business, and not an investment of capital at all.
These cases illustrate the distinction between an expenditure by way of investment and an expenditure in the course of business, which we have described as current expenditure.
The first may truly be regarded as on the capital side but not the second.
Applying this test to this simple case, it is quite obvious which it is.
The amount was an advanced against price of one crop.
The Oppigedars were to get the assistance not as an investment by the assessee company in its agriculture, but only as an advance payment of price.
The amount, so far as the assessee Company was concerned., represented the current expenditure towards the purchase of sugarcane, and it makes .DO difference that the sugarcane thus purchased was grown by the Oppigedars with the seedlings, fertiliser and money taken on account from the assessee Company.
In so far as the assessee Company was concerned, it was doing no more than making a forward arrangement for the next 986 year 's crop and paying an amount in advance out of the price, so that the growing of the crop may not suffer due to want of funds in the hands of the growers.
There was hardly any, element of investment which contemplates more than payment of advance price.
The resulting loss to the assessee Company was just as much a loss on the revenue side as would have been, if it had paid for the ready crop which was not delivered.
In our judgment, the decision of the High Court is right.
The appeal fails, and is dismissed with costs.
Appeal dismissed. | The assesses Company used to purchase sugarcane from the sugarcane growers to prepare sugar in its factory, in which a very large percentage of shares was owned by the Government of Mysore.
As a part of its business operation it entered into written agreements with the sugarcane growers and advanced them seedlings, fertilizers, and also cash.
The cane growers entered into these agreements known as "oppige" by which they agreed to sell sugarcane exclusively to the assessee company at current market rates and to have the 977 advances adjusted towards the price.
An account of each "Oppigedar" was opened by the company.
These agreements were entered into for each crop.
In the year 1948 49 due to drought, the assessee company could not work its mills and the "oppigedar" could not grow or deliver the sugarcane and thus the advances made in the year remainded unrecovered.
The Mysore Government realising the hardship appointed a committee to investigate the matter and make a report.
The Committee recommended that the assessee company should ex gratia forgo some of its dues, and in the year of account ending June 30, 1952, the company waived its rights in respect of Rs. 2,87,422/ .
The Company claimed this as a deduction under section 10 (2) (xi) and section 10 (2) (xv) 'but the Income Tax Officer declined to make the deduction and the appeal before the Appellate Assistant Commissioner also failed.
The Tribunal was also of the opinion that these advances were made to ensure to steady supply of quality surgarcane and the loss, if any, must be taken to represent a capital loss and not a trading loss but the tribunal referred the.
question thereby arising for the decision of the High Court.
The High Court relying upon a decision of this Court in Badridas Daga vs Commissioner of Income tax held, that the expenditure was not in the nature of a capital expenditure, but was a revenue expenditure and that this amount was deductible in computing.
the profits of the business for the year in question under section 10 (1) of the Income tax Act.
The central point for decision in the present case, was whether the money which was given up, represented a loss of capital or must be treated as a revenue, expenditure.
Held, that section 10 (2) does not deal exhaustively with the deductions which must be made to arrive at the true profits and gains.
It mentions certain deductions in cls.
(i) to (xiv) and if an expenditure comes within any of the emunerated classes of allowance the case has to be considered under the appropriate class.
Clause (xv) is a general clause which allows an expenditure to be deducted, if laid out or expended wholly and exclusively for the purpose of such business, which is not in the nature of capital expenditure or personal expenses of the assessee.
But the general scheme of the section is that profits or gains must be calculated after deducting outgoings reasonably attributable as business expenditure but not so as to deduct any part of a capital expenditure.
To find out whether an.
expenditure is on the capital account or on revenue, one must consider the expenditure in 978 relation to the business.
The questions to consider in this connection are for what was the money laid out ? Was it to acquire an asset of an enduring nature for the benefit of the business, or was it an outgoing in the doing of business ? If money be lost in the first circumstance it, is a loss of capital, but it lost in the second circumstance, it is a revenue loss.
In the first, it bears the character of an investment, but in the second, it bears the character of current expenses.
English Crown Spelter Co. Ltd. vs Baker, , Charles Marsden & Sons Ltd. vs The Commissioners of Inland Revenue, and Raid 's Brewery Co. Ltd. vs Nale, , applied.
Badridas Daga vs Commissioner of Income tax (1959) section C. R. 690 and Commissioner of Income tax vs Chitnavis, (1932) L. R : 59 I. A. 290, referred to.
Held, in this case, there was hardly any element of investment which contemplate more than payment of advance price.
The resulting loss to the assessee company was just as much a loss on the revenue side as would have been, if it had paid for the ready crop which was not delivered, |
vil Appeal Nos.
2780 81 of 1982 From the Judgment and Order dated 11.6.
1982 of the Karnataka High Court in Writ Petition No.3386 and 3387 of 1981 K.S. Cooper, Dr. Y.S. Chitale, Mrs. P.S. Shroff, S.S. Shroff and Mrs. Kiran Chaudhary for the Appellants.
M. Veerappa, A.K. Sharma, K.N. Singh, S.S. JavaIi, G.P. Shivaprakash and B.P. Singh for the Respondents.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
Bangalore was a beautiful city once.
It was a city with magic and charm, with elegant avenues, gorgeous flowers, lovely gardens and plentiful spaces.
Not now.
That was before the invasion of concrete and steel, of soot and smoke, of high rise and the fast buck.
Gone are the flowers, gone are the trees, gone are the avenues.
gone are the spaces.
We are now greeted with tail puffing 1062 chimneys and monstrous high rise buildings, both designed to hurt the eye, the environment and the man.
But they are thought by many as symbols of progress and modernity.
They have come to stay.
Perhaps they are necessary.
Nostalgic sentiments, we suppose, must yield to modern societal re quirements.
Smoking Chimneys produce much needed goods.
High rise buildings save much scarce space.
They have a place in the scheme of things.
But where, how, to what extent, at what cost, are the questions raised by some aggrieved citizens of Bangalore.
They want congestion to be prevented, population density to be controlled, lung spaces to be provided where people can breath, existing recreation al facilities to be preserved and improved, pollution and health hazards to be removed, civic and social amenities to be provided etc.
All these require a balanced use of avail able land.
It is with that object that the Mysore Town and Country Planning Act was enacted in 1961 and it is with the interpretation of some of the provisions of that Act that we are concerned in these appeals.
The problem and the pain have been well brought out by the Chairman of the Bangalore Urban Arts Commission (4th respondent before the High Court) in the Chairman 's response to an editorial in a local newspaper.
It is extracted in the Additional Statement filed in the High Court by the Writ Petitioners.
He says, "when we speak of saving Bangalore 's skyline and its cherished character, we are apt to be misun derstood even by some well meaning citizens.
Vested inter ests and busybodies with an easy conscience would in any case rubber wall any consideration of argument because the present time, with the skyrocketing property value, is a great opportunity for them to "make hay".
They would rather sell the city than dwell on its future.
We are not speaking only of the central areas of the city even when we regard them, understandably enough as more precious than the rest of the city.
Nor are we trying to guard the City 's supposed "colonial solitude" which, we know, vanished many decades ago.
We are not afflicted with irrational nostalgia and have no fetish about bungalows and court yards.
We are aware of the dynamics of a modern city.
All that we want and it was ably summed up in your editori al is that we must prevent any more ugliness and haphazard ness, of which we have had more than what Bangalore can take if it is to stay as the City Beautiful, with its planned spaciousness and (still) largely unclustered skyline.
We also want, without any further delay, a vigilant, clearly speltout and scrupulously honest system to ensure an orderly growth of the city, in "Keeping with the capacity of its services, like water supply, drainage and roads".
1063 I entirely agree that for new areas we must provide for more density of population if we are to get adequate mileage from per capital expenditure, and if we are to release sufficient lung spaces for recreational and community activ ities.
In fact, we have long back suggested to City Planners to plan for self contained and self sufficient clusters of multiple storey blocks, with their own plazas, shopping and recreational centers, in carefully selected locations and in keeping with the available services.
Again, there is no doubt that coverage per plot must be systematically reduced through imaginatively formulated bye laws, if we are to continue the garden city character of the City 's new areas.
It is utterly mystifying however, that such obviously valid thoughts and suggestions should end with the plea for "concentrated growth" presumely in the central area of the city and preferably with high rise buildings.
Such growth which is bound to obliterate what we have still left of this beautiful city and put further strains on its traffic, water supply and drainage, is cer tainly not going to help the proletarian office goer or house seeker.
It will serve only the big time builder, the high spending rich and last but not least the fast buck chasing wheeler dealers and busybodies mentioned above. "Now that the State Government has announced a clear policy in this behalf, there is no reason why we should not expect the best.
This Commission has made its own contribu tion to the formulation of a new set of building bye laws which aim at the much needed regulation on fully modern lines of this City 's future growth, and which leave minimum scope for corruption.
We hope that these will be adopted soon.
We look forward to a new approach and a new era free from the stench of corruption.
We hope that these will be adopted soon.
We look forward to a new approach and a new era free from the strench of corruption, innuendoes and loose talk of "motives", and characterised by future think ing.
After all, we have the City Beautiful because of the future thinking and hard work of the planners and adminis trators." Raj Mahal Vilas Extension is a sparsely developed area of the city of Bangalore which the Bangalore Improvement Trust Board desired to develop under the provisions of the city of Bangalore Improvement Act, 1945.
Land was acquired and plots were allotted to several people.
A lay out was prepared and conditions were imposed for construction of houses on the sites.
The present appellants as well as the petitioners before the High Court were all of them allottees 1064 from the Improvement Trust Board.
One of the conditions of allotment was that the sites were not to be sub divided and not more than one dwelling house was to be constructed on each of the sites.
Apparently multistoreyed, high rise buildings were not within the contemplation of either the Improvement Trust Borad or the allottees at the time of allotment.
However, the petitioners before the High Court were dismayed to find such high rise buildings coming up in the Raj Mahal Vilas Extension.
Apprehending that there was going to be an invasion of the privacy of the residents of the locality, a disturbance of the peace and tranquility of the residential area, an interference with basic civic amenities consequent on haphazard rise of high rise build ings, and exposing of the residents to all manners of health hazards and interference with their way of living, a number of residents of the locality submitted a memorandum to the Governor and the Chief Minister of the State to take appro priate action to prevent the construction of high rise buildings in a residential area such as the Raj Mahal Vilas Extension.
There was no response from the authorities.
In desperation, some of the persons who submitted the memoran dum resorted to 'Public Interest Litigation ' and filed the writ petitions out of which the present appeals arise.
Their principal complaint was that the Outline Development Plan for Bangalore which had been published in the prescribed manner had been ignored by the authorities in granting permission to the appellants to construct the high rise buildings.
The first of the grounds mentioned in the writ petitions was that permits had been granted to construct eight floor residential buildings going to a height of 80 feet whereas under the regulations the maximum permissible height of a building was only 55 feet.
The inconveniences, discomforts and the hazards to which such a high rise build ing in a residential locality would expose the other resi dents of the locality were explained in the writ petition and writs were sought to quash the permits granted for construction and to restrain the present appellants from constructing the eight floor buildings and to direct them to demolish the structures already put up.
There was also a prayer to require the Bangalore Urban Arts Commission to recommend to the State of Karnataka against the construction of high rise buildings in any of the existing extensions of Bangalore.
Writ Petition No. 3386 of 1981 out of which arises Civil Appeal No. 2780 of 1982 and Writ Petition No. 3387 of 1981 out of which arises Civil Appeal No. 2781 of 1982 were filed on 25.2.81.
In Writ Petition No. 3386 of 1981 an interim order was initially refused by a learned Single Judge but on appeal a Division Bench of the High Court granted an interim order restraining the appellants in Civil Appeal No. 2780 of 1982 from raising further construc tion.
However, in the special leave petition filed by 1065 the appellants the order of the learned Single Judge was restored subject to an undertaking given by the appellants that in the event of the original writ petition being al lowed and the construction being required to be pulled down, the appellants will not raise any objection and will not plead the construction during the pendency of the writ petition as a defence to the pulling down of the construc tion.
The order of the Supreme Court was made on 2.6.81.
In W.P. No. 3387 of 1981 the High Court made an interim order on 24.7.81 permitting the appellants in Civil Appeal No. 2781 of 1982 to proceed with the construction subject to the appellants giving an undertaking similar to the undertaking given by the appellants in the other connected appeal.
We find from the judgment of the High Court that in W.P. No. 3386 of 1981 only excavation work had been done by the time of the filing of the petition and that the work was complet ed only after the undertaking was given to the Supreme Court.
In the other case the ground floor had been con structed and pillars had been put up for the next floor when the writ petition was filed.
The work was completed after the undertaking was given to the Division Bench of the High Court.
We may add that again in this Court when the appel lants sought interim orders to enable them to complete the construction during the pendency of the present appeals they gave an undertaking that they would complete the construc tion work of the 4th, 5th, 6th, 7th, and 8th floors at their own risk and cost and that they will raise no objection whatever to this Court passing an order for demolition of the said floors if the Court was ultimately inclined to pass such an order and that they would claim no compensation for demolition, if ordered.
The present appellants contested the writ petitions.
The writ petitions appeared to have been argued in the first instance before a learned single Judge who after hearing the petitions for some considerable time referred them for hearing by a Division Bench.
The Division Bench commenced hearing the writ petitions on 16.3.82 and on 22.3.82 a further contention was raised by the appellants that the Outline Development Plan and the Regulations were never published, consequently they have never become effective and, therefore, there was no need for any compliance with the requirements of the plan and the regulations.
As it turns out this is the only contention which was finally argued before the High Court and before us.
The High Court overruled the contention and declared the licences granted for construction illegal and directed the Commissioner, Corporation of the City of Bangalore to modify the licences so as to bring them in conformity with the Outline Develop ment Plan and the Zonal Regulations appended thereto promul gated under Section 13(4) of the Karnataka 1066 Town and Country Planning Act and take all consequential action in accordance with law.
Shri Cooper, learned counsel for the appellants urged that publication of the Outline Development Plan and the Regulations in the prescribed manner, that is, in the Offi cial Gazette was mandatory under Section 13(4) and that failure to so publish the Outline Development Plan and the Regulations rendered them ineffective.
The licences already granted to the appellants could not be cancelled or directed to be modified so as to be in accord with the Outline Devel opment Plan and the Regulations.
It was further urged that the Regulations were distinct from the Outline Development Plan and that in the case of the Regulations, there was no attempt whatever at publication.
It was submitted that the High Court was in error in holding that Section 76J cured whatever defect there was in regard to the publication of the Plan and the Regulations.
It was said that the High Court was also in error in holding that the Outline Develop ment Plan and the Regulations became effective as soon as they were approved by the Government under Section 13(3) of the Act irrespective of the date of publication under Sec tion 13(4).
On the other hand, it was submitted by Shri Javali, learned counsel for the writ petitioners in the High Court that there was sufficient publication of the Plan and the Regulations, that the Plan and the Regulations were always kept available for inspection at the office of the concerned authorities and that it was not the case of the appellants originally that there was no publication and that they had no knowledge of the Plan and the Regulations.
It was only after thought, put forward in the course of the arguments at the final stage of the hearing of the writ petitions.
It was submitted that such defect as there was in the publication of the Plan and the Regulations was effec tively cured by Section 76J and the passage of time.
It was also pointed out that the Regulations were an integral part of the Outline Development Plan.
In order to appreciate the rival contentions of the parties, it is necessary to refer to the relevant statutory provisions.
In 1961 the Bangalore Metropolitan Planning Board was formed.
The Board prepared an Outline Development Plan (For short, O.D.P.).
In February 1963 the Mysore Town and Country Planning Act, 1961 came into force with effect from January 15, 1965.
Section 81 A(a) of the Act provides that the Outline Development Plan for the Bangalore Metropolitan Area prepared by the Bangalore Metropolitan Planning Board shall be deemed to be the Outline Develop 1067 ment Plan of the Planning Area comprising the City of Banga lore, prepared under the Act, by the Planning Authority of the Area.
Section 81 (a) further provides that the said plan along with the particulars specified in clauses (ii), (iii), (iv) and (v) of Section 12(2) shall be published and submit ted to the State Government for provisional approval.
Sec tion 81 A(b) provides that on receipt of the plan and particulars, the State Government shall after making such modifications as it deems fit, return the plan and the particulars to the Planning Authority, which shall thereupon take further action in accordance with the provisions of Section 13.
Section 2(3) defines 'land use ' to mean the major use to which a plot of land is being used on any specified date.
Section 2(4) defines 'notification ' to mean a notification published in the Official Gazette. 'Planning Area ' is de fined by Section 2(6) to mean the area declared to be a local planning area under the Act in the case of the local planning area comprising the city of Bangalore. 'Planning Authority ' is defined to mean the Planning Authority consti tuted under the Act.
Section 2(9) defines 'prescribed ' to mean prescribed by rules made under the Act.
Section 2(11) defines 'regulations ' to mean the Zonal Regulations govern ing land use made under the Act.
Chapter III of the Act deals with Outline Development Plan (O.D.P.).
Section 9(1) empowers the Planning Authority to prepare and publish in the prescribed manner an Outline Development Plan for the area within its jurisdiction and submit it to the State Government for provisional approval.
Section 9(4) prescribes that a copy of the O.D.P. sent to the State Government under sub section(1) shall be kept open for inspection by the public at the head office of the Planning Authority before carrying out a survey for the purpose of preparing an O.D.P. for such an area.
A Planning Authority is required by Section 10 to make a declaration of its intention to prepare such plan and to despatch a copy of the same to the State Government for publication in the Official Gazette and is also required to publish in the prescribed manner an invitation to the public to make sug gestions.
All suggestions made in response to the invitation within the prescribed period are required to be considered by the Planning Authority before submitting the plan to the State Government.
Section 12 deals with the contents of Outline Development Plan and we think it necessary to ex tract here the whole of the section.
Section 13 deals with approval of the Outline Development Plan and we think that it is necessary to extract Section 13 also.
Sections 12 and 13 are as follows: 1068 "section 12.
Contents of Outline Development Plan (1) An Outline Development Plan shall generally indicate the manner in which the development and improvement of the entire planning area within the jurisdiction of the Planning Authority are to be carried out and regulated.
In particular it shall include, (a) a general land use plan and zoning of land use for residential, commercial, indus trial, agricultural, recreational, educational and other public purposes; (b) proposals for roads and highways; (c) proposals for the reservation of land for the purposes of the Union, any State, any local authority or any other authority estab lished by law in India; (d) proposals for declaring certain areas as areas of special control, development in such areas being subject to such regulations as may be made in regard to building line, height of buildings, floor area ratio, architectural features and such other particulars as may be prescribed; (e) such other proposals for public or other purposes as may from time to time be approved by the Planning Authority or directed by the State Government in this behalf.
Explanation 'building line ' means the line up to which the plinth of a building adjoining a street may lawfully extend and includes the lines prescribed, if any, in any scheme.
(2) The following particulars shall be published and sent to the State Government through the Director along with the Outline Development Plan, namely: (i) a report of the surveys carried out by the Planning Authority before the preparation of such plan; (ii) a report explaining the provisions of such Plan; (iii) regulations in respect of each land use zone to enforce 1069 the provisions of such plan and explaining the manner in which necessary permission for developing any land can be obtained from the Planning Authority; (iv) a report of the stages by which it is proposed to meet the obligations imposed on the Planning Authority by such a plan; (v) an approximate estimate of the cost in volved in the acquisition of lands reserved for public purposes." "S.13.
Approval of the Outline Development Plan (1) On receipt of the Outline Develop ment Plan with the particulars referred to in Section 12 from the Planning Authority under sub section (1) of Section 9, or after such plan and particulars are prepared and pub lished under subsection (2) of Section 9 the State Government after making such modifica tions as it deems fit or as may be advised by the Director, shall return through the Direc tor, the plan and the particulars to the Planning Authority, which shall thereupon pub lish, by notification, the plan and the par ticulars inviting public comments within one month of such publication.
(2) If within one month of the publication under subsection (1) any member of the public communicates in writing to the Planning Au thority any comments on the plan and the regulations, the Planning Authority shall consider such comments and resubmit the plan and the regulations to the State Government, through the Director with recommendations for such modifications in the plan and regulations as it considers necessary in the light of the public comments made on the plan and regula tions.
(3) The State Government, after receiving the plan and the regulations and the recommen dation for modifications from the Planning Authority, shall in consultation with the Director, give its final approval to the plan and the regulations with such modifications as the Director may advice in the light of the comments and the recommendations of the Plan ning Authority or otherwise.
(4) The Planning Authority, shall then publish in the 1070 prescribed manner the Outline Development Plan and the Regulations as approved by the Govern ment.
The plan and the particulars shall be permanently displayed in the offices of the Director and the Planning Authority and a copy shall be kept available for inspection of the public at the office of the Planning Authori ty.
" Section 14 speaks of 'Enforcement of the Outline Devel opment Plan and the Regulations '.
Section 14(1) prescribes that on and from the date on which a declaration of inten tion to prepare an outline is published under sub section (1) of Section 10, every land use, every change in land use and every development in the area shall conform to the provisions of the Act, the Outline Development Plan and the Regulations as finally approved by the State Government under subsection (3) of Section 13.
The only other provision of the Act to which reference is necessary is, what we may call the, "Ganga" clause*, Section 76J which provides for 'Validation of acts and proceedings '.
It is as follows: "76 J. Validation of acts and proceedings No act done or proceeding taken under this Act shall be questioned on the ground merely of, (a) the existence of any vacancy in, or any defect in the constitution of the Board or any Planning Authority; (b) any person having ceased to be a member; (c) any person associated with the Board or any planning authority under section 4F having voted in contravention of the said section; or (d) the failure to serve a notice on any person, where no substantial injustice has resulted from such failure; or (e) any omission, defect or irregularity not affecting the merits of the case.
" We may also refer here to the rules relating to publica tion.
Rule 32 provides for "publication of Outline Develop ment Plan under sub 1 ' According to Hindu tradition the waters of the Ganga purify, cleans the sins and remedy all insufficiencies.
1071 section (1) and sub section (2) of Section 9".
It prescribes that the publication shall be made by making a copy of the Plan available for inspection and displaying a notice in Form II, (a) at the office of the Planning Authority and (b) at such other places as may be specified by the Planning Authority.
The Planning Authority is also required to pub lish a notice in Form II in the Official Gazette and in one or more newspapers.
The publication under Section 9(2) is also required to be made in the same manner except that reference to Planning Authority is to be construed as a reference to the Director.
Rule 33 provides for 'Publication of Outline Development Plan and Regulations under Section 13(4) ' and stipulates that the Outline Development Plan and the Regulations as approved by the State Government under subsection (3) of Section 13 shall be published in the Official Gazette.
Form 11 referred to in Rule 32 is as follows: FORM NO.
II (Rule 32) NOTICE OF PUBLICATION OF OUTLINE DEVELOPMENT PLAN Notice is hereby given that an Outline Development Plan of . . . area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963) and a copy thereof is available for inspection at the office of the Planning Authority during office hours.
If there be any objection or suggestion in respect of the Outline Development Plan, it should be lodged on or before the . .
Every such objection or suggestion should either be presented in the office of the Planning Authority or sent by registered post to the Planning Authority.
" We said earlier that the Outline Development Plan for the Bangalore Metropolitan Area was prepared by the Banga lore Metropolitan Planning Board and that under Section 81J of the Mysore Town and Country Planning Act, it was deemed to be the Outline Development Plan of the planning area comprising the city of Bangalore, prepared under the Act, by the Planning Authority of such 1072 area.
A 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette on 21.12.1967 in Form II.
It was as follows: "OFFICE OF THE PLANNING AUTHORITY BANGALORE CITY, PLANNING AREA, BAN GALORE 9 Notice of Publication of Outline Development Plan Notice is hereby given that an Outline Development Plan of Bagalore City Planning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963) and a copy thereof is available for inspection at the office of the Planning Authority in Seshadri Road, Bangalore City during office hours.
If there be any objection or sugges tion in respect of the Outline Development Plan, it should be lodged on or before the 15th day of February, 1968.
Every such objection or suggestion should either be presented in the office of the Planning Authority or sent by registered post to the Planning Authority.
K. Balasubramanyam CHAIRMAN" After the State Government provisionally approved the Plan 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 10.10.68 again in Form II.
The Notification was in the following terms: "OFFICE OF THE CHAIRMAN, PLANNING AUTHORITY BANGALORE CITY PLANNING AREA, BANGALORE 9 Notice of Publication of Outline Development Plan.
Notice is hereby given that an Out line Development Plan of Bangalore City Plan ning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963).
The said Plan has been provi sion 1073 ally approved by the Government of Mysore as per Section 13(1) of the above Act.
A copy of the above approved plan and the report are available for inspection at the office of the Planning Authority in Seshadri Road, Bangalore City during office hours.
If there be any objection or sugges tion in respect of the Outline Development Plan it should be lodged within 30 days from the date of publication of this notice in the Gazette.
Every such objection or suggestion should either be presented in the office of the Planning Authority or sent by registered post to the Planning Authority.
CHAIRMAN PLAN NING AUTHORITY" It appears that in response to the invitation to file objec tions, as many as 600 representations and objections were received from individuals, institutions, associations, Chambers of Commerce etc.
The Outline Development Plan was finally approved by the Government and a notification to that effect was published in the Mysore Gazette dated 13.7.
1972 in the following terms: "OFFICE OF THE CHAIRMAN, PLANNING AUTHORITY BANGALORE CITY PLANNING AREA, BANGALORE 9.
Dated, 27th June 1972.
Notice of Publication of Outline Development Plan.
In pursuance of Rule 33 of the Mysore Planning Authority Rules 1965 Notice is hereby given that an Outline Development Plan of Bangalore City Planning Area has been prepared under the Mysore Town and Country Planning Act, 1961 (Mysore Act 11 of 1963).
The said plan has been finally approved by the Govern ment of Mysore as per Section 13(3) of the above Act.
A copy of the above approved plan and the report are available for inspection at the office of the Planning Authority in Sesha dri Road, Bangalore City, during office hours.
1074 M.S. Ramachandra Chairman Planning Authority.
" It is seen that 'at every stage the public were informed by notices published in the Official Gazette that the Outline Development Plan was available for inspection at the office of the Planning Authority, though it is not disputed that the Plan and the Regulations themselves were never published as such in the Gazette.
The question for consideration is whether the intimation to the public through the Official Gazette that the Outline Development Plan was available for inspection at the office of the Planning Authority is a sufficient compliance with the requirement of Section 13(4) regulating the publication of the approved Plan and Regula tions? There can be no doubt about the proposition that where a law, whether Parliamentary or subordinate, demands compli ance, those that are governed must be notified directly and reliably of the law and all changes and additions made to it by various processes.
Whether law is viewed from the stand point of the 'conscientious good man ' seeking to abide by the law or from the standpoint of Justice Holmes 's 'Uncon scientious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.
We know that delegated or subordinate legislation is all pervasive and that there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation.
But unlike Parlia mentary Legislation which is publicly made, delegated or subordinate legislation is often made, unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary.
It is, therefore, necessary that subordinate legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publication or promulgation is prescribed by the parent statute or not.
It will then take effect from the date of such publication or promulgation.
Where the parent statute prescribes the mode of publication or promulgation that mode must be followed.
Where the parent statute is silent, but the subordinate legislation itself prescribes the manner of publication, such a mode of publication may be sufficient, if reasonable.
If the subordinate legislation does not prescribe the mode of publication or if the subordinate legislation prescribes a plainly unreasonable mode of publi cation, it will take effect only when it is published through the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publi cation.
There may be subordinate legislation which is con cerned with a 1075 few individuals or is confined to small local areas.
In such cases publication or promulgation by other means may be sufficient.
* In the present case Section 13(4) has prescribed the mode of publication of the Outline Development Plan and the Regulations.
It requires the Outline Development Plan and the Regulations to be published in the prescribed manner and the Plan and particulars to be permanently displayed in the offices of the Director and the Planning Authority and a copy to be kept available for the inspection of the public at the office of the Planning Authority.
The particulars referred to, we presume, are the particulars mentioned in Section 12(2) of the Act consisting of various reports, including the Regulations. 'The prescribed manner ' is what is prescribed by Rule 33, that is, publication in the Offi cial Gazette.
If we now turn to Section 9(1) and 9(2), we find that there too the the Outline Development Plan is required to be published in 'the prescribed manner '.
The prescribed manner for the purposes of sub sections (1) and (2) of Section 9 is that prescribed by Rule 32.
Rule 32 we have seen prescribes making a copy of the Plan available for inspection, publishing a notice in Form No. II in the Offi cial Gazette and in one or more newspapers and displaying a notice in Form No. II at the office of Planning Authority and at other specified places.
It is true that Rule 33 speaks of publication of approved Outline Development Plan and Regulations in the Official Gazette, suggestive of a requirement that the Outline Development Plan and Regula tions should bodily be incorporated in the Official Gazette.
But if the entire scheme of the Act and the rules is consid ered as an integral whole it becomes obvious that what Section 13(4) contemplates besides permanently displaying the plan and the particulars in the offices of Director and Planning Authority and keeping available a copy for the inspection of the public at the office of Planning Authority is a public notice to the general public that the Plan and Regulations are permanently displayed and are available for inspection by the public.
Such public notice is required to be given by a publication in the Official Gazette, This is how it was understood by the authorities and everyone else concerned and this is how it was done in the present case.
This appears to be a reasonable and a rational interpreta tion on Section 13(4) and Rule 33 in the setting and the scheme.
We are of the view that there was compliance with the requirements of Section 13(4) and Rule 33.
We have earlier mentioned that Section 13(1) requires the provision al Outline Development Plan * See Narayana Reddy, vs State of Andhra Pradesh = 1969 (1) Andhra Weekly Reporter 77.
1076 and particulars to be published by notification in the Official Gazette, with a view to invite comments from the public.
What was published in the present case under Section 13(1) was also a notice in Form No. II and not the whole of the Plan and particulars.
Such publication evoked considera ble public response.
As many as 600 representations from individuals and institutions were received.
That is why we said that everyone concerned, that is, the Government, the Director, the Planning Authority and the public, individual and institution alike, thought that publication of a notice in the Gazette inviting the attention of the public to the display and the availability for inspection of the Plan and particulars was all that was contemplated by the provisions providing for publication.
We do not think that there is any reason or justification for us to adopt an interpretation which departs from common understanding of the Act and the Rules.
Shri Cooper invited our attention to Shalagram Jhajharia vs National Co. Ltd. & Ors., and Firestone Tyre & Rubber Co. vs Synthetics & Chemicals Ltd. & Ors., [1971] 41 Company cases 377 to urge that offer of inspection cannot be a substitute for publication.
We do not think that these two cases are of assistance to Shri Cooper.
What was laid down in those cases was the mandatory require ment of a full and frank disclosure of the relevant facts, in the explanatory note attached to the notice convening a general meeting of the company cannot be circumvented by an offer of inspection.
Another case to which Shri Cooper drew our attention was Municipal Board, Pushkar vs State Trans port Authority, Rajasthan & Ors., [1963] Suppl.
2 S.C.R. 373.
In that case the question arose as to what was to be treated as the date of the order of the Regional Transport Authority.
Was it the date of the resolution of the Regional Transport Authority or was it the date on which the resolu tion was brought into effect by publication of the notifica tion? The answer was that it was the date of the publication of the notification.
In Joint Chief Controller of Imports & Exports, Madras vs M/s. Aminchand Mutha etc.
; , another case on which Shri Cooper relied, the Court held that there was no order prohibiting the import of fountain pens, since in fact no such order had been pub lished and no such order was brought to the notice of the Court.
All that was available was an entry 'nil ' against fountain pens in the declaration of policy as to import.
We are unable to see how these two cases can be of any help to Shri Cooper.
Shri Cooper also invited our attention to cases drawing a distinction between mandatory and directory statu tory requirements but those cases again are of no avail to him in the view that we have taken.
We also desire to state that the effect of the non perfor 1077 mance of a duty imposed by a statute in the manner pre scribed by the statute is not discovered by a simple answer to the question whether the statute is mandatory or directo ry.
These are not simple chemical reactions.
The question whether a statutory requirement is mandatory or directory cannot itself be answered easily as was pointed out more than a century ago in Liverpool Borough vs Turner, ; Many considerations must prevail and the object and the context are the most important.
The High Court was of the view that such defect as there was in regard to publication of the Plan was cured by Sec tion 76J, ' the Omnibus Curative clause to which we earlier made a reference as the 'Ganga ' clause.
Provisions similar to s.76J are found in several modern Acts and their object is to put beyond challenge defects of constitution of statu tory bodies and defects of procedure which have not led to any substantial prejudice.
We are inclined to agree with the High Court that a defective publication which has otherwise served its purpose is not sufficient to render illegal what is published and that such defect is cured by Section 76J.
The High Court relied on the two decisions of this Court Bangalore Woollon, Cotton & Silk Mills Co. Ltd. Bangalore vs Corporation of the City of Bangalore and Municipal Board, Sitapur vs Prayag Narain Saigal & Firm Moosaram Bhagwandas, ; In the first case objection was raised to the imposition of octroi duty on the ground that there was failure to notify the final resolution of the imposition of the tax in the Government Gazette as required by Section 98(2) of the City of Bangalore Municipal Corporation Act.
A Constitution Bench of the Court held that the failure to publish the final resolution in the Official Gazette was cured by S.38(1)(b) of the Act which provided that no act done or proceeding taken under the Act shall be questioned merely on the ground of any defect or irregulari ty in such act or proceeding, not affecting the merits of the case.
The Court said that the resolution had been pub lished in the newspapers and was communicated to those affected and failure to publish the resolution did not affect the merits of its imposition and failure to notify the resolution in the Gazette was not fatal to the legality of the imposition.
In the second case it was held that the non publication of a special resolution imposing a tax was a mere irregularity, since the inhabitants had no fight to object to special resolutions and had otherwise clear notice of the imposition of the tax.
It is true that both these cases relate to non publication of a resolution regarding imposition of a tax where the imposition of a tax was other wise well known to the public.
In the present case the situation may not be the same but there certainly was an effort to bring the Plan 1078 and regulations to the notice of the public by giving notice of the Plan in the Official Gazette.
Non publication of the Plan in the Official Gazette was therefore a curable defect capable of being cured by Section 76J.
It is here that the failure of the appellants to plead want of publication or want to knowledge in the first instance assumes importance.
In the answer to the Writ Petitions, the appellants took up the substantial plea that they had complied with the re quirements of the Outline Development Plan and the Regula tions but not that they had no knowledge of any such re quirement.
It can safely be said that the defect or irregu larity did not affect the merits of the case.
Finally, one last submission of Shri Cooper requires to be examined.
Shri Cooper submitted that Section 13(1) used the words "the Plan and the particulars", Section 13(2) used the Words "the Plan and the Regulations," Section 13(3) used the words "the Plan and the Regulations" and Section 13(4) used the words, "the Outline Development Plan and the Regu lations" as well as the words, "the Plan and the Regula tions".
This, according to Shri Cooper, signified that the particulars and the Regulations are not to be treated as part of the Plan but as creations distinct from the Plan.
We do not think that we are entitled to split the unity and identity of the plan as suggested by the learned counsel.
The Outline Development Plan and the Regulations are not distinct from each other.
The regulations are born out of the Plan and the Plan thrives on the Regulations.
The Plan is the basis for the Regulations and the Regulations are what make the plan effective.
Without the Regulations, the plan virtually becomes a dead letter.
The reference in the four clauses of Section 13, whenever the word 'Plan ' or the 'Outline Development Plan ' is used, is to the core plan, without the particulars and the Regulations and not the whole of the Outline Development Plan which must include the Regulations.
What the different phraseology is meant to convey is to emphasise the different parts of the Plan which have to be forwarded to the Government, considered by the Government made available for inspection by the public, as the case may be and to the extent necessary.
Merely because the words "and Regulations" are added to the word 'Plan ', the Regulations are not to be treated as not constituting part of the Plan even as when a building is sold along with the fixtures, it does not mean that the fixtures are not treated as part of the building.
Shri Cooper drew the dis tinction between the Plan and the Regulations to suggest that in the notice published on 27.6.72, the Planning Au thority mentioned that the Plan was available for inspection at the office of the Planning Authority but made no refer ence to the Regulations and, therefore, it must be consid ered that the Regulations were not made 1079 available for inspection and so never published.
We do not think that it is possible to reach the conclusion suggested by Shri Cooper from the absence of the reference to the Regulations in the notice.
The Authorities justifiably always treated the Plan as including the Regulations and we are satisfied that what was kept for inspection was the Plan along with the Regulations.
Shri Cooper argued that neither the Municipal Corpora tion nor any other civic authority appeared to be aware of the Outline Development Plan and the Regulations as was evident from the circumstance that in the years that passed since the approval of the Plan by the Government and before the writ petitions were filed, as many as 57 building li cences had admittedly been issued in contravention of the Regulations.
It may be that notwithstanding the Regulations some building licences were granted in contravention of the Regulations but that only exposes the deplorable laxity of the concerned authorities and emphasises the need for great er public vigilance.
The present Writ Petitions, we hope, are forerunners of such vigilance.
In the result we find no merit in the appeals which are accordingly dismissed with costs.
The judgment of the High Court will now be given effect by the authorities, taking note of the several undertakings given to the High Court and this Court at various stages.
A.P.J. Appeals dismissed. | In 1961 the Bangalore Metropolitan Board was formed.
The Board prepared an Outline Development Plan (O.D.P.).
In February, 1963, the Mysore Town and Country Planning Act, 1961 came into force with effect from January 15, 1965.
Section 81 A(a) of the Act provides that the Outline Devel opment Plan for the Bangalore Metropolitan Area prepared by the Bangalore Metropolitan Planning Board shall be deemed to be the Outline Development Plan of the Planning Area com prising the City of Bangalore, prepared under the Act, by the Planning Authority of the Area.
Section 81 A(a) further provides 'that the said plan alongwith the particulars specified in clauses (ii), (iii), (iv) 1055 and (v) of section 12(2) shall be published and submitted to the State Government for provisional approval.
Section 81 A(b) provides that on receipt of the plan and the particulars, the State Government shall after making such modifications as it deems fit, return the plan and the particulars to the Planning Authority for taking further action in accordance with the provisions of section 13.
Section 13 deals with approval of the Outline Development Plan.
Section 76J provides for "validation of acts and proceedings".
Rule 32 of the Mysore Planning Authority Rules, 1965 provides for "publication of Outline Development Plan under sub.s.(1) and sub s.(2) of s.9.
" It prescribes that the publication shall be made by making a copy of the Plan available for inspection and displaying a notice in Form II, (a) at the office of the Planning Authority and (b) at such other places as may be specified by the Planning Authority.
The Planning Authority is also required to publish a notice in Form II in the Official Gazette and in one or more newspapers.
The Publica tion under s.9(2) is also required to be made in the same manner.
Rule 33 provides for 'Publication of Outline Devel opment Plan and Regulations under s.13(4), and stipulates that the Outline Development Plan and the Regulations as approved by the State Government under sub s.(3) ors.13 shall be published in the Official Gazette.
A 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 21.12.1967 in Form II.
After the State Government provisionally approved the Plan, 'Notice of publication of Outline Development Plan ' was published in the Mysore Gazette dated 10.10.1968 again in Form II.
In response to the invitation to file objec tions, as many as 600 representations and objections were received from individuals, institutions, associations, Chambers of Commerce etc.
The Outline Development Plan was finally approved by the Government and a notification to that effect was published in the Mysore Gazette dated 13.7.72.
The Bangalore Improvement Trust Board desired to develop Raj Mahal Vilas Extension under the provisions of the City of Bangalore Improvement Act, 1945.
Land was acquired and plots were alloted to several people.
A lay out plan was prepared and conditions were imposed for construction of houses on the sites.
One of the conditions of allotment was that the sites were not to be sub divided and not more than one dwelling house was to be constructed on each of the sites.
Apparently multistoreyed, high rise buildings were not within the contemplation of either the Improvement Trust Board or the allotees at the time of allotment.
However, High buildings came up.
A number of residents of the locali ty submitted a memorandum to the Governor and 1056 the Chief Minister to take an appropriate action to prevent construction of high rise buildings in residential area of Raj Mahal Vilas Extention.
Since there was no response some persons resorted to 'Public Interest Litigation, by filing writ petitions alleging that the Outline Development Plan for Bangalore which had been published in the prescribed manner had been ignored by the authorities in granting permission to the appellants to construct the high rise buildings and that permits had been granted to construct eight floor residential buildings going to a height of 80 feet whereas under the regulations the maximum permissible height of a building was only 55 feet.
Writs were sought to quash the permits granted for construction, to restrain the appellants from constructing the eight floor buildings, to direct them to demolish the structures already put up and to require the Bangalore Urban Area Commission to recommend to the State Government against the construction of highrise buildings in any of the existing extensions of Banglore.
The High Court allowed the petitions and declared the licences granted for constructions illegal and directed the Commissioner, Corporation of the City of Bangalore to modify the licences os as to bring them in confirmity with the Outline Development Plan and the Zonal Regulations appended thereto promulgated under s.13(4) of the Karnataka Town and Country Planning Act and take all consequential actions in accordance with law.
In the appeal to this Court, on behalf of the appellants it was contended: (1) that publication of the Outline Devel opment Plan and the Regulations in the prescribed manner, that is, in the Official Gazette was mandatory under section i3(4) and that failure to so publish the Outline Development Plan and the Regulations rendered them ineffective.
The licences already granted to the appellants could not be cancelled or directed to be modified so as to be in accord with the Outline Development Plan and the Regulations; (2) that the Regulations were distinct from the Outline Develop ment Plan and that in the case of the Regulations, there was no attempt whatever at publication; (3) that the High Court was in error in holding that s.76 J cured whatever defect there was in regard to the publication of the Plan and the Regulations and that the Outline Development Plan and the Regulations became effective as soon as they were approved by the Government under section 13(3) of the Act irrespective of the date of publication under s.13(4); (4) that offer of inspection cannot be a substitute for publication; (5) that section 13(1) used the words "the Plan and the particulars", section 13(2) used the words "the Plan and the the Regulations".
s.13(3) used the words "the Plan and the Regulations" and s.13(4) used the words "the Out 1057 line Development Plan and the Regulations" as well as the words "the Plan and the Regulations" and this signified that the particulars and the Regulations are not to be treated as part of the plan but as creations distinct from the Plan.
In the notice published on 27.6.1972, the Planning Authority mentioned that the Plan was available for inspection at the office of the planning authority but made no reference to the Regulations and, therefore, it must be considered that the Regulations were not made available for inspection and so never published; and (6) that neither the Municipal Corporation nor any other Civic Authority appeared to be aware of the Outline Development Plan and the Regulations as was evident from the circumstances that in the years that passed since the approval of the Plan by the Government and before the writ petitions were filed, as many as 57 build ings licences had admittedly been issued in contravention of the Regulations.
On behalf of the respondents it was contended: (1) that there was sufficient publication of the Plan and the Regula tions, that the Plan and Regulations were always kept avail able for inspection at the office of the concerned authori ties and that it was not the case of the appellants origi nally that there was no publication and that they had no knowledge of the Plan and the Regulations: (2) that the defect in the publication of the Plan and the Regulations was effectively cured by s.76J and the passage of time; and (3) that the Regulations were integral part of the Outline Development Plan.
Dismissing the Appeal, HELD 1.
There was compliance with the requirements of section 13(4) of the Mysore Town and Country Planning Act, 1961 and Rule 33 of the Mysore Planning Authority Rules, 1965.
[1075G] 2.
At every stage the public were informed by notices published in the Official Gazette that the Outline Develop ment Plan was available for inspection at the office of the Planning Authority.
[1078H] 3.
The Authorities justifiably always treated the Plan as including the Regulations and what was kept for inspec tion was the Plan alongwith the Regulations.
[1079A B] 4.(i) Where a law, whether Parliamentary or subordinate, demands compliance, those that are governed must be notified directly and reliably of the law and all changes and addi tions made to it by various processes.
Whether law is viewed from the standpoint of the 1058 'conscientious good man ' seeking to abide by law or from the standpoint of Justice Holmes 's 'unconscentious bad man ' seeking to avoid the law, law must be known, that is to say, it must be so made that it can be known.
[1074C E] 4.(ii) Delegated or subordinate Legislation is all pervasive and there is hardly any field of activity where governance by delegated or subordinate legislative powers is not as important if not more important, than governance by Parliamentary legislation.
But unlike Parliamentary Legisla tion which is publicly made, delegated or subordinate Legis lation, is often made unobtrusively in the chambers of a Minister, a Secretary to the Government or other official dignitary.
It is, therefore, necessary that subordinate Legislation, in order to take effect, must be published or promulgated in some suitable manner, whether such publica tion or promulgation is prescribed by the parent statute or not.
[1074E F] 4.(iii) Where the parent statute prescribes the mode of publication or promulgation that mode must be followed.
Where the parent statute is silent, but the subordinate Legislation itself prescribes the manner of publication such a mode of publication may be sufficient, if reasonable.
If the subordinate Legislation, does not prescribe the mode of publication or if the subordinate Legislation prescribes a plainly unreasonable mode of publication it will take effect only when it is published from the customarily recognised official channel, namely, the Official Gazette or some other reasonable mode of publication.
There may be subordinate Legislation which is concerned with a few individuals or is confined to small local areas.
In such cases publication or promulgation by other means may be sufficient.
[1074F H; 1075A] 4.(iv) In the present case, s.13(4) has prescribed the mode of publication of Outline Development Plan and the Regulations.
It requires the Outline Development Plan and the Regulations to be published in the prescribed manner and the Plan and particulars to be permanently displayed in the office of the Director and the Planning Authority and a copy to be kept available for the inspection of the public at the office of the Planning Authority.
The particulars referred to presumably are the particulars mentioned in section 12(2) of the Act consisting of various reports, including the Regula tions. 'The prescribed manner ' is what is prescribed by Rule 33, that is, publication in the Official Gazette.
[1075A C] 4.(v) Under s.9(1) and 9(2) also the Outline Development Plan is 1059 required to be published in 'the prescribed manner '.
The prescribed manner for the purposes of sub s.(1) and (2) of s.9 is that prescribed by Rule 32.
Rule 32 prescribes making a copy of the Plan available for inspection, publishing a notice in Form No. II in the Official Gazette and in one or more newspapers and displaying a notice in Form No.11 at the office of the Planning Authority and at other specified places.
[1075C E] 4.(vi) Rule 33 speaks of publication of approved Outline Development Plan and Regulations in the Official Gazette suggestive of a requirement that the Outline Development Plan and Regulations should bodily be incorporated in the Official Gazette.
But if the entire scheme of the Act and the rule is considered as an integral whole it becomes obvious that what section 13(4) contemplates besides permanently displaying the Plan and the particulars in the offices of Director and Planning Authority and keeping available a copy for the inspection of the public at the office of Planning Authority, is a.public notice to the general public that the Plan and Regulations are permanently displayed and are available for inspection by the public.
Such public notice is required to be given by a publication in the Official Gazette.
This is how it was understood by the authority and everyone else concerned and this is how it was done in the present case.
This appears to be a reasonable and a rational interpretation of s.13(4) and Rule 33 in the setting and the scheme.
[1075D H] 4.(vii) Section 13(1) requires the provisional Outline Development Plan and particulars to be published by notifi cation in the Official Gazette with a view to invite com ments from the public.
What was published in the present case under s.13(1) was also a notice in Form No. II and not the whole of the Plan and particulars.
Such publication evoked considerable public response.
As many as 600 repre sentations from individuals and Institutions were received.
Therefore everyone concerned, i.e., the Government, the Director, the Planning Authority and the public, individual and institution alike, thought that publication of a notice in the Gazette inviting the attention of the public to the display and availability for inspection of the Plan and particulars was all that was contemplated by the provisions providing for publication.
There is no reason or justifica tion to adopt an interpretation which departs from common understanding of the Act and the Rules.
[1075H; 1076A C] Shalagram Jhajharia vs National Co. Ltd. & Ors., , Firestone Tyre & Rubber Co. vs Syn thetics & Chemicals Ltd. & Ors., ,Municipal Board, Pushkar vs State Transport Authority, Rajasthan & Ors., [1963] Suppl.
2 1060 S.C.R. 373 and Joint Chief Controller of Imports & Exports, Madras vs M/s. Aminchand Mutha etc.
; , , distinguished.
The effect of the non performance of a duty imposed by a statute in the manner prescribed by the statute is not discovered by a simple answer to the question whether the statute is mandatory or directory.
These are not simple chemical reactions.
The question whether a statutory re quirement is mandatory or directory cannot itself be an swered easily.
Many considerations must prevail and the object and the context are the most important.
[1077A B] Liverpool Borough vs Turner, ; , referred to.
6.(i) The High Court was of the view that such defect as there was in regard to publication of the Plan was cured by s.76J, the Omnibus Curative clause, called by this Court as the "Ganga" clause.
Provisions similar to s.76J are found in several modern Acts and their object is to put beyond chal lenge defects of constitution of statutory bodies and de fects of procedure which have not led to any substantial prejudice.
A defective publication which has otherwise served its purpose is not sufficient to render i1legal what is published and that such defect is cured by Section 76 J. [1077B D] Bangalore Woollen, Cotton & Silk Mills Co. Ltd. Banga lore vs Corporation of the City of Bangalore, and Municipal Board, 'Sitapur vs Prayag Narain Saigal & Firms Moosaram Bhagwandas, ; , followed.
6.(ii) In the present case, there certainly was an effort to bring the Plan and Regulations to the notice of the public by giving notice of the Plan in the Official Gazette.
Non publication of the Plan in the Official Gazette was, therefore, a curable defect capable of being cured by s.76J. [1077H; 1078A B] 7.
Failure of the appellants to plead want of publica tion or want of knowledge assumes importance.
In the answer to the Writ Petitions, the appellants took up the substan tial plea that they had complied with the requirements of the Outline Development Plan and the Regulations but not that they had no knowledge of any such requirement.
It can safely be said that the defect or irregularity did not effect the merits of the case.
[1078B] 8.
The Outline Development Plan and the Regulations are not 1061 distinct from each other.
The Regulations are born out of the Plan and the Plan thrives on the Regulations.
The Plan is the basis for the Regulations and the Regulations are what make the plan effective.
Without the Regulations, the Plan virtually becomes a dead letter.
The reference in the four clauses of s.13, where the word 'Plan ' or the 'Outline Development Plan ' is used, is to the core plan, without the particulars and the Regulations and not the whole of the Outline Development Plan which must include the Regulations.
What the different phraseology is meant to convey is to emphasise tile different parts of the Plan which have to be forwarded to the Government, considered by the Government, made available for inspection by the public, as the case may be and to the extent necessary.
Merely because the words "and Regulations" are added to the word 'Plan ', the Regula tions are not to be treated as not constituting part of the Plan even as when a building is sold along with the fix tures, it does not mean that the fixtures are not treated as part of the building.
[1078D G] 9.
Notwithstanding the Regulations some building li cences were granted in contravention of the Regulations but that only exposes the deplorable laxity of the concerned authorities and emphasises the need for greater public vigilance.
The present Writ Petitions are forerunners of such vigilance.
[1079C D] |
Criminal Appeal No. 208 of 1978.
From the Judgment and Order dated 23.12.
1977 of the Punjab and Haryana High Court in Criminal Appeal No. 259 of 1974 M.R. Sharma, C.M. Sharma and H.K. Puri for the Appellant.
117 Harbans Lal, I.S. Goel and C.V. Subba Rao for the Respond ent.
The Judgment of the Court was delivered by OZA, J.
This appeal has been filed by the appellant after the grant of special leave by this Court against his conviction under Sec.
5(2) of the Prevention of Corruption Act and sentence to rigorous imprisonment for 2 years and fine of Rs. 150 and also under Sec.
161 of the Indian Penal Code and rigorous imprisonment for one year and a fine of Rs. 100 awarded by Special Judge, Ambala and maintained by the High Court of Punjab & Haryana by its judgment dated 23.12.
According to the prosecution Shri M.G. Devasahayam P.W.4 Sub Divisional Officer , Jagadhri had sent a complaint against the appellant to the Station House Officer, Jagadhri on 7.6.1972 on the basis of which the first information report was recorded at Police Station about 4 P.M. on 7.6.1972.
The Sub Divisional Officer has received an appli cation from one Gian Singh complainant about the conduct of the appellant.
It was alleged by Gian Singh P.W.2 in the complaint that the appellant who was a Patwari of Bambhol Circle, had been demanding money for supply of copies from the revenue record and Gian Singh needed those copies in connection with the execution of a sale deed.
Gian Singh was to purchase land form Brij Bhushan who was to act as an Attorney for his mother.
It was alleged that for this Rs.200 were settled out of which Rs.50 were paid and Rs. 150 were to be paid on the date of the sale deed.
The copies of the documents required were obtained after Rs.50 were paid.
The sale deed was to be executed on 7.6.72 and therefore on this date (Gian Singh and Brij Bhushan approached the Sub Divi sional Officer with an application making these allegations against the appellant.
The Sub Divisional Officer attempted to contact the Deputy Superintendent of Police and the Sub Inspector of Police incharge of the Police Station con cerned, but when none of them were available he himself decided to lay a trap.
It is alleged that Gian Singh P.W.2, Brij Bhushan P.W.3, Raj Kumar and Mangal Singh P.W. 1 had gone to the house of the Sub Divisional Officer at 2.40 P.M. on 7.6.1972.
Gian Singh narrated the whole story and stated that he had promised to pay he appellant Rs. 150 on the date on which the sale deed was to be executed.
Rs. 150 were produced by Gian Singh which included a 100 rupee note and 5 notes of Rs. 10 each.
Their number were noted and the Sub Divisional Officer initialled the currency notes and were given to Gian Singh and a trap was laid.
Brij Bhushan was asked to act as a witness.
Gian Singh 118 and Brij Bhushan therefore reached the canteen near the Tehsil.
The Sub Divisional Officer, Raj Kumar and Mungal Singh went to Tensil premises in a Jeep and waited near the tea stall for a signal.
On receiving the signal they reached there and on personal search currency notes of Rs. 150 were recovered from the person of the appellant.
On these facts the appellant was prosecuted and was convicted and sentenced as mentioned above.
The facts are not disputed.
The money has been recovered from the possession of the appellant and it is also not disputed that he received this money from Gian Singh.
Even before the High Court these facts were not disputed.
The plea taken by the appellant was that the Govt.
wanted to collect money from the land holders for small savings schemes and the Patwaris were instructed to collect this amount.
Appellant also examined some defence to indi cate that such circulars were issued to the Patwaris and they were collecting the amounts to be deposited in the small savings schemes and on this basis they received appre ciation and those who could not collect sufficient amount to meet the target also received remarks.
It was contended before the High Court and also before this Court that this amount the appellant had received as a deposit for the small savings scheme and which was ultimately recovered by the Sub Divisional Officer.
It was also contended that in fact the copies of the revenue record which were needed by Gian Singh had already been supplied to him and in fact the sale deed was registered on 7th June before this trap and there fore it was alleged that Rs. 150 were paid as alleged by appellant and it was on this basis contended that the expla nation given by the appellant that he had received the money to be deposited under the small savings scheme appear to be reasonable.
It is significant that when the Sub Divisional Officer on getting the signal reached the canteen alongwith the witnesses and conducted the search it was not the stand of the appellant that he had received the money for small scale deposits as it is apparent that if the money was received for that purpose, as soon as the Sub Divisional Officer reached the canteen with the witnesses and wanted to search the appellant, appellant would have immediately came out with this explanation.
Learned counsel for the appellant frankly conceded that this was not the case of the appellant that he came out with this explanation on the spot at that time.
This is not his case even in the statement recorded at the trial nor such a suggestion was put to anyone of the prosecution witnesses in the course of cross examination.
In view of this it could not be disputed that this explanation has been given as an after thought and this itself goes to show that this explanation is just as an imagination.
119 There appears to be some controversy about the fact as to whether the Patwaris were directed to collect funds for small savings schemes and in this respect the learned Trial Court also examined the Tehsildar as a Court witness and after considering all the evidence disregarded the explana tion given by the appellant in respect of the money (Rs. 150) recovered from his person.
The learned Trial Court after considering the defence evidence and the evidence of the Tehsildar did not accept the defence version and convicted the appellant.
The Trial Court also considered the evidence of P.W .5
Jeet Ram who was the keeper of the tea stall who was examined by the prosecution but he turned 'hostile ' and supported the de fence version.
Learned counsel for the appellant went through the evidence in detail and attempted to contend that as the copies of the documents had already been received there was no occasion for Gian Singh to pay Rs.150.
According to the prosecution the bargain was settled for Rs.200.
Rs.50 were paid in advance and therefore copies were given but the appellant was to receive the balance of Rs. 150 for which Gian Singh had promised to pay it on the date of the regis tration and accordingly on the date of registration it was fixed up that the appellant will be available at the tea stall near the Tehsil where this amount will be paid and it was because of this that Gian Singh appreached the Sub Divisional Officer with the complaint.
In fact where the receipt of the amount and its recovery is not disputed it is not necessary for us to go through the evidence and examine it afresh, although learned counsel went through the evi dence in detail.
The only question is as to whether the Courts below were fight in rejecting the explanation of the appellant for receipt of Rs. 150.
The explanation given by the appellant which was seriously pressed by the learned counsel for the appellant was that he had received this amount to be deposited in the small savings scheme on behalf of Gian Singh but it is significant that neither he had made any note of this fact nor given any receipt to Gain Singh.
Apart from it it is significant that the Sub Divisional Officer who was a revenue officer and the appellant being a Patwari was his subordinate.
The normal conduct of the appellant would have been to tell him as soon as he arrived for search that in fact he had received this amount to be deposited in the small savings scheme.
It is impossible to believe that if the appellant had received this amount for being deposited in the small savings scheme he would have not opened his mouth and permitted the search and recovery of this amount from his pocket to be done by the Sub Divisional Officer and allowed the matter to be 120 handed over to the Police and still would not have come out to say what he chose to say at the trial.
This conduct of the appellant in not coming out with this explanation in stantaneously goes a long way to make this explanation just an after thought specially when Sub Divisional Officer con ducted the search and recovered this amount from his person.
In this view of the matter therefore in our opinion both the Courts below were fight in discarding this explanation of the appellant.
We therefore see no substance in this conten tion advanced on behalf of the appellant.
Learned counsel ultimately contended that this appellant a Patwari who had faced the trial and pendency of this appeal for about 14 years will now have to go to jail for serving out a part of this sentence which remained to be served.
It is no doubt true that having been convicted for these offences the appellant is bound to lose his service.
It was also stated that he had served out some sentence of the imprisonment also.
The incident is of 1972 and we are now in 1987.
In view of these circumstances in our opinion the sentence of the imprisonment already undergone and sentence of find imposed by Hon 'ble the Trial Court will meet the ends of justice.
Consequently appeal is partly allowed.
The conviction of the appellant under Sec.5(2) of the Prevention of Corruption Act and Sec.
161 of the Indian Penal Code is maintained.
However his sentence as regards sentence of imprisonment is reduced to the sentence already undergone but the sentence of fine is maintained.
He is on bail.
His bail bond shall be cancelled if he had not paid the amount of fine he shall do so within one month from today.
A.P.J. Appeal al lowed. | The appellant, who was a Patwari, had been demanding money for supply of copies from the revenue record to the complainant who needed them in connection with the execution of a sale deed.
The bargain was settled for Rs.200.
Rs.50 were paid in advance and therefore copies were given, but the appellant was to receive the balance of Rs. 150 for which the complainant had promised to pay it on the date of registration and accordingly on the date of registration it was fixed up that the appellant will be available at the tea stall near the Tehsil where this amount will be paid.
The complainant brought the conduct of the appellant to the notice of the Sub Divisional Officer who sent a complaint to the Police Station, on the basis of which first information report was lodged.
As the concerned Police Officers were not available, the Sub Divisional Officer himself laid a trap.
The complainant handed over the currency notes initialled by the Sub Divi sional Officer to the appellant.
On receiving a signal, the Sub Divisional Officer and the witnesses reached there and on personal search currency notes of Rs. 150 were recovered from the person of the appellant.
The appellant was prosecuted and convicted under s.5(2) of the Prevention of Corruption Act, 1947 and sentenced to rigorous imprisonment for two years and fine of Rs. 150 and also under section 161 of the Indian Penal Code to rigorous imprisonment for one year and a fine of Rs. 100.
The plea of the appellant that the Government wanted to collect money from the land holders for small savings scheme and the Patwaris were instructed to collect this amount was rejected by the Special Judge.
116 The appeal of the appellant was dismissed by the High Court.
In further appeal to this Court, on behalf of the appel lant it was contended that the copies of the revenue record which were needed by the complainant had already been sup plied to him and the sale deed was registered before the trap and that the appellant had received the money for depositing the same under the small savings scheme on behalf of the complainant.
Partly allowing the appeal, HELD: 1.
The conviction of the appellant under s.5(2) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code is maintained.
However, his sentence as regards sentence of imprisonment is reduced to the sentence already undergone but the sentence of fine is maintained, [120D E] 2.
The explanation given by the appellant was that he had received the amount to be deposited in the small savings scheme on behalf of the complainant.
He had neither made any note of this fact nor given any receipt to the complainant.
The Sub Divisional Officer was a Revenue Officer and the appellant being a Patwari was his subordinate.
The normal conduct of the appellant would have been to tell him as soon as he arrived for search that in fact he had received this amount for depositing it under the small savings scheme.
The conduct of the appellant in not coming out with this expla nation instantaneously goes a long way to make his explana tion just an after thought specially when Sub Divisional Officer conducted the search and recovered the amount from his person.
The Courts below were right in discarding this explanation of the appellant.
[119G H;120A B] 3.
Where the receipt of the amount and Rs recovery is not disputed it is not necessary for this Court to go through the evidence and examine it afresh.
[119E] |
Criminal Appeal No. 150 of 1986.
221 From the Judgment and Order dated 14.7.83 of the Patna High Court in Govt.
Appeal No. 29/83.
S.N. Misra, M.M.P. Sinha and P.C. Kapur for the Petitioner.
S.C. Misra and, Mrs. Gian Sudha Misra for the Respondents.
The Judgment of the Court was delivered by OZA, J.
This appeal has been filed in this Court against the dismissal in limine of a petition filed by the State of Bihar in the High Court of Judicature at Patna wherein learned Judges of the High Court rejected a petition for leave to appeal against acquittal filed by the State Govern ment under Sec.378(1) and (3) of the Code of Criminal Proce dure in limine by any saying "Prayer for leave to appeal is refused.
Appeal is dismissed.
" Before the trial Court 25 accused persons were tried on the allegation that they committed dacoity and in the com mission of the said dacoity murder of one A jab Lal Singh was committed.
Consequently all of them were charged for offence under Section 396 of the Indian Penal Code.
It is alleged that in the night intervening between 5th and 6th day of June, 1980 at Village Nandial Patti situated within P.S. Amarpur in the District of Bhagalpur, occurrence took place in the house of one Jawahar Lal Singh P .W. 21 who lodged the First Information Report, his house is situated in Nandial Patti and in the course of dacoity his brother Ajab Lal Singh was killed.
The incident is said to have taken place at 12 O 'clock at midnight, and the information was lodged on 6th of June 1980 at 8.45 A.M., at Bhagalpur Medical College Hospital as the informant was lying injured in the surgical ward of the Hospital.
At the trial there were number of eye witnesses examined who claimed to have identified the accused persons in the light of a lentern burning at that time.
The evidence also attributed different parts to different accused persons.
The learned Sessions Judge after considering the evidence discarded the evidence and acquitted all the accused persons from the charge le velled against them and unfortunately Hon 'ble the High Court without examining the reasons on the basis on which the learned Sessions Judge discarded evidence dismissed the leave petition and appeal as mentioned above and therefore we are at a disadvantage as we have not before us the exami nation of the reasons by the High Court on the basis of which the learned trial Court discarded the testimony and acquitted all the accused persons.
Although learned counsel for the respondent refer 222 red to portions of the evidence to justify the order of acquittal but also contended that in case this Court feels that the High Court should have considered the matter and pass a reasoned order it would be proper that we may not refer to any part of the evidence on merits nor express any opinion.
Learned counsel for both the sides did not dispute that the incident was such wherein number of persons were in volved.
They also frankly accepted that there are number of witnesses examined in the case.
A perusal of the judgment of the learned trial Court also shows that all the reasons on the basis of which the whole of the prosecution evidence has been discarded is not so simple or reasons so good that they do not require examination.
Under these circumstances there fore without going into the merits we feel that it would be better that the matter be examined by the learned Judges of the High Court so that we may have the advantage of consid ering the considered opinion of the High Court on the rea sons which weighed with the learned trial Court in discard ing the prosecution evidence and acquitting the respondents.
In view of the facts of the case and the circumstances indicated above we feel that it would be better if the High Court considers the matter and dispose it of after giving reasons and in view of this we think it proper not to ex press any opinion on any of the matters that may deserve consideration.
The appeal is therefore allowed.
The order passed by the High Court on 14th July 1983 is set aside and the appeal alongwith petition for leave filed by the State of Bihar is restored to the file of the High Court and it is directed that Hon 'ble the High Court after hearing the parties shall dispose of the matter giving reasons for the conclusions in accordance with law.
P.S.S. Appeal allowed. | A number of persons were tried on the allegation of committing a decoity with murder and charged for offence under s.396 of the Indian Penal Code.
Eye witnesses claimed to have identified the accused persons in the light of a lantern.
The evidence also attributed different parts to different accused persons.
The trial court after considering the evidence discarded it and acquitted all the accused persons of the charge.
The High Court dismissed the petition for leave to appeal against acquittal filed by the State Government under s.378(1) and (3) of the Code of Criminal Procedure in limine with the words "Prayer for leave to appeal is refused.
Appeal is dismissed.
" Without examining the reasons on the basis of which the trial court had discarded the evidence.
The appellant appealed to this Court.
Allowing the appeal, HELD: The High Court should have considered the matter and passed a reasoned order.
The incident was such wherein a number of persons were involved.
There were a number of witnesses examined in the case.
A perusal of the record shows that all the reasons on the basis of which the whole of the prosecution evidence had been discarded by the trial court were not so simple or so good that they did not re quire examination.
[222B C] The appeal alongwith the petition filed by the State for leave to appeal is restored to the file of the High Court, and directed to be disposed of after hearing the parties, giving reasons for conclusions.
[222E F] |
Criminal Appeal No. 378 of 1986.
From the Judgment and Order dated 11.10.
1985 of the Bombay High Court in Crl.
Revision Appln.
No. 167 of 1985.
V.N. Ganpule for the Appellant.
A.M. Khanwilkar, A.S. Bhasme and G.B. Sathe for the Respondents.
The Judgment of the Court was delivered by DUTT, J.
The only point that is involved in this appeal by special leave is whether the respondent No. 1 is entitled to claim maintenance from the appellant, his married daugh ter, under section 125(1)(d) Cr.
The appellant Dr. Mrs. Vijaya Arbat, a medical practi tioner at Kalyan, District Thane, is the married daughter of the respondent No. 1 Kashirao Rajaram Sawai, by his first wife.
Her mother died in 1948.
Thereafter, the respondent No. 1 remarried and is living with his second wife.
The respondent No. 1 filed an application before the Judicial Magistrate, First Court, Kalyan, claiming maintenance from the appellant, his daughter, at the rate of Rs.500 per month on the ground that he was unable to maintain himself.
At the outset, the appellant raised a preliminary objec tion to the maintainability of the application on the ground that section 125(1)(d) Cr.
P.C. does not entitle a father to claim maintenance from his daughter.
The preliminary objec tion was overruled by the learned Magis 334 trate, and it was held by him that the application was maintainable.
Being aggrieved by the order of the learned Magistrate, the appellant moved the Bombay High Court in revision.
The High Court affirmed the order of the learned Magistrate and held that the application of a father for maintenance who is unable to maintain himself is maintain able against his married daughter having sufficient means.
In that view of the matter the High Court dismissed the revisional application of the appellant.
Hence this appeal by special leave.
Sub section (1) of section 125 Cr.
P.C. provides as under: "If any person having.
sufficient means ne glects or refuses to maintain (a) his wife, unable to maintain herself or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or (c) his legitimate or illegitimate child (not being a married daughter) who has at tained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allow ance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means.
" Sub section (1) of section 125 confers power on the Magistrate of the First Class to order a person to make a monthly allowance for the 335 maintenance of some of his close relations like wife, chil dren, father and mother under certain circumstances.
It has been observed by this Court in Bhagwan Dutt vs Kamla Devi, ; that the object of section 125 Cr.
P.C. is to provide a summary remedy to save dependents from destitu tion and vagrancy and thus to serve a social purpose.
There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her parents.
It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve.
Apart from any law, the Indian society casts a duty on the chil dren of a person to maintain their parents if they are not in a position to maintain themselves.
It is also their duty to look after their parents when they become old and infirm.
The learned Counsel, appearing on behalf of the appel lant, has urged that under clause (d) of section 125(1) a father is not entitled to claim maintenance from his daugh ter whether married or not.
Our attention has been drawn to the use of the pronoun 'his ' in clause (d) and it is submit ted that the pronoun indicates that it is only the son who is burdened with the obligation to maintain his parents.
Counsel submits that if the legislature had intended that the maintenance can be claimed by the parents from the daughter as well, it would not have used the pronoun 'his '.
We are unable to accept this contention.
It is true that clause (d) has used the expression "his father or mother" but, in our opinion, the use of the word 'his ' does not exclude the parents claiming maintenance from their daugh ter.
Section 2(y) Cr.
P.C. provides that words and expres sions used herein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code.
Section 8 of the Indian Penal Code lays down that the pronoun 'he ' and its derivatives are used for any person whether male or female.
Thus, in view of section 8 IPC read with section 2(y) Cr.
P.C., the pronoun 'his ' in clause (d) of section 125(1) Cr.
P.C. also indicates a fe male.
Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words import ing the masculine gender shall be taken to include females.
Therefore, the pronoun 'his ' as used in clause (d) of sec tion 125(1) Cr.
P.C. includes both a male and a female.
In other words, the parents will be entitled to claim mainte nance against their daughter provided, however, the other conditions as mentioned in the section are fulfilled.
Before ordering maintenance in 336 favour of a father or a mother against their married daugh ter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
Much reliance has been placed by the learned Counsel for the appellant on a decision of the Kerala High Court in Raj Kumari vs Yashodha Devi, In that case it has been held by a learned Single Judge of the Kerala High Court, mainly relying upon the report of the Joint Committee on the Criminal Procedure Code Bill, 1973, that a daughter is not liable to maintain her parents who are unable to maintain themselves.
The Joint Committee in their report made the following recommendations: "The committee considers that the right of the parents not possessed of sufficient means, to be maintained by their son should be recog nised by making a provision that where the father or mother is unable to maintain himself or herself an order for payment of maintenance may be directed to a son who is possessed of sufficient means.
If there are two or more children the parents may seek the remedy against any one or more of them" (Emphasis supplied).
The learned Judge of the Kerala High Court did not refer in his judgment to the sentence which has been underlined.
It is true that in the first part of the report the word 'son ' has been used, but in the latter part which has been underlined the recommendation is that if there are two or more children the parents may seek the remedy against any one or more of them.
If the recommendation of the Joint Committee was that the liability to maintain the parents, unable to maintain themselves, would be on the son only, in that case, in the latter portion of the report the Joint Committee would not have used the word 'children ' which admittedly includes sons and daughters.
In our opinion, as we read the report of the Joint Committee, it did not place the burden of maintaining the parents only on the son, but recommended that the liability to maintain the parents should be of the sons and the daughters as well.
We have referred to the report of the Joint Committee inasmuch as the same has been relied upon in Raj Kumari 's case (supra) by the Kerala High Court and also on behalf of the appellant in the instant case.
When the statute provides that the pronoun 'his ' not only denotes a male but also a female, we do not think it necessary to refer to the report of the Joint Committee for the 337 interpretation of clause (d) of section 125(1) Cr.
The father or mother, unable to maintain himself or herself, can claim maintenance from their son or daughter.
The expression "his father or mother" is not confined only to the father or mother of the son but also to the father or mother of the daughter.
In other words, the expression "his father or mother" should also be construed as "her father or mother".
In M. Areera Beevi vs Dr. K.M. Sahib, [1983] Cr.L.J. 412, and Repalli Masthanamma vs Thota Sriramulu, , another Single Bench of the Kerala High Court and the Andhra Pradesh High Court have respectively taken the view that the parents who are unable to maintain them selves can claim maintenance also from their daughters under section 125(1)(d) Cr.
P.C. We are unable to accept the contention of the appellant that a married daughter has no obligation to maintain her parents even if they are unable to maintain themselves.
It has been rightly pointed out by the High Court that a daugh ter after her marriage does not cease to be a daughter of the father or mother.
It has been earlier noticed that it is the moral obligation of the children to maintain their parents.
In case the contention of the appellant that the daughter has no liability whatsoever to maintain her parents is accepted, in that case, parents having no son but only daughters and unable to maintain themselves, would go desti tute, if the daughters even though they have sufficient means refuse to maintain their parents.
After giving our best consideration to the question, we are of the view that section 125(1)(d) has imposed a liabil ity on both the son and the daughter to maintain their father or mother who is unable to maintain himself or her self.
Section 488 of the old Criminal Procedure Code did not contain a provision like clause (d) of section 125(1).
The legislature in enacting Criminal Procedure Code, 1973 thought it wise to provide for the maintenance of the par ents of a person when such parents are unable to maintain themselves.
The purpose of such enactment is to enforce social obligation and we do not think why the daughter should be excluded from such obligation to maintain their parents.
The judgment of the High Court is affirmed and this appeal is dismissed.
There will, however, be no order as to costs.
338 The learned Magistrate will now dispose of the applica tion under section 125(1)(d) Cr.
P.C. of the respondent on merits in accordance with law.
We make it clear that we have not expressed any opinion on the merits of the case.
S.R. Appeal dis missed. | The appellant, a medical practitioner at Kalyan, Dis trict Thane, is the married daughter of Respondent No. 1, Kashirao Rajaram Sawai, by his first wife, who died in 1948.
Thereafter, Respondent No. 1 remarried and he is living with his second wife.
He filed an application before the Judicial Magistrate, First Court Kalyan claiming maintenance from the appellant at the rate of Rs.500 per month on the ground that he was unable to maintain himself.
A preliminary objection raised to the effect, that an application under section 125(1)(d) Criminal Procedure Code by a father to claim maintenance from his daughter was not maintainable was overruled by the Trial Magistrate and upheld by the High Court in revision.
Hence the daughter 's appeal by Special leave.
Dismissing the appeal, the Court, HELD: 1.1 An application under section 125(1)(d) of the Code of Criminal Procedure, 1973, by a father claiming maintenance from his married daughter is perfectly maintain able.
[337C] 1.2 Section 125(1)(d) of the Code (a new provision) has imposed a liability on both the son and the daughter to maintain their father or mother who is unable to maintain himself or herself.
[337F] 1.3 The object of section 125 Criminal Procedure Code is to provide a summary remedy to save dependents from destitu tion and vagrancy and thus to serve a social purpose.
There can be no doubt that it is the moral obligation of a son or a daughter to maintain his or her 332 parents.
It is not desirable that even though a son or a daughter has sufficient means, his or her parents would starve.
Apart from any law, the Indian Society casts a duty on the children of a person to maintain their parents if they are not in a position to maintain themselves.
It is also their duty to look after their parents when they become old and infirm.
[335B C] Bhagwan Dutt vs Kamla Devi, ; , referred to.
2.1 It is true that clause (d) has used the expression 'his father or mother ' but, the use of the word 'his ' does not exclude the parents claiming maintenance from their daughter.
Section 2(y) Criminal Procedure Code provides that words and expressions used herein and not defined but de fined in the Indian Penal Code have the meanings respective ly assigned to them in that Code.
Section 8 of the Indian Penal Code lays down that the pronoun 'he ' and its deriva tives are used for any person whether male or female.
Thus, in view of section 8 Indian Penal Code read with section 2(y) Criminal Procedure Code, the pronoun 'his ' in clause (d) of section 125(1) Criminal Procedure Code also indicates a female.
Section 13(1) of the General Clauses Act lays down that in all Central Acts and Regulations, unless there is anything repugnant in the subject or context, words import ing the masculine gender shall be taken to include females.
Therefore, the pronoun 'his ' as used in clause (d) of sec tion 125(1) Criminal Procedure Code includes both a male and a female.
In other words, the parents will be entitled to claim maintenance against their daughter provided, however, the other conditions as mentioned in the section are ful filled.
Before ordering maintenance in favour of a father or a mother against their married daughter, the court must be satisfied that the daughter has sufficient means of her own independently of the means or income of her husband, and that the father or the mother, as the case may be, is unable to maintain himself or herself.
[335E H; 336A B] 2.2 When the statute provides that the pronoun 'his ' not only denotes a male but also a female, it is not necessary to refer to the report of the Joint Committee on Criminal Procedure Code Bill for the interpretation of clause (d) of section 125(1) Criminal Procedure Code.
The father or moth er, unable to maintain himself or herself, can claim mainte nance from their son or daughter.
The expression 'his father or mother, is not confined only to the father or mother of the son but also to the father or mother of the daughter.
In other words, the expression 'his father or mother ' should also be construed as 'her father or mother '.
[336H; 337A B] 333 2.3 A daughter after her marriage does not cease to be a daughter of the father or mother.
If it is not so, parents having no son but only daughters and unable to maintain themselves, would go destitute, if the daughters even though they have sufficient means refuse to maintain their parents.
[337D E] Raj Kumari vs Yashodha Devi, , overruled.
M. Areera Beevi vs Dr. K.M. Sahib, and Repalli Masthanamma vs Thota Sriramulu, [1982] An.
W.R. 393, approved. |
Civil Appeal No. 1686 of 1978.
From the Judgment and order dated 27.4.1978 of the Himachal Pradesh High Court in Regular Second Appeal No. 59 of 1969.
Tapas Ray and S.K. Jain for the Appellants.
S.K. Bagga for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This appeal by special leave is from the judgment and order of the High Court of Himachal Pradesh dated 27th April, 1978.
In order to appreciate the controversy it is relevant to refer the few facts.
Prior to 1943 Mst.
Sheru @ Bhushehri was having life interest in the properties mentioned in Paragraph 1 of the Plaint in Civil Case No. 159 dated 19.7.63.
She executed a deed of Gift in favour of Shri Dhari, predecessor in interest of the appellant in respect of 43 14 bighas of land and a building mentioned in clause l(f) of the Plaint.
On 26.11.48 Shri Hari Ram filed a Civil Suit No. 63 of 1948 in the Court of Senior Subordinate Judge, Mandi for possession of the property in terms of the alleged compromise pursuant to which the gift was made to Shri Dhari or in the alternative to get a declaration that the deed of 380 gift should be cancelled on the ground of non fulfilment of the condition of the compromise deed.
Shri Hari Ram, since deceased.
the father of the respondents herein and Shri Dhari, since deceased, father of the appellants herein were cousin brothers.
Late Rattan and Late Keshav had another brother, Shri Thalia, since deceased.
Sheru @ Bhushehari, since deceased, was the widow of Shri Thalia who had no issue.
On 31.5.50 the Senior Subordinate Judge, Mandi, decreed the suit in favour of the respondents herein, and ordered that the gift is not binding on the respondents plaintiff and made a declaration that the gift of the land in suit in favour of Shri Dhari made by Mst.
Sheru @ Bhushehari shall be ineffective against the reversionary rights of the plaintiffs (respondents herein) after the life time Mst.
Sheru Bhushehari.
On 9.6.1950 Shri Hari Ram and Mst.
Sheru @ Bhushehari, both since deceased, filed Civil Appeal No. 26 of 1950 against the judgment and decree of the Senior Subordinate Judge, Mandi in Civil Suit No. 63 of 1974.
On 27.7.1950 the appeal was compromised in terms of a Compromise Deed, a compromise decree was passed allowing the appeal of the appellants (Shri Dhari and Mst.
Sheru @ Bhushehari, both since deceased) and modified the judgment of the trial court to the extent that the gift deed made in respect of the land measuring 21 15 17 bighas comprising Khata Khatani No. 3/16 27 and Rauda Kheratar Khata Khatani 13/46 17 measuring 21 15 17 bighas situated in village Barsu Ballah was rejected and declared ineffective.
It was declared that the aforesaid land would be divided in equal shares after the death of Mst.
Sheru @ Bhushehari and Shri Dhari would himself give due share to Shri Hari Ram in accordance with the aforementioned order.
The one storeyed slate roof house was to remain with Shri Dhari.
In 1956, the came into force w.e.f.
17.6.56.
With the coming into force of the said Act Mst.
Sheru Bhushehari became absolute owner in respect of all her properties including those which were the subject matter of the said Civil Suit No. 63 of 1948.
On 9.3.59 Mst.
Sheru @Bhushehari executed a will in respect of all her properties in favour of Shri Gopal Singh, Shri Jagdish, Shri Bhup Singh and Shri Kirat Ram all sons of Shri Dhari.
Shri Hari Ram died during the life time of Mst.
Sheru @ Bhushehari.
Sheru died on 20.3.60.
Shri Dhari died on 26.6.63.
The plaintiffs filed the present suit on 8.7.63 (respondents herein).
On 21.7.67 the suit was dismissed by the Additional Subordinate Judge, Mandi.
On 3.5.69 the District 381 Judge, Mandi, dismissed the first appeal against the judgment and decree in the suit.
On 27.4.78 the High Court allowed the appeal and altered the decree passed by the learned District Judge holding that the plaintiffs (respondents herein) were found entitled to claim the possession of half of the share in 43.14 bighas of land situated at village Barsu Ballah and gifted away by Mst.
Sheru @ Bhushehari to Shri Dhari in the year 1943.
It is pertinent to note that the compromise decree reads as follows: "I allow the appeal of the appellants and modify the judgment of the Trial Court to the extent that Gift Deed in respect of the land measuring 21 15 17 bighas comprising Khata Khatauni No. 3/16 to 27 bighas situated in village Barsu Ballah is hereby rejected and declared ineffective.
The aforesaid land alongwith the other land shall be divided in equal shares after the death of Sheru Bhushehari and Dhari shall himself give due share to Hari Ram in accordance with the aforementioned order.
" The effect of the aforesaid was that the gift was ineffective and Smt.
Bhushehari continued to enjoy the right and benefit she had during her limited ownership until 1956.
In the premises and in the facts and circumstances of the case, the High Court was not justified in construing or interpreting the compromise decree in Suit No. 63 of 1948 in the manner it did and in holding that the suit was one in which Hariram did not challenge the gift till the lifetime of Bushehari and that he filed the said suit only for the purpose of avoiding operation of the gift after the lifetime of Bushehari.
The compromise decree should be construed as that the parties agreed that the properties would be enjoyed by Bushehari till her lifetime and the gift made by her in favour of Dhari would remain operative till the lifetime of Bushehari but not beyond that.
When Bushehari inherited the properties from her husband in 1942 she had only life interest in the said properties.
She was a limited owner upto 1956 thereafter in 1956 when the came into operation by virtue of Section 14 of the said Act her limited estate became absolute estate.
The position therefore was that if she had gifted away her properties when she was limited owner Smt.
Bushehari would not have become absolute owner after coming into operatin of the 1956 Act and would not have been competent to bequeath the properties by Will.
In the instant case, however, by the Compromise Decree it was declared that the gift was 382 ineffective.
The effect of that declaration was that she continued to be the limited owner of the properties there after until 1956.
The effect of the , was that a female Hindu can transfer her property by Will.
Since the Will was subsequent to this period she had absolute estate and full capacity to make the Will.
lt has been held by the Courts of facts that the Will was genuine and properly executed.
If that is so, then the claim of the appellants who are the legatees under the Will cannot be disputed.
We are, therefore, unable to sustain the views of the High Court.
Our attention was drawn to a decision of the Himachal Pradesh High Court in the case of Lachhman vs Thunia, A.I.R. 1972 H.P. 69 where it was held that where a Hindu widow makes a gift of the property belonging to her deceased husband before the passing of the and the reversioners obtain a declaratory decree that their rights are intact despite the alienation by the widow, the declaratory decree does recognise the rights of the reversioners to the property after the death of the limited owner though the right to enjoy for a limited period remains in the donee.
Section 14(1) of the , had no application to the property.
It was held that it was not in the possession of the widow at the time of the death.
We are of the opinion that the ratio of the said decision cannot be made applicable to the facts of this case.
Since in this case after the purported gift, it was held that the gift was legally valid, Mst.
Bushehari remained the owner of the property in question, therefore, was competent to dispose it of when she made the Will.
In that view of the matter and in the facts and circumstances of this case the appeal must be allowed.
The judgment and order of the High Court are set aside.
In the facts and circumstances of the case the parties will pay their own costs.
P.S.S. Appeal allowed. | The predecessors in interest of the parties were co reversioners of the testator, a Hindu widow.
Prior to 1943 she executed a deed of gift in favour of the father of the appellants of certain properties in which she had life interest.
Decreeing the suit filed by the respondent/plaintiffs the trial court made a declaration that the gift of the land in favour of the defendant/appellants was ineffective against reversionary rights of the plaintiffs after the death of the donor.
Allowing the appeal, the appellate court passed a compromise decree declaring the gift deed ineffective in respect of the land.
Subsequent after the enactment of the , the widow executed a will in respect of all her properties in favour of the appellants.
The suit and the appeal against it were dismissed.
But the High Court found the resondents entitled to claim possession of half of the share of the land earlier gifted away.
Allowing the appeal by special leave, ^ HELD: 1.
The effect of the is that a female Hindu can transfer her property by will.
Since in the instant case, the will was subsequent to this period she had absolute estate and full capacity to make the will.
[382B] 2.1 When the widow inherited the properties from her husband in 1942 she had only life interest in the said properties.
She was a limited owner upto 1956 when the Act came into force.
If she had gifted away her properties during that period she would not have become absolute owner after coming into operation of the Act and would not have been competent to bequeath the properties by will.
However, by the compromise decree it was declared that the purported gift deed was legally invalid.
The effect of that declaration was that she continued to 379 be the limited owner of the properties thereafter until 1956 when by virtue section 14 of Act her limited estate became absolute estate.
She was,therefore,competent to dispose it of when she made the will.
[381G H;382E] 2.2 It cannot be said that the father of the respondents did not challenge the gift till the life time of the widow, and that he filed the said suit only for the purpose of avoiding operation of the gift after her lifetime.
The compromise decree should be construed as that the parties agreed that the properties would be enjoyed by the widow till her lifetime and the gift made by her in favour of the apellant 's father would remain operative till the lifetime of the widow but not beyond that.
[381E F] 2.3 The lower courts on facts have held that the will was genuine and properly executed.
If that is so, then the claim of the appellants, who are the legatees under the will, cannot be disputed.
[382B] |
Special Leave Petition (Civil) No. 8094 of 1988.
From the Judgment and Order dated 16.3.88 of the Andhra Pradesh High Court in (A.A.O.) No. 1152/86 & C.R.P. No. 2728 of 1986.
C. Sitaramiah and G. Prabhakar for the Petitioners.
R.F. Nariman, K. Prabhakar and R.N. Kishwani for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
The respondent R.V. Rayanim was, at all material times, a Class I contractor who had entered into an agreement with the Government of Andhra Pradesh for formation of earth dam in gorge portion from chainage 3360 to 3380 M of Raiwada Reservoir Project near Devarapalli village, Chodavaram Taluk, Distt.
Visakhapatnam, Andhra Pradesh.
Disputes and differences arose between the parties in respect of the aforesaid agreement.
A reference was made to the arbitrator as per the arbitrator clause in the agreement between the parties.
The respondent made eleven claims claiming various amounts, particulars whereof have been set out by the arbitrator as follows.
56 "I.Payment for forming cross (Rs. in lakhs) 15.89 bund and refund of the (subsequently reduced amount recovered.
to Rs.14.89 lakhs) II.Refund of Seigniorage 2.071 (withdrawn) Charges III.Escalation and damages 14.00 IV.Extra load for sand 1.075 (subsequently reduced to Rs.0.575 lakhs).
V.Payment for excavation 1.030 under water for probing diaphram wall VI.
Compensation for loss 1.500 suffered due to partial prevention by the department.
Compensation for loss 2.015 suffered due to non payment for the work done.
VIII.Refund of excess hire 0.730 charges recovered.
Overheads 0,960 X. Costs O. 100 XI.
(a) Interest on II and VIII at 24% from the date of recovery.
(b) On Rs.8.30 lakhs at 24% p.a. from 30.11.81 to 12.5.
(c) Interest at 24% on the award amount except II and VIII from the date of petition.
" The arbitrator gave a non speaking award dated 27th July, 1985 in favour of the respondent, amounting to Rs.19.39 lakhs, wherein he stated as follows: "Claim II has been withdrawn by the petitioner himself on the ground it was subsequently refunded by the respondents.
On the balance claims (I and III to X) according to my assessment, I award a consolidated amount of Rs.19.39 lakhs to the extent of the claims judged admissible.
The respond ents shall pay Rs.
Nineteen lakhs and thirty nine thousand to the petitioner.
" It is, therefore, apparent the claim No. II as mentioned above, 57 had been withdrawn.
On the balance claims I and III the arbitrator had awarded a consolidated amount of Rs.19.39 lakhs 'to the extent of the claims judged admissible '.
The respondent filed a proceeding before the Court to make the award rule of the Court.
The petitioner preferred an appli cation for setting aside the award.
By a common judgment dated 21st April, 1985, the Second Additional Judge, City Civil Court, Hyderabad, dismissed the petition of the peti tioner for setting aside the award and allowed the judgment in terms of the award.
The petitioner preferred an appeal and a civil review petition before the High Court of Hydera bad.
By a judgment dated 16th March, 1988 the division bench of the High Court dismissed the appeal and the revision of the petitioner.
It held that the non speaking award of the arbitrator was not liable to be set aside by the Court.
The petitioner has preferred this special leave petition challenging the said decision of the High Court.
The main contention which was sought to be urged on this case was that the award was a nonspeaking award and, as such, was bad.
On this ground, on or about 9th December, 1988 this Court directed that the matter should be taken up along with civil appeal No. 5645 and 5645A of 1986 pending before a larger bench.
At that time, the question was pending consid eration by the Constitution Bench of this Court.
This Court further directed on 9th December, 1988 that the entire amount of award, if not deposited in the trial court, should be deposited in the trial court within two months from that date, and upon the deposit being made the respondent will be at liberty to withdraw 50% of the amount which has not been withdrawn on furnishing security to the satisfaction of the trial court.
It was further recorded that 50% had already been withdrawn.
As mentioned hereinbefore, the main contention sought to be urged was that the award being a non speaking award, was bad in law.
In view of the decision of this Court in Raipur Development Authority etc.
vs M/s Chokhamal Contractors etc.
, Jmt.
Today 2 SC 285, this contention is no longer sustainable.
It was then contended that the award has pur ported to grant damages on the basis of escalation of cost and prices; and such escalation was not a matter within the doman of the bargain between the parties and having taken that factor into consideration the award was bad.
We have set out the relevant portion of the award.
From reading the award, as set out hereinbefore, it is clear that the arbi trator has considered the claim made on the basis of 'esca lation and damages ' but he has awarded a total sum of Rs.19.39 lakhs insofar as he finds admissible in respect of the claims which the arbitrator has adjudged.
It speaks no further.
In such a situation it is 58 not possible to contend that there was any exercise of jurisdiction by the arbitrator beyond his competence.
It is well settled that in matter of challenging the award, there are often two distinct and different grounds.
One is an error apparent on the face of the record and the other is that the arbitrator has exceeded his jurisdiction.
In the latter 's case the Court can look into the arbitration agree ment but under the former it cannot, unless the agreement was incorporated or recited in the award.
An award may be remitted or set aside on the ground that the arbitrator, in making it, had exceeded his jurisdiction and evidence of matters not appearing on the face of it, will be admitted in order to establish whether the jurisdiction had been exceed ed or not, because the nature of the dispute is something which has to be determined outside the award whatever might be said about it in the award or by the arbitrator.
See the observations of this Court in M/s Sudarshan Trading Co. vs Government of Kerala & Anr., ; Only in a speaking award the court can look into the reasoning of the award.
It is not open to the court to probe the mental process of the arbitrator and speculate, where no reasons are given by the arbitrator; as to what impelled the arbitrator to arrive at his conclusion.
In the instant case the arbitrator has not awarded any amount on account of escalation of costs and expenses.
At last the arbitrator has not expressly awarded any amount on the ground of such escalation and if so, what amount, is not apparent on the face of the record.
In these circumstances, in our opinion, on the basis of well settled principles of law such an award, especially in view of the fact that excluding item No. III the remaining items would also be well over Rs.19.33 lakhs, it is not discernible on the face of the record that arbitrator has exceeded his jurisdiction in awarding damages on account of escalation of charges and expenses which were beyond the arbitration ambit.
The fact that the arbitrator has considered the claim made by the respondent on account of escalation, does not make per se the award to be bad.
Mr. C. Sitaramiah, learned counsel appearing for the appellant contended that the fact that the arbitrator has taken into consideration the question of escalation would make the award bad because it is not discernible whether he has awarded any amount on account of escalation.
We are of the opinion that this argument is not open.
In case of an error apparent on the face of the record, it has to be established that an item or an amount which the arbitrator had no jurisdiction to 59 take into consideration, has been awarded or granted.
That is not apparent on the face of the award in this case.
All that the award states is that he has considered the claim on the basis of escalation.
Such a consideration does not make the award on the face of it, bad on the ground of error apparent on the face of the record.
Indeed, the arbitrator, when a claim is made, has to take that into consideration either for acceptance or rejection of the claim made.
The award states that he has taken the claim made, into consid eration.
The award does not state that he has awarded any amount on that account.
There is neither any error apparent on the face of the record, nor any material to satisfy that the arbitrator has exceeded his jurisdiction in awarding the amount as he did.
In that view of the matter the special leave petition has no merit made must, therefore, fail, and is accordingly dismissed.
The petitioners were allowed to withdraw the awarded sum on furnishing security but in view of the deci sion now rendered, they will be entitled to take back the security.
We order accordingly.
The application is dismissed with aforesaid directions.
R.S.S. Petition dismissed. | The respondent contractor had entered into an agreement with the petitioner for formation of an earth dam.
Disputes and difference arose between the parties.
A reference was made to the arbitrator wherein the respondent made eleven claims out of which one claim was later withdrawn.
The arbitrator gave a non speaking award in favour of the re spondent amounting to a consolidated sum of Rs.19.39 lakhs.
The respondent flied a proceeding before the Court to make the award rule of the Court.
The petitioner preferred an application for setting aside the award which was dis missed.
The High Court dismissed the appeal and the revision of the petitioner.
Before this Court it was contended inter alia that the award purported to grant damages on the basis of escalation of cost and prices, and such escalation was not a matter within the domain of the bargain between the parties.
It was also contended that the fact that the arbitrator had taken into consideration the question of escalation would make the award bad because it was not discernible whether he had awarded any amount on account of excalation.
Dismissing the special leave petition, this Court, HELD: (1) In matters of challenging an award, there are often two distinct and different grounds.
One is an error apparent on the face of the record and the other is that the arbitrator has exceeded his jurisdiction.
In the latter case the Court can look into the arbitration agreement but under the former It cannot, unless the agreement was incorporated or recited In the award.
[58A B] M/s Sudarshan Trading Co. vs Government of Kerala & Anr., ; , referred to.
11 55 (2) Only in a speaking award the court can look into the reasoning of the award.
It is not open to the court to probe the mental process of the arbitrator and speculate, where no reasons are given by the arbitrator, as to what impelled the arbitrator to arrive at his conclusion.
[58D] (3) It is not discernible on the face of the record that the arbitrator has exceeded his jurisdiction in awarding damages on account of escalation.
All that the award states is that he has considered the claim on the basis of escala tion.
Such a consideration does not make the award, on the race of it, bad on the ground of error apparent on the face of the record. ' [58G H; 59A B] (4) The Arbitrator does not state that he has awarded any amount on that account.
There is neither any error apparent on the face of the record, nor any material to satisfy that the arbitrator has exceeded his jurisdiction in awarding the amount as he did.
[59B C] |
Petitions (Civil) Nos.
5117/ 81, 7340/81, 3656 84/82, 6381 82, 6951 52/82, 8010 19/82, 8108 11/82, 90 19 20/82, 5241 60/83, 1734 35/83 and 559 560/83.
(Under Article 32 of the Constitution of India).
B. Kanta Rao for the Petitioners.
C. Seetharamiah, T.V.S.N. Chari, Ms. Vrinda Grover, Ch.
Badri Nath, A.K. Sanghi, G.S. Chatterjee P.N. Mishra, A.V Rangam, Pramod Swarup, D. Goburdhan and M.N. Shroff for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
W.P.
Nos: 5117/81, 3656 84/82, 5241 5260/83.
& 7340/81 These four batches of Writ Petitions challenge the imposition of sales tax on bread, rusk and bun under the A.P. Sales Tax Act 1957 as illegal.
The main and the first contention was that the bread and biscuits belong to one homogeneous class but these have been differently treated for taxation under Schedule I, Item No. 117 and Schedule I, Item No. 129 of the said Act.
In other words, the contention of the petitioners is that the bread and biscuits are the same, they should not be differently taxed.
The purchasers and sellers of bread and biscuits have been differently taxed In support of this contention reliance was placed on certain decisions of this Court, namely: State of Andhra Pradesh & Anr.
vs Nalla Raja Reddy & Ors., ; ; New Manek Chowk Spinning and Weaving Mills Co. Ltd. and Ors.
vs Municipal Corporation of the City of Ahmedabad and others; , We do not find any proposition in those decisions in support of this contention of the petitioners.
The decision of the Allahabad High Court in Annapurna Biscuit (Mfg.) Co. and Another vs The State of U.P. and Another, [1975] 35 S.T.C. 9 127 does not deal with this contention at all.
A The second contention sought to be raised was that the multiple point tax violates Article 19(1)(g) of the Constitution.
The petitioners being Bakeries, this contention is not open to the petitioners.
The third contention sought to be raised was that excise duty and sales tax are imposed on the same items.
This also does not arise in the case of the petitioners who are Bakeries.
Apart from that the taxable events in these two impositions are different.
So this contention cannot in any event be raised.
The fourth contention sought to be raised was the surcharge.
This point in our opinion does not arise.
Furthermore this point is concluded by the observations of this Court in the case of Hoechst Pharmaceuticals Ltd and Another Etc.
vs State of Bihar and others, [1983] 3 S.C.R. 130.
Indeed all these contentions raised on behalf of the petitioners have been negatived by this Court in the aforesaid decision.
We reiterate that the economic wisdom of a tax or lack of it are within the exclusive domain of the legislature.
The only question for the Court to consider it whether there is rationality in that behalf of the legislature that capacity to pay the tax increases by and large with an increase of receipts.
From any point of view there is rationality in this proposition.
It is sound commonsense.
It is in consonance with social justice to which we are committed by our Constitution.
In that view of the matter the challenge to the imposition under Article 14 as well as Article 19(1)(g) of the Constitution are not sustainable.
These Writ Petitions must fail and are dismissed accordingly.
There will be no order as to costs.
Interim orders, if any, are vacated W.P. Nos.
6381 82/82, 6951 52/82, 8010 19/82 8108 11/82, 9019 20/ 82, 1734 35/83 & 559 560/83.
In view of the Judgment in W.P. Nos. 5117/81, 3656 84/82, 524 1 5260/83 and 7340/8 1, these petitions must also fail and are accordingly dismissed.
There will be no order as to costs.
N.P.V. Petitions dismissed. | % In a batch of Writ Petitions filed in this Court the petitioners challenged the imposition of sales tax and surcharge on bread, rusk and bun under the A.P. Sales Tax Act, 1957 as illegal, contending that bread and biscuits belonged to one homogeneous class but had been treated differently for purposes of taxation under Schedule 1, Item No. 117 and Item No. 129 of the Act, that the purchasers and sellers of bread and biscuits had been differently taxed, and that the multiple point tax violated Article 19(1)(g) of the Constitution.
Dismissing the writ petitions, ^ HELD: The economic wisdom of a tax or lack of it are within the exclusive domain of the legislature.
The only question for the Court to consider is whether there is rationality in that behalf of the legislature that capacity to pay the tax increased by and large with the increase of receipts.
From any point of view, there is rationality in this proposition.
It is sound commonsense and is in consonance with social justice.
Therefore, the challenge to the imposition, under Article 14 as well as Article 19(1)(g) of the Constitution is not sustainable.
[9D F] State of Andhra Pradesh & Anr.
vs Nalla Raja Reddy & Ors. ; ; New Menek Chowk Spinning and Weaving Mills Co. 8 Ltd. and Ors.
vs Municipal Corporation of the City of Ahmedabad and others.
; , ; Annapurna Biscuit (Mfg.) Co. and Another vs The State of U.P. and Another, [1975] 35 S.T.C 127 and Hoechst Pharmaceuticals Ltd. and Another Etc.
vs State of Bihar and others, , referred to. |
Case : HABEAS CORPUS WRIT PETITION No. 315 of
Counsel for Petitioner : Avinash Pandey
Counsel for Respondent : G.A.
1. Heard Sri Avinash Pandey, learned counsel for the
petitioners and Ms. Rachna Tiwari, learned Additional
Government Advocate appearing for the Staterespondents.
2. The undisputed facts as reflected from the pleadings
on record are that the petitioner no.2, wife of the petitioner
no.1, left her matrimonial home sometime in the month of
June, 2019 on account of some serious differences with her
husband (petitioner no.1) and an application for restitution
of conjugal rights was filed by the petitioner no.1 which was
registered as Case No. 772 of 2019 (Mohd. Ahmad vs.
Arshi) and the same is stated to be pending before the court
of the Principal Judge, Family Court, Saharanpur.
3. Counsel for the petitioners has sought to contend that
subsequent thereto sometime in the month of November,
2020 an information was received by him suggesting that
petitioner no.2 was being detained at her parental home
and in regard to the same certain applications are also
stated to have been moved by him before the respondent
4. Learned Additional Government Advocate submits
that once it has been admitted that the petitioner no.2
(wife) left her matrimonial home sometime in the month of
June, 2019 on account of serious differences with her
husband (petitioner no.1), it is not a case of illegal
detention and a writ of habeas corpus would not be
entertainable. This would be moreso for the reason that an
application seeking restitution of conjugal rights is stated to
have been filed by the petitioner no.1 and the same is
5. Learned counsel for the petitioners has not disputed
the factual position with regard to the petitioner no.2
having left her matrimonial home in the month of June,
2019 and also that she has not returned back thereafter.
6. There is no material on record to suggest that the
petitioner no.2 was forcibly taken away; rather the facts
indicate that the petitioner no.2 left her matrimonial home
on her own accord on account of some serious differences
with her husband (petitioner no.1). The application seeking
restitution of conjugal rights, filed by the petitioner no.1
husband, contains a clear narration of facts in this regard.
7. The writ of habeas corpus is a prerogative writ and an
extraordinary remedy. It is writ of right and not a writ of
course and may be granted only on reasonable ground or
probable cause being shown, as held in Mohammad Ikram
Hussain v State of U.P. and others 1 and Kanu Sanyal v
8. The writ of habeas corpus has been held as a festinum
remedium and accordingly the power would be exercisable
in a clear case. The remedy of writ of habeas corpus at the
instance of a person seeking to obtain possession of
someone whom he claims to be his wife would therefore not
be available as a matter of course. The observations made in
the decision in Mohammad Ikram Hussain (supra) in this
"13. Exigence of the writ at the instance of a husband is
very rare in English Law, and in India the writ of habeas
corpus is probably never used by a husband to regain his
wife and the alternative remedy under S. 100 of the Code
of Criminal Procedure is always used. Then there is the
remedy of civil suit for restitution of conjugal rights.
Husbands take recourse to the latter when the detention
does not amount to an offence and to the former if it does.
In both these remedies all the issues of fact can be tried and
the writ of habeas corpus is probably not demanded in
similar cases if issues of fact have first to be established.
This is because the writ of habeas corpus is festinum
remedium and the power can only be exercised in a clear
case. It is of course singularly inappropriate in cases where
the petitioner is himself charged with a criminal offence in
respect of the very person for whose custody he demands
9. The exercise of the extraordinary jurisdiction for
issuance of a writ of habeas corpus would be dependent on
the jurisdictional fact where the applicant establishes a
prima facie case that the detention is unlawful. It is only
where the aforementioned jurisdictional fact is established
that the applicant becomes entitled to the writ as of right.
10. In view of the other remedies available for the purpose
under criminal and civil law, issuance of a writ of habeas
corpus at the behest of a husband to regain his wife may not
be available as a matter of course and the power in this
regard may be exercised only when a clear case is made out.
11. The aforementioned legal position has been stated in
recent decision of this Court in Soniya and Another vs.
State of U.P. and Others3 and subsequently reiterated in
Manjita Devi and another vs. State of U.P. and Others4.
12. In the facts of the present case, the petitioner no.2
having left her matrimonial home on her own on account of
a matrimonial discord, the present petition seeking a writ of
habeas corpus at the behest of the petitioner no.1 (husband)
would not be entertainable.
13. Proceedings for restitution of conjugal rights being
pending between the parties before the Family Court, it is
open to the petitioner no.1 to pursue the said remedy.
14. Subject to the aforesaid observation the petition
stands dismissed. | The Allahabad High Court last week observed that the remedy of the writ of habeas corpus at the instance of a Husband, seeking to obtain possession of his wife is not available as a matter of course. Dealing with the Husband's plea seeking production of his wife, the Bench of Justice Dr. Yogendra Kumar Srivastava observed thus: "In view of the other remedies...
The Allahabad High Court last week observed that the remedy of the writ of habeas corpus at the instance of a Husband, seeking to obtain possession of his wife is not available as a matter of course.
Dealing with the Husband's plea seeking production of his wife, the Bench of Justice Dr. Yogendra Kumar Srivastava observed thus:
"In view of the other remedies available for the purpose under criminal and civil law, issuance of a writ of habeas corpus at the behest of a husband to regain his wife may not be available as a matter of course and the power in this regard may be exercised only when a clear case is made out."
Case in brief
Petitioner no.2 (Wife) left her matrimonial home sometime in the month of June, 2019 on account of some serious differences with her husband (petitioner no.1).
Thereafter, an application (presently pending) for restitution of conjugal rights was filed by the Husband.
Further, claiming that sometime in the month of November, 2020, information was received by him suggesting that his wife was being detained at her parental home and thus he filed the instant Habeas Corpus plea seeking the production of the wife.
Court's observations
In this backdrop, the Court noted that there was no material on record to suggest that petitioner no.2 was forcibly taken away and that it was evident that his wife left her matrimonial home on her own accord on account of some serious differences with her husband.
Further, referring to rulings of the Apex Court in the case of Mohammad Ikram Hussain v. State of U.P. and others and Kanu Sanyal v. District Magistrate Darjeeling, the Court observed that the writ of habeas corpus is a prerogative writ and an extraordinary remedy and that it is the writ of right and not a writ of course and maybe granted only on reasonable ground or probable cause is shown.
"The remedy of writ of habeas corpus at the instance of a person seeking to obtain possession of someone whom he claims to be his wife would therefore not be available as a matter of course," the Court further added.
Lastly, noting that in the facts of the instant case, the petitioner no.2 having left her matrimonial home on her own on account of a matrimonial discord, the Court observed that the instant petition seeking a writ of habeas corpus at the behest of the husband would not be entertainable.
Case title - Mohd. Ahmad And Another Respondent v. State Of U.P. And 4 Others
Read Order |
Case :- HABEAS CORPUS WRIT PETITION No. - 536 of 2022
Counsel for Petitioner :- Bed Kant Mishra
Counsel for Respondent :- G.A.
Shri Rajesh Singh, Advocate has filed his
Vakalatnama on behalf of the corpus/petitioner No.
2, Smt. Sakshi Panchal, wheres Ms Laxmi
Viswakarma has filed her Vakalatnama on behalf of
respondent Nos. 4 to 10, who are father, Tau,
uncle, brothers and cousin brothers of the
corpus/petitioner No. 2, the same are taken on
On 13.9.2022, during the course of argument,
learned counsel for the petitioners submitted that
the corpus-petitioner No. 2 has filed a complaint
against respondent Nos. 4, 5, 9 and 10, in which
her statement was also recorded on 02.12.2021
and prayed for time to bring on record the copy of
the aforesaid complaint, statement of the
complainant and witnesses as well as order passed
therein, if any, the order passed the following
"Heard Shri Bed Kant Mishra, learned counsel for the
petitioners and learned Additional Government Advocate
representing the State.
By means of this petition, the petitioner-Sandeep Kumar,
who is the alleged husband of petitioner No. 2 Ms Sakshi
Panchal has prayed for a direction to respondent Nos. 2
and 3 to produce petitioner No. 2 Ms Sakshi Panchal before
this Court, who was in their illegal captivity.
On 18.7.2022, a Coordinate Bench of this Court had
directed respondent Nos. 5 to 10 to appear in person along
with corpus of Ms. Shakshi Panchal. Thereafter vide order
was directed to ensure the strict compliance of the
direction of this Court dated 18.7.2022.
Pursuant to the aforesaid orders of this Court, the corpus-
petitioner No. 2, Sakshi Panchal has been produced by SI
Amit Kumar Chauhan of police station Baraut, district
Baghpat. Respondent Nos 5 to 10 are also present.
Perusal of record reveals that the date of incident in this
case is 01.01.2021 and the first information report has
been lodged on 22.7.2022, i.e. after about seven months
of the date of occurrence, under Sections 376/3/354(C) IPC
and Section 4 of Protection of Children from Sexual
Offence Act, 2012 at police station Gokul Puri, North East
(Delhi). It is evident that FIR has been lodged after passing
of the order by this Court dated 18.7.2022 directing the
respondents to produce the corpus- Ms Shakshi Panchal. It
is pointed out that pursuant to the FIR, the petitioner No. 1
has been arrested and at present he is in jail.
Learned counsel for the petitioners submits that both the
petitioners have solemnized their marriage in Arya Samaj
Temple and got it registered on 23.11.2021 before the
Marriage Registration Officer. The certificate issued by the
Arya Samaj Marriage Trust and Marriage Registration
Officer have been brought on record as Annexure 1 and 2
to the petition.
The Corpus-petitioner No. 2 has admitted her marriage
with petitioner No. 1 in Arya Samaj Mandir.
Learned counsel for the petitioners submits that the
corpus-petitioner has also filed a complaint in the court of
Chief Judicial Magistrate, Baghpat under Sections 452, 380,
504, 506, 323 IPC, police station Baraut arraigning therein
as many as four accused namely Devendra, Jaipal, Sagar
and Sanni, who are father, father's elder brother (Tau) and
cousin brothers of the petitioner No. 2 and they are also
respondents in the instant habeas corpus petition, in which
the statement of the corpus-petitioner was also recorded
under Section 200 Cr.P.C. on 02.12.2021. During the course
of argument, learned counsel for the petitioners has
produced before this Court a copy of the complaint and
statement of the complainant-Sakshi Panchal.
Learned counsel for the petitioners prays for and is allowed
three weeks' time to file certified copy of the aforesaid
complaint, statement of complainant and witnesses as well
as the order passed therein, if any.
List this case on 14.10.2022 as fresh for further hearing
before this Court."
Pursuant to the order of this Court dated
13.9.2022, Shri Bed Kant Mishra, learned counsel
for petitioner No. 1 has filed supplementary
affidavit dated 04.10.2022, which is taken on
Petitioner No. 1 (Sandeep Kumar) and petitioner
No. 2 (Smt. Sakshi Panchal) are personally present
before this Court and have been identified by their
respective counsel.
Heard learned counsel for the parties and perused
the record of the case.
Referring to the contents of supplementary
affidavit, it is pointed out by the learned counsel
for petitioner No. 1 that petitioner Nos. 1 and 2
both are major and they have solemnized their
marriage in Shiv Temple at Baghpat and thereafter
they also got their marriage registered on
23.11.2021 before the concerned authority at
Ghaziabad and they were living their life happily
as husband and wife, but on 25.11.2021,
respondent Nos. 4 to 10, who are family members
of corpus/petitioner No. 2 have forcefully took her
to her father's house and since then she is in the
captivity of respondent Nos. 4 to 10.
It is pointed out that on 26.11.2021
corpus/petitioner No. 2 filed complaint case No.
5073 of 2021 in the Court of Judicial Magistrate,
Baghpat against respondent Nos. 4, 5, 9 and 10
under Sections 452, 380, 504, 506, 323 IPC, police
station Baraut, district Baghpat in which her
statement under Section 200 Cr.P.C was recorded
on 02.12.2021 whereby she has supported her
version as mentioned in the complaint. The copies
of the complaint and statement of the corpus
recorded under Section 200 Cr.P.C. have been
annexed as Annexure 1 and 2 of the
It is further pointed out that petitioner No. 1 has
also filed case No. 322 of 2022, under Section 9 of
Hindu Marriage Act on 01.7.2022 before the
Principal Judge, Family Court, Baghpat, in which
notices were issued and the same is still pending.
Much emphasis has been given by contending that
the corpus is major and she is legally wedded wife
of petitioner No. 1 and is willing to live with him.
In the light of the aforesaid submission of learned
counsel for petitioner No 1, statement of
corpus/petitioner No. 2 has been recorded before
the Court in the presence of learned counsel for
the parties as well as respondent Nos. 4 and 5.
The corpus/petitioner No. 2 has stated that she is
major and has admitted her marriage with
petitioner No. 1 as well as registration of her
marriage before the concerned authority at
Ghaziabad, copy whereof has been filed as
Annexure 2 to this petition. She also stated that
after filing of this habeas corpus petition, and
issuance of notice by this Court vide order dated
18.7.2022, she lodged FIR on 22.7.2022 at case
crime No. 296 of 2022, under Sections
376/328/354-C IPC and section 4 of POCSO Act,
police station Gokul Puri, Delhi under the pressure
and threat of her father and Tau, respondent Nos.
4 and 5, in which her statement under Section 161
and 164 Cr.P.C. were also recorded under pressure,
whereas correct fact is that no such incident as
alleged in the FIR dated 22.7.2022 took place. In
the said case, petitioner No. 1 has been granted
bail by the concerned court below. Lastly, she
stated that petitioner No. 1 is her husband and she
is willing to go with him and to live her
matrimonial life peacefully. Statement of the
corpus/petitioner No. 2 is taken on record and
marked as "A".
After the aforesaid statement of the victim before
this Court, learned counsel for petitioner No. 2 and
respondent Nos. 4 to 10 submit that since the
corpus-petitioner No. 2 is willing to go and live
with petitioner No. 1, they have no objection if the
Court direct her to go with her husband-petitioner
The choice of a life partner, the desire for personal
intimacy and yearning to find love and fulfilment
of human relationship between two consenting
adults cannot be interfered with by any other
persons.
In view of the above, the writ petition is allowed.
The corpus/petitioner No. 2 is free to go with
petitioner No. 1.
Registrar General is directed to refund the amount
of Rs. 40,000/- which was deposited by petitioner
No. 1 before him by Bank Draft No. 033569 dated
25.08.2022 pursuant to the order of this Court
dated 18.7.2022.
Location: High Court of Judicature at | The Allahabad High Court has observed that the choice of a life partner, the desire for personal intimacy, and the yearning to find love and fulfillment in a human relationship between two consenting adults cannot be interfered with by any other person.
With this, the bench of Justice Sanjay Kumar Singh allowed a Habeas corpus plea filed by a husband after his wife/corpus submitted before the Court that she is willing to go with him and live her matrimonial life peacefully.
"The choice of a life partner, the desire for personal intimacy and yearning to find love and fulfillment of human relationship between two consenting adults cannot be interfered with by any other persons." : #AllahabadHighCourt#RightToChoose pic.twitter.com/aGVvI6kbQP— Live Law (@LiveLawIndia) October 20, 2022
The petitioner (one Sandeep Kumar) had moved the instant plea seeking the appearance of his wife before the Court, who, he claimed, was in the illegal captivity of her family member. The Court issued a notice in the matter directing the family members of the girls to present her before the Court.
Soon thereafter, an FIR was lodged on July 22, 2022, against the petitioner/husband under Sections 376/3/354(C) IPC and Section 4 of the POCSO Act. While hearing the matter on September 13, the Court noted that it was evident that the FIR had been lodged after the passing of the order by the Court on July 18, 2022, directing the respondents to produce the corpus.
Now, on October 14, 2022, petitioner No. 1 (Sandeep Kumar) and petitioner No. 2/corpus (Sakshi Panchal) remained personally present before the Court and it was told to the Court that both the petitioners are major and they have solemnized their marriage in a Temple and have got their marriage registered in November 2021.
It was further informed to the Court that they were living their life happily as husband and wife, but in November 2021 itself, the family members of corpus/petitioner No. 2 forcefully took her to her father's house and since then she is in the captivity of respondent Nos. 4 to 10.
Taking into account the statements recorded by the corpus before the Court below as well as before the High Court, the Court noted that since the corpus is willing to go and live with petitioner No. 1, therefore, the Court allowed her to go with her husband by observing thus:
"The choice of a life partner, the desire for personal intimacy and yearning to find love and fulfillment of human relationship between two consenting adults cannot be interfered with by any other persons."
In view of the above, the writ petition was allowed. The corpus was allowed to go with petitioner No. 1 and further, the Registrar General was directed to refund the amount of Rs. 40,000/- which was deposited by petitioner No. 1 before pursuant to the order of the Court on July 18, 2022.
Case title - Sandeep Kumar And Another v. State Of U.P. And 9 Others [HABEAS CORPUS WRIT PETITION No. - 536 of 2022] |
The petitioner, who was arrested and remanded to judicial
custody on 15.08.2022 for the offence under Sections 153, 505(1)(b) and
Crl.OP.No.20677 of 2022
505(2) of IPC in crime No.78 of 2022 on the file of the respondent
police, seeks bail.
2. The case of the prosecution is that in a public meeting
organized by the Hindu Munnani, as an office bearer of Hindu Munnani,
the petitioner made a statement that, Sri Rangam Ranganathar Temple is
a holy one, but near the entrance of the temple a statue of a person who is
an atheist has been erected with the words “who believes in god is a fool,
who workship God is a barbarian and who propagates about god is a
rascal” and since the statue and the words hurt the sentiments of the
hindus, the same has to be demolished. Hence, the case.
3. It is seen that the petitioner had spoken hate speech to
remove the statue of Periyar. He also belongs to one political party.
That speech was up-loaded in the you-tube and it became viral in social
media.
4. However, considering the period of incarceration by the
petitioner from the date of his arrest i.e.15.08.2022, this Court is
Crl.OP.No.20677 of 2022
inclined to grant bail to the petitioner. Accordingly, the petitioner shall
file an undertaking affidavit before the learned Magistrate concerned
undertaking not to speak about any political leader in future and on such
undertaking, the petitioner is ordered to be released on bail on his
executing a bond for a sum of Rs.10,000/- (Rupees ten thousand only)
with two blood related sureties, each for a like sum to the satisfaction
of the Addl Chief Metropolitan Magistrate Court, Egmore, Chennai
and on further conditions that:
[a] the sureties shall affix their photographs and Left Thumb
Impression in the surety bond and the Magistrate may obtain a copy of
their Aadhar card or Bank pass Book to ensure their identity.
[b] the petitioner shall report before the respondent police
twice daily at 10.30 a.m. and 5.30 p.m., for a period of four weeks and
thereafter as and when required for interrogation.
[c] the petitioner shall file an undertaking affidavit before
the learned Magistrate concerned undertaking not to speak about
any political leader in future, at time of execution of bond.
[d] the petitioner shall not abscond either during investigation
or trial.
[e] the petitioner shall not tamper with evidence or witness
either during investigation or trial.
Crl.OP.No.20677 of 2022
[f] On breach of any of the aforesaid conditions, the learned
Magistrate/Trial Court is entitled to take appropriate action against the
petitioner in accordance with law as if the conditions have been imposed
and the petitioner released on bail by the learned Magistrate/Trial Court
himself as laid down by the Hon'ble Supreme Court in P.K.Shaji vs.
State of Kerala [(2005)AIR SCW 5560].
[g] If the accused thereafter absconds, a fresh FIR can be
registered under Section 229A IPC.
Crl.OP.No.20677 of 2022 | The Madras High Court on Thursday granted conditional bail to Hindu Munnani office bearer and stunt master Kanal Kannan for his remarks seeking to demolish the statur of Periyar outside Srirangam temple. Justice GK Ilanthiraiyan granted him bail on condition that he shall file an affidavit before the Egmore Court guaranteeing that he will not make any such statements in the future. He has...
The Madras High Court on Thursday granted conditional bail to Hindu Munnani office bearer and stunt master Kanal Kannan for his remarks seeking to demolish the statur of Periyar outside Srirangam temple.
Justice GK Ilanthiraiyan granted him bail on condition that he shall file an affidavit before the Egmore Court guaranteeing that he will not make any such statements in the future. He has also been directed to appear before the police two times for a period of four weeks.
The petitioner, who was attending a meeting organised by Hindu Munnani had called for demolition of a statue of Periyar situated outside Sri Rangam Ranganathan temple. He had stated that the words on the statue of an atheist like Periyar would hurt the religious sentiments of people belonging to the Hindu Community.
He contended that what he said was in fact true and that it was not against any law of the country. He further stated that the words on the statue were in fact violative of Sections 153, 505(1X6), 505 (2) of the IPC.
Challenging the manner in which the arrest was made, Mr. Kannan contended that the procedure under S. 41 CrPC was not followed. These factors were however not considered by the courts below while dismissing the bail application.
The court while granting bail, however, criticised the recent trend of making such remarks. The court stated that it had become a fashion to make such comments.
Case Title: V Kannan v State
Case No: Crl OP 20677 of 2022
Counsel for the Petitioners: Mr.R.C.Paul Kanagaraj
Counsel for the Respondent: Mr.A.Damodaran, Additional Public Prosecutor
Counsel for the Intervenor: Mr.D.Arun |
The present writ petition has been filed inter-alia with following reliefs:-
"(a) Issue a writ, order or direction in the nature of mandamus directing the respondents to
forthwith pay compensation to the petitioner alongwith interest regarding the loss occurred in
1984 during Anti Sikh Riots after assassination of the then Prime Minister of India.
(b) Issue a writ, order or direction in the nature of mandamus directing the respondent no.3 to
decide the represenation dated 05.03.2017 (Annexure no.11 to the writ petition)."
Learned counsel for the petitioner submits that at present the petitioner is more
than 84 years old and infirm person. The petitioner belongs to the Sikh
community and on account of massive riot, which happened in the year 1984, he
has lost two precious life of his wife namely Bhajan Kaur and his daughter Jeet
Kaur, both were brutally killed. He submits that the Ministry of Home Affairs
Government of India formulated a policy, which is known as "Sanction of
Rehabilitation Package", which was widely circulated on 16.01.2006. The State
Government has already accorded compensation of Rs.20,000/- to each
deceased (Rs.40,000/- to the petitioner) and the said claim was duly verified as
per paragraph 3 (iii) and (iv) of the Rehabilitation Policy dated 16.01.2006.
Consequently in the year 2015, the State Government has enhanced the
compensation to the tune of Rs.5 lacs but till date in spite of sufficient time, the
difference of amount has not been released in favour of the petitioner.
In the facts and circumstance of the case, as the claim of the petitioner is
admitted and the matter is pending since 2018, let the Secretary, Home
(Communal Control Cell), Government of U.P. may file his personal affidavit on
or before the next date fixed in the matter.
Let a copy of this order may be provided to Shri R.M. Upadhyay, learned
Standing Counsel, free of cost, for necessary compliance. | While hearing a plea filed by an 84-year-old man seeking compensation for the loss of his wife and daughter in the 1984 Anti-Sikh Riots, the Allahabad High Court
has sought a personal affidavit of the Secretary, Home (Communal Control Cell), Government of U.P.
The bench of Justice
Mahesh Chandra Tripathi and Justice
Vivek Kumar Singh passed this order on the plea of one Pyara Singh as it noted that
the claim of the petitioner is admitted and the matter is pending since 2018.
Essentially, the wife and daughter of Pyara Singh (who belongs to the Sikh community) were brutally killed in the 1984 riots. Thereafter, in 2006,
the Ministry of Home Affairs Government of India formulated a policy, which is known as the "Sanction of Rehabilitation Package", as per which, the State Government accorded compensation of Rs.20,000/- to each deceased (Rs.40,000/- to the petitioner).
Now, in the year 2015,
the State Government enhanced the compensation to the tune of Rs.5 lacs, however, it is the case of the petitioner that the difference in the amount has not been released in favor of the petitioner. Seeking the release of the difference in amount, the petitioner moved to the High court,
Noting that the matter is pending since the year 2018, the High Court has now sought the personal affidavit of the
Secretary, Home (Communal Control Cell), Government of U.P. on or before the next date of hearing (February 8).
Appearances
Counsel for Petitioner: Dinesh Rai
Counsel for Respondent: P K Srivastava,C.S.C.
Case title -
Pyara Singh vs.
Union Of India And 3 Others [
WRIT - C No. - 37388 of 2018
] |
Case :- HABEAS CORPUS WRIT PETITION No. - 165 of
Counsel for Petitioner :- Amit Kumar Verma,Gambhir Singh
Counsel for Respondent :- G.A,Gajendra Singh
Heard Shri Gambhir Singh, learned counsel for the petitioners
and Shri Gajendra Singh, learned counsel for respondent nos.4
and 5 as well as learned A.G.A. Perused the record.
Shri Gajendra Singh, learned counsel for the respondent nos.4
and 5 has filed a counter affidavit in the Court itself, is taken on
Pursuant to my earlier order dated 14.3.2022 Smt. Deepa
Sharma and Smt. Rama Chauhan are present in the Court along
with Km. Sanaya Sharma (minor daughter of 5 years) and
Master Tanisk Sharma (minor son of 2½ years). Learned
counsel for the parties have identified the corpus as well as their
respective guardians.
This is a claim made by a mother Ms. Seema Sharma, who is a
named accused of Case Crime No.499 of 2020.
Submission made by learned counsel for the petitioner is that
the marriage of Ms. Seema Sharma was solemnized with the
son of Ms. Deepa Sharma, namely, Kapil Sharma (now late) on
12.3.2016 and the couple were blessed with a daughter Sanaya
and a son Tanisk. Unfortunately, Kapil Sharma committed
suicide on 16.11.2020 and in this regard a F.I.R. was got
registered by Akash Sharma against his wife Ms. Seema
Sharma and 5 others. The investigation is still going on and no
charge sheet has been submitted so far. Since after the said and
unfortunate demise of Kapil Sharma, his wife Seema Sharma
started living with her sister at Moradabad independently,
whereas, her small kids namely Sanaya and Tanisk remained in
the company of her grand-mother Ms. Deepa Sharma and since
then they are residing with her grand-mother. Ms. Seema
Sharma, being mother and natural guardian of minor children is
claiming their custody by means of instant habeas corpus
Before reaching to any conclusion it would be apt and
profitable to have a fleeting glance over the Section-6 of the
Hindu Minority and Guardianship Act, 1956 :
"6. Natural guardians of a Hindu minor.—The natural guardian
of a Hindu minor, in respect of the minor's person as well as in
respect of the minor's property (excluding his or her undivided
interest in joint family property), are—
(a) in the case of a boy or an unmarried girl—the father, and
after him, the mother: provided that the custody of a minor
who has not completed the age of five years shall ordinarily
(b) in case of an illegitimate boy or an illegitimate unmarried
girl—the mother, and after her, the father;
(c)in the case of a married girl—the husband: Provided that no
person shall be entitled to act as the natural guardian of a minor
under the provisions of this section—
(b) if he has completely and finally renounced the world by
becoming a hermit (vanaprastha) or an ascetic (yati or sanyasi).
Explanation.—In this section, the expression "father" and
"mother" do not include a step-father and a step-mother"
Section 6(a) of the said Act, therefore, preserves the right of the
father to be the guardian of the property of the minor child but
not the guardian of his person, whilst the child is less than five
years old. It carves out the exception of interim custody, in
distinction of guardianship, and then specifies that custody
should be given to the mother so long as the child is below five
years in age. The Act immediately provides that the custody of
a minor who has not completed the age of 5 years shall
ordinarily be with the mother. In the instant case where there is
unfortunate tussle between the mother, being natural guardian
of the kids on one hand and the grandmother and paternal aunt
(Bua) on the other hand, then this Court is of the considered
opinion that the mother, being natural guardian of those kids is
stand on much higher footing than that of grandmother or their
parental aunt (Bua).
Children are not play things of their parents. Their welfare is of
paramount importance and they will be well protected when the
mother is with them. A child should never feel as if they need to
earn a mother's love. This will leave a void in their heart all of
their life. A mother's love must be given unconditionally to
establish trust and a firm foundation of emotional intimacy in a
child's life. If love is withheld, a child will look for it in a
million other ways. Sometimes they will search throughout
their lifetime, unless they come to some sort of peace with their
past. The emotional foundation we give our children at home is
foundational to their life. We cannot underestimate the value of
the home and the power of a mother's love.
In the case at hand, the age of Sanaya is barely of five years,
whereas Tanisk is aged about two and half years. Both of them
are minor and not of an impressionable age, who requires and
deserves unqualified love, affection and protection of their
mother, who is their natural guardian. After weighing the rights
of a mother and grand-mother towards the children, this Court
finds more weight in the right of mother being a natural
guardian than that of the grand-mother, therefore, custody of
both children Km. Sanaya Sharma and Tanisk Sharma is handed
over to their mother Ms. Seema Sharma in the Court itself, with
a rider that, Ms Deepa Sharma (grand-mother), if she desires,
would have a visitation right over his grand-children once in a
week i.e. on every Saturday between 12.00 noon to 05.00 P.M.
and the mother Ms Seema Sharma is bound to provide a
congenial atmosphere for the proposed meetings and would not
create any hindrance or obstacle in the same.
With this observation the habeas corpus petition is disposed off.
It is made clear that in the event of anything serious untoward
happens to these children, it is always open for the concerned
parties to move a recall application, in the larger interest of the
kids. | Stressing that a mother's love must be given unconditionally to establish trust and a firm foundation of emotional intimacy in a child's life, the Allahabad High Court recently granted the custody of two children to their mother.The bench of Justice Rahul Chaturvedi ordered thus while dealing with a habeas corpus plea moved by one Seema Sharma seeking the custody of her two kids who were in...
Stressing that a mother's love must be given unconditionally to establish trust and a firm foundation of emotional intimacy in a child's life, the Allahabad High Court recently granted the custody of two children to their mother.
The bench of Justice Rahul Chaturvedi ordered thus while dealing with a habeas corpus plea moved by one Seema Sharma seeking the custody of her two kids who were in the company of their grandmother.
The case in brief
The Mother (Seema Sharma) got married to one Kapil Sharma (now late) in March 2016, and the couple was blessed with two kids (a minor daughter of 5 years and a minor son of 2½ years). Sharma was named as an accused along with 5 others in the case of the suicidal death of her husband. The investigation is still going on and no charge sheet has been submitted so far.
After the demise of her Husband, Sharma started living with her sister at Moradabad independently, whereas, her small kids remained in the company of her grandmother (one Ms. Deepa Sharma). Against this backdrop, Sharma moved to the High Court seeking the custody of both the kids.
Court's observations
Taking into account Section 6(a) of the Hindu Minority and Guardianship Act, 1956, the Court noted that this particular provision preserves the right of the father to be the guardian of the property of the minor child, but he is not the guardian of his person, whilst the child is less than five years old.
The Court noted that this provision carves out the exception of interim custody, in the distinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age.
Further, observing that in the instant case, there is a tussle going on between the mother, being natural guardian of the kids on one hand and the grandmother and paternal aunt (Bua) on the other hand over the custody of minor children, the Court came to the conclusion that the mother, being the natural guardian of those kids stands on much higher footing than that of the grandmother or their parental aunt (Bua).
Against this backdrop, stressing the need for a mother's love in a child's life, the Cour made the following significant observation:
"Children are not play things of their parents. Their welfare is of paramount importance and they will be well protected when the mother is with them. A child should never feel as if they need to earn a mother's love. This will leave a void in their heart all of their life. A mother's love must be given unconditionally to establish trust and a firm foundation of emotional intimacy in a child's life. If love is withheld, a child will look for it in a million other ways. Sometimes they will search throughout their lifetime, unless they come to some sort of peace with their past. The emotional foundation we give our children at home is foundational to their life. We cannot underestimate the value of the home and the power of a mother's love." (emphasis supplied)
Consequently, after weighing the rights of a mother and grandmother towards the children, the Court found more weight in the right of the mother, being a natural guardian than that of the grand-mother, therefore, the custody of both the children was handed over to their mother Ms. Seema Sharma in the Court itself.
However, the grandmother, if she desires, has been given a visitation right over her grand-children once a week i.e. every Saturday between 12.00 noon to 05.00 P.M. With this observation, the habeas corpus petition was disposed of.
Case title - Km. Sanaya Sharma (Minor) And Another v. State Of U.P. And 4 Others
Case citation: (AB) 193 |
1. The petitioner vide the present petition under Section 9 of the
Arbitration & Conciliation Act, 1996 (herein after referred to as „the
Act‟) has sought the following reliefs:
“Direct the Respondent No. 1, its
representatives, attorneys, heirs, executors,
administrators, successors and permitted
assigns, to jointly and severally maintain status
quo as to the possession and title of the land
admeasuring 94 Kanal and 7 Marla equivalent
to 11. 793 7 5 acres situated in the revenue
estate of village Dhunela, Tehsil Sohna, District
Gurugram, Haryana 122001 during the
pendency of the Arbitration proceedings;
(ii) Restrain the Respondent No. I, its
representatives, attorneys, heirs, executors,
administrators, successors and permitted
assigns etc. from directly or indirectly, selling,
transferring, alienating or creating any third
party rights in any manner whatsoever with
respect to the land admeasuring 94 Kanal and 7
Marla equivalent to 11.79375 acres situated ir..
the revenue estate of village Dhunela, Tehsil
which is a subject matter of the Collaboration
Agreement dated 15.05.2018 and First
Supplementary Collaboration Agreement dated
(iii) Direct the Respondent No. 1 to render all
assistance to the Petitioner to obtain all
statutory clearances/ regulatory approvals/
consents/licenses in terms of Clause 9.3 of the
Collaboration Agreement dated 15.05.2018.
(iv) Pass ex parte ad interim orders in terms of
prayers (i) to (iii) above;
(v) Pass any such other or further order/orders
as this Hon'ble Court may deem fit and proper
in the facts and circumstances of the case.”
2. The following course of events have culminated into the present
dispute between the parties and has also led to the filing of the instant
i. The petitioner is a limited liability Partnership
incorporated under the Limited Liability Partnership Act,
2008, having LLP Identification No. AAM-4745 and
having its registered office at 477/4 Basai Road, Ram
Nagar, Gurugram-122001. The respondent no. 1 is the
owner of the land admeasuring 94 Kanal & 7 Marla, or
11.79375 acres, situated in the Revenue Estate of Village
respondent no. 2 is the erstwhile partner of the petitioner
firm.
ii. On 15th May, 2018, the petitioner entered into a
Collaboration Agreement with the respondent no. 1 for
the development of a land admeasuring 119 Kanal and 6
Marla, equivalent to 14.9125 acres situated in the village
122001 (hereinafter referred to as „the Property‟),
whereby the petitioner agreed to develop the project over
the Collaboration Property at its own costs and expenses.
As consideration the respondent No.1 was to receive
certain amounts of the money within a stipulated period
and the portion of the developed Collaboration Property
was earmarked and to be allocated to the respondent
iii. Clause (2) required the petitioner to pay a sum of Rs.
5,96,50,000/- to the respondent No.1 as an interest free
non-refundable earnest money out of which
Rs.2,00,00,000/- was paid at the time of signing of the
Collaboration Agreement and post dated cheques issued
for the balance payment. Under the terms of the
Collaboration Agreement, the petitioner was, inter alia,
obliged to apply for licence/ approvals/ permits/
certification etc. for the development of the property in a
timely and orderly manner.
iv. In the terms of the Collaboration Agreement, an
irrevocable General Power of Attorney dated 15th May,
2018 was also executed in favour of the petitioner for the
petitioner, amongst others, to apply and obtain
licence/sanction for converting the property from its
agricultural use to any other suitable use and as also to
get the plan sanctioned from the concerned authority for
developing a residential complex at the said property.
v. On 16th May, 2018, the petitioner filed an application
before the Directorate of the Town and Country
Planning, Haryana, (hereinafter referred to as „DTCP‟)
for the grant of licence for the development of the project
at the said property.
vi. On 3rd June, 2019, the petitioner and the respondent No.1
executed a First Supplementary Collaboration
Agreement whereby:
a. The land for development was reduced
from 119 Kanal & 6 Marla to 94 Kanal &
7 Marla equivalent to 11.79375 acres;
b. The non-refundable earnest money was
reduced to at INR.4,21,62,656/- as also the
area to be allocated to the respondent No.1
was reduced to a piece of land
vii. In view of the First Supplementary Agreement, the
respondent No.1 issued a fresh General Power of
Attorney dated 3rd June, 2019. But no specific reason
had been assigned for execution of the First
Supplementary Agreement by the petitioner. On 20th
April, 2019, the petitioner‟s cheque bearing No. 000049
dated 15.3.2019 for Rs.1,46,50,000/- drawn on HDFC
Bank in favour of respondent No.1 for the part payment
of the above mentioned security amount was
dishonoured due to “ insufficient funds”.
viii. It is the respondents‟ case that it was to help the
petitioner and to cure the default of Rs.1,46,50,000/-, the
respondent No.1 agreed to reduce the development area
as a result of which First Supplementary Collaboration
Agreement was executed.
ix. The Collaboration Agreement stood terminated by the
respondent No.1 by way of a letter dated 29th September,
2021. However, it is the petitioner‟s case that the
petitioner never received any communication from the
respondent No.1 seeking to terminate the Collaboration
Agreement and it was only during the hearing of the
present petition, the petitioner came to know about the
purported termination letter.
x. In the interregnum a Second Supplementary
Collaboration Agreement dated 17.8.2020 was executed
which is vehemently disputed by the petitioner as being a
forged and fabricated document.
xi. It is the petitioner‟s case that on 14.12.2022 on receipt of
a phone call regarding the said property for being put for
sale, the petitioner made enquiry on 15.12.2022, when it
was confronted with the Second Supplementary
Collaboration Agreement. As per the petitioner, there
was no such Second Supplementary Collaboration
Agreement nor was there any authorization granted to the
respondent No.2 to execute such agreement on behalf of
the petitioner in respect of the said property. It is also the
case of the petitioner that on 19.12.2022, it was further
confronted with the deed of cancellation dated 29.9.2021
cancelling the General Power of Attorney dated 3.6.2019
issued by the respondent No.1 in terms of the
xii. Therefore, the petitioner is before this Court seeking
interim protection qua the Collaboration Property
submitting to the effect that there is a serious and
genuine apprehension that the respondent No.1 and 2
would create third party rights in the Collaboration
Property to defeat the rights of the petitioner.
On behalf of the Petitioner
3. Mr.Rajiv Nayar, the learned senior counsel appearing for the
petitioner submitted that the respondent No.1 and the respondent No.2
have been acting in collusion and attempting to defeat the rights of the
petitioner in the Collaboration Property. It is submitted that the
Collaboration Agreement dated 15th May, 2018 was an indeterminable
contract, therefore, created indefensible rights in favour of the petitioner.
However, the respondents have sought to terminate the contract by way
of entering into a Second Supplementary Collaboration Agreement
despite the fact that, by way of the Collaboration Agreement, indefeasible
rights had been created in favour of the petitioner and the petitioner was
in physical possession of the Collaboration Property.
4. It is further submitted that the petitioner has paid an amount of
Rs.4.21 Crores to the respondent No.1 and for its possession of the
Collaboration Property, the petitioner has fulfilled its obligations under
the Collaboration Agreement. Even otherwise, the petitioner has always
been ready and willing to perform its part under the Collaboration
Agreement and has been taking all necessary steps to obtain the required
licence. However, it is the respondent No.1 who in connivance with
respondent No.2 is attempting to come out of the Collaboration
Agreement by relying on false and fabricated documents. Therefore, the
petitioner having a strong prima facie case in its favour is entitled to the
relief of Specific Performance of the Collaboration Agreement and
preservation of the Collaboration Property being the subject matter of the
dispute between the parties.
5. The learned senior counsel appearing for the petitioner further
submitted that the petitioner and even the respondent No. 1 were working
towards achieving the development of the Collaboration Property and
obtaining all statutory permissions, licenses and regulatory approvals
required thereof. Acting upon the said Collaboration Agreement, a license
for the development of the said land had been applied for on 16 th May,
2018 by the petitioner vide License No. CTP/12558/2018. However, the
petitioner came to know only on 14th December, 2022 that the respondent
No. 1 had put up the Collaboration Property for sale in the market.
6. It is also argued on behalf of the petitioner that the Second
Supplementary Collaboration Agreement is a forged and fabricated
document created by the respondent Nos.1 and 2 as an excuse to wriggle
out of the binding Collaboration Agreement and defraud the petitioner. In
this regard it was contended that no such agreement was executed by the
petitioner nor any permission/authorization was granted by the petitioner
to the respondent No.2 to execute any such so called Second
Supplementary Collaboration Agreement in respect of the Collaboration
Property. Further, the clauses in the Second Supplementary Collaboration
Agreement are unconscionable and virtually efface the understanding,
rights and obligations under the original Collaboration Agreement dated
15th May, 2018. It was argued that the said Second Supplementary
Collaboration Agreement seeks to change the very nature of the
Collaboration Agreement from an indeterminable to a determinable
contract.
7. It was further submitted that the Second Supplementary
Collaboration Agreement is supported by a false resolution dated 3rd June,
2019 which is also a fabricated document created by the respondents in
cahoots with each other, i.e., respondent Nos. 1 and 2.
8. The learned senior counsel appearing for the petitioner submitted
that on 15th December, 2022, the petitioner made an enquiry at the office
of the Sub-Registrar, District Sohna. The petitioner attempted to confront
the respondent No.2, however, no communication could be made with the
respondent No.1. It is further submitted that immediately upon coming to
know of the fraudulent acts of the respondent No. 2, the petitioner
removed the respondent No.2 as a partner on 20th December, 2022.
9. The learned senior counsel submitted that Clause 1.3 of the
Collaboration Agreement specifically provided that the respondent No. 1
shall hand over the physical possession of the Collaboration Property to
the petitioner and the entire area to be developed and constructed on the
Collaboration Property shall exclusively belong to the petitioner for the
benefit of the petitioner. It is further stipulated that the respondent no. 1
shall not in any way interfere with or obstruct the development of the
Collaboration Property. As per the updated Clause 2 of the Collaboration
Agreement, the non-refundable earnest money to be paid by the petitioner
to the respondent no. 1, which was reduced to Rs. 4,21,62,656/-, was also
duly paid by the petitioner to the respondent no. 1. Yet the respondent, in
blatant violation of the terms of the Collaboration Agreement, entered
into a Supplementary Agreement.
10. It is submitted that the petitioner had filed the instant petition
seeking the reliefs as aforementioned, the reliefs qua the Collaboration
Property so as to restrain the respondents from creating any third party
interest in the said Property.
11. It is submitted that the Second Supplementary Collaboration
Agreement changes the very edifice and nature of the Collaboration
Agreement dated 15th May 2018 by introduction of certain clauses which
are unconscionable and allow the respondent no. 1 to exit the
Collaboration Agreement while at the same time forfeiting a huge
consideration of more than Rs.4.21 Crores paid, without having invested
a single penny. The said Second Supplementary Collaboration Agreement
also seeks to change the very nature of the Collaboration Agreement from
indeterminable to a determinable contract at the option of the respondent
no. 1, on events which are not within the control of the petitioner.
12. The learned senior counsel submitted that it is ex-facie apparent
that the respondent Nos. 1 and 2 in collusion with each other have, with
ill intention, devised a stratagem to cheat and defraud the petitioner by,
on the one hand, executing a Collaboration Agreement with the petitioner
and taking a huge consideration of Rs.4.21 Crores and, on the other hand,
by seeking to create third party rights in the Collaboration Property by
OMP(I) (COMM) 401/2022 Page 10 of 52
offering it for sale in the market. This action of the respondents is in the
teeth of the Collaboration Agreement which creates indefensible rights in
favour of the petitioner and is inherently a contract which is
indeterminable in nature.
13. It is further submitted that the petitioner is entitled to specific
performance of the Collaboration Agreement dated 15th May 2018 since it
has performed all its obligations under the Agreement and has also paid a
consideration of Rs.4.21 Crores to the respondent No. 1. Moreover, the
Collaboration Property ought to be preserved in favour of the petitioner.
14. Learned senior counsel appearing for the petitioner submitted that
irreparable harm and injury would be caused to the petitioner inasmuch as
the Collaboration Property is a unique parcel of land and has huge
potential for development and the petitioner is already in physical
possession of the land and has taken various steps in order to obtain
licenses for the development of the Collaboration Property. The petitioner
has, for the last 4 years, spent a huge amount of time, money and efforts
in furtherance of the Collaboration Agreement including having paid a
sum of approximately Rs.4.21 Crores to the respondent No. 1. It is further
submitted that no prejudice whatsoever would be caused to the
respondents in the event the respondents are directed to maintain status
quo as to the right, title, interest, and possession of the Collaboration
Property pending Arbitration proceedings. It is further submitted that the
balance of convenience is also entirely in favour of the petitioner and
against the respondent No. 1 who has with open eyes executed the
Collaboration Agreement and already received a valuable consideration
for the same.
OMP(I) (COMM) 401/2022 Page 11 of 52
15. The learned senior counsel appearing for the petitioner further
argued that under Section 10 of the Specific Relief Act, 1963, (hereinafter
referred to as “Specific Relief Act”) the respondent No.1 cannot run away
from the Collaboration Agreement through any device or artifice as the
grant-cum-relief of specific performance is mandatory, if the readiness
and willingness on the part of the petitioner is proved. It is further
submitted that in the present case the conduct of the petitioner has been
blemish free and the petitioner has expressed its readiness and willingness
at each stage of the transaction. Thus, the respondent No.1 cannot be
allowed to frustrate the Collaboration Agreement by alienating the
Collaboration Property and reducing the petitioner‟s claim to only
damages.
16. In support of its contentions, reliance has been placed on behalf of
the petitioner on the judgment of the Hon‟ble Supreme Court in B.
Kuttukaran Machine Tools Ltd. ; (2009) 5 SCC 182 and the judgment of
this Court in DLF Home Developers Ltd. V. Shipra Estate Ltd. & Ors.;
17. Therefore, it is prayed that the instant petition be allowed and the
reliefs sought be granted in favour of the petitioner.
On behalf of the Respondents
18. Mr.Neeraj Malhotra, the learned senior counsel appearing for the
respondent No.1 at the first instance raised objection to the
OMP(I) (COMM) 401/2022 Page 12 of 52
maintainability of the petition on the grounds of concealment and
suppression of material facts.
19. It is submitted that the petitioner has suppressed the fact that the
Collaboration Agreement stands terminated and the petitioner itself has
filed on record the Deed of Cancellation dated 29th September 2021 as
Annexure P-10 to the petition.
20. It is submitted that the petitioner has wrongly stated that it has
fulfilled its obligations as per the Collaboration Agreement. It is further
submitted that as per Clause 2.14 of the Second Supplementary
Collaboration Agreement dated 17th August 2020, the petitioner was to
obtain license of the project to be developed on the Collaboration
Property by 15th December 2020, however, the petitioner failed to do so.
It is further submitted that the petitioner even failed to obtain the required
license for the project for almost 40 months, i.e., till the termination of
the Collaboration Agreement and that even till the filing of the instant
petition, the said license was not obtained. It is further submitted that
since, the license was not obtained by the petitioner, the respondent no. 1
was left with no other option but to terminate the Collaboration
Agreement and the General Power of Attorney vide a Legal Notice dated
21. It is also submitted that there were consistent defaults on the part
of the petitioner submitting to the effect that after execution of the
petitioner failed to pay towards the part payment of the security amount
as ITS cheque was dishonoured due to “ Insufficient Funds” . It is further
submitted that the petitioner never had any financial capacity to perform
its commitments. It is further submitted that to help the petitioner and to
OMP(I) (COMM) 401/2022 Page 13 of 52
cure the default of Rs.1.465 Crores the respondent no.1 agreed to reduce
the development area and resultantly the First Supplement Collaboration
Agreement was executed. It is further submitted that on account of the
delays on the part of the petitioner, when the licence was not forth
coming, after waiting for two years the Second Supplementary
Collaboration Agreement dated 17th August, 2020 was executed so as to
put a long stop date on obtaining the licence. It is further submitted that
when the long stop date also got crossed without the receipt of licence
and after further wait of nine months, the respondent No.1 had no choice
but to terminate the agreement which was in the knowledge of the
petitioner.
22. It was argued that it is only when the DTCP, vide its order dated
16th March, 2021 finally returned the application of the petitioner for
grant of licence for the project, and when the respondent No.1 came to
know about it, the respondent No.1 terminated the Collaboration
Agreement and cancelled the General Power of Attorney vide notice
dated 29th September, 2021, whereafter the possession of the
Collaboration Property was to be restored in the name of the respondent
No.1 which fact was well within the knowledge of the petitioner and its
partners.
23. It is further submitted on behalf of the respondent No.1 that
petitioner has been siting over the land of the respondent No.1 for more
than five years even without obtaining the required licence and that an
amount of Rs.4.21 Crores can never be a sufficient consideration for the
land now worth Rs.120 Crores.
OMP(I) (COMM) 401/2022 Page 14 of 52
24. It is further submitted on behalf of the respondent that upon the
termination of the Collaboration Agreement the arbitration clause
provided for therein no longer remained in existence. It is further
submitted that the petitioner has failed to demonstrate even a single
arbitral dispute giving rise to any cause of action for filing the instant
petition.
25. It is further submitted that petitioner has falsely stated that the
respondent No.1 and the respondent No.2 conspired to deceive the
petitioner by creating a falsified Second Supplementary Collaboration
Agreement. It is submitted on behalf of the respondent No.1 that the
respondent no.2 was the designated partner of the petitioner at the time of
execution of the Second Supplementary Collaboration Agreement.
Moreover, the petitioner has not disputed the veracity of the First
Supplementary Collaboration Agreement dated 3rd June, 2019 executed
by the petitioner through its designated partner, i.e., respondent No.2 with
the respondent No.1. The said agreement was signed by the respondent
No.2 based on the authority granted in his favour by the petitioner vide a
Resolution dated 3rd June, 2019.
26. The learned senior counsel appearing for the respondent No.1
further submitted that the authority granted in favour of the respondent
No.2 by the petitioner vide Resolution dated 3rd June, 2019 was
withdrawn by the petitioner on 2nd March, 2021, which was done much
after the execution of the Second Supplementary Collaboration
Agreement dated 17th August, 2020. It is further submitted that even after
withdrawal of the authority on 2nd March, 2021, the Minutes of Meeting
OMP(I) (COMM) 401/2022 Page 15 of 52
of the subsequent calendar does not even whisper anything of sort and
respondent No.2 continued to attend such meetings.
27. It is submitted that as per Clause 2 of the Collaboration Agreement
dated 15th May, 2018, the petitioner was required to pay a non-refundable
security deposit of Rs.5,96,50,000/- to the respondent No.1. However,
the petitioner failed to pay the entire amount of the security deposit and
on 20th April, 2019, cheque No. No.000049 dated 15th March, 2019 for
Rs.1,46,50,000/- drawn on HDFC Bank issued by the petitioner in favour
of the respondent No.1 for the part payment of the above said security
deposit was dishonoured due to “Insufficient Funds” . It is submitted that
this clearly establishes that the petitioner never had any financial capacity
to complete its part of obligations.
28. It is further submitted that the petitioner in this petition has alleged
fraud and fabrication, however, the said issues cannot be decided by this
Court in the proceedings arising under the Act.
29. The learned senior counsel appearing for the respondent No.1
submitted that the petitioner by way of present petition is seeking to sit
tight on the Collaboration Property which exclusively belongs to the
respondent No. l, by distorting and misrepresenting the facts before this
Court and thus the respondent no. 1 is made to suffer hardship due to
failures and inactions of the petitioner. It is submitted that the
Collaboration Property is worth more than Rs.100 Crores and the
petitioner is trying to grab the property by paying a paltry security deposit
of Rs.4.21 Crores.
30. It is further argued that in case as the present one in view of the
Section 14(1)(c) read with Section 16 and Section 14(1)(d) of the Specific
OMP(I) (COMM) 401/2022 Page 16 of 52
Relief Act, an injunction cannot be granted in favour of the petitioner. In
support of this contention, reliance has been placed on behalf of the
respondent No.1 upon the judgments in Rajasthan Breweries Limited V.
the Stroh Brewery Company; 2000 SCC OnLine Del 481 and
31. To buttress the argument that the Second Supplementary
Collaboration Agreement is not a forged and fabricated document, it was
submitted by the respondent No.1 that respondent No.2 (who signed the
Second Supplementary Collaboration Agreement on behalf of the
petitioner) was a designated partner of the petitioner at the time of
execution of the Second Supplementary Collaboration Agreement. The
respondent No.2 till the date of the execution of the Second
Supplementary Collaboration Agreement was the designated partner of
the petitioner. The authority granted in favour of the respondent No.2 by
the petitioner vide a Board Resolution dated 3rd June 2019 was not
withdrawn by the petitioner, no earlier than 2nd March, 2021 which was
done much after the execution of the Second Supplementary
Collaboration Agreement. The respondent No.1 has vehemently disputed
that the Board Resolution dated 3rd June 2019 is forged and fabricated.
32. Therefore, it is submitted that the instant petition being devoid of
merit is liable to be dismissed.
33. Ms. Radhika Bishwajit Dubey, learned counsel for the respondent
No. 2 also submitted that the present petition filed by the petitioner
OMP(I) (COMM) 401/2022 Page 17 of 52
deserves to be dismissed summarily on the sole ground of concealment
and suppression of material facts and various false and misleading
statements have been made by the petitioner in the present petition. It is
submitted that the petitioner was well aware of the termination of the
34. It is argued that the Second Supplementary Collaboration
Agreement is a validly executed agreement. So far as the Board
Resolution dated 3rd June, 2019 is concerned, it is submitted that the
petitioner has not disputed or denied the issuance of authority or
questioned its validity or authenticity in favour of respondent No.2 in its
petition. In fact, on the contrary, the petitioner has filed a set of
documents in support of its petition which contains and refers to the said
35. It is submitted that as per the Minutes of the Meeting dated 2nd
March, 2021, the old Resolutions were terminated from 2nd March, 2021
onwards. Assuming without admitting that no authority was given in
favour of the respondent No.2 by the petitioner vide Resolution dated 3rd
June, 2019, then the First Supplementary Collaboration Agreement
should also not be a valid document. However, the petitioner has not
disputed or denied the existence of the First Supplementary Collaboration
36. Ms.Dubey further submitted that it was also in the knowledge of
the petitioner that the Resolution dated 3rd June, 2019 was a document
filed along with the First Supplementary Collaboration Agreement with
the Sub-Registrar‟s office in Gurgaon. It is only through the rejoinder to
the short reply filed on behalf of the respondent No.2 that the petitioner
OMP(I) (COMM) 401/2022 Page 18 of 52
for the first time questioned the said Board Resolution dated 3 rd June,
2019 filed by the petitioner itself and introduced new facts and
documents which the respondent No.2 vehemently denies.
37. It is further submitted that the documents filed along with the
rejoinder by the petitioner are false, forged and fabricated and Resolution
dated 3rd June, 2019, sought to be challenged in the rejoinder, has been in
existence prior to the filing of the petition. It is submitted that nothing
precluded the petitioner to file the same with the petition. It is only after
the respondent No.2‟s reply that petitioner through its rejoinder sought to
challenge the purported Resolution dated 3rd June, 2019 which was in
existence earlier.
38. It is the case of the respondent No.2 that when the petitioner raised
a question as to the authenticity of the document for the first time
through its rejoinder, the respondent No.2 approached the Sub-Registrar‟s
office to get a certified copy of the First Collaboration Agreement, the
respondent No.2 was shocked to discover that the petitioner in collusion
with the staff at the Sub-Registrar‟s office tried to replace the original
Resolution dated 3rd June, 2019 with the purported Resolution dated 3 rd
June, 2019. The respondent No.2 immediately complained to the
Tehsildar Sohna about the same who in turn got an FIR bearing 0065
dated 7th February, 2023 lodged with the Haryana Police, City Sohna
39. It is further submitted that the copy of the Minutes of the Meeting
dated 27th June, 2019 and 29th June, 2019 are fabricated for they bear the
signatures of Mr.Deepak Kumar Agarwal alone despite the Minutes of
Meetings noting the presence of other persons including respondent No.2.
OMP(I) (COMM) 401/2022 Page 19 of 52
It is further submitted that a bare comparison of the Minutes of Meetings
filed along with petition with the purported Minutes of Meetings filed
with petition bear the signatures of all present in those meetings as
opposed to the purported Minutes of Meetings filed along with the
rejoinder would show that the Minutes of Meetings filed with the petition
bear the signatures of all present in those meetings as opposed to the
purported Minutes of Meetings filed with the rejoinder which bears the
signature of only Mr.Deepak Kumar Agarwal.
40. It was also argued on behalf of the respondent No.2 that the
purported reports issued by the Forensics questioning the authenticity of
the Second Supplementary Collaboration Agreement cannot be relied on
for the same are procured from a private party.
41. Therefore, it is submitted that the instant petition is nothing but an
abuse of process of law and warrants dismissal from this Court.
42. Heard the learned counsel appearing on behalf of the parties and
perused the record.
43. In the instant case, the petitioner has invoked Section 10 of the
Specific Relief Act, 1963 to submit that it was entitled to specific
performance of the contract, that is, the Collaboration Agreement dated
15th May 2018. For a proper adjudication of this claim raised by the
petitioner, it is pertinent to examine the provision and the bearing it may
have on the facts and circumstances of the instant case.
44. Section 10 of the Specific Relief Act is reproduced hereunder:-
OMP(I) (COMM) 401/2022 Page 20 of 52
10. Specific performance in respect of contracts.—The
specific performance of a contract shall be enforced by
the court subject to the provisions contained in sub-
section (2) of section 11, section 14 and section 16.”
45. Section 10 of the Specific Relief Act, which provides for specific
performance of a contract, acts as an enabling provision which a party to
a contract may invoke to seek its enforcement with the intervention of the
courts. The provision is to be read with Sections 11(2), 14 and 16 of the
said Act which provide for situations in which specific performance of a
contract may not be invoked or is barred.
46. The relief of specific performance is an equitable relief. As per the
amended Act, the courts no longer have discretionary powers under the
Specific Relief Act while granting such a relief. The court may be
required to be satisfied on certain tests before granting the relief of
specific performance, however, upon fulfilment of the ingredients and
satisfaction of the court, a relief of specific performance may mandatorily
be granted. To this effect, the Hon‟ble Supreme Court in Katta Sujatha
Reddy v. Siddamsetty Infra Projects (P) Ltd., (2023) 1 SCC 355 while
holding that the amendments brought to the Specific Relief Act in the
year 2018 are prospective and not retrospective in nature, observed as
“44. We may note that the Specific Relief Act,
1963 is the second legislation, replacing the
earlier 1877 enactment of the Specific Relief
Act. The 1963 Act was enacted after
consideration of the Law Commission in its
Ninth Report. The 1963 Act more or less
OMP(I) (COMM) 401/2022 Page 21 of 52
followed the English position on equitable
remedy of specific performance. In Common
Law, the remedy of specific performance was
unknown in the initial days and courts only
granted damages for the value of goods if there
was any breach of contract. Accordingly
English courts, in the early years, granted
monetary relief. In order to rectify the harsh
stance of law, Courts of Equity in England
started granting relief of specific performance if
the Court of Equity found that granting
damages would be inadequate or some special
equitable rights of the plaintiff under a trust
have been breached.
45. In any case, grant of such relief, which
emanated from equitable principles, remained
discretionary. This principle is clearly
explained by Swinfen Eady M.R., in Whiteley
Ltd. v. Hilt [Whiteley Ltd. v. Hilt, (1918) 2 KB
808 (CA)] , in the following manner : (KB p.
“… the power vested in the Court to order
the delivery up of a particular chattel is
discretionary, and ought not to be
exercised when the chattel is an ordinary
article of commerce and of no special
value or interest, and not alleged to be of
any special value to the plaintiff, and
where the damages would fully
46. However, this was not the position under the
Civil Law. Under the Civil Law of contracts,
adherence to the sanctity of contract is enforced
with greater rigour by inversing the situation.
The reason for choice of damages and specific
performance range from legal to economic. It is
OMP(I) (COMM) 401/2022 Page 22 of 52
in this context that the courts cannot engage on
the merits of having damages or specific
performance or a hybrid. It is best left to the
legislature to choose the course best-suited to
the economy without sheepishly following the
typecast approach in England or Civil Law
systems.
48. We do not subscribe to the aforesaid
reasoning provided by the High Court for the
simple reason that after the 2018 Amendment,
specific performance, which stood as a
discretionary remedy, is not (sic now) codified
as an enforceable right which is not dependent
anymore on equitable principles expounded by
Judges, rather it is founded on satisfaction of
the requisite ingredients as provided under the
Specific Relief Act. For determination of
whether a substituted law is procedural or
substantive, reference to the nature of the
parent enactment may not be material. Instead,
it is the nature of the amendments which
determine whether they are in the realm of
procedural or substantive law.
51. In any case, the amendment carried out in
2018 was enacted to further bolster adherence
to the sanctity of contracts. This approach was
radical and created new rights and obligations
which did not exist prior to such an amendment.
Section 10, after amendment, reads as under:
“10. Specific performance in respect of
contracts.—The specific performance of a
contract shall be enforced by the court
subject to the provisions contained in sub-
section (2) of Section 11, Section 14 and
OMP(I) (COMM) 401/2022 Page 23 of 52
52. This provision, which remained in the realm
of the courts' discretion, was converted into a
mandatory provision, prescribing a power the
courts had to exercise when the ingredients
were fulfilled. This was a significant step in the
growth of commercial law as the sanctity of
contracts was reinforced with parties having to
comply with contracts and thereby reducing
efficient breaches.
53. Under the pre-amended Specific Relief Act,
one of the major considerations for grant of
specific performance was the adequacy of
damages under Section 14(1)(a). However, this
consideration has now been completely done
away with, in order to provide better
compensation to the aggrieved party in the form
of specific performance.
54. Having come to the conclusion that the
2018 Amendment was not a mere procedural
enactment, rather it had substantive principles
built into its working, this Court cannot hold
that such amendments would apply
47. However, the question before this Court is substantially different.
In the instant matter, the Collaboration Agreement between the parties
already stands terminated. The said termination has not been challenged
by either the petitioner or even the respondent No. 2 (former designated
partner of the petitioner). Therefore, the issue which remains is whether
the petitioner can seek specific performance of a contract which no
longer remains in existence. It is the petitioner‟s case that it was always
OMP(I) (COMM) 401/2022 Page 24 of 52
ready and willing to perform its part of the obligations under the contract,
however, the facts of the present case speak to the contrary.
48. The cases cited on behalf of the petitioner, i.e., B. Santoshamma
(Supra), N. Srinivasa (Supra) and DLF Home Developers Ltd. V.
Shipra Estate Ltd. & Ors.; (Supra) in support of its arguments deal with
facts different from the present one and hence, are not applicable to the
instant dispute between the parties.
49. It is trite law that continuous readiness and willingness on the part
of the petitioner is a condition precedent for the grant of relief of Specific
Performance. It is the bounden duty of the petitioner to prove its
readiness and willingness by way of adducing evidence. The crucial facet
has to be determined by considering all the circumstances including
availability of funds and mere statements or averment in the present
petition of readiness and willingness would not suffice. Under Section
16(c) of the Specific Relief Act, a distinction can be drawn between
readiness and willingness to perform the contract. Both ingredients are
necessary to be established for the grant of relief of the specific
performance.
50. While readiness means the capacity of the petitioner to perform
the contract, willingness relates to the conduct of the petitioner. It is not
disputed that under the Collaboration Agreement (amended by the First
Supplementary Agreement), the petitioner was required to get a licence
from DTCP in a timely manner which it failed to get even after 5 years.
51. Though this Court knows that the contract did not stipulate a
particular time period within which this licence was to be obtained, it
ought to have been obtained within a reasonable time period. Thus, the
OMP(I) (COMM) 401/2022 Page 25 of 52
time period cannot be completely ignored. It is also not disputed that the
petitioner was unable to make payment towards the earnest money as was
initially agreed between the parties, which was one of the crucial factors
while executing the First Supplementary Agreement. It is also not
disputed that one of the post dated cheques handed over at the time of the
Collaboration Agreement was dishonoured for “Insufficient Funds”.
52. In the present case, the petitioner through the Minutes of the
Meeting filed has itself admitted about the worsen condition of the LLP
and how the LLP has been observing serious financial crunch and losses
which is effecting its state of affairs and market status. I am, thus, of the
prima facie view that owing to failure to obtain the licence within
reasonable time period and its adversely affected and worsening financial
condition, the petitioner has failed to prove its readiness and willingness
to perform the essential terms of the Collaboration Agreement.
53. The learned senior counsel appearing on behalf of the respondent
No.1 argued that the petitioner had only paid an amount of Rs.4.21
Crores as earnest money while the price of the land is about at INR 120
Crores. Having paid an amount insignificant in comparison to the value
of the property, the petitioner is not entitled to discretionary equitable
relief of specific performance. This Court finds weight in the argument as
was also observed by Hon‟ble Supreme Court in Saradamani
Kandappan vs S. Rajalakshmi & Ors ; (2011) 12 SCC 18 in context of
the sale of an immoveable property. The relevant paragraphs of the
judgment is set out herein below:
“37. The reality arising from this economic
change cannot continue to be ignored in
OMP(I) (COMM) 401/2022 Page 26 of 52
deciding cases relating to specific performance.
The steep increase in prices is a circumstance
which makes it inequitable to grant the relief of
specific performance where the purchaser does
not take steps to complete the sale within the
agreed period, and the vendor has not been
responsible for any delay or non-performance.
A purchaser can no longer take shelter under
the principle that time is not of essence in
performance of contracts relating to immovable
property, to cover his delays, laches, breaches
and “non-readiness”. The precedents from an
era, when high inflation was unknown, holding
that time is not of the essence of the contract in
regard to immovable properties, may no longer
apply, not because the principle laid down
therein is unsound or erroneous, but the
circumstances that existed when the said
principle was evolved, no longer exist. In these
days of galloping increases in prices of
immovable properties, to hold that a vendor
who took an earnest money of say about 10% of
the sale price and agreed for three months or
four months as the period for performance, did
not intend that time should be the essence, will
be a cruel joke on him, and will result in
injustice. Adding to the misery is the delay in
disposal of cases relating to specific
performance, as suits and appeals therefrom
routinely take two to three decades to attain
finality. As a result, an owner agreeing to sell a
property for rupees one lakh and received
rupees ten thousand as advance may be
required to execute a sale deed a quarter
century later by receiving the remaining rupees
ninety thousand, when the property value has
risen to a crore of rupees.
OMP(I) (COMM) 401/2022 Page 27 of 52
Therefore, it cannot be overlooked that, in fact, the Court is
obliged to take initial notice of the phenomenal rise in the price of real
estate.
54. It has been contended on behalf of the petitioner that the
Collaboration Agreement dated 15th May, 2018 was not a determinable
contract. To address this argument it is pertinent to refer to Section 14 of
the Act which deals with the contracts which are not specifically
enforceable by a Court and which reads as under:
“14. Contracts not specifically enforceable.—
The following contracts cannot be specifically
enforced, namely:—
(a) where a party to the contract has obtained
substituted performance of contract in
accordance with the provisions of section 20;
(b) a contract, the performance of which
involves the performance of a continuous duty
which the court cannot supervise;
(c) a contract which is so dependent on the
personal qualifications of the parties that the
court cannot enforce specific performance of its
material terms; and
(d) a contract which is in its nature
determinable.”
Therefore, upon a bare reading of the provision, the
argument/contention raised on behalf of the petitioner is rejected.
55. This also has bearing on injunctions which may be sought by the
parties, as Section 41(e) of the Specific Relief Act, 1963, provides that an
injunction cannot be granted to prevent the breach of a contract, the
performance of which would not be specifically enforced. However,
merely, the fact that a contract comprises an affirmative agreement to
OMP(I) (COMM) 401/2022 Page 28 of 52
perform a certain act, coupled with a negative agreement expressed or
implied not to perform a certain act, the circumstance that the Court is
unable to compel a specific performance of affirmative agreement will
not be precluded for granting an injunction to perform the negative
agreement, provided that the party has not failed to perform the contract
so as for it is binding on him.
56. The records show that the Second Supplementary Collaboration
Agreement was executed between the parties which gives a right to the
respondent No.1 to terminate the agreement, in case the licence is not
obtained by the particular days/date. It is an admitted fact that the
required licence was not obtained by the petitioner within the stipulated
time period and respondent No.1 had executed a deed of cancellation
dated 29th September, 2021 subsequently.
57. It also cannot be ignored that respondent No.2 (a designated
partner of the petitioner at that time), who had been authorized to sign the
First Supplementary Collaboration Agreement, had executed the Second
Supplementary Collaboration Agreement. The Board Resolution on the
basis of which the Second Supplementary Collaboration Agreement was
signed, which the petitioner now disputes, was the document produced by
the petitioner itself through its petition without challenge to the said
58. The contention of the petitioner that the Second Supplementary
Collaboration Agreement as also the Board Resolution is a forged and
fabricated document is really a controversy between the petitioner and the
respondent No.2. Going by the doctrine of indoor management, as such,
respondent No.1, who is an outsider, is protected and has nothing to do
OMP(I) (COMM) 401/2022 Page 29 of 52
with the internal functioning of the petitioner. Further, this Court on the
contention of the petitioner that the clauses of the Second Supplementary
Collaboration Agreement are unconscionable and virtually efface the
understandings, rights and obligations of the petitioner under the original
Collaboration Agreement also does not find force for it is only reasonable
for any prudent mind to protect its right having waited for years for a
licence to see the light of the day.
59. Having said that since both the parties have made contentions
regarding forgery and fabrication of the documents against each other,
without going into the controversy and contemplating on the same even
otherwise to complete ignore the Second Supplementary Collaboration
Agreement, it would not be out of place to state that the Collaboration
Agreement being a private corner of the transaction, from the very nature
of the agreement could be terminated. The Collaboration Agreement
executed between the parties is qua development agreement. This is a
commercial transaction between the private parties and hence the same by
its very nature is determinable, even if there is termination clause in the
60. Reference in this behalf may be made to the case of Rajasthan
Breweries Limited V. the Stroh Brewery Company; 2000 SCC OnLine
Del 481, wherein this Court has held as follows:
“In view of long catena of decisions and
consistent view of the Supreme Court, I hold
that in private commercial transaction the
parties could terminate a contract even without
assigning any reason with a reasonable period
of notice in terms of such a Clause in the
agreement. The submission that there could be
OMP(I) (COMM) 401/2022 Page 30 of 52
no termination of an agreement even in the
realm of private law without there being a
cause or the said cause has to be valid strong
cause going to the root of the matter, therefore,
is apparently fallacious and is accordingly,
rejected.”
Even in the absence of specific clause
authorising and enabling either party to
terminate the agreement in the event of
happening of the events specified therein, from
the very nature of the agreement, which is
private commercial transaction, the
same could be terminated even without
assigning any reason by serving a reasonable
notice. At the most, in case ultimately it is found
that termination was bad in law or contrary to
the terms of the agreement or of any
understanding between the parties or for any
other reason, the remedy of the appellants
would be to seek compensation for wrongful
termination but not a claim for specific
performance of the agreements and for that
view of the matter learned Single Judge was
justified in coming to the conclusion that the
appellant had sought for an injunction seeking
to specifically enforce the agreement. Such an
injunction is statutorily prohibited with respect
of a contract, which is determinable in nature.
The application being under the provisions of
Section 9(ii)(e) of the Arbitration and
Conciliation Act, relief was not granted in view
of Section 14(i)(c) read with Section 41 of the
Specific Relief Act. It was rightly held that other
clauses of Section 9 of the Act shall not apply to
the contract, which is otherwise determinable in
respect of which the prayer is made specifically
to enforce the same.”
OMP(I) (COMM) 401/2022 Page 31 of 52
61. It is also contended on behalf of the petitioner that intent of the
parties while signing the Collaboration Agreement was to create rights
over the said property in favour of the petitioner. It is submitted that in
pursuance of the agreement the possession was being handed over by the
respondent No.1 by executing a General Power of Attorney in favour of
the petitioner and hence, the petitioner is entitled to the specific
performance of the Agreement. However, this Court does not find force
in the arguments advanced. In the present case both respondent No.1 and
the petitioner claimed to be in the possession of the said property. Be that
as it may, Clause 3.1 of the Collaboration Agreement (as amended by the
First Supplementary Collaboration Agreement) provides as under:
The SECOND PARTY hereby transfer all the
development/ all other rights of the Scheduled
Property along with physical possession thereof
to the FIRST PARTY for carrying out the
development and construction of residential
plotted colony and/or any other project on the
Scheduled Property, as may be decided by the
FIRST PARTY, at its own cost and expenses by
the FIRST PARTY, in consideration of payment
of Non-Refundable Earnest Money and
allocation of the plotted area to the SECOND
PARTY as set out in this Agreement. The FIRST
PARTY shall develop the Scheduled Property as
it may deem fit and proper at its sole
discretion.”
62. From reading of the above clause it is clear that for transfer of all
development/all other rights of the scheduled property along with
OMP(I) (COMM) 401/2022 Page 32 of 52
physical possession to the petitioner, two conditions had to be met.
Firstly, the payment of the non-refundable earnest money by the
petitioner and secondly, the allocation of plotted area to respondent No.1.
Clause 3.4 provides that the petitioner shall allot the said property area to
the respondent No.1 after issuance of a licence and other approvals of the
project which are necessary prior to the allotment of any plot in the
project. Thus, while the first condition was fulfilled by the petitioner, the
second condition was not fulfilled for lack of licence, thus, the question
of any transfer of rights or physical possession does not arise.
63. The Collaboration Agreement being determinable in nature in
view of the above said discussion is not applicable in specific
performance in view of the statutory bar contained in Section 14 (d) of
the Specific Relief Act, 1963. Further, there is such no negative covenant
in the Collaboration Agreement to make out a case for an injunction.
64. Thus, in terms of Section 14(d) of the Specific Relief Act, 1963,
no injunction can be granted to prevent breach of the contract, the
performance of which can not enforced. As noted above, the respondent
No.1 has already terminated the Collaboration Agreement vide its notice
dated 29th September, 2021, which is not questioned by the petitioner,
hence, the remaining relief which may be sought by the petitioner is to
seek damages, if any. Thus, where the petitioner is statutorily barred from
seeking specific performance of the Collaboration Agreement, the
petitioner cannot be held entitled to claim interim relief under Section 9
of the Act. In this regard, reference is made to the case of Bharat
Corporation & Ors.; 2009 SCC OnLine Del 3434, this Court has held
OMP(I) (COMM) 401/2022 Page 33 of 52
that the scope of Section 9 does not envisage the restoration of the
contract which stands terminated.
65. If the petitioner is aggrieved by the letter of termination of the
contract and is advised to challenge the validity thereof the petitioner can
always invoke the arbitration clause to claim damages, if any, suffered by
the petitioner. It is not open to this Court to restore the contract under
Section 9 which is meant only for the sole purpose of preserving and
maintaining the property in dispute and cannot be used to enforce the
specific performance of a contract.
66. The Hon‟ble Supreme Court in the landmark judgment of Adhunik
Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC
125 with respect to the relief under the Specific Relief Act in a Section 9
of the Act petition held as under:-
“8. There was considerable debate before us on
the scope of Section 9 of the Act. According to
learned counsel for Adhunik Steels, Section 9 of
the Act stood independent of Section 94 and
Order 39 of the Code of Civil Procedure and
the exercise of power thereunder was also not
trammelled by anything contained in the
Specific Relief Act. Learned counsel contended
that by way of an interim measure, the court
could pass an order for the preservation or
custody of the subject-matter of the arbitration
agreement irrespective of whether the order
that may be passed was in a mandatory form or
was in a prohibitory form. The subject-matter of
arbitration in the present case was the
continued right of Adhunik Steels to mine and
lift the ore to the surface on behalf of OMM
Private Limited and until the arbitrator decided
on whether OMM Private Limited was entitled
OMP(I) (COMM) 401/2022 Page 34 of 52
to breach the agreement or terminate the
agreement and what would be its consequences,
the court had not only the power but the duty to
protect the right of Adhunik Steels conferred by
the contract when approached under Section 9
of the Act. Learned counsel emphasised that
what was liable to be protected in an
appropriate case was the subject-matter of the
arbitration agreement. Learned counsel
referred to The Law and Practice of
Commercial Arbitration in England by Mustill
and Boyd and relied on the following passage
“(b) Safeguarding the subject-matter of the
The existence of a dispute may put at risk the
property which forms the subject of the
reference, or the rights of a party in respect of
that property. Thus, the dispute may prevent
perishable goods from being put to their
intended use, or may impede the proper
exploitation of a profit-earning article, such as
a ship. If the disposition of the property has to
wait until after the award has resolved the
dispute, unnecessary hardship may be caused to
the parties. Again, there may be a risk that if the
property is left in the custody or control of one
of the parties, pending the hearing, he may
abuse his position in such a way that even if the
other party ultimately succeeds in the
arbitration, he will not obtain the full benefit of
the award. In cases such as this, the court (and
in some instances the arbitrator) has power to
intervene, for the purpose of maintaining the
status quo until the award is made. The
remedies available under the Act are as
OMP(I) (COMM) 401/2022 Page 35 of 52
(i) The grant of an interlocutory injunction.
(ii) The appointment of a receiver.
(iii) The making of an order for the
preservation, custody or sale of the property.
(iv) The securing of the amount in dispute.”
11. It is true that Section 9 of the Act speaks of
the court by way of an interim measure passing
an order for protection, for the preservation,
interim custody or sale of any goods, which are
the subject-matter of the arbitration agreement
and such interim measure of protection as may
appear to the court to be just and convenient.
The grant of an interim prohibitory injunction
or an interim mandatory injunction are
governed by well-known rules and it is difficult
to imagine that the legislature while enacting
Section 9 of the Act intended to make a
provision which was dehors the accepted
principles that governed the grant of an interim
injunction. Same is the position regarding the
appointment of a receiver since the section itself
brings in the concept of “just and convenient”
while speaking of passing any interim measure
of protection. The concluding words of the
section, “and the court shall have the same
power for making orders as it has for the
purpose and in relation to any proceedings
before it” also suggest that the normal rules
that govern the court in the grant of interim
orders is not sought to be jettisoned by the
provision. Moreover, when a party is given a
right to approach an ordinary court of the
country without providing a special procedure
or a special set of rules in that behalf, the
ordinary rules followed by that court would
govern the exercise of power conferred by the
Act. On that basis also, it is not possible to keep
OMP(I) (COMM) 401/2022 Page 36 of 52
out the concept of balance of convenience,
prima facie case, irreparable injury and the
concept of just and convenient while passing
interim measures under Section 9 of the Act.
16. Injunction is a form of specific relief. It is an
order of a court requiring a party either to do a
specific act or acts or to refrain from doing a
specific act or acts either for a limited period or
without limit of time. In relation to a breach of
contract, the proper remedy against a defendant
who acts in breach of his obligations under a
contract, is either damages or specific relief.
The two principal varieties of specific relief are,
decree of specific performance and the
injunction (See David Bean on Injunctions). The
Specific Relief Act, 1963 was intended to be “an
Act to define and amend the law relating to
certain kinds of specific reliefs”. Specific relief
is relief in specie. It is a remedy which aims at
the exact fulfilment of an obligation. According
to Dr. Banerjee in his Tagore Law Lectures on
Specific Relief, the remedy for the non-
performance of a duty are (1) compensatory, (2)
specific. In the former, the court awards
damages for breach of the obligation. In the
latter, it directs the party in default to do or
forbear from doing the very thing, which he is
bound to do or forbear from doing. The law of
specific relief is said to be, in its essence, a part
of the law of procedure, for, specific relief is a
form of judicial redress. Thus, the Specific
Relief Act, 1963 purports to define and amend
the law relating to certain kinds of specific
reliefs obtainable in civil courts. It does not
deal with the remedies connected with
compensatory reliefs except as incidental and to
a limited extent. The right to relief of
OMP(I) (COMM) 401/2022 Page 37 of 52
injunctions is contained in Part III of the
Specific Relief Act. Section 36 provides that
preventive relief may be granted at the
discretion of the court by injunction, temporary
or perpetual. Section 38 indicates when
perpetual injunctions are granted and Section
39 indicates when mandatory injunctions are
granted. Section 40 provides that damages may
be awarded either in lieu of or in addition to
injunctions. Section 41 provides for
contingencies when an injunction cannot be
granted. Section 42 enables, notwithstanding
anything contained in Section 41, particularly
Clause (e) providing that no injunction can be
granted to prevent the breach of a contract the
performance of which would not be specifically
enforced, the granting of an injunction to
perform a negative covenant. Thus, the power
to grant injunctions by way of specific relief is
covered by the Specific Relief Act, 1963.
17. In Nepa Ltd. v. Manoj Kumar Agrawal [AIR
1999 MP 57] a learned Judge of the Madhya
Pradesh High Court has suggested that when
moved under Section 9 of the Act for interim
protection, the provisions of the Specific Relief
Act cannot be made applicable since in taking
interim measures under Section 9 of the Act, the
court does not decide on the merits of the case
or the rights of parties and considers only the
question of existence of an arbitration clause
and the necessity of taking interim measures for
issuing necessary directions or orders. When
the grant of relief by way of injunction is, in
general, governed by the Specific Relief Act,
and Section 9 of the Act provides for an
approach to the court for an interim injunction,
we wonder how the relevant provisions of the
OMP(I) (COMM) 401/2022 Page 38 of 52
Specific Relief Act can be kept out of
consideration. For, the grant of that interim
injunction has necessarily to be based on the
principles governing its grant emanating out of
the relevant provisions of the Specific Relief Act
and the law bearing on the subject. Under
Section 28 of the Act of 1996, even the Arbitral
Tribunal is enjoined to decide the dispute
submitted to it, in accordance with the
substantive law for the time being in force in
India, if it is not an international commercial
arbitration. So, it cannot certainly be inferred
that Section 9 keeps out the substantive law
relating to interim reliefs.
18. The approach that at the initial stage, only
the existence of an arbitration clause need be
considered is not justified. In Siskina (Cargo
Owners) v. Distos Compania Navieria SA (The
explained the position : (All ER p. 824f-g)
“A right to obtain an interlocutory injunction is
not a cause of action. It cannot stand on its
own. It is dependant on there being a pre-
existing cause of action against the defendant
arising out of an invasion, actual or threatened,
by him of a legal or equitable right of the
plaintiff for the enforcement of which the
defendant is amenable to the jurisdiction of the
court. The right to obtain an interlocutory
injunction is merely ancillary and incidental to
the pre-existing cause of action. It is granted to
preserve the status quo pending the
ascertainment by the court of the rights of the
parties and the grant to the plaintiff of the relief
to which his cause of action entitles him, which
may or may not include a final injunction.”
OMP(I) (COMM) 401/2022 Page 39 of 52
He concluded : (All ER p. 825a-b)
“To come within the sub-paragraph the
injunction sought in the action must be part of
the substantive relief to which the plaintiff's
cause of action entitles him; and the thing that
it is sought to restrain the foreign defendant
from doing in England must amount to an
invasion of some legal or equitable right
belonging to the plaintiff in this country and
enforceable here by the final judgment for an
injunction.”
21. It is true that the intention behind Section 9
of the Act is the issuance of an order for
preservation of the subject-matter of an
arbitration agreement. According to learned
counsel for Adhunik Steels, the subject-matter
of the arbitration agreement in the case on
hand, is the mining and lifting of ore by it from
the mines leased to OMM Private Limited for a
period of 10 years and its attempted abrupt
termination by OMM Private Limited and the
dispute before the arbitrator would be the effect
of the agreement and the right of OMM Private
Limited to terminate it prematurely in the
circumstances of the case. So viewed, it was
open to the court to pass an order by way of an
interim measure of protection that the existing
arrangement under the contract should be
continued pending the resolution of the dispute
by the arbitrator. May be, there is some force in
this submission made on behalf of Adhunik
Steels. But, at the same time, whether an interim
measure permitting Adhunik Steels to carry on
the mining operations, an extraordinary
measure in itself in the face of the attempted
OMP(I) (COMM) 401/2022 Page 40 of 52
termination of the contract by OMM Private
Limited or the termination of the contract by
OMM Private Limited, could be granted or not,
would again lead the court to a consideration of
the classical rules for the grant of such an
interim measure. Whether an interim mandatory
injunction could be granted directing the
continuance of the working of the contract, had
to be considered in the light of the well-settled
principles in that behalf. Similarly, whether the
attempted termination could be restrained
leaving the consequences thereof vague would
also be a question that might have to be
considered in the context of well-settled
principles for the grant of an injunction.
Therefore, on the whole, we feel that it would
not be correct to say that the power under
Section 9 of the Act is totally independent of the
well-known principles governing the grant of an
interim injunction that generally govern the
courts in this connection. So viewed, we have
necessarily to see whether the High Court was
justified in refusing the interim injunction on
the facts and in the circumstances of the case.
24. But, in that context, we cannot brush aside
the contention of the learned counsel for
Adhunik Steels that if OMM Private Limited is
permitted to enter into other agreements with
others for the same purpose, it would be unjust
when the stand of OMM Private Limited is that
it was cancelling the agreement mainly because
it was hit by Rule 37 of the Mineral Concession
Rules, 1960. Going by the stand adopted by
OMM Private Limited, it is clear that OMM
Private Limited cannot enter into a similar
transaction with any other entity since that
would also entail the apprehended violation of
OMP(I) (COMM) 401/2022 Page 41 of 52
Rule 37 of the Mineral Concession Rules, 1960,
as put forward by it. It therefore appears to be
just and proper to direct OMM Private Limited
not to enter into a contract for mining and
lifting of minerals with any other entity until the
conclusion of the arbitral proceedings.
25. At the same time, we see no justification in
preventing OMM Private Limited from carrying
on the mining operations by itself. It has got a
mining lease and subject to any award that may
be passed by the arbitrator on the effect of the
contract it had entered into with Adhunik Steels,
it has the right to mine and lift the minerals
therefrom. The carrying on of that activity by
OMM Private Limited cannot prejudice
Adhunik Steels, since ultimately Adhunik Steels,
if it succeeds, would be entitled to get, if not the
main relief, compensation for the termination of
the contract on the principles well settled in that
behalf. Therefore, it is not possible to accede to
the contention of learned counsel for Adhunik
Steels that in any event OMM Private Limited
must be restrained from carrying on any mining
operation in the mines concerned pending the
arbitral proceedings.
26. We think that we should refrain from
discussing the various issues at great length
since we feel that any discussion by us in that
behalf could prejudice either of the parties
before the arbitrator or the Arbitral Tribunal.
We have therefore confined ourselves to making
such general observations as are necessary in
the context of the elaborate arguments raised
before us by learned counsel.
27. We therefore dismiss the appeal filed by
OMP(I) (COMM) 401/2022 Page 42 of 52
OMM Private Limited leaving open the
questions raised by it for being decided by the
arbitrator or Arbitral Tribunal in accordance
with law. We also substantially dismiss the
appeal filed by Adhunik Steels except to the
extent of granting it an order of injunction
restraining OMM Private Limited from entering
into a transaction for mining and lifting of the
ore with any other individual or concern
making it clear that it can, on its own, carry on
the mining operations in terms of the mining
lease.”
67. Further, in Pink City Expressway Private Limited vs. NHAI
&Anr, FAO (OS) (COMM) 158/2022 decided on 15th June 2022, the
subject was also considered by a Division Bench of this Court and the
following was observed:-
“19. Law on the scope of interference in a
Section 9 petition is no longer res integra. The
learned Single Judge has held that the prayer
made by the Appellant in the Section 9 petition
cannot be granted as that would amount to
extending the contract contrary to the decision
dated 29.04.2022. It is well-settled that powers
under Section 9 can only be exercised for
preservation of the subject matter of the dispute
till the decision of the Arbitral Tribunal and
cannot be extended to directing specific
performanceof the contract itself. The learned
Single Judge has in this context relied on the
judgment of the Division Bench in C.V. Rao
(supra) and in our view rightly so. Reliance was
also placed on the judgment of another Division
Bench in DLF Ltd. (supra).We find no infirmity
in the prima facie view that directing the
Respondent to extend the contract for a further
OMP(I) (COMM) 401/2022 Page 43 of 52
period, beyond 14 months extension
granted,would amount to granting specific
relief of the contract and is beyond the scope of
the powers of the Court under Section 9 of the
Act. For a ready reference,we may allude to
para 40 of the judgment in DLF Ltd. (supra), as
“40. In C.V. Rao &Ors. v. Strategic Port
OnLine Del 4441, this Court had held
that while exercising jurisdiction under
Section 9 of the A&C Act, the Court
cannot ignore the underlying principles
which govern the analogous powers
conferred under Order XXXIX Rules 1 &
2 CPC and Order XXXVIII Rule 5 CPC.
satisfied that a valid arbitration
agreement existed between the parties,
but the powers under Section 9 of the
A&C Act could be exercised only for
protection in respect of the matters
specified in Section 9 (ii)(a) to (e) of the
A&C Act. In other words, the orders must
relate to preservation of the property,
which is the subject matter of the dispute,
till the Arbitral Tribunal decides the
same. The scope of relief under Section 9
of the A&C Act cannot be extended to
directing specific performance of the
contract itself.”
68. The law settled is hence clear that by way of a Section 9 petition
under the Act, a party may not seek specific performance of the contract.
Moreover, in the facts and peculiar circumstances of this case, the relief
OMP(I) (COMM) 401/2022 Page 44 of 52
of specific performance in a petition of Section 9 of the Act may not be
granted by this Court.
69. In the background, facts and circumstances of the instant case, it is
also deemed relevant to look into the matters wherein the closely related
issues were considered. The Hon‟ble Supreme Court while adjudicating a
similar issue in Yusuf Khan v. Prajita Developers (P) Ltd., (2018) 12
SCC 683 observed as under:-
“4. The substance of the agreement is that the
appellant agreed to “grant to the Developers
the right to develop the said property” and the
Developers agreed to develop the property on
various terms and conditions specified under
the agreement. It appears from the record that
there is some single venture partnership
agreement between the two companies
(Developers). From the huge mass of
documents filed in these appeals, it appears that
there are two documents witnessing such
partnership agreement. They are dated 16-6-
2006 and 10-12-2008. The language and
content of both the documents is substantially
similar and an interesting fact which is required
to be taken note of is that the 16-6-2006
document refers to the agreement dated 23-6-
2006. The complete details of the terms and
conditions of the agreement are not necessary
for the purpose of this appeal.
5. For the present, it must be noted that under
the agreement, the Developers agreed to an
amount of Rs 10 crores in three instalments as
detailed in the agreement. It is agreed under
Clause 4 of the agreement that “the owner shall
permit the Developers to enter upon the said
property and to commence the development
OMP(I) (COMM) 401/2022 Page 45 of 52
thereof….” It is agreed under Clause 6 that all
the necessary permissions/NOCs/orders which
are required to be obtained shall be obtained by
the Developers. The appellant is obliged to
cooperate by executing appropriate documents
for the said purpose. Under Clause 17 [Clause
17. Upon payment of the balance of monetary
consideration by the Developers to the owners
as provided in Clause 3(b) the owner shall
permit and the developers shall have the licence
to enter upon the said property to develop the
said property to carry on construction on the
said property and for that purpose to do all
acts, deeds, matters and things as may be
necessary.] of the agreement, it is stipulated
that the “Developers shall have the licence to
enter upon the said property”.
6. Under Clause 31 [Clause 31. The developers
shall commence the development of the said
property and construction of buildings thereon
within thirty days from the date of sanction of
the final amended building plans and complete
the development and construction of all
buildings in all respects as provided herein and
make the buildings fit and ready for occupation
and the developers shall apply for issue of
building completion certificate and pending the
issue thereof for issue of occupancy certificate
of each of the buildings within a period of 24
months from the date of issue of commencement
certificate of development.] of the agreement, it
is provided that the Developers shall commence
development of the said property and the
construction of the building thereof within 30
days from the date of the final amended
building plan and complete the construction
within a period of 24 months from the date of
issue of the commencement certificate.
OMP(I) (COMM) 401/2022 Page 46 of 52
8. By Clause 33 [Clause 33. The provisions
contained in Clauses 1-A, 2, 7, 8, 12, 13-A,
8c(B), 16, 17, 18, 20, 21, 23, 24(a) to (c) 25, 26,
27, 28, 29, 31, 32-A and 32-B, 34, 35, 35(B),
8(c), 37 hereof the basic and essential terms of
this agreement and in case of any breach of the
same it shall be referred to arbitration as
provided in Clause 40 before termination of this
agreement on account of such breach. The
termination on account of breach of this
development agreement as provided under
Clause 32-A above shall not be the subject-
matter of any arbitration as aforesaid and the
parties will be entitled to exercise their
respective rights under the said Clause 32-A
above.(emphasis supplied)] of the agreement,
the parties agreed that any dispute arising out
of the breach of any one of the various clauses
enumerated thereunder shall be resolved by
arbitration. It is further provided that any
dispute arising out of the termination of the
agreement invoking Clause 32-A, shall not be
the subject-matter of any arbitration.
10. A number of complicated arrangements
were entered into in different combinations at
different points of time between the appellant,
the Developers and some third parties to the
agreement, who are otherwise said to be related
to the appellant, the details of which we do not
propose to mention in this order.
11. The first respondent filed an application
(No. 829 of 2015) under Section 9 of the
Arbitration and Conciliation Act, 1996
(hereafter referred to as “the Arbitration Act”)
for an injunction restraining the appellant from
OMP(I) (COMM) 401/2022 Page 47 of 52
dispossessing Respondent 1 and also an
injunction restraining the appellant from
creating any third party right, title or interest in
the said property. Initially some ad interim
orders were passed in the said application, but
the application itself was eventually dismissed
on 14-1-2016 [Prajita Developers (P)
Ltd. v. Yusuf Khan, 2016 SCC OnLine Bom
15. On 8-10-2015, the appellant terminated the
agreement and informed the same to Prajita by
issuing a notice through his lawyer. Relevant
part of the notice is as follows:
terminate the development agreement
dated 23-6-2006. And we call upon you
to remove yourself from the said
otherwise, our client will be taking
appropriate action against you.
Our client reserves his right to claim
damages for not carrying out the activity
of the construction on the said property
and/or completing the work of
construction within the stipulated time
and causing severe hardship to our
18.1. The appellant granted to the Developers
under the agreement of 23-6-2006 the “right to
develop” the property in question.
22. We do not also see any justification for the
demand of Prajita for the specific performance
of the agreement dated 23-6-2006. In the
OMP(I) (COMM) 401/2022 Page 48 of 52
circumstances of the case, we are of the opinion
that permitting the continuance of the suit for
specific performance of the agreement which is
more than a decade old against a person from
whom Prajita secured the development rights of
the property in dispute which ultimately would
enable Prajita to 25% of the monetary value of
the development potential as against the right of
the appellant who is entitled for 75% of the
monetary value of the development potential
would be unjust.
circumstances of the case whether Prajita
would be entitled for any damages apart from
receiving the abovementioned amount of Rs 20
crores from the appellant is a matter which
requires some examination. We therefore, deem
it appropriate to refer the said question for
resolution by arbitration between the appellant
and Prajita. We, therefore, direct that the
parties shall submit the abovementioned dispute
for arbitration by Hon'ble Shri Justice P.
Venkatarama Reddy, former Judge of this Court
in accordance with law. The Registry is directed
to communicate this order to Hon'ble Shri
70. In the case S. Rajeswari v. C. Parimala, 2020 SCC OnLine Mad
13061, the Madras High Court, while adjudicating a similar issue, held as
“35. The plaintiff has not proved that she was
ready and willing to perform her
part of contract. The defendant, by notice dated
24.06.2006 terminated the contract and also
sent back the amounts already paid by the
OMP(I) (COMM) 401/2022 Page 49 of 52
plaintiff. Even though the plaintiff sent a reply,
dated 29.09.2006, she has not proved that on
the date of sending reply she was having
sufficient means to pay the balance sale
consideration and the defendant has also stated
that since the plaintiff has failed to clear the
dues, the defendant made alternative
arrangements with private financiers and
cleared the dues to the bank and therefore, the
defendant cancelled the agreement and sent the
legal notice to the plaintiff along with the pay
order. From the oral and document evidence,
this Court finds that the plaintiff has failed and
neglected to pay the balance sale consideration
within the time stipulated in the agreement
dated 28.10.2005 and therefore, issue numbers
1 to 5 are answered against the plaintiff.
39. As already held that the plaintiff has not
proved the readiness and willingness to perform
her part of the contract, she is not entitled for
the relief of specific performance and the
defendant sent a notice dated 24.06.2006
and terminated the agreement dated 28.10.2005
by sending the advance amount received by the
defendant from the plaintiff. Though it is settled
preposition that unilateral cancellation is not
permissible, but after the expiry of the terms
and conditions mentioned in the agreement, and
further since the plaintiff did not make the
payment to clear the bank dues, the defendant
made private arrangements to clear the dues
and therefore the purpose has been completed
without the help of the plaintiff and hence, the
defendant has cancelled the agreement. As per
the agreement, the balance sale consideration
would be paid at the time of execution of the
sale deed. But the plaintiff very well know that
the defendant received the possession notice
OMP(I) (COMM) 401/2022 Page 50 of 52
from the bank and unless the defendant paid the
bank dues and redeemed the property he cannot
execute the sale deed. Therefore, the plaintiff
has not proved that she made the payment to
clear the bank dues, except she made
payment of Rs. 13,30000 on several dataes. But
the plaintiff has not proved that she along with
the defendant approached the bank to settle the
dues. Therefore, under the circumstances, the
plaintiff is not entitled to get the declaration
that the agreement dated 28.10.2005 has been
duly rescinded and terminated by the defendant
on 24.06.2006 and this issue is answered
accordingly.”
71. Therefore, it is evident that where the Agreement already stood
terminated, without a challenge to the same, there remains no scope for
intervention of this Court, specifically under Section 9 of the Arbitration
Act or Section 10 of the Specific Relief Act.
72. Keeping in view the facts, circumstances, contentions raised in the
pleadings, arguments advanced on behalf of the parties, as well as the
discussion in the foregoing paragraphs, this Court is of the considered
view that the petitioner is not entitled to the relief sought for.
73. The Collaboration Agreement between the parties already stands
terminated, therefore, there is an impossibility for this Court to direct its
specific performance in a proceedings under Section 9 of the Act.
Further, as decided by this Court as well as the Hon‟ble Supreme Court,
OMP(I) (COMM) 401/2022 Page 51 of 52
specific performance of a contract may not be granted in proceedings
under Section 9 of the Act. Moreover, the petitioner has failed to show its
readiness and willingness to perform the Agreement.
74. The contentions of the parties as regards the arbitrary breach of the
terms of the Collaboration Agreement on account of fraud are issues that
may be decided by the relevant Forum and shall not be adjudicated by
way of the instant proceedings.
75. It is made clear that this Court has not expressed any opinion on
the merits of the case and all kinds of contentions of the parties are left
open for consideration by the competent Court or Forum.
76. Accordingly, the petition is dismissed.
77. Pending applications, if any, also stand disposed of.
78. The judgment be uploaded on the website forthwith.
OMP(I) (COMM) 401/2022 Page 52 of 52 | The High Court of Delhi has held that the scope of Section 9 of the A&C Act does not envisages relief in the nature that would restore a contract which already stands terminated. The bench of Justice Chandra Dhari Singh held that the Court while exercising powers under Section 9 of the A&C Act cannot direct specific performance of a determinable contract. It held that a...
The High Court of Delhi has held that the scope of Section 9 of the A&C Act does not envisages relief in the nature that would restore a contract which already stands terminated.
The bench of Justice Chandra Dhari Singh held that the Court while exercising powers under Section 9 of the A&C Act cannot direct specific performance of a determinable contract. It held that a contract which in its nature determinable cannot be specifically enforced under Section 14(d) of the Specific Reliefs Act, therefore, the Court cannot do something that is statutorily prohibited.
The Court further held that the Court would not direct specific performance of the contract when the petitioner had failed to prove its readiness and willingness to perform.
It further held that the element of general inflation, the rise in the price of the subject property and the time consumed would be relevant parameters while considering an application for the specific performance of the contract.
Facts
The parties entered into a collaboration agreement dated 15.05.2018 whereby the petitioner agreed to develop commercial and residential complexes on the land owned by the 1st respondent. In terms of the agreement, the respondent was to pay an amount of Rs. 5.96 crores as a non-refundable earnest money deposit and certain portion of the developed land were also to be given to the 1st respondent as a consideration for the agreement.
Accordingly, the petitioner issued certain post-dated cheques in favour of the 1st respondent to discharge its liability towards the payment of earnest money. However, a cheque to the tune of Rs. 1,46,50,000/- was dishonoured due to ‘insufficient funds’. Accordingly, the parties entered into the First Supplementary agreement and the scope of the project work was accordingly reduced.
In terms of the agreement, the petitioner was to obtain all the permissions necessary for the development work. However, there were delays in obtaining the requisite clearances and permissions. In the meantime, the parties entered into the second supplementary collaboration agreement dated 17.08.2020 (its authenticity denied by the petitioner as having been illegally entered into between the 1st and 2nd respondents).
Thereafter, the first respondent issued the letter of termination of the collaboration agreement on 29.09.2021. However, the petitioner claimed to have not been served with this notice and became aware of termination both the notice and the second supplementary agreement only on 14.12.2022 when it received intimation regarding the subject property being put for sale.
Accordingly, the petitioner approached the Court under Section 9 of the A&C Act to restrain the respondent from disturbing the status quo and not create any third party rights in the subject property.
Contention of the Parties
The petitioner sought to restrain the respondent from disturbing the status quo and creating any third-party interest in the subject property on the following grounds:
The agreement was an indeterminable agreement and the termination letter has been issued against the provisions of the agreement, therefore, the same is invalid. The Second Supplementary Collaboration Agreement is a forged and fabricated agreement. It is a result of the collusion between the 1st and 2nd respondent (an erstwhile partner in the petitioner company). The 2nd respondent was not authorised to execute the said agreement, therefore, it has no legal force. The petitioner has already paid the agreed amount of Rs. 4.21 Crores as the Earnest Money deposit, moreover, it is already in possession of the subject property. It has already obtained several clearances and the others are pending approval and it has incurred huge costs in the process. It has shown complete readiness and willingness to perform the agreement, therefore, the agreement must be specifically enforced in terms of Section 10 of the Specific Reliefs Act. The second supplementary agreement was supported by a fabricated document.
The respondents objected to the maintainability of the petition on the following grounds:
The agreement has already been terminated, therefore, it cannot be specifically enforced. The petitioner has failed to prove it readiness and willingness to perform the contract. It is not in position to complete the project work to is crippling financial condition and on account of huge delay in the getting the required approvals. The termination letter was issued on account of the petitioner’s continuous failure to keep pace with the agreed timeline in getting the approvals from the authorities for the commencement of the project work. The DTCP, Haryana has already returned the petitioner’s application for grant of lice for the project, therefore, on becoming aware of this fact, the respondent issued the letter of termination. The petitioner cannot claim specific performance of the contract merely on the ground that it has deposited an amount of Rs. 4.21 Crores as the current value of the subject property is more than 100 crores. The arbitration agreement stood terminated with the termination of the main agreement. Moreover, the petitioner has failed to demonstrate even a single arbitral dispute giving rise to any cause of action for filing of the petition. The Second Collaboration agreement was validly executed between the parties as it has been countersigned/executed by the 2nd respondent who was an erstwhile partner and the authorised representative of the petitioner.The Second Collaboration Agreement conferred the right on the 1st respondent to terminate the agreement, therefore, the agreement was determinable agreement, the specific performance of which cannot be granted in view of Section 14(d) r/w Section 16 of the Specific Reliefs Act.
Analysis by the Court
The Court observed that the agreement has already been terminated vide letter dated 29.09.2021, therefore, the Court exercising powers under Section 9 of the A&C Act cannot restore it. It held that that the scope of Section 9 of the A&C Act does not envisages relief in the nature that would restore a contract which already stands terminated.
The Court also observed and ruled that the petitioner has failed to demonstrate is readiness and willingness to perform the contract which is a sine-qua-non for the grant of specific performance of the agreement. It held that readiness and willingness are two distinct requirements. The readiness pertains to the capacity of the party to perform the agreement whereas willingness deals with the conduct of the party.
The Court held that the petitioner has failed to satisfy both the condition as it has failed to demonstrate that is has the financial capacity to complete the agreement in view of the admitted position that it is going through serious financial difficulties, the delays in obtaining the required clearances and permissions cast serious doubts on its conduct.
The Court held that the petitioner has only paid an amount of Rs. 4.21 Crores as against the actual value of the property that is around Rs. 120 Crores, therefore, it is not entitled to discretionary equitable relief of specific performance. The Court relied on the judgment of the Hon’ble Apex Court in Saradamani Kandappan vs S. Rajalakshmi & Ors ; (2011) 12 SCC 18 wherein the Court held that the Court while considering a relief of specific performance of contract in relation to immovable property is obliged to take initial notice of the phenomenal rise in the price of real estate.
Next, the Court examined the issue related to the determinability of the contract. It held that regardless of the authenticity of the second collaboration agreement, the 1st respondent was entitled to terminate the agreement as it was commercial agreement that can always be terminated even without an express termination clause (reliance placed on Rajasthan Breweries Limited V. the Stroh Brewery Company; 2000 SCC OnLine Del 481)
The Court held that the Court while exercising powers under Section 9 of the A&C Act cannot direct specific performance of a determinable contract. It held that a contract which in its nature determinable cannot be specifically enforced under Section 14 (d) of the Specific Reliefs Act, therefore, the Court cannot do something that is statutorily prohibited.
Accordingly, the Court dismissed the petition.
Case Title: Yash Deep Builders v. Sushil Kumar Singh, OMP (I) (COMM) 401 of 2022
Counsel for the Petitioner: Mr.Rajiv Nayar, Senior Advocate with Mr. Rishi Agrawal, Mr.Karan Luthra, Ms.Aarushi Tiku, Mr.Shravan Niranjan and Mr.Satyam Agarwal, Advocates.
Counsel for the Respondents: Mr.Neeraj Malhotra, Senior Advocate with Mr.Rajiv Virmani, Mr.Gaurav Jain, Mr. Atul Malhotra and Mr.Amit Kumar and Mr.Anuj Malhotra and Reda Tayyaba, Advocates for respondent no. 1 Ms. Radhika Bishwajit Dubey, Advocate for respondent no. 2 |
1. Both the above proceedings are directed against one judgment and
order dated 14.10.2015 passed by learned Additional Sessions Judge, Bhoom
in Special Case (Child Sex) No. 06 of 2014, thereby convicting the appellant
accused for offence punishable under Sections 363 of the Indian Penal Code
(IPC) and sentencing him to suffer R.I. for three years and to pay fine of
Rs.5,000/- i/d R.I. for six months, under Section 366-A of IPC to suffer R.I. for
five years and to pay fine of Rs.5,000/- i/d R.I. for six months, under Section
376 of IPC to suffer R.I. for ten years and to pay fine of Rs.20,000/- i/d R.I. for
one year, under Sections 6 and 4 of the Protection of Children from Sexual
Offences Act, 2012 (POCSO Act) to suffer R.I. for ten years and to pay fine of
Rs.20,000/- i/d R.I. for one year. As both the proceedings are heard and dealt
together, they are decided by way of common judgment.
2. Before adverting to the merits of the case, it is necessary to clarify that
Criminal Appeal No. 852 of 2015 is at the instance of appellant/convict
questioning the legality and sustainability of above referred judgment of
conviction passed by learned Special Judge, whereas Criminal Appeal No. 914
of 2015 is at the instance of State, which is not satisfied with the quantum of
sentence awarded to the accused and is thereby praying enhancement of
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
sentence to imprisonment for life. In such backdrop, we proceed to deal with
the above proceedings.
3. State launched prosecution on the basis of the report given by PW2
father of victim, who informed police that his victim daughter was student of
7th standard in Zilla Parishad School. According to him, he, his daughter and
other family members took dinner and went to sleep on 31.05.2014. On
01.06.2014 he woke up at 5.30 a.m. At that time, his daughter was not found
in the house. That, in spite of search in the village, she was not found. Father
claims that he received a phone call from accused, who was teacher of his
daughter in the school, informing that he had travelled long distance along
with informant’s daughter and that they would return to village after three to
four days. Therefore, father approached police station and lodged report.
4. On receipt of the same, police machinery registered crime bearing no.
72 of 2014 for the offence punishable under Section 363 of IPC. The
investigating machinery carried out investigation, during which statements of
all relevant witnesses were recorded. The victim girl and the accused were
searched and traced at Trimbakeshwar, Nasik. Both of them were subjected to
physical examination. Medical examination revealed that victim had been
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
sexually assaulted and therefore crime to that extent was added. For
ascertainment of age of victim girl, the Investigating Officer gathered
necessary documents from school. Seizure was caused and the same was sent
for analysis and on receipt of its report, the same was made part of
investigation papers. After completing investigation, accused came to be
5. On committal of the case, learned Special Judge, Bhoom conducted trial
and after appreciating oral and documentary evidence adduced by both the
parties, reached to the conclusion that accused had committed offence for
which he was charged and thereby sentenced him as stated in aforesaid para.
6. Learned Advocate for the appellant would point out that the girl was not
kidnapped and was not ravished as put forth by prosecution. He has pointed
out that infact there was a quarrel between parents and the girl, who was his
student, and as she had disclosed it to accused that she did not want to stay in
the house and rather intended to commit suicide, accused gave her solace and
took her with him as he had already planned to go out. Thus, it is submitted
that there was no kidnapping as alleged and rather girl had come on her own.
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
7. It is next submitted that there is no full-proof case about girl victim to
be minor. No ossification test has been carried out and rather unverified school
record has been gathered and relied by the prosecution and unfortunately
even taken into consideration by learned Judge. That, infact the girl had
voluntarily accompanied accused-appellant at various places willingly and
there was no force exercised on her by accused in any manner. However,
evidence on behalf of prosecution has not been properly appreciated by trial
8. It is pointed out that even allegation of performing marriage is based on
weak evidence. That, girl was never forced to wear mangalsutra. That, there is
no proof of marriage being performed. However, learned trial Judge failed to
consider and appreciate the evidence adduced by prosecution and recorded
affirmative finding to that extent in absence of cogent and reliable evidence.
9. On the point of rape and penetrative assault, learned counsel submitted
that medical evidence does not suggest any forcible sexual intercourse. That,
infact doctor has opined that the girl was used to sexual intercourse.
Therefore, with such quality of evidence and in absence of cogent evidence,
blame ought not to have been shifted on appellant. Lastly it is submitted that
prosecution evidence was without essential ingredients for bringing home the
charge. However, in spite of it, learned trial judge has accepted the
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
prosecution case as proved and convicted the appellant. There are several
major infirmities in the findings and reasons and hence he prays to allow the
appeal by setting aside the impugned judgment and order.
10. On behalf of State, learned APP would submit that prosecution went to
trial with strong, cogent, reliable evidence. Here, accused, who was a teacher
of the victim, had taken disadvantage of his such position and had induced her
to leave company of her parents on the pretext of performing marriage and
that evidence reveals that he had induced her to run away from her house and
to meet him at a fixed destination and from there he initially took her on
motorcycle and subsequently took her in four wheeler to various places like
11. Learned APP pointed out that investigating machinery has gathered
sufficient proof to show that on the day of incident, victim was minor and
barely 13 to 14 years of age and was studying in 7 th standard. Therefore,
offence of kidnapping minor from lawful custody of parents has been
established. That, father had lodged prompt report about his daughter being
kidnapped. That, investigation further revealed that accused had taken her to
various placed by forcibly making her wear mangalsutra just to foist that she
was his wife. That, girl was minor and was not in a position to understand the
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
consequences and repercussions of the deeds at the hands of accused. Thereby
she has fallen pray to the ill intentions of accused.
12. Learned APP pointed out that investigating machinery has gathered
evidence of accused performing marriage. The person from whom mangalsutra
was purchased was also examined by prosecution. After taking her to lodge, he
had forcible sexual intercourse with her. That, the girl has named the lodge
where she was taken and she has testified to that extent. Her testimony is
corroborated by medical evidence. According to learned APP, apart from
committing forcible sexual intercourse, there was forcible penetrative sexual
assault on her. Victim being minor, provisions of the POCSO Act are also
attracted. It is pointed out that the girl in spite of facing cross-examination,
has stood steadfast and as such her testimony has remained unshaken and
therefore, learned trial Judge has rightly recorded guilt of the accused.
13. However, learned APP laid stress on the quantum of sentence awarded
to the accused/appellant. According to him, taking into account the serious
offence committed on a minor and taking into account the provisions of
POCSO Act, it is his submission that learned trial Judge ought to have
awarded imprisonment for life. However, undue leniency has been shown in
awarding him merely 10 years’ imprisonment under various sections and
therefore, he submits that, State intends to question the same and is thereby
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
14. We have re-appreciated, re-examined and reanalyzed the evidence
which has come on record before the trial Judge. It emerges that to establish
their case in the trial court, prosecution has examined in all 10 witnesses. We
would like to reiterate the status of each of the witnesses which is as under:
PW1 is Dr. Landge who examined victim.
PW5 Shridhar seems to be pancha to seizure of clothes of victim as
well as the clothes of accused.
PW6 Rajendra has acted as pancha to spot panchanama which is at
PW7 Chandrakant has acted as pancha to seizure of mangalsutra
handed over by victim.
PW8 Balaji is the shop owner who sold gold mani mangalsutra to
accused.
PW9 Rajendra is the driver of vehicle which was used by accused in
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
taking away the victim from Aurangabad towards Manmad.
PW10 API Metrewar is the Investigating Officer.
We have visited and scrutinized the substantive evidence of above
discussed witnesses.
15. PW1 Dr. Landge in his evidence at Exhibit 37 speaks about girl brought
by LPC on 14.06.2014 while he was attached to PHC, Para as Medical Officer.
He speaks of clinically examining the girl and he has narrated findings
observed by him on physical examination and has finally opined that victim
has had sexual intercourse. He has endorsed the age of victim as 13 years.
Nothing fruitful has been brought in his cross-examination by defence in the
trial court regarding the findings of medical expert.
16. PW2 father of victim has testified about his victim daughter studying in
7th standard. According to him, on 31.05.2014 they all went to sleep but in the
early hours of next day, his daughter was not found in the house. According to
him, he received phone call from accused informing about his daughter to be
with him and that they have travelled long distance and would be returning
after four to five days to the village. Therefore, he approached Washi Police
Station and lodged report. Though this witness is subjected to lengthy cross-
examination, he was initially asked about his qualification, antecedents of his
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
brother, acquaintances and people known to him in the village. He has denied
that he was knowing accused but he stated that he was aware that accused
was serving as teacher in Zilla Parishad Primary School, Fakrabad. He was
questioned about attendance of his daughter in school since March 2014 and
in what all extra-curricular activities his daughter was participating. Beyond
this, there is no effective cross-examination on the point of missing of the girl
or about sexual exploitation. This witness has identified the report Exhibit 41
lodged at his instance on the strength of which crime was registered.
17. PW3 victim was also examined in a in-camera proceeding and in her
evidence at Exhibit 42, after informing the court about her education, she
named accused to be teaching her English, History, Geography, Civics and
Science. She clearly stated that accused was trying to develop intimacy with
her. He also presented her a mobile handset for having conversation. She has
stated that accused was proposing her that they should leave the village and
go elsewhere. On 31.05.2014, accused telephoned her and told her that they
should leave the village at night time and asked her to meet her at the bridge
near their village at 12.30 a.m. As per his instructions she went there and, she
narrated that, she was initially taken on a bike up to Gambhirwadi ST stand.
An Indica car was waiting there in which co-accused Pandit and one driver
were present. They all went to a Mahadev Temple at Kokni (Itkoor). She has
further stated that accused told her that they will have to show themselves to
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
be husband and wife, otherwise they would be caught and in presence of one
Baba at said Mahadev Temple accused forcibly tied mangalsutra and thereafter
she was told to board the Indica car. The vehicle was directed initially to be
taken to Kallam and from there to Beed, Aurangabad and then to Manmad.
From there, the vehicle was sent back. She has named the driver of the vehicle
and accused no.2 Pandit Godage. She has further stated that from Manmad
they came to Aurangabad by another car and that time there was conversation
with her father. Then she stated that they stayed at Aurangabad and on
02.06.2014 accused took her to Nashik and they halted at Trimbakeshwar,
took darshan and went to Wani and from there went to Saputara (Gujarat)
and halted at a lodge named “Hill Top” for two nights. She has stated that
against her wish accused had sexual intercourse with her two times.
Thereafter accused again took her to Trimbakeshwar and kept her in a lodge
for four to five days. She has stated that during that stay also accused raped
her twice. That, on 14.06.2014 while they were proceeding towards Mahadev
Temple for taking breakfast, her uncle and Washi police came there and they
were brought back. She speaks of handing over clothes over her person of
which panchanama was drawn.
18. Victim was also subjected to cross-examination on the point of her
education, about her participation in gathering and drama. She was unable to
tell exactly when accused handed over mobile handset to her before the
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
incident. She denied about telling accused that there was quarrel between her
and her parents and therefore she wanted to leave the house and spoke to
accused about her intention to commit suicide and therefore accused asked
her to accompany him. Rest of all suggestions put up by the defence were all
flatly denied by her. There is virtually no serious cross-examination on the
alleged events since she left the house till she was brought by police.
19. PW4 Balasaheb, PW5 Shridhar, PW6 Rajendra and PW7 Chandrakant
are those witnesses who have acted as pancha to spot panchanama of house of
the informant, seizure of clothes of victim and accused, running spot
panchanama of various spots where accused took the victim and seizure of
mangalsutra. Though they are cross-examined, nothing doubtful has been
brought in their cross-examination and as such, these pancha witnesses have
also supported the prosecution in all possible manner.
20. PW8 Balaji is the jeweler and he in his evidence at Exhibit 54 stated that
he knew accused because in May 2014 accused purchased a mani mangalsutra
from his shop which was worth Rs.5,500/-, however, after giving discount, bill
to the extent of Rs.5,000/- was issued. This witness has identified the black
beads, mangalsutra and the cash memo.
21. PW9 Rajendra is the vehicle owner who testified about receiving phone
call from accused no.2 about passengers to be taken for devdarshan and
therefore his vehicle was taken on hire. This witness has stated that accused
no.1 and a woman traveled in the vehicle towards Aurangabad and from there
towards Manmad. Therefore, this witness also supported prosecution
regarding accused taking a woman.
22. PW10 API Metrewar is the Investigating Officer who narrated all steps
taken by him during investigation till filing of charge sheet, about bringing
accused and girl from the vicinity of Mahadev Temple. He has identified the
23. On careful examination of the above discussed evidence, firstly it is
proved that the girl was minor at the time of incident. The Investigating
Officer has gathered school record which carries date of birth of the girl i.e.
05.4.2000. Therefore, prosecution has successfully discharged its burden of
proving that victim was a minor at the time of incident. Victim herself as well
as her father have also testified about the class in which she was studying.
Therefore, there is sufficient material regarding victim to be a minor. Accused
being teacher of victim, we can safely presume that he had knowledge of her
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
age. He should be aware of what is the age group of the student studying in 7 th
standard. He had access to the school record also from which he could have
confirmed the age of victim. In any circumstance, there is sufficient evidence
on record to prove that victim was below 18 years of age on the day of
24. It is emerging that accused was the teacher of the victim. Surprisingly
and unfortunately, teacher himself seems to have developed intimacy with his
own student. In fact being teacher, he ought to have groomed his students to
become responsible citizens of the Nation and was expected to educate his
students from all angles and to make them good citizens of the society, but he
seems to have victimized his own student, who infact, in our opinion, was her
guardian while she was taking education in the school. He seems to have
utterly failed in doing so and has rather created a blot on the student-teacher
relationship which is considered to be pious. Here, evidence of victim clearly
shows that he lured her from the guardianship and lawful custody of her
parents and took her to various places with evil intention of ravishing her. The
very act of taking away the minor without the consent of her parents, charge
of Section 363 of IPC has been rightly applied and even brought home by
prosecution at trial.
25. No attempt seems to have been taken by accused for refuting the
allegations and case of prosecution by leading any sort of evidence to show
that he had no ill intentions. It was necessary for him to do so because
precisely his defence was that after quarreling with parents, victim had come
to him expressing her desire to commit suicide and to deviate her from doing
so, he took her away to various places. Infact, with such plea, in our opinion,
he has accepted that he has taken away the girl with ulterior motive of
developing intimacy with her. There is no plausible explanation regarding the
incriminating material which was confronted to him while answering
questions under Section 313 of Cr.P.C.. He failed to offer any explanation for
his acts.
26. In fact, considering the facts and circumstances of the case, we are
prompted to take recourse to the ruling of Anversinh alias Kiransinh Fatesinh
Zala v. State of Gujarat reported in (2021) 3 SCC 12 wherein the three Judge
Bench of the Hon’ble Apex Court has extensively dealt as to when provisions
under Section 361 and 363 of IPC are squarely attracted.
27. Here, evidence of prosecution clearly suggests that accused had handed
over victim a mobile phone to have conversations with her. This mode seems
to have been adopted by him while asking her to leave her house and meet
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
him at a distinct place and to accompany him further. That, being teacher, he
seems to have won over her affection. Therefore, evidence suggests that
everything was planned and he seems to have induced her to meet him at a
designated place. The above referred defence taken by him is false and
28. Further, from the evidence of victim it is emerging that accused made
her wear mangalsutra to show that she was married to him. She has also
narrated where such event took place. The person from whom mangalsutra
was purchased has also been examined by prosecution and he has supported
prosecution. Victim has categorically stated in her evidence that he took her at
various places and while at Saputara when she was put up in a lodge with
him, he had sexual intercourse with her on two nights. The same was repeated
at Trimbakeshwar also. In substantive evidence the girl has stated that said
sexual relations were against her wish. With such version coming from minor,
there is no further requirement of other evidence to hold that there was
forcible sexual intercourse. Her sole testimony is sufficient to hold accused
guilty. Therefore, the only inference that can be drawn is that accused had
raped and forced himself upon the minor girl. Victim has described the act of
accused which suggests that there was penetrative sexual assault and
therefore, along with the provisions of IPC, the provisions of POCSO Act are
also squarely attracted. Sexual assault has been substantiated by examining
CriApeal.852.2015 with CriAppeal 914 of 2015.odt
PW1 Dr. Landge. Therefore, with such quality of evidence, there is no
hesitation to hold that accused is culprit and he has committed all offences for
which he has been charged. Learned trial Judge has considered the entire
evidence of prosecution from both, legal angle as well as settled legal position
and legal requirements. Required ingredients for attracting the charge are very
much available in the evidence of prosecution. Therefore, here, there is no
merit in the appeal at the instance of convict appellant. Therefore, in our
opinion, the same deserves to be dismissed.
29. Here, State seems to be aggrieved by the quantum of sentence. We have
considered the operative order passed by the learned trial Judge regarding
sentence and fine for commission of each of the offences. Taking into
consideration the nature of offence and the circumstances in which it has been
committed, we are of the opinion that the quantum of sentence awarded by
learned trial Judge would subserve the purpose of justice. Sentence awarded is
not deviated one or against the sentencing policy. Therefore, we do not find
any reason to enhance the sentence as prayed by learned APP for State.
Resultantly, the appeal preferred by the State also deserves to be dismissed.
Hence, we proceed to pass the following order :
Both the appeals i.e. Criminal Appeal No. 852 of 2015 filed by the
appellant-convict and Criminal Appeal No. 914 of 2015 preferred by the State,
stand dismissed. | The Bombay High Court recently upheld a man’s conviction for kidnapping and raping his minor student observing that instead of grooming students to become responsible citizens, he created a blot on the pious relationship of a student and a teacher.
A division Justice Vibha Kankanwadi and Justice Abhay S. Waghwase sitting at Nagpur dismissed the appeal against conviction observing –
“In fact being teacher, he ought to have groomed his students to become responsible citizens of the Nation and was expected to educate his students from all angles and to make them good citizens of the society, but he seems to have victimized his own student, who infact, in our opinion, was her guardian while she was taking education in the school. He seems to have utterly failed in doing so and has rather created a blot on the student-teacher relationship which is considered to be pious”.
The court further observed that appellant forcibly made the minor girl wear a mangalsutra in order to not get caught.
“Further, from the evidence of victim it is emerging that accused made her wear mangalsutra to show that she was married to him. She has also narrated where such event took place. The person from whom mangalsutra was purchased has also been examined by prosecution and he has supported prosecution”.
The appellant appealed his conviction under sections 363 (kidnapping), 366A (procuration of minor girl), 376 (rape) as well as sections 6 (aggravated penetrative sexual assault) and 4 of the Protection of Children from Sexual Offences Act, 2012. He was sentenced for rigorous imprisonment for ten years. The state filed an appeal seeking enhancement of sentence.
The victim was a minor girl studying in the 7th standard. Her father alleged that one morning his daughter was nowhere to be found in the house or the village. He filed a complaint after the appellant, who was the teacher of the child, called him and informed that he was travelling with the child and will return after 3-4 days.
The appellant along with the minor girl were raised at Trimbakeshwar, Nashik. Medical examination revealed that the girl had been sexually assaulted. The trial court convicted the appellant.
The appellant claimed that there was a quarrel between the girl and her parents and she disclosed to him that she did not want to stay in the house and intended to commit suicide. Thus, he took her with him to prevent her from committing suicide.
The state contended that the girl’s testimony against the appellant remained unshaken in cross-examination. The trial judge should have awarded life imprisonment but showed undue leniency to the appellant, it was argued.
The minor girl testified that the appellant gave her a mobile phone. He called her one night asking her to meet at a certain place. From there, he took her to Mahadev Temple at Kokani and, claiming that they will have to pretend to be a couple, forcibly tied Mangalsutra. From there, she testified, they went to several places and halted at a lodge in Saputara (Gujarat) for two nights where the appellant raped her twice. Then, they stayed at a lodge in Trimbakeshwar for 4-5 days where he again raped her twice.
The court held that being a teacher, the appellant can be presumed to have known her age as he should be aware of the age group of a student studying in the 7th class.
The court observed that the appellant did not give any evidence to prove that he took the girl away to prevent her from committing suicide. “Infact, with such plea, in our opinion, he has accepted that he has taken away the girl with ulterior motive of developing intimacy with her”, the court added.
The court opined that appellant’s act of winning over her affection, giving her a mobile phone and inducing her to leave her house shows that he planned everything.
The court held that there is no further requirement of other evidence as the minor girl categorically testified that the appellant committed the offence. “With such version coming from minor, there is no further requirement of other evidence to hold that there was forcible sexual intercourse. Her sole testimony is sufficient to hold accused guilty. Therefore, the only inference that can be drawn is that accused had raped and forced himself upon the minor girl.”
The court opined that the sentence awarded by the trial judge is sufficient and there is no reason to enhance it. Hence, it dismissed the state’s appeal as well.
Advocate V. R. Dhorde represented the Appellant while APP A. M. Phule represented the state.
Case no. – Criminal Appeal No. 852 of 2015
Case Title – Arvind S/o Sarjerao Devkar v. State of Maharashtra |
1. Feeling aggrieved and dissatisfied with the impugned judgment and order dated
14.08.2018 passed by the High Court of Delhi at New Delhi in FAO(OS) No.112 of
2018 by which the High Court has partly allowed the said appeal, the Indian Railway
Construction Company Limited (hereinafter referred to as “IRCON”) has preferred the
present appeal.
2. The brief facts leading to filing of the present appeal in nut-shell are as under:
2.1 That, an Agreement was entered into between IRCON and the respondent –
M/s. National Buildings Construction Corporation Limited ( hereinafter referred to as
“NBCC”), whereby the respondent was awarded the work of construction of Railway
Station cum Commercial Complex at Vashi, Navi Mumbai at a cost of Rs.3042.91
lakh, to be constructed within a period of 30 months from 05.04.1990. NBCC failed to
complete the work in time. Thereafter, the supplementary agreements were entered
into between the parties. As the provision for grant of advances had exhausted, NBCC
approached IRCON with modified programme for completion of works and sought for
additional financial aid on certain terms and conditions. IRCON in consultation with
CIDCO, agreed to grant advance as a special case against Bank Guarantee.
Accordingly, a supplementary Agreement dated 17.12.1991 was entered into between
the parties providing for special advance of an amount of Rs. 68 lakhs bearing interest
at the rate of 18% per annum on furnishing of Bank Guarantee. In terms of the
supplementary Agreement dated 17.12.1991, a special advance of Rs.68 lakhs was
also given to NBCC. As there was delay in the work of NBCC and the work was
practically abandoned and came to a standstill, IRCON served on NBCC a notice
dated 21.02.1994 terminating the contract relying upon Clause 60.1 of the Agreement.
2.2 That, thereafter, after some litigation before the Delhi High Court, the NBCC
invoked the arbitration clause. The Arbitral Tribunal was constituted. The Arbitral
Tribunal passed the award dated 04.11.2011. That the Arbitral Tribunal rejected the
NBCC’s claim for refund of two security deposits i.e. Claim Nos.33 and 34. While
holding so, the Arbitral Tribunal held that though termination with reference to Clause
60.1 was bad in law, but justified the termination with reference to Clause 17.4 of the
Contract and consequently rejected the NBCC’s claim for refund of two security
deposits i.e. claim Nos.33 and 34. The Arbitral Tribunal also partly allowed Counter
Claim No.3 in favour of IRCON. Counter Claim No.3 was relatable to the counter claim
of IRCON for a total of Rs.3,65,38,806/towards interest on various advances given to
NBCC, more particularly, with regard to two specific advances being (1) Special
Advance and (2) Advance against hypothecation of equipment.
2.3 Feeling aggrieved and dissatisfied with the award passed by the learned Arbitral
Tribunal and insofar as relating to Claim Nos.33 and 34 and the Counter Claim No.3
which were in favor of IRCON, the NBCC approached the High Court by filing an
application under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter
referred to as “Arbitration Act”). The application under Section 34 of the Arbitration Act
was confined to the aforesaid three claims / counter claims respectively viz. Claim
Nos.33 and 34 and Counter Claim No.3 only.
2.4 By the judgment and order dated 03.03.2017, the learned Single Judge of the
High Court set aside the rejection by the learned Arbitral Tribunal of Claim Nos.33 and
34 of NBCC to the extent it concerned the return of security deposit amounts i.e.
Rs.5,57,486/- + Rs.60,85,840/- by observing and concluding that once the Arbitral
Tribunal found that the termination with regard to Clause 60.1 was not justified, it was
not open for the Arbitral Tribunal thereafter to consider the termination under Clause
17.4 justifying forfeiture of the security deposits. The learned Single Judge of the High
Court also set aside the award passed by the learned Arbitral Tribunal on Counter
Claim No.3 by observing that there is no clause in the contract in particular awarding
18% interest per annum on special advance.
2.5 The judgment and order passed by the learned Single Judge was the subject
matter of appeal under Section 37 of the Arbitration Act before the Division Bench of
2.6 By the impugned judgment and order, the Division Bench of the High Court has
partly allowed the said appeal under Section 37 of the Arbitration Act to the extent
upholding the award passed by the learned Arbitral Tribunal insofar as awarding the
interest on special advance is concerned. The rest of the judgment and order passed
by the learned Single Judge has been affirmed / confirmed by the Division Bench of
2.7 Feeling aggrieved and dissatisfied with the impugned judgment and order
passed by the Division Bench of the High Court, IRCON has preferred the present
3. Shri R.S. Hegde, learned counsel has appeared on behalf of the appellant –
IRCON and Shri Arvind Minocha, learned Senior Advocate has appeared on behalf of
the respondent – NBCC.
4. Shri R.S. Hegde, learned counsel appearing on behalf of the appellant has
vehemently submitted that on appreciation of entire evidence and the material on
record as the learned Tribunal has observed and held that the IRCON was justified in
rescinding the contract due to abandonment of work by NBCC and when the said
finding attained the finality, the IRCON was justified in forfeiting the security deposits.
It is submitted that as such the High Court has taken too technical view. It is submitted
that as such both, Clause 17.4 and Clause 60.1 are required to be read together. It is
submitted that the main aspect which is required to be considered is whether the
NBCC failed to complete the work as per the contract and whether the NBCC
abandoned the work and thereafter, having satisfied that even during the extended
period, the NBCC was not able to complete the work, the contract was rightly
rescinded and therefore, the security deposits were liable to be forfeited.
4.1 It is submitted that therefore both, the learned Single Judge (in application under
Section 34 of the Arbitration Act) and the Division Bench of the High Court have
materially erred in upsetting / quashing and setting aside the award passed by the
learned Arbitral Tribunal rejecting the Claim Nos.33 and 34.
4.2 It is submitted that both, the learned Single Judge as well as the Division Bench
of the High Court have materially erred in not appreciating the fact that once the
termination is justifiable with reference to the terms of the contract and even if a wrong
clause is mentioned in the letter terminating the contract, the power to terminate the
contract cannot be said to be illegal, more particularly, when the power is traceable to
the specific terms of the contract, i.e., Clause 17.4.
4.3 Now, so far as the Counter Claim No.3 is concerned, it is submitted that as such
the Division Bench of the High Court has set aside the award of interest on the amount
advanced against hypothecation of equipments, on the ground that there is no such
provision of award of interest in the contract / supplementary Agreements. It is
submitted that however, the Division Bench of the High Court has not properly
appreciated the fact that there is no bar to award interest on the amount advanced. It
is submitted that the Arbitrator has power to award interest pendente lite unless
specifically barred from awarding it. Reliance is placed on the decision of this Court in
the case of Raveechee and Company Vs. Union of India reported in (2018) 7 SCC
Making above submissions, it is prayed to allow the present appeal and restore
the award passed by the Arbitral Tribunal.
5. Learned senior counsel, Mr. Minocha appearing on behalf of the respondent –
NBCC while supporting the impugned judgment and order passed by the High Court
has vehemently submitted that in the present case admittedly the IRCON invoked
Clause 60.1 and rescinded the contract. It is submitted that even the learned Arbitral
Tribunal also observed and held that the IRCON was not justified in rescinding the
contract under Clause 60.1. It is submitted that however, thereafter the Arbitral
Tribunal justified the termination of the contract under Clause 17.4 , which as rightly
held by the learned Single Judge / Division Bench was not permissible.
5.1 It is submitted that the finding recorded by the learned Arbitral Tribunal that the
contract could not have been rescinded under Clause 60.1 had attained the finality. It
is submitted that therefore the learned Arbitral Tribunal was not justified in rejecting
the claim Nos.33 and 34 which has rightly been set aside by the learned Single Judge
and the Division Bench, which are not required to be interfered with by this Court in
exercise of limited jurisdiction under Article 136 of the Constitution of India.
5.2 It is further submitted by learned Counsel appearing on behalf of the respondent
– NBCC that in absence of any specific provision in the contract / supplementary
Agreements on interest on the amount advanced against hypothecation of
equipments, the Division Bench of the High Court has rightly set aside the same.
Making above submissions, it is prayed to dismiss the present appeal.
6. We have heard learned Counsel appearing for the respective parties at length.
7. As observed hereinabove, challenge to the award by the learned Arbitral
Tribunal before the learned Single Judge and now before this Court is with respect to
Claim Nos.33 and 34 and Counter Claim No.3 (Partly).
7.1 The learned Arbitral Tribunal rejected the Claim Nos.33 and 34 which were with
respect to forfeiture of the security deposits on termination / rescind of the contract.
The Counter Claim No.3 of the IRCON was for a total sum of Rs.3,65,38,806/- towards
interest on various advances given to NBCC, more particularly, with regard to two
specific advances being (1) Special Advance and (2) Advance against hypothecation
of equipment. The learned Arbitral Tribunal allowed the Counter Claim No.3 and
awarded interest at the rate of 18% per annum in favour of the IRCON being interest
on special advance and advances against hypothecation of equipments. The Division
Bench of the High Court has partly allowed the appeal and allowed the interest in
favour of IRCON at the rate of 18% so far as special advance is concerned.
7.2 While considering the findings recorded by the learned Arbitral Tribunal and
while appreciating the submissions made by the learned counsel appearing on behalf
of the respective parties, relevant clauses of the Agreement, more particularly, Clause
Nos.17.4, 59.1, 60.1 are required to be referred to, which are as under:
17.4 The time for completion of the works by the date or extended date fixed for completion
shall be deemed to be the essence of the contract and if the contractor shall fail to complete
the works within the time prescribe the Company IRCON shall, if satisfied that the works can
be completed by the contractor within a reasonably short time thereafter be entitled without
prejudice to any other right or remedy available on that behalf to recover by way of
ascertained liquidated damages a sum equivalent to one per cent of the contract value of the
works for each week or part of week the contractor is in default and allow the contractor such
further extension of time as the Project Manager may decide. If the Company (IRCON) is not
satisfied that the works can be completed by the contractor and in the event of failure on the
part of the contractor to complete the works within the further extension of time allowed as
aforesaid the Company (IRCON) shall be entitled, without prejudice to any other right or
remedy available in that behalf, to appropriate the contractor’s security deposit and rescind
the contract, whether or not actual damage is caused by such default.
59.1 The Company (IRCON) shall be entitled to determine and terminate the contract at any
time should in the Company’s (IRCON) opinion, the cessation of work become necessary
owing to paucity of funds or from any cause whatsoever, in which case the value of approved
materials at site and of work done to date by the contractor will be paid for in full at the rates
specified in the contract. Notice in writing from the Company (IRCON) of such determination
and the reason therefore shall be conclusive evidence thereof.
ii. make an arrangement with or assignment in favour of his creditors, or agree to carry
out the contract under committee of Inspection of his creditors, or
iii. Being a company or corporation, go into liquidation (other than a voluntary liquidation
for the purpose of amalgamation or reconstruction), or
iv. have an execution levied on his good or property on the works, or
v. assign the contract or any part thereof otherwise than as provided in Clause 7 of these
conditions, or vi. abandon the contract, or
vii. persistently disregard the instructions of the Project Manager, or contravene any
viii. fail to adhere to the agreed programme of work by a margin of 10% of the stipulated
ix. fail to remove materials from the site or to pull down and replace work after receiving
from the Project Manager notice to the effect that the said materials or works have been
condemned or rejected under conditions, or
x. fail to take steps to employ competent or additional staff and labour as required under
xi. fail to afford the Project Manager or Project Manager’s representative proper facilities
for inspecting the works or any part thereof as required under these conditions, or
xii. promise, offer or give any bribe, commission, gift or advantages either himself or
through his partner, agent or servant to any officer of employee of IRCON or to any person
on his or on the behalf in relation to the execution of this or any other contract with IRCON.
Then and in any of the said cases, the Project Manager on behalf of the Company (IRCON)
may serve the contractor with a notice in writing to that effect and if the contractor does not
within 7 days after the delivery to him of such notice proceed to make good his default in so
far as the same is capable of being made and carry on the work or comply with such directions
as aforesaid to the entire satisfaction of the Project Manager the Company (IRCON) shall be
entitled after giving 48 hours notice in writing under the hand of the Project Manager (to
remove the contractor from the whole or any portion or portions as may be specified in such
notice) of the works without thereby avoiding the contract or releasing the contractor from
any of his obligations or liabilities under the contract and adopt any or several of the following
a) to rescind the contract, of which rescission notice in writing to the contractor under the
hand of the Project Manager shall be conclusive evidence, in which case the security deposit
of the contractor shall stand forfeited to the Company IRCON without prejudice to the
Company’s (IRCON) right to recover from the contractor any amount by which the cost of
competing the works by any other agency shall exceed the value of the contractor.
b) to carry out the works or any part thereof, by the employment of the required labour
and materials, the costs of which shall include lead, lift, freight, supervision and all incidental
charges and to debit the contractor with such costs, the amount of which as certified by the
Project Manager shall be final and binding upon the contractor, and to credit the contractor
with the value of the works done as if the works had been carried out by the contractor under
the terms of the contract. And the certificate of Project Manager in respect of the amount to
be credited to the contractor shall be final and binding upon the contractor;
c) to measure up the work executed by the contractor and to get the remaining work
completed by another contractor at the risk and expense of the contractor in all respects in
which case any expenses that may be incurred in excess of the sum which would have been
paid to the contractor if the works had been carried out by him under the terms of the contract,
the amount of which excess as certified by the Project Manager shall be final and binding
upon contractor shall be borne and paid by the contractor and may be deducted from any
moneys due to him by the Company (IRCON) under the contractor or otherwise or from his
security deposit. Provided always that in any case in which any of the powers conferred upon
the Company ( IRCON ) hereof shall have become exercisable and the same shall not be
exercised, the nonexercise thereof shall not constitute a waiver of any of the conditions hereof
and such powers shall notwithstanding be exercisable in the event of any future case of
default by the contractor for which his liability for past and future shall remain unaffected.”
Considering the material on record and on appreciation of evidence, the learned
Arbitral Tribunal though observed that the IRCON was not justified in rescinding the
contract under Clause 60.1, rescinding of the contract / termination of the contract was
justified under Clause 17.4, and thereby has rejected the Claim Nos.33 and 34 of the
NBCC which were with respect to forfeiture of the security deposits. The learned
Single Judge as well as the Division Bench of the High Court have set aside the award
passed by the learned Arbitral Tribunal rejecting Claim Nos.33 and 34 inter alia on the
ground that once the Arbitral Tribunal gave the finding that the IRCON was not justified
in invoking Clause 60.1, thereafter it was not open for the Arbitral Tribunal to take the
help of Clause 17.4 and therefore, the learned Arbitral Tribunal was not justified in
rejecting Claim Nos.33 and 34 which were with respect to forfeiture of security
deposits, which could have been under Clause 17.4.
However, it is required to be noted that as such the finding recorded by the
Arbitral Tribunal on applicability of Clause 17.4 and/or rescinding of the contract under
Clause 17.4 has not been set aside either by the learned Single Judge or by the
Division Bench of the High Court and therefore, the findings recorded by the learned
Arbitral Tribunal on applicability of Clause 17.4 has attained the finality. The learned
Arbitral Tribunal as such was absolutely justified in considering whether IRCON was
justified in rescinding the contract, may be either under Clause 60.1 or under Clause
17.4. Even otherwise, from the material on record and even the notice dated
21.02.1994 and the subsequent notice dated 07.03.1994, we are satisfied that the
IRCON was satisfied that the work could not be completed by the contractor even
within further extension of time. Clause 17.4 provides that if the company (IRCON) is
not satisfied that the works can be completed by the contractor and in the event of
failure on the part of the contractor to complete the works within further extension of
time allowed, the IRCON shall be entitled, without prejudice to any other right or
remedy available in that behalf, to appropriate the contractor’s security deposits and
rescind the contract, whether or not actual damage is caused by such default. Even
Clause 60.1 also provides for determination of contract owing to default of contractor.
It provides that if the contractor should abandon the contract, or persistently disregard
the instructions of the Project Manager or contravene any provisions of the contract….
then the Project Manager on behalf of the Company may serve the contractor with a
notice in writing to that effect and if the contractor does not within 7 days after the
delivery to him of such notice proceed to make good his default in so far as the same
is capable of being made good and carry on the work or comply with such directions
as aforesaid to the entire satisfaction of the Project Manager, the Company (IRCON)
shall be entitled after giving 48 hours notice in writing under the hand of the Project
Manager (to remove the contractor from the whole or any portion or portions as may
be specified in such notice) of the works without thereby avoiding the contract or
releasing the contractor from any of his obligations or liabilities. It further provides that
in such a case the Project Manager on behalf of the IRCON shall be entitled to rescind
the contract, in which case the security deposit shall stand forfeited to IRCON without
prejudice to IRCON’s right to recover from the contractor any amount by which the
cost of completing the works by any other agency shall exceed the value of the
7.3 Thus, both, under Clause 17.4 and 60.1, on failure of the contractor to complete
the work, the IRCON is justified in rescinding the contract and forfeit the security
deposit. At the cost of repetition it is observed that the learned Arbitral Tribunal on
appreciation of entire evidence on record, had specifically observed that the contractor
failed to complete the work even within the stipulated extended period of time and
even abandoned the work and therefore, the IRCON was justified in rescinding the
contract. The said finding as observed hereinabove has attained finality. Therefore,
the IRCON was absolutely justified in forfeiting the security deposits and therefore,
the learned Arbitral Tribunal was absolutely justified in rejecting Claim Nos.33 and 34,
which were with respect to forfeiture of security deposits by the IRCON. Both, the
learned Single Judge as well as Division Bench of the High Court have seriously erred
in setting aside the award passed by the learned Arbitral Tribunal rejecting Claim
Nos.33 and 34. We are of the opinion that the learned Single Judge, therefore,
exceeded in its jurisdiction under Section 34 of the Arbitration Act quashing and setting
aside the well-reasoned award passed by the learned Arbitral Tribunal on rejecting
Claim Nos.33 and 34, which the Division Bench of the High Court has wrongly
7.4 Under the circumstances, the impugned judgment and order passed by the
learned Single Judge as well as the Division Bench of the High Court quashing and
setting aside the award passed by the learned Arbitral Tribunal rejecting Claim Nos.33
and 34 deserve to be quashed and set aside and the award passed by the learned
Arbitral Tribunal rejecting Claim Nos.33 and 34 is required to be restored and upheld.
7.5 Now, so far as the quashing and setting aside the award passed by the Arbitral
Tribunal awarding interest @ 18% on advance for the hypothecation of equipment, by
the learned Single Judge confirmed by the Division Bench is concerned, at the outset,
it is required to be noted that the Division Bench of the High Court has upheld the
order passed by the learned Single Judge quashing and setting aside the interest
awarded by the learned Arbitral Tribunal on advance for the hypothecation of
equipment on the ground that there is no such stipulation in the agreement / contract.
However, the High Court has not at all considered Section 31(7)(a) of the Arbitration
Act, which permits the arbitrator that unless otherwise agreed by the parties, where
and in so far as an arbitral award is for the payment of money, the Arbitral Tribunal
may include in the sum for which the award is made interest, at such rate as it deems
reasonable, for the whole or any part of the period between the date on which the
cause of action arose and the date on which the award is made. Thus, unless there is
a specific bar under the contract, it is always open for the arbitrator / Arbitral Tribunal
to award pendente lite interest. Identical question came to be considered by this Court
in the case of Raveechee and Company (supra). In the said decision, it is observed
and held by this Court that an arbitrator has the power to award interest unless
specifically barred from awarding it and the bar must be clear and specific. In the said
decision, it is observed and held that the liability to pay interest pendente lite arises
because the claimant has been found entitled to the same and had been kept out from
those dues due to the pendency of the arbitration, i.e., pendente lite.
Applying the law laid down by this Court in the aforesaid decision to the facts of
the case on hand, once it was found that the advance amount was paid for
hypothecation of equipment and thereafter when the Arbitral Tribunal awarded the
interest on advance for hypothecation of equipment, the same was not required to be
interfered with by the learned Single Judge in exercise of the powers under Section
34 of the Arbitration Act and even by the Division Bench of the High Court while
exercising the powers under Section 37 of the Arbitration Act. However, at the same
time to award the interest @ 18% can be said to be on a higher side. In the facts and
circumstances of the case, if the interest is awarded @ 12% on advance for the
hypothecation of equipment, the same can be said to be reasonable interest.
8. In view of the above and for the reasons stated above, present appeal
succeeds. The impugned judgment and order passed by the learned Single Judge as
well as the Division Bench of the High Court quashing and setting aside the award
passed by the Arbitral Tribunal rejecting Claim Nos. 33 and 34 are hereby quashed
and set aside and the award passed by the Arbitral Tribunal rejecting the claim Nos.
33 and 34 is hereby restored. The impugned judgment and order passed by the
Division Bench of the High Court in confirming the judgment and order passed by the
learned Single Judge insofar as quashing and setting aside the award passed by the
Arbitral Tribunal awarding the interest @ 18% on the advance for hypothecation of
equipment is concerned, the same is hereby quashed and set aside and the award
passed by the Arbitral Tribunal awarding the interest on advance for hypothecation of
equipment is hereby restored, however, with a modification that there shall be paid an
interest @ 12 % pendente lite on advance for hypothecation of equipment instead of
18% as awarded by the Arbitral Tribunal.
Present appeal is accordingly allowed to the aforesaid extent. However, in the
facts and circumstances of the case, there shall be no order as to costs. | The Supreme Court recently reiterated that unless there is a specific bar under the contract, it is always open for the Arbitrator to award pendente lite interest in view of Section 31(7)(a) of the Arbitration and Conciliation Act 1996.
The Court also set aside orders passed by High Court, for having exceeded its jurisdiction under Section 34 of the Arbitration and Conciliation Act, 1996 by setting aside a well-reasoned Arbitral Award. It has been further held that the Arbitral Tribunal is open to award pendente lite interest unless there is a specific bar under the contract.
The Bench comprising of Justice M.R. Shah and Justice M.M. Sundresh, while adjudicating an appeal filed in Indian Railway Construction Company Limited v M/s National Buildings Construction Corporation Limited, has affirmed the Award wherein the Arbitral Tribunal, after finding out that the Agreement has been terminated under wrong clause, determined the correct clause for termination and justified the termination. The Bench has also affirmed the grant of pendente lite interest by the Arbitral Tribunal without there being an express provision in the Agreement.
BACKGROUND FACTS
In 1990, Indian Railway Construction Company Limited (“IRCON”) entered into an Agreement with M/s. National Buildings Construction Corporation Limited (“NBCC”) for construction of Railway Station cum Commercial Complex at Vashi, Navi Mumbai. The Clause 17.4 of the Agreement provided for termination of Agreement and forfeiture of security deposit, in case the work is not carried out by NBCC within stipulated timelines and given extensions. Further, Clause 60.1 empowered IRCON to rescind the Agreement in case the contractor (NBCC) abandons the contract.
NBCC failed to complete the construction work in time. Accordingly, IRCON terminated the Agreement on 21.02.1994 by invoking Clause 60.1 of the same and forfeited two security deposits of NBCC.
NBCC referred the dispute to arbitration. The Arbitral Tribunal passed an Award in 2011, rejecting NBCC’s claim for refund of two security deposits i.e. Claim No. 33 and 34. The Tribunal held that the termination was valid in view of Clause 17.4 of the Agreement and not Clause 60.1 as pleaded by IRCON. The Tribunal also considered the counter claim of IRCON and awarded 18% p.a. pendente lite interest on special advance given by IRCON to NBCC.
NBCC challenged the Award before the High Court and the Single Judge set aside the rejection of Claim No. 33 and 34 by the Arbitral Tribunal on 03.03.2017. The Single Judge concluded that once the Arbitral Tribunal found that the termination under Clause 60.1 was unjustified, it was not open for them to consider the termination under Clause 17.4, justifying forfeiture of the security deposits. The Single Judge further set aside the award of pendente lite interest on special advance, on the ground that the Agreement did not contain any clause for such interest.
Under appeal, on 14.08.2018 the Division Bench of the High Court affirmed the stand taken by Single Judge.
Aggrieved by the Order dated 14.08.2018, IRCON filed an appeal before the Supreme Court, contending that even if a wrong clause is mentioned in the Termination letter, the power to terminate the contract cannot be said to be illegal.
SUPREME COURT VERDICT
Substitution of correct clause of termination by Arbitral Tribunal
The Bench affirmed the determination done by Arbitral Tribunal with respect to the correct clause of termination and as to whether the Agreement could be rescinded by IRCON under Clause 60.1 or Clause 17.4. IRCON being satisfied that the NBCC would not be able to complete the work even with further extension, had rightly rescinded the Agreement and forfeited the security deposits. It was held that the Agreement could justifiably be terminated under both Clause 60.1 and Clause 17.4.
Further, the Arbitral Tribunal’s finding regarding rescinding of the contract under Clause 17.4 has not been set aside by either the Single Judge and Division Bench of the High Court. Therefore, the findings on Clause 17.4 attained finality.
A well-reasoned Award cannot be set aside u/s 34 of Arbitration Act
The Bench held as under:
“At the cost of repetition it is observed that the learned Arbitral Tribunal on appreciation of entire evidence on record, had specifically observed that the contractor failed to complete the work even within the stipulated extended period of time and even abandoned the work and therefore, the IRCON was justified in rescinding the contract. The said finding as observed hereinabove has attained finality……….We are of the opinion that the learned Single Judge, therefore, exceeded in its jurisdiction under Section 34 of the Arbitration Act quashing and setting aside the wellreasoned award passed by the learned Arbitral Tribunal on rejecting Claim Nos.33 and 34, which the Division Bench of the High Court has wrongly affirmed.”
The orders passed by Single Judge and Division Bench of High Court have been set aside by the Supreme Court, while observing that the Single Judge exceeded its jurisdiction under Section 34 of the Arbitration Act by setting aside a well-reasoned Award passed by Arbitral Tribunal.
Case Title: Indian Railway Construction Company Limited v M/s National Buildings Construction Corporation Limited
Arbitration and Conciliation Act 1996- Section 34- Supreme Court sets aside the HC order which set aside an arbitral award- SC hold that HC exceeded in its jurisdiction under Section 34 of the Arbitration Act quashing and setting aside the well-reasoned award passed by the Arbitral Tribunal
Arbitration and Conciliation Act 1996- Section 31(7)- unless there is a specific bar under the contract, it is always open for the arbitrator / Arbitral Tribunal to award pendente lite interest - followed Raveechee and Company Vs. Union of India reported in (2018) 7 SCC 664-Para 7.5 |
APPLICATION U/S 438 CR.P.C. No. - 20301 of 2021
Opposite Party :- State of U.P. and Another
Counsel for Applicant :- R.K. Sinha,R. B. Tripathi,Sr.
Counsel for Opposite Party :- G.A.
Heard Shri V.P. Srivastava learned Senior Counsel assisted by
Shri R.K. Sinha, learned counsel for the applicant, Shri Vishwa
Deepak Mishra, learned A.G.A. for the State and perused the
material on record.
The instant Anticipatory Bail Application has been filed by the
applicant namely, Dr. Ayub with a prayer to grant him
anticipatory bail in Case Crime No. 690 of 2016, under
District - Gorakhpur after rejecting anticipatory bail application
of the applicant by Sessions Judge, Gorakhpur vide order dated
Brief facts of the case are that the first information report dated
26.7.2016 has been lodged by Sunil Singh against the applicant
and unknown persons stating therein that on 25.7.2016 when
the first informant along with two companions were coming
from the side of planetarium, they saw that there was a huge
crowd in the Champa Devi Park and from the stage the
applicant, who was the National President of Peace Party and
Member of Legislative Assembly, Khalilabad, was abusing the
then Member of Parliament, Gorakhpur and Goraksha
Pethadheeshwar by saying that he was a terrorist and would kill
him wherever he had been found and would capture the
After lodging the first information report and completing the
investigation, charge sheet has been submitted on 11.4.2017 and
concerned magistrate has took cognizance on 20.3.2021 in the
present matter.
The submission of the learned senior counsel for the applicant
is that the applicant is innocent and has been falsely implicated
in the present case due to political rivalry. It is further submitted
that the applicant came to know for the first time on 14.10.2021
about the present case and no notice has been served upon the
applicant under Section 41A, Cr.P.C. He applied for
anticipatory bail before the court below, which has been
rejected on 17.12.2021. It is further submitted that this Court
has granted interim anticipatory bail to the applicant on
7.1.2022, which is extended till date. It is further submitted that
first informant was the President of Hindu Yuva Vahini
Sangathan. At that time the applicant was National President of
Peace Party and renowned surgeon of Barhalganj, District
Gorakhpur. It is further submitted that no electronic evidence
has been collected against the applicant to prove the case. First
information report has been lodged on the basis of false and
frivolous allegations with object to gain political mileage. It is
further submitted that offence under Section 295A, 500, 504,
505, 506, IPC is not made out against the applicant. All the
offences except Section 295A & 506, IPC are bailable offence.
It is further submitted that after filing of counter affidavit,
learned A.G.A. has not pointed out as to what material was
recovered from the possession of the applicant. It is further
submitted that no date and time of the incident has been
mentioned in the FIR.
It is further submitted that the applicant has previous criminal
history of five other cases, which are mostly related to
Representation of People Act and in all the cases, the applicant
has been granted bail.
Learned A.G.A. has vehemently opposed the prayer for
anticipatory bail of the applicant and submits that the applicant
has criminal history of ten cases apart from the present case. It
is further submitted that at the time of lodging the present FIR,
the applicant has criminal history of only five cases, which are
related to political rivalry.
It is settled position of law that the anticipatory bail being an
extraordinary privilege should be granted only in exceptional
cases. Parameters for grant of anticipatory bail in a serious
offence are required to be satisfied, where the Court is prima
facie of the view that the applicant has falsely roped in the
crime and would not misuse his liberty.
Considering the facts and circumstances of the case and the law
laid down by the Apex Court in the case of Sushila Aggarwal
Vs. State (NCT of Delhi)-2020 SCC Online SC 98, ground for
grant of anticipatory bail is made out.
In case of arrest, the applicant, Dr. Ayub is directed to be
enlarged on anticipatory bail in above case crime number till
the conclusion of trial, on his furnishing personal bond of Rs.
25,000/- and two sureties each of like amount before the Station
House Officer of Police Station/Court concerned with the
following conditions:-
(i) The applicant shall make himself available for interrogation
by the police officer as and when required, if investigation is in
(ii) The applicant shall not directly or indirectly, make any
inducement, threat or promise to any person acquainted with the
facts of the case so as to dissuade such person from disclosing
such facts to the Court or to any police officer;
(iii) The applicant shall not leave the country without the
previous permission of the Court and if he has passport, the
same shall be deposited by him before the S.S.P./S.P.
concerned/Court concerned;
(iv) The party shall file computer generated copy of such order
downloaded from the official website of High Court Allahabad,
self attested by the applicant along-with a self attested identity
proof of the said person (preferably Aadhar Card) mentioning
the mobile number to which the said Aadhar Card is linked ;
(v) The concerned Court/Authority/Official shall verify the
authenticity of such computerized copy of the order from the
official website of High Court Allahabad and shall make a
declaration of such verification in writing.
The Investigating Officer will continue with the investigation, if
it is in progress and will not be affected by this order.
A copy of this order shall also be produced before the S.P/S.S.P
concerned by the applicants, within a week, if the investigation
is still in progress, who shall ensure compliance of this order.
With the aforesaid directions, the present Anticipatory Bail
Application is allowed. | The Allahabad High Court last week granted anticipatory bail to the National President of Peace Party, Dr. Ayub in a 2016 case registered against him for his alleged statement made at a public rally, threatening to kill the then Member Of Parliament from Gorakhpur and presently, the Chief Minister of Uttar Pradesh, Yogi Adityanath.The case against Dr. Ayub was registered at the instance of...
The Allahabad High Court last week granted anticipatory bail to the National President of Peace Party, Dr. Ayub in a 2016 case registered against him for his alleged statement made at a public rally, threatening to kill the then Member Of Parliament from Gorakhpur and presently, the Chief Minister of Uttar Pradesh, Yogi Adityanath.
The case against Dr. Ayub was registered at the instance of the President of Hindu Yuva Vahini Sangathan alleging that from a public platform, Dr. Ayub had abused the then MP Yogi Adityanath by saying that he was a terrorist and would kill him wherever he had been found and would capture the Gorakhnath Temple.
Thereafter, he was booked under sections 295A, 500, 504, 505, 506, IPC and after the completion of the investigation, a charge sheet was submitted in April 2017 and the concerned magistrate had taken cognizance in March 2021 in the present matter. Now, after the rejection of his anticipatory bail application by Sessions Judge, Gorakhpur in December 2021, Dr Ayub moved to the High Court.
It was submitted by the senior counsel for the applicant that the applicant is innocent and has been falsely implicated in the present case due to political rivalry. It was further submitted that no electronic evidence had been collected against Dr. Ayub to prove the case.
It was also submitted that offence under Section 295A, 500, 504, 505, 506, IPC is not made out against the applicant and all the offences except Section 295A & 506, IPC are bailable offences.
Lastly, it was contended that after the filing of the counter-affidavit, learned A.G.A. had not pointed out as to what material was recovered from the possession of the applicant and that no date and time of the incident had been mentioned in the FIR.
At the outset, the bench of Justice Sanjay Kumar Pachori observed that it is a settled position of law that the anticipatory bail being an extraordinary privilege should be granted only in exceptional cases.
"Parameters for grant of anticipatory bail in a serious offence are required to be satisfied, where the Court is prima facie of the view that the applicant has falsely roped in the crime and would not misuse his liberty," the Court added.
Further, Dr. Ayub was directed to be enlarged on anticipatory bail till the conclusion of trial, on his furnishing personal bond of Rs. 25,000/- and two sureties each of like amount before the Station House Officer of Police Station/Court concerned. With this, the Anticipatory Bail Application was allowed.
Case Title - Dr. Ayub v. State of U.P. and Another [CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 20301 of 2021] |
ivil Appeal No. 5502 of 1983.
From the Judgment and Order dated 6.5.1983 of the Alla habad High Court in C.M.W.P. No. 6563 of 1980.
S.S. Ray, D.D. Thakur, Mrs. C. Markandeya, section Markan deya, W.A. Nomani, G.S. Giri Rao, R.K. Raina and J.M. Khanna for the Appellants.
B.D. Agarwal, Mrs. section Ramachandran, R. Ramachandran, H.K. Puri, Mrs. section Dikshit and A.K. Gupta for the Respond ents.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Appellant No. 1 is a registered Housing Cooperative Society registered under the U.P.
Co operative Societies Act, bearing registration No. 2 130 dated 27.3.
1973, hereafter referred to as 'the society ', and appellant Nos. 2, 3 and 4 are respectively the President, Secretary and Treasurer of the Society.
The object of the Society is to acquire lands for its members for constructing residen tial houses for them.
The members are Central and State Government employees and public sector employees; and more than 70 acres of land situated in villages Chhalera Bangar and Suthari were acquired by the Society between January, 1973 and September, 1975.
For development of certain areas in the State of U.P. into industrial and urban township and for matters connected therewith, the U.P. Industrial Area Development Act, 1976, hereafter referred to as 'the Act ', was enacted and thereaf ter the U.P. Government by a Notification dated 17.4.1976 declared the villages named in the schedule annexed to the Notification to be an Industrial Development Area within the meaning of the Act, to be called "NOIDA".
67 Soon after constituting this Authority a Notification under sections 4 and 17 (sub section
(1) of section 4 and sub section
(4) of section 17) of the Land Acquisition Act was published in the U.P. Extra Ordinary Gazette dated 30.4.1976 stating that the land in village Chhalera Bangat was needed for the planned indus trial development.
The land of the appellant society was included in the Notification.
In continuation of Notifica tion dated 30.4.1976, another Notification under section 6 dated 1.5.1976 was issued stating that the land mentioned in the schedule (i.e. village Chhalera Bangar) was needed for a public purpose and under section 7 of that Act to direct the Collector of Bulandshahar to take order for the acquisition of the said land.
A Notification under sub section
(1) of section 4 of the Land Acquisition Act was issued on 1.6.1976 notifying that the land mentioned in the schedule (i.e. land in Suthari village etc.) was needed for a public purpose and that the case was of urgency and as such the provisions of sub.
section (1) of section 17 of the said Act were applicable to the land Notifica tion under section 6 of that Act was issued on 16.9.1976 notify ing that the land mentioned in the schedule (i.e. Suthari village etc.) was needed for public purpose and under section 7 of that Act it directed the Collector to take order for acquisition of the said land.
The appellant society and the other registered co opera tive societies demanded land in lieu of the land acquired in the NOIDA complex and after several representations and correspondence a subcommittee was constituted under the chairmanship of Sri B.J. Khadaiji, Commissioner and Secretary, Housing and Urban Development, Government of Uttar Pradesh to look into the matter.
In a meeting held on 19.10.1979 it was decided that sites would be given to various co operative societies nearest to Delhi on the basis of the NOIDA Master Plan which was under consideration.
It was also clarified in that meeting that 35 per cent of the area offered to the members of the Society will be plotted area out of the total acquired area of the Society.
The Executive Officer NOIDA vide his letter dated 21.4.1980 informed that it was proposed to offer developed plots to the bona fide members of the co operative societies whose lands were acquired.
An approximate rate was offered at Rs. 130 per square metre in sectors 30, 31, 34, 39 and 40.
Certain conditions were also laid down in that letter and one of the conditions was that amount equal to 30 per cent of the price of the area of developed plots computed at Rs. 130 per square metre should have to be sent in favour of NOIDA and thereafter tripartite agreement shall have to be made between NOIDA, Co operative Societies and individual members after finalisation of lay out plan.
68 Alleging that arbitrary action taken by the NOIDA that far was not acceptable to the appellant Society, it flied Civil Misc.
Writ Petition No. 6563 of 1980 on 29.7.1980 challenging the notifications issued under sections 4 and 6 of the Land Acquisition Act.
The writ petition was admitted by the Allahabad High Court but stay was refused.
The Society insisted on rehabilitation of the members on the original land on the basis of the policy of the Government.
The Chief Executive Officer intimated the Society that the authority had finally decided to offer lands in sectors 30, 31, 36 and 40 and that 20 per cent of the amount had to be deposited, but the Society did not deposit the amount by the stipulated time.
The Society requested for extension of time, but the NOIDA did not extend it and the appellant Society had not been allotted any land.
As the writ petition was filed in the year 1980 i.e. more than three years after publication of the notifications, the impugned Notifications had been upheld by a Division Bench of the Allahabad High Court by the impugned Judgment dismissing the writ petition.
The appellant Society argued before the High Court that the action of the Authority in not allotting land to the appel lant Society was mala fide and also that action of the Au thority in not extending the time as prayed for was arbi trary and discriminatory.
It was submitted by the respond ents that offer to give developed plots to the appellant Society was only as a concession and not as a legal right; the Authority was not bound to extend the time.
The appel lant Society also challenged the price fixed by the authori ty and the appellant 's counsel had not been able to show that anybody was offered developed plots for a price less than Rs. 130.
The High Court held that appellant Society had no legal right to get a particular land and that the Society did not avail of the concession granted by the authority.
Hence this appeal by Special Leave from the impugned Judgment and Order dated 6.5.1983 of the Allahabad High Court passed in Civil Misc.
Writ Petition No. 6563 of 1980.
While granting Special Leave on 30.5.1983 there was an order of ex parte stay of dispossession pending notice; but the execution proceedings were allowed to go on.
On 19.3.
1984 in C.M.P. No. 16786 of 1983 it was ordered that Mr. Markandeya, Advocate on behalf of the petitioners would make a representation to the respondent New Okhla Industrial Development Authority (NOIDA) for the allotment of a suit able site and the representation would be considered on its own merits and a decision taken thereon by the respondent within two months from the date of that order.
On 30.4.1984 Mr. G.L. Sanghi appearing for NOIDA had made a statement before the Court that 69 NOIDA undertook that in the event of this appeal being allowed NOIDA would give to the appellants such areas as this Court might specify from sectors 40 and 41 at prices to be determined in accordance with the Judgment of this Court.
Undertaking given by Mr. G.L. Sanghi was limited to NOIDA giving areas from sectors 40 and 41 to the appellants and to those persons who were eligible members of the Society on 1st May, 1976.
These orders were said to be without preju dice to the rights and contentions of both the parties in this appeal.
On 8.5.
1985 the order dated 30.4.1984 was modified by this Court directing that NOIDA would give to the appellants such areas as this CoUrt might specify from sectors 40, 41 as also from sector 42 at price to be determined in accord ance with the Judgment of this Court.
If any of the peti tioners could not be accommodated in any of these sectors, the NOIDA would give them sites or areas which were contigu ous to sectors 40, 41 and 42.
On 18.1.1990 this appeal was delinked from the group of NOIDA cases.
By Judgment and Order dated 13.2.1990 the main Writ Petition No. 975 of 1986 Hiralal Chawla & Anr.
vs State of U.P. & Ors., reported in [1990] 1 Judgments Today SC 194 was disposed of stating the total number of persons entitled to allotment and sizes of the plots to be allotted and direct ing that the sites be developed by NOIDA within a period of nine months beginning from 1st of March, 1990 and allot them by charging the agreed price at the rate of Rs. 1,000 per square metre and paying 12 per cent interest on the amount deposited till the actual allotment; and that the interest would be adjusted against the price payable on the allotted land.
The dates for payment of the 1st, 2nd and 3rd instal ments were also agreed.
It was observed that the Town Plan ning in NOIDA was said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh was a member.
It was accordingly directed that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation should be by NOIDA and the appellants would co operate with NOIDA in that regard.
When this appeal was heard on 5.4.1990 there was a consensus that justice would be done to the parties, if this appeal is also disposed of on similar terms as in Hiralal Chawla & Anr.
vs State of U.P. & Ors.
, (supra).
However, the parties were allowed to file.
written submissions.
Written submissions were accordingly filed by the res 70 pondents, in reply thereto by the appellants, and for the intervener.
Taking into consideration the earlier interim orders, the consensus arrived at the hearing and the written submis sions, it is ordered in line with Hiralal (supra) that the interim orders dated 30.5.83, 19.3.84, 30.4.84 and 8.5.85 will merge in this Order.
The impugned Judgment of the High Court is set aside and it is ordered: (A) That the total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May, 1976 not exceeding 600 (six hundred).
(B) The total area to be allotted to the members of the Society will be 28.8 acres in the form of developed plots.
This amounts to 40% of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January, 1973 and September, 1975.
(C) The allotment shall be made in Sectors 40, 41 and 42 and if sufficient number of plots are not available in these Sectors, then from the adjacent Sectors.
(D) The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May, 1990 and ending on 31st January, 1991 by which date the plots shall be allotted to the entitled members of the Society.
(E) The NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs. 1,000 per square metre.
(F) Every member who has deposited any sum of money with NOIDA against proposed allotment shall be enti tled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the person shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs. 1,000 per square metre.
Balance amount, if any, shall have to be paid by every eligible member of the Society as on 1.5.76 not exceeding 600 in all, within three months from now in three equal monthly instal ments.
The 1st instalment will be paid on or before May 31, 1990, the 2nd instalment to be paid on or before June 30, 1990 and the 3rd instalment to be paid on or before July 31, 1990.
(G) It shall be the obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
(H) It is stated by the parties that a Review Application in Hiralal Chawla 's case is pending.
As agreed by the parties in case that Review is allowed, the parties herein shall be at liberty to apply for review of this judgment to similar extent.
(I) Each allottee shall furnish an affidavit to the effect that neither he/she or spouse, 71 nor dependent children owns any other plot or house or flat within NOIDA.
Town Planning in NOIDA is said to be in accordance with the norms laid down by itself and the same are prescribed by the Board of which the Chief Town and Country Planner of Uttar Pradesh is a member.
We direct that all the norms laid down by NOIDA in the matter of development shall be strictly followed.
Supervision of this operation of course shall be by NOIDA but we hope and trust that the Society would coop erate with NOIDA in this regard.
The appeal is disposed of with these directions without any orders as to costs.
G.N. Appeal disposed of. | The appellant, a registered Housing Co operative Socie ty, acquired about 70 acres of land during the period 1973 to 1975.
After the enactment of U.P. Industrial Area Development Act, 1976, the State Government constituted an Industrial Development Authority called NOIDA.
Soon after the constitu tion of the said authority, notifications were issued under the Land Acquisition Act acquiring certain lands including that of the appellant Society.
The appellant and several other societies demanded land in lieu of the land acquired.
A sub Committee was constitut ed and it was proposed to offer developed plots to the bona fide members of the societies whose lands were acquired.
An approximate rate of Rs. 130 per square metre was fixed.
It was also stipulated that 30% of the price would have to be deposited before a tripartite agreement between NOIDA, Co operative Societies and individual members is made after finalisation of lay out plan.
The appellant society filed a Writ Petition in the High Court alleging that the action taken by NOIDA was arbitrary and challenging the notifications issued under Sections 4 and 6 of the Land Acquisition Act.
Meanwhile, the authority had intimated the appellant society that it was finally decided to offer lands, and that 20% of the amount had to be deposited within a stipulated time.
The Society requested for extension of time.
Time was not extended and the Society was not allotted the land.
It was contended before the High Court that the authori ty acted mala fide, and its not extending the time was arbitrary and discrimi 65 natory.
The land price fixed by the authority was also challenged.
The High Court dismissed the Writ Petition, holding that the appellants Society had no legal right to get a particular land and that it did not avail the conces sion granted by the authority.
This appeal by special leave is against the order of the High Court.
Disposing of the appeal, this Court.
HELD: 1.
The interim orders of this court dated 30.5.83, 19.3.84, 30.4.84 and 8.5.85 will merge in this Order.
[70B] 2.
The Judgment of the High Court dated 6.5.83 is set aside.
The total number of persons entitled to allotment will be confined to those persons who were eligible members of the Society on 1st May, 1976 not exceeding 600.
The total area to be allotted to the members of the Society will be 28.8 acres in the form of developed plots.
This amounts to 40% of the total 72 acres of land acquired by the Society in the villages Chhalera Bangar and Suthari between January, 1973 and September, 1975.
The allotment shall be made in Sectors 40, 41 and 42 and if sufficient number of plots are not available in these Sectors, then from the adjacent sectors.
The plots to be allotted are to be developed by NOIDA within a period of nine months beginning from 1st May, 1990 and ending on 31st January, 1991 by which date the plots shall be allotted to the entitled members of the Society.
NOIDA shall be permitted to charge the price of the allotted plots at the rate of Rs. 1.000 per square metre.
Every member who has deposited any sum of money with NOIDA against proposed allotment shall be entitled to 12 per cent interest on such amount from the date of deposit till the actual allotment and such interest accrued in favour of the persons shall be entitled to adjustment of such interest against actual price of the land to be worked out at the rate of Rs.1,O00 per square metre.
Balance amount, if any, shall have to be paid by every eligible member of the Socie ty as on1.5.76 not exceeding 600 in all, within three months from now in three equal monthly instalments.
The 1st instal ment will be paid on or before May 31, 1990.
The second instalment to be paid on or before June 30.
1990 and the third instalment to be paid on or before July 31, 1990.
It shall be obligation of the Society to duly notify every member of these directions and the time factor forthwith as failure to pay any of these instalments within the time limit indicated above shall disqualify such person from allotment and NOIDA will thereafter be only obliged to refund the money lying to the credit of the defaulter with bank rate of interest.
In case the Review Petition in Hira lal Chawla 's case is allowed, the parties herein shall be at liberty to apply for review of this judgment 66 on similar extent.
Each allottee shall furnish an affidavit to the effect that neither he/she or spouse, nor dependent children owns any other plot or house or flat within NOIDA.
All the norms laid down by NOIDA in the matter of develop ment shall be strictly followed.
Supervision of this opera tion of course shall be by NOIDA.
The society would cooper ate with NOIDA in this regard.
[70B H; 71A B] Hiralal Chawla and Anr.
vs State of U. P. & Ors., [1990] 1JTSC 194, applied. |
1. Exemption allowed, subject to all just exceptions.
2. Application stands disposed of.
3. This is an application seeking release on bail in RC No. RC 217 2016
A0015 dated 18.10.2016 registered U/s 120-B IPC and Sections 7,8,9,12 and
13(2) R/W 13(1)(d) of PC Act, 1988, by CBI ACU-V/AC-II New Delhi.
4. An RC was registered on 18.10.2016, where the petitioner was not
named.
5. The FIR is against unknown officials of the Ministry of Defence,
Government of India, M/s Embraer, Brazil, M/s Interdev Pte. Ltd Singapore
6. It is stated that there were 3 fully modified Embraer Aircrafts EMB-
145 aircrafts which was purchased by DRDO.
7. There was an agreement signed between M/s Embrarer, Brazil and
Director CABS, DRDO on 03.07.2008 for a consideration of 210 million
8. It is stated that a sum of 5.76 million USD was paid to Mr. Vipin
Khanna through M/s Interdev Pte. Ltd Singapore in the year 2009 which was
alleged to have been used to influence the officials of Ministry of Defence.
9. On 25.08.2022, the applicant has been arrested. He has filed this bail
application in which notice was issued on 09.09.2022.
10. Mr. Bhardwaj, learned standing counsel for CBI along with other
investigating officer DSP Rajeev Rajan has filed a detailed reply, wherein he
has stated that Mr. Dev Inder Bhalla, Director of M/s Interdev Pte. Ltd
Singapore has stated that the agreement for receiving commission of USD
5.76 million was vetted by the applicant.
11. It is further stated that the applicant was coordinating with him for
execution of the agreement dated 23.11.2009 between M/s Interdev Aviation
Services Pte. Ltd., Singapore and M/s KRBL DMCC Dubai for routing the
funds to the tune of Rs. 3.27 million USD out of 5.76 million USD.
12. He states that there is also official communication from M/s
Embrarer, Brazil to the investigating officer indicating the role of the
applicant.
13. He states that there is also official communication from Switzerland
against the applicant.
14. He further states that these are serious allegations and need to be
15. The order dated 03.09.2022 rejecting the bail of the applicant is
predicated on 3 grounds namely:
One, there is allegation of commission/kickback to the tune of 5.76
million USD.
Two, the investigation is at nascent stage because of lack of
cooperation from foreign governments.
Third, the magnitude of the offence is too huge.
16. I am unable to agree with the contentions.
17. In the present case, the case is of the year 2016. Almost more than 6
years have elapsed and it cannot, by any stretch of the imagination, be held
that the investigation is at a nascent stage. Six years is a long period of time.
18. As regards the magnitude of the amount involved is concerned, I am
of the view that it cannot be a consideration to deny the right of liberty to an
individual. It is not the magnitude of the amount but the magnitude of the
offence and the prima facie involvement of the accused which is a
consideration for allowing or disallowing bail application.
19. In the present case, the applicant has not been named in the FIR. The
allegations against the applicant are only based on statement of various
witnesses and official communications.
20. The respondent should have and could have verified the same and in
case the same were found substantial, the charge-sheet should have been
filed.
21. In addition, there is no Government official who has been named or
identified to have received kickbacks.
22. The triple test is satisfied as:
23. The applicant after registration of the FIR has travelled abroad 42
times and has returned on every occasion.
B. Possibility of Tampering with Evidence:
24. There has been no allegation or document placed on record which
shows that the applicant has tampered with the evidence.
25. This apprehension can be taken care of by imposing restrictions.
26. There is no allegation or document shown that he has influenced any
witnesses. This apprehension can also be taken care of by imposing
restrictions.
27. Thus, the applicant satisfies the triple test.
28. In view of the aforesaid, the bail application is allowed and the
applicant is directed to be released on bail, subject to the following
i. The applicant shall furnish a personal bond with one local surety in
the sum of Rs. 25,000/- each, to the satisfaction of the Trial Court;
ii. The applicant shall appear before the Court as and when the matter
is taken up for hearing;
iii. The applicant shall provide his mobile number to the Investigating
Officer (IO) concerned, which shall be kept in working condition
at all times. The applicant shall not switch off, or change the same
without prior intimation to the IO concerned, during the period of
iv. In case the applicant changes his address, he will inform the IO
concerned and this Court also;
v. The applicant shall not indulge in any criminal activity during the
vi. The applicant shall neither contact any of the witnesses nor tamper
with the evidence in any manner;
vii. The applicant shall give prior intimation of his travel abroad with
detailed itinerary to the concerned Investigating Officer.
29. The observations made by me are only prima facie and only for the
purpose of deciding the present bail application.
30. In view of the aforesaid, the bail application is allowed.
31. The application is disposed of in the aforesaid terms.
Dasti under the signature of Court Master/ Private Secretary.
Click here to check corrigendum, if any | The Delhi High Court has recently granted bail to a lawyer Gautam Khaitan in connection with the 2008 Embraer bribery case being probed by the Central Bureau of Investigation (CBI)
While the case was registered in the year 2016 for various offences under Prevention of Corruption Act and Indian Penal Code, Khaitan was arrested only recently on August 25. His bail plea was rejected by a trial court on September 3.
Justice Jasmeet Singh granted bail to Khaitan observing that he was not named in the FIR and that the allegations against him were only based on statements of various witnesses and official communications.
An agreement was signed between Brazilian aircraft manufacturer Embraer and Director of Centre for Air Borne System of DRDO on July 3, 2008 for 210 million US dollars. Three fully modified Embraer aircrafts were purchased by DRDO.
The FIR was registered against officials of the Central Government's Ministry of Defence, Embraer, a Singapore based company M/s Interdev Pte. Ltd and a UK-based arms dealer Vipin Khanna.
It was alleged that a sum of 5.76 million US dollars was paid to Khanna through the Singapore based company in the year 2009 for allegedly influencing the officials of Ministry of Defence and DRDO.
The counsel appearing for CBI argued before the court that the Director of the Singapore based company had stated that the 2009 agreement for receiving commission of 5.76 million US dollars was vetted by Khaitan.
Furthermore, it was also argued that Khaitan was allegedly coordinating with the Director for execution of the agreement between the company and M/s KRBL DMCC Dubai for routing the funds to the tune of 3.27 million US dollars out of the total 5.76 million US dollars.
The agency also alleged that there was an official communication from Embraer to the investigating officer indicating Khaitan's role in the matter.
Khaitan was denied bail by trial court on September 3 on the ground that there was allegation of commission or kickback to the tune of 5.76 million US dollars and that the investigation was at nascent stage because of lack of cooperation from foreign governments. It was also observed that the magnitude of the offence was too huge.
Disagreeing with the said observations, the High Court granted bail to Khaitan saying that it is not the magnitude of the amount but the magnitude of the offence and the prima facie involvement of the accused "which is a consideration for allowing or rejecting a bail plea".
"In the present case, the case is of the year 2016. Almost more than 6 years have elapsed and it cannot, by any stretch of the imagination, be held that the investigation is at a nascent stage. Six years is a long period of time," the court observed.
The court also said that the case dates back to 2016 and almost more than 6 years have elapsed and it cannot, by any stretch of the imagination, be held that the investigation is at a nascent stage. "Six years is a long period of time," it said.
On the aspect of the magnitude of amount involved, Justice Singh said that the same cannot be a consideration to deny the right of liberty to an individual.
"In the present case, the applicant has not been named in the FIR. The allegations against the applicant are only based on statement of various witnesses and official communications. The respondent should have and could have verified the same and in case the same were found substantial, the charge-sheet should have been filed," Justice Singh added.
The court observed that the triple test for grant of bail is satisfied by Khaitan as he had travelled abroad 42 times after registration of the FIR and had returned on every occasion and that there was no document showing that he tampered with evidence or influenced witnesses.
"Thus, the applicant satisfies the triple test," the court said while granting bail.
Senior Advocates PV Kapur and Siddharth Luthra appeared for Gautam Khaitan. SPP Ripu Daman Bhardwaj represented CBI.
Title: GAUTAM KHAITAN v. CENTRAL BUREAU OF INVESTIGATION |
1 Order dated August 11, 2021 passed by the City Civil and Sessions
Court, Mumbai, rejecting Petitioners/Plaintiffs’ application for summary
judgment is the subject matter of challenge in the present Petition.
2 Petitioners are the Plaintiffs in commercial suit instituted for recovery
of money with interest against defendant, who is Respondent herein. The
case pleaded in plaint is that Plaintiff No.1, who is in business of trading in
property and financing, was approached by Defendant for financial
assistance in the form of loan of Rs.50,00,000/-. Plaintiffs paid
Rs.50,00,000/- to the Defendant by RTGS on May 27, 2015. It is alleged
that Defendant has executed a Bill of Exchange in favour of the Petitioners/
Plaintiffs payable on demand after the due date of June 26, 2015, which
however is silent on interest payable, if any. Defendant issued letter dated
August 5, 2015 to Plaintiffs confirming receipt of amount of Rs.50,00,000/-
towards business loan, undertook to repay the same and issued two post
dated cheques of bearing date October 30, 2015 for Rs.50,00,000/- towards
principal amount and Rs.2,33,333/- towards interest. Additionally, one more
Bill of Exchange was executed by Defendant for the said amount of
Rs.50,00,000/- with due date of October 30, 2015. On presentation, the
cheques were dishonoured with the remark ‘insufficient funds’.
k 3/20 wp_10573.22_as.doc
3 After coming across a public notice regarding auction of properties of
Respondent/Defendant, notice dated June 28, 2019 was issued at the
behest of Plaintiffs demanding the due amount alongwith interest. The
Defendant replied the notice on August 9, 2019 disputing the notice and
raising the defence of Plaintiffs not possessing licence under the provisions
of Maharashtra Money-Lending (Regulation) Act, 2014. Plaintiffs presented
Summary Suit under the provisions of Order XXXVII of the Code of Civil
Procedure, 1908 (for short ‘Code’), before the City Civil Court at Bombay on
or about August 30, 2019. The same however came to be registered as
Commercial Suit No.134 of 2019. Defendant made an unsuccessful attempt
to seek dismissal of the suit for non-compliance of pre-institution mediation
enumerated under section 12A of the Commercial Courts Act, 2015 and its
Notice of Motion came to be dismissed by order dated March 10, 2021. In
the meantime, Plaintiffs filed Summons for Judgment possibly under an
impression that the suit was treated as a summary suit under the provisions
of Order XXXVII of the Code. After noticing the provisions of Order XIII A of
the Code, leave was granted to Plaintiffs to register the Chamber Summons
as application for Summary Judgment. In the meantime, Defendant was
permitted to file Written Statement by an order dated March 10, 2001, in
which it denied various contentions raised in the Plaint in addition to raising
the issue of limitation.
4 When the application for Summary Judgment No.2 of the 2019 was
pressed before the City Civil Court, the same has been rejected by order
dated August 11, 2021 holding that there are triable issues involved in the
suit. That order is subject matter of challenge in the present Petition.
5 Appearing for the Petitioners/Plaintiffs Mr. Jain the learned Counsel
would submit that the suit is based on Bills of Exchange dated May, 27
2015 and October 30, 2015, execution of which is not under dispute. He
would submit that the only defence raised by Defendant while replying
Plaintiffs’ notice on August 9, 2019 was about non-possession of money-
lenders license, which is not a requirement for suit based on Bills of
Exchange as per the settled position of law. He would submit that the
admission of the claim can be inferred on the basis Defendant’s letter dated
August 5, 2015, issuance of post-dated cheques and non-denial of receipt
of Rs.50,00,000/- by Defendant. Mr. Jain would take me through the
provisions of second Proviso to sub-rule 5 of Rule 3 of Order XXXVII of the
Code in support of his contention that since there is an admission of claim
on the part of the Defendant, the Court could not have granted leave to
defend without the condition of deposit of the admitted amount. He would
rely upon the judgment of the Apex Court in IDBI Trustee-ship Services
Limited vs. Hubtown Ltd. (2017) 1 SCC 568 laying down broad principles
on interpretation of provisions of Order XXXVII Rule 3 of the Code. Mr. Jain
k 5/20 wp_10573.22_as.doc
would then take me through the provisions of Order XIII-A of the Code
introduced by way of amendment in Commercial Courts Act, 2015 providing
for Summary Judgment. He would submit that the provisions of Order XIII A
of the Code are even wider than the provisions of Order XXXVII of the
Code. He would further submit that Defendant failed to file reply to the
application for Summary Judgment as mandated under Order XIII A, Rule 3
of the Code. Since the claim of Plaintiffs is virtually admitted, the Court
ought to have pronounced judgment on the claim or in the alternative at
least passed a conditional order under clause (b) of Sub-rule 1 of Rule 6 of
Order XIII A of the Code.
6 Per contra, Mr. Davar the learned Counsel appearing for
Respondent/Defendant would oppose the Petition and support the order
passed by the City Civil Court. He would submit that the application filed by
Plaintiffs for Summary Judgment under the provisions of Order XIII A of the
Code was not maintainable in view of provisions of sub-rule 3 of Rule 1 of
Order XIII-A of the Code. He would submit that the Suit was originally filed
as Summary Suit and averments made in paragraphs 14 and 18 of the
Plaint leaves no matter of doubt that what was originally filed was a
Summary Suit. He would further submit that Summary Suit was otherwise
not maintainable in so far as prayer for payment of interest is concerned as
the Bills of Exchange did not provide for payment of interest.
k 6/20 wp_10573.22_as.doc
7 Mr. Davar would further contend that the suit is hopelessly barred by
limitation. The suit is premised on Bill of Exchange dated May 27, 2015,
alleged admission of claim vide letter dated August 5, 2015 and cheques
bearing dates October 30, 2015, the same presented on or about August
30, 2019 is thus clearly barred by limitation. Even if the date of dishonor of
cheques is to be taken into consideration for computation of limitation, the
dishonor took place on November 2, 2015, thereby throwing the suit out of
limitation. The notice dated June 28, 2019 issued after lapse of 4 years
would not revive the time barred claim of the Plaintiffs.
8 Mr. Davar fairly concedes that the provisions of Maharashtra Money-
Lending (Regulation) Act, 2014 would not apply to suit based on Bill of
Exchange. He however submits that the defence of Defendant is slightly
different, viz. about misrepresentation about possession of valid money
lenders licence at the time of lending money and subsequent promise of
writing off loan by plaintiff after defendant flagging the issue of non-
possession of such a license. He would submit that Plaintiffs’ reliance on
their own books of accounts cannot be construed as an admission on the
part of the Defendant who never confirmed the same.
9 In rejoinder, Mr. Jain would dispute the contentions of Mr. Davar that
the date of demand reflected in Bills of Exchange would constitute starting
k 7/20 wp_10573.22_as.doc
point of limitation. In this regard he would rely upon the judgment of this
Court in Bank of India vs. Lafans India Export Private Limited, (1994) 1
Bom.C.R 419. He would also rely upon the judgment of this Court Madhya
Central Co-operative Bank Ltd., AIR 2005 Bom 318, in support of his
contention that issue of limitation is irrelevant while deciding summary suits.
He would also rely upon the judgment of Delhi High Court Su-Kam Power
Systems Ltd. vs. Mr. Kunwer Sachdev & Anr., 2019 SCC Online Del
10764 in support of his contention that the Commercial Courts Act, 2015
has been enacted with an intent to improve efficiency and to prevent delay
in disposal of commercial cases and that in the event of a Court arriving at a
conclusion that there is no reasonable prospect of success for the
Defendant, the claim has to be allowed by pronouncing a Summary
Judgment. Though not fully relevant to the present case, he would contend
that the scope of provision of summary judgment is now so wide which
would cover even a claim for damages.
10 Rival contentions of the parties now fall for my consideration.
11 Before adverting to the merits of the contentions raised by rival
parties, it is necessary to first resolve the controversy as to whether the
application for Summary Judgment of the Petitioners/Plaintiffs is required to
k 8/20 wp_10573.22_as.doc
be considered under the provisions of Order XXXVII or Order XIII A of the
Code. This confusion is created essentially on account of reliance by Mr.
Jain on provisions of Order XXXVII of the Code as well as on judgment in
IDBI Trustee-ship Services Limited vs. Hubtown Ltd. (supra) laying
down broad principles on the issue of grant of leave to defend under those
provisions. These submissions created an impression as if the
Petitioners/Plaintiffs are pressing their claim under the provisions of Order
XXXVI of the Code. However, as the submissions of the rival parties
progressed it became apparent that Plaintiffs’ claim is required to be
considered under the provisions of Order XIII-A of the Code. To achive
more clarity, it would be profitable to make reference to the order passed by
the City Civil Court on November 22, 2019 when Unregistered Summons for
Judgment was filed by Plaintiffs under the provisions of Order XXXVII of the
Code. The order reads thus:
“1 Heard Adv. Yasmin Tavaria for plaintiff. She has drawn my
attention to Order 13-A of Code of Civil Procedure that any party can
apply for summary judgment after summons has been served on the
defendant. The defendant has been duly served with writ of
summons. On perusal of roznama Adv. Asha Kanzariya i/b Adv.
Upadhyay appeared and filed undertaking to file vakalatnama on
behalf of defendant.
2 As per sub rule 2 of Order 13-A the stage for application for
summary judgment is provided that an applicant may apply for
summary judgment at any time after summons has been served on
defendant. The writ of summons is served on defendant. The
advocate of the defendant has filed an undertaking to file
k 9/20 wp_10573.22_as.doc
vakalatnama behalf of defendant. Hence leave granted to the plaintiff/
applicant to register summary judgment.”
12 Thus, as per order dated November 22, 2019, Plaintiffs’ application
came to be numbered as the one for Summary Judgment under the
provisions of Order XIII-A of the Code. Therefore, the provisions of Order
XXXVII of the Code would not be directly relevant while examining
correctness of the impugned order dated August 11, 2021 passed by the
City Civil Court. Though Mr Jain concedes to this position, he further adds
that the broad principles applicable for grant of leave to defend in summary
suits under Order XXXVII Rule 3 as enunciated in IDBI Trustee-ship
Services Limited vs. Hubtown Ltd. (supra) would continue to apply even
to Summary Judgment in commercial suits, as the provisions in Order XIII-A
merely broaden what was already provided for in Order XXXVII.
13 Now that a clarity is achieved about the exact provision of the Code
under which application was filed for Summary Judgment, the objection
raised by Mr. Davar about maintainability of Plaintiffs’ application under
Order XIII-A of the Code needs to be determined. Relying on provisions of
sub-rule (3) of Rule 1 of Order XIII A of the Code, Mr. Davar has contended
that since the suit was initially filed as a summary suit, the provisions of
k 10/20 wp_10573.22_as.doc
Order XIII-A of the Code would have no application to Plaintiffs’ suit. Sub-
rule (3) of Rule 1 of Order XIII A of the Code reads thus:
“(3) Notwithstanding anything to the contrary, an application for
summary judgment under this Order shall not be made in a suit in
respect of any Commercial Dispute that is originally filed as a
summary suit under Order XXXVII.”
14 Here again, there is some degree of dispute as to whether the suit
was initially filed as a summary suit or not. It was undoubtedly presented as
a summary suit. It was however registered as Commercial Suit by the Court
on its own. Whether act of ‘presentation’ would amount to ‘filing’ within the
meaning of sub-rule 3 of Rule 1 of Order XIII A of the Code will have to be
decided. Undoubtedly sub-rule 3 of Rule 1 of Order XIII A of the Code uses
the word ‘filed’, and not ‘presented’ or ‘registered’. I could have proceeded
to determine this controversy, however, I find that it is not necessary to do
so. Assuming that plaintiffs’ suit is initially filed as a summary suit under
Order XXXVII of the Code, thereby taking it out of ambit of provisions of
Order XIII-A of the Code, would it’s subsequent conversion as commercial
suit entail loss of both the rights viz. (i) to seek summary judgment under
Order XIII-A as well as (ii) pronouncement of judgment under Order XXXVII,
Rule 3 of the Code?. To paraphrase, would conversion of summary suit into
a commercial suit would put a Plaintiff in a disadvantageous position where
he loses right to seek pronouncement of judgment under Order XXXVII,
k 11/20 wp_10573.22_as.doc
Rule 3 of the Code as well as attracts the bar for seeking summary
judgment under sub rule 3 of Rule 1 of Order XIII A of the Code?
15. Through Mr. Dawar strenuously pressed his objection about non-
applicability of provisions of Order XIII-A to Plaintiff’s application, upon
being confronted with the above conundrum, he fairly concedes to the
position that a Plaintiff in summary suit cannot be put to a disadvantageous
position merely because his summary suit is converted into a commercial
suit. The objective behind incorporating provision of sub-rule 3 of Rule 1 of
Order XIII A of the Code is to prevent Plaintiff who once attempts
pronouncement of judgment under Order XXXVII Rule 3 of the Code and
upon conversion of his summary suit into commercial one, seeks to have
another bite at the cherry by seeking pronouncement of judgment under
Order XIII-A of the Code. The provisions of sub-rule 3 of Rule 1 of Order
XIII A cannot be interpreted to mean that Plaintiff in a summary suit which is
converted into commercial suit would loose both rights of pronouncement of
judgment under Order XXXVII Rule 3 of the Code as well as seeking
summary judgment under Order XIII A of the Code. Thus, the objection
about non-maintainability of application for Summary Judgment filed by the
Petitioners is repelled.
16 Turning to the merits of the Order passed by the City Civil Court
rejecting application for Summary Judgment, Mr. Jain has made strenuous
efforts to demonstrate that Plaintiffs’ claim stands admitted and that there is
no probable defence available to Defendant. He has placed reliance on the
judgment of Single Judge of Delhi High Court Su-Kam Power Systems
Limited (supra) in which the object and purpose of introducing special
provision under Commercial Courts Act for summary judgment has been
discussed. It is held in paragraphs 39, 40, 44, 45, 48, 49, 50 and 52 as
“39. The Commercial Courts Act, 2015 has been enacted with
the intent to improve efficiency and reduce delay in disposal of
commercial cases. The relevant portion of the Statement of Objects
and Reasons of the Commercial Courts Act, 2015 is reproduced
“to have a streamlined procedure which is to be adopted
for the conduct of cases in the Commercial Courts and in
the Commercial Divisions by amending the Code of Civil
Procedure 1908, so as to improve the efficiency and
reduce delays in disposal of commercial cases. The
proposed case management system and provisions for
summary judgment will enable disposal of commercial
disputes in a time bound manner.
40. Amended Order XIIIA of CPC, as applicable to commercial
disputes, enables the Court to decide a claim or part thereof without
recording oral evidence. Order XIIIA of CPC seeks to avoid the long
drawn process of leading oral evidence in certain eventualities.
Consequently, the said provision enables disposal of commercial
disputes in a time bound manner and promotes the object of the
44. While deciding the test for summary judgment under Rule
24.2, House of Lords in Three Rivers District Council and Others vs.
Governor and Company of the Bank of England, [2003] 2 A.C.1,
reiterated the observation in Swain v Hillman, [2001] 1 All ER 91 that
the word ‘real' distinguishes ‘fanciful' prospects of success and it
directs the Court to examine whether there is a ‘realistic' as opposed
to a ‘fanciful' prospect of success. The House of Lords in Three
Rivers District Council (supra) also held that the Court while
considering the words ‘no real prospect' should look to see what will
happen at the trial and that if the case is so weak that it has no
reasonable prospect of success, it should be stopped before great
expenses are incurred. … … … ”
45. The Supreme Court of Canada in Robert Hryniak v. Fred
Mauldin, 2014 SCC OnLine Can SC 53 has also held that trial should
not be the default procedure. In the said case, which was an action
for civil fraud against the appellant and a corporate lawyer, who acted
for the appellant, the allegation was that the appellant, through that
company, had transferred more than US $10 million to an offshore
bank following which he claimed that the money had been stolen.
That money had initially been transferred to the appellant‟s company,
by the respondents therein, in respect of an investment opportunity.
48. In fact, the Federal Court Ottawa, Ontario in Louis Vuitton
Malletier S.A. v. Singga Enterprises (Canada) Inc., 2011 FC 776 and
High Court of Ireland in Abbey International Finance Ltd. v. Point
Ireland Helicopters Ltd. [2012] IEHC 374, have held that even
damages as well as unliquidated compensation can be awarded by
way of summary judgment. … … …”
49. Consequently, this Court is of the view that when a
summary judgment application allows the Court to find the necessary
facts and resolve the dispute, proceeding to trial would generally not
be proportionate, timely or cost effective. It bears reiteration that the
standard for fairness is not whether the procedure is as exhaustive as
a trial, but whether it gives the Court the confidence that it can find
the necessary facts and apply the relevant legal principles so as to
resolve the dispute as held in Robert Hryniak (supra).
50. In fact, the legislative intent behind introducing summary
judgment under Order XIIIA of CPC is to provide a remedy
independent, separate and distinct from judgment on admissions and
summary judgment under Order XXXVII of CPC.
52. Consequently, this Court is of the opinion that there will be
‘no real prospect of successfully defending the claim' when the Court
is able to reach a fair and just determination on the merits of the
application for summary judgment. This will be the case when the
process allows the court to make the necessary finding of fact, apply
the law to the facts, and the same is a proportionate, more
expeditious and less expensive means to achieve a fair and just
result.”
17 No doubt Commercial Court is required to pronounce summary
judgment in the event it finds that there would be no real prospect of the
Defendant successfully defending the claim. It is, therefore, necessary to
examine whether there is a possibility of Defendant in the present case
defending the claim.
18 True it is that Defendant failed to file reply to the Application seeking
Summary Judgment. However, Written Statement of Defendant has been
filed and taken on record. Therefore, defences raised to the claim of the
Plaintiffs are available for consideration. Defendant has raised defence of
limitation in its Written Statement. Majority of events leading to filing of the
suit have taken place in the year 2015. The first Bill of Exchange was
issued on May 27, 2015 with due date as June 26, 2015. The alleged
promise to repay the loan amount was made by Defendant in the form of
letter dated August 5, 2015. On the same day, Defendant issued two
cheques dated October 30, 2015, Rs.50,00,000/- towards principal amount
and Rs.2,33,333/- towards interest. The second Bill of Exchange was
k 15/20 wp_10573.22_as.doc
issued on October 30, 2015. In their notice dated June 28, 2019 Plaintiffs
have disclosed the date of dishonor of the cheques as November 2, 2015.
After these events of the year 2015, there is a long hiatus for about 4 years
and the claim for repayment of loan amount was raised by the Plaintiffs by
issuing notice dated June 28, 2019.
19 Mr. Davar has contended that the period of limitation would
commence either from ‘due date’ or atleast from the date of dishonor of
cheques. Mr. Jain would contend that the Bills of Exchange were payable
‘on demand’ and such demand was raised by Plaintiffs on June 28, 2019. In
this connection reliance is placed on judgment of this Court in Bank of
India (supra). Plaintiffs deposited the cheques and according to Mr. Davar
deposit of cheques would itself constitute ‘demand’. I do not wish to record
any findings on these contentions at this stage as doing that may affect the
mind of the City Civil Court while deciding the issue of limitation. Suffice it to
state at this juncture that a triable issue does exist atleast on the point of
20 The City Civil Court has held requirement of possession of lending
license under section 13(1) the Maharashtra Money-Lending (Regulation)
Act 2014 as a triable issue. However, Mr. Davar has once again fairly
conceded that the since suit is based on Bills of Exchange, the same would
k 16/20 wp_10573.22_as.doc
not be hit by the provisions of section 13(1) of the Act of 2014. However,
there are other issues especially with regard to limitation, which in my view
would not put the claim of Plaintiffs as the one which is impossible of being
defended or zero prospect of Defendant successfully defending the same.
21 I am therefore of the view that the present case would not be covered
by eventuality of clause (a) of Rule 3 of Order XIII A of the Code where this
court is in a position to record a finding with degree of certainty that
Defendant has no real prospect of successfully defending the claim.
Therefore, no case was made out for City Civil Court to pronounce a
summary judgment on the claim of Plaintiffs under Order XIII Rule 6 of the
22 This leads me to the alternative submission made by Mr. Jain that
even if summary judgment could not have been pronounced on Plaintiffs’
claim, the City Civil Court could have atleast made a conditional order under
Order XIII-A, Rule 7 of the Code, which read thus:
“6. Orders that may be made by Court. —(1) On an application
made under this Order, the Court may make such orders that it may
deem fit in its discretion including the following:—
(a) judgment on the claim;
(b) conditional order in accordance with Rule 7 mentioned
(c) dismissing the application;
(d) dismissing part of the claim and a judgment on part of the
claim that is not dismissed;
(e) striking out the pleadings (whether in whole or in part); or
(f) further directions to proceed for case management under
(2) Where the Court makes any of the orders as set forth in
sub-rule (1)(a) to (f), the Court shall record its reasons for
making such order.
7. Conditional order. —(1) Where it appears to the Court that
it is possible that a claim or defence may succeed but it is
improbable that it will do so, the Court may make a conditional
order as set forth in Rule 6(1)(b) above.
(2) Where the Court makes a conditional order, it may:—
(a) make it subject to all or any of the following conditions:—
(i) require a party to deposit a sum of money in the Court;
(ii) require a party to take a specified step in relation to
the claim or defence, as the case may be;
(iii) require a party, as the case may be, to give such
security or provide such surety for restitution of costs as
the Court deems fit and proper;
(iv) impose such other conditions, including providing
security for restitution of losses that any party is likely to
suffer during the pendency of the suit, as the Court may
deem fit in its discretion; and
(b) specify the consequences of the failure to comply with the
conditional order, including passing a judgment against the
party that have not complied with the conditional order.”
23 Thus again, sine qua non for making a conditional order under Order
XIII A, Rule 7 of the Code, is arrival of a conclusion by commercial court
that there is a possibility of the claim succeeding. Passing of conditional
k 18/20 wp_10573.22_as.doc
order again requires the same rigor of making out a case of zero possibility
of defendant raising any plausible defence. As urged by Mr. Jain, let me
now examine whether the Court could have made an order of conditional
leave to defend by taking into consideration the broad principles enunciated
by the Apex Court in Hubtown Ltd. (supra). The principles enunciated are
17. Accordingly, the principles stated in para 8 of Mechelec
case [Mechelec Engineers & Manufacturers v. Basic Equipment
Corpn., (1976) 4 SCC 687] will now stand superseded, given the
amendment of Order 37 Rule 3 and the binding decision of four
Judges in Milkhiram case [Milkhiram (India) (P) Ltd. v. Chamanlal
Bros., AIR 1965 SC 1698 : (1966) 68 Bom LR 36] , as follows:
17.1. If the defendant satisfies the court that he has a substantial
defence, that is, a defence that is likely to succeed, the plaintiff is not
entitled to leave to sign judgment, and the defendant is entitled to
unconditional leave to defend the suit.
17.2. If the defendant raises triable issues indicating that he has a
fair or reasonable defence, although not a positively good defence,
the plaintiff is not entitled to sign judgment, and the defendant
is ordinarilyentitled to unconditional leave to defend.
17.3. Even if the defendant raises triable issues, if a doubt is left
with the trial Judge about the defendant's good faith, or the
genuineness of the triable issues, the trial Judge may impose
conditions both as to time or mode of trial, as well as payment into
court or furnishing security. Care must be taken to see that the object
of the provisions to assist expeditious disposal of commercial causes
is not defeated. Care must also be taken to see that such triable
issues are not shut out by unduly severe orders as to deposit or
security.
17.4. If the defendant raises a defence which is plausible but
improbable, the trial Judge may impose conditions as to time or mode
of trial, as well as payment into court, or furnishing security. As such a
defence does not raise triable issues, conditions as to deposit or
security or both can extend to the entire principal sum together with
such interest as the court feels the justice of the case requires.
17.5. If the defendant has no substantial defence and/or raises no
genuine triable issues, and the court finds such defence to be
frivolous or vexatious, then leave to defend the suit shall be refused,
and the plaintiff is entitled to judgment forthwith.
17.6. If any part of the amount claimed by the plaintiff is admitted
by the defendant to be due from him, leave to defend the suit, (even if
triable issues or a substantial defence is raised), shall not be granted
unless the amount so admitted to be due is deposited by the
defendant in court.
Thus in the event of the defendant satisfying the court that it has (i)
substantial defence, that is, a defence that is likely to succeed or (ii) fair or
reasonable defence, although not a positively good defence, plaintiff would
not be entitled for pronouncement of judgment and defendant would get a
unconditional leave to defend. Even for making a conditional order of leave
to defend any of the following eventualities must exist (i) defendant raises
triable issues, and a doubt is left with the trial Judge about the defendant's
good faith, or the genuineness of the triable issues (ii) defence is plausible
but improbable or (iii) where any part of the amount claimed by the plaintiff
is admitted by the defendant to be due from him. Applying above
k 20/20 wp_10573.22_as.doc
parameters to the present case, it cannot be said that the plaintiff made out
a case for pronouncement of judgment or even for a conditional order of
leave to defend. The defence of defendant inter alia on the point of
limitation is substantial one considering the fact that plaintiffs demanded the
amount by depositing cheques in November 2015. Plaintiffs contend that
the defendant requested for deferring the demand, which is required to be
proved by adducing evidence as the alleged request is not in the form of a
written communication. Thus, it is not possible to record a finding at this
juncture that there is certain possibility of success of claim of plaintiffs. To
arrive at such that finding, process of trial may have to be undertaken.
Therefore, even making of a conditional order under Rule 6(1)(b) of Order
XIII A of the Code is not warranted.
24 Resultantly, I do not find any error being committed by the City Civil
Court in passing the impugned order. The Petition is devoid of merits. It is
dismissed without any orders as to costs. | The Bombay High Court recently held that the application for summary judgment before the Civil Court under Order 13-A of the CPC by a person, whose summary suit is converted to commercial suit, is maintainable.
Justice Sandeep V. Marne held that such conversion would not cause the petitioner to lose both right to seek summary judgment under Order 13-A and pronouncement of judgment under Order 37 Rule 3.
“The provisions of sub-rule 3 of Rule 1 of Order XIII A cannot be interpreted to mean that Plaintiff in a summary suit which is converted into commercial suit would loose both rights of pronouncement of judgment under Order XXXVII Rule 3 of the Code as well as seeking summary judgment under Order XIII A of the Code”, the court held.
Order 13-A Rule 1(3) CPC provides that application for summary judgment cannot be made in a commercial dispute originally filed as a summary suit under Order 37.
The court observed that the purpose of Order 13-A Rule 1(3) is "to prevent Plaintiff who once attempts pronouncement of judgment under Order XXXVII Rule 3 of the Code and upon conversion of his summary suit into commercial one, seeks to have another bite at the cherry by seeking pronouncement of judgment under Order XIII-A of the Code."
The court was dealing with writ petition against Civil Court’s refusal to grant summary judgment in a commercial suit.
The petitioners are the plaintiffs in the suit for recovery of money with interest against the respondent/defendant. The petitioner-firm claimed that in 2015, it gave the respondent a loan of Rs. 50 lakhs. Respondent executed a bill of exchange in favour of the petitioners. He also issued two post-dated cheques for principal amount as well as the interest of Rs. 2,33,333/- respectively. Later the same year, he executed another bill of exchange for Rs. 50 lakhs. The cheques were dishonoured due to “insufficient funds”.
The petitioners issued a notice demanding the dues with interest. The respondent objected and claimed that the petitioners did not possess licence under the Maharashtra Money Lending (Regulations) Act, 2014.
The petitioners presented a summary suit under Order 37 of the CPC before the Civil Court. However, it was registered as a Commercial Suit. The Civil Court rejected the application for summary judgment holding that there are triable issues in the suit hence the present petition.
Advocate Darshit Jain for the petitioners submitted that non-possession of money lenders licence is not a requirement for suit based on bills of exchange. Since the petitioners’ claim is admitted by the respondent, civil court should have pronounced judgement or at least passed a conditional order, he said.
Advocate Anoshak Davar for the respondent submitted that the suit was barred by limitation. Reliance on petitioners’ own books of accounts cannot be construed as an admission by the respondent who never confirmed it. Further, he objected to the maintainability of the application for summary judgment and said that since the suit was initially filed as a summary suit, Order 13-A of the CPC will not apply.
The court noted that though the suit was presented as a summary suit, it was originally registered as a commercial suit by the civil court on its own.
Order 13-A Rule 1(3), cannot be interpreted to entail the loss of both rights as that would put plaintiff in a disadvantageous position, the court said.
Thus, the court held that petitioners application for summary judgment before the Civil Court is maintainable.
As per Order 13-A Rule 3(a), if there is no reasonable prospect of the defendant’s success, Civil Court may allow the claim by pronouncing a summary judgment without recording oral evidence.
The respondent conceded that since the suit is based on bills of exchange, it would not be hit by section 13(1) of the Money Lending Act which provides for dismissal of a suit by a money-lender without licence.
The court noted most of the relevant events took place in 2015. The cheques were also dishonoured in 2015. After a gap of 4 years the repayment claim was a raised by the petitioners in 2019. Therefore, a triable issue exists on the point of limitation, the court held.
Hence, no case is made out for summary judgment and the present case would not be covered by Order 13A Rule 3(a), the court held.
The court noted the Civil Court is required to conclude that there is a possibility of the claim succeeding in order to pass conditional order under Order 13-A Rule 7.
“The defence of defendant inter alia on the point of limitation is substantial one considering the fact that plaintiffs demanded the amount by depositing cheques in November 2015. Plaintiffs contend that the defendant requested for deferring the demand, which is required to be proved by adducing evidence as the alleged request is not in the form of a written communication. Thus, it is not possible to record a finding at this juncture that there is certain possibility of success of claim of plaintiffs”, the court held.
Therefore, no case is made out for passing a conditional order, the court concluded and dismissed the petition.
Case no. – Writ Petition No. 10573 of 2022
Case Title – M/s. Ashok Commercial Enterprises and Anr. v. Rajesh Jugraj Madhani |
Through: Mr. Anuj Garg, Advocate for JD-2
1. This hearing has been done through hybrid mode.
2. The present application has been filed on behalf of the
Applicant/Decree-Holder-Ms. Himani Walia seeking waiver of payment of
stamp duty in respect of the assets inherited by the various parties from the
estate of Late Sh. S.S. Walia and his sister Dr. Urmila Walia. Further, the
Applicant seeks cancellation of the notice dated 14th February, 2022
received from the Registry of the High Court of Delhi, as also notice dated
3rd March 2022 received from the Office of the Assistant Collector (Kalkaji),
3. The suit seeking partition and other reliefs, being CS (OS) No.
442/2018, was filed before this Court by the legal heirs of Late Sh. S.S.
Walia who had passed away on 10th December, 2017. The deceased had a
large number of moveable and immovable assets which included the
business of a petrol station, export business, various immovable properties
in prime localities in Delhi and Noida, fixed deposit receipts and bank
accounts, paintings, antiques, artworks, shares in various companies and
vehicles, etc. During the pendency of the suit itself, the three children and
the wife of the deceased with the assistance of their Counsels had arrived at
a settlement. Thereafter, the terms of settlement were incorporated into the
‘Memorandum of Family Settlement and Arrangement’ dated 16th October,
4. Thus, the settlement which was agreed upon by the parties had merely
been put into writing in the said ‘Memorandum of Family Settlement and
Arrangement’ dated 16th October, 2018. The said family settlement was
approved and a decree in terms thereof was passed by this Court, vide order
dated 16th October, 2018. The relevant portion of the said the family
settlement and order, which clearly reflect that the parties had orally agreed
to partition and the manner thereof, are set out below:
‘Memorandum of Family Settlement and
Arrangement’ dated 16th October, 2018:
“AND WHEREAS for the sake of records and to serve
as an aid memoir, the parties hereto have decided to
execute these presents to reduce the decisions taken by
them with regard to the inter se distribution and
allocation of the property and assets in writing.”
“3. She has thereafter travelled to India along with her
child and has been staying here since then. The parties,
along with the assistance of their counsels have arrived
at a settlement which is recorded in the ‘Memorandum
of family settlement and agreement dated 16th October,
5. It appears that in order to prepare the decree sheet, the Registry of this
Court has directed furnishing of valuation reports of the assets for the
purpose of calculating the stamp duty. Thus, the present application has been
filed by the Applicant seeking waiver of payment of stamp duty and
cancellation of the notices.
6. It is submitted by ld. Counsel for the parties that similar notices have
been received by all the other legal heirs as well. In addition, various
Collector’s offices have already issued notices in respect of the stamp duty
7. It must be noted here that the legal heirs of the deceased persons
became part owners of the assets belonging to the two deceased individuals
i.e., Mr. S.S. Walia and Dr. Urmila Walia, immediately upon their demise.
The said assets were not transferred to the legal heirs, but have been
inherited by them upon the demise of Mr. S.S. Walia and Dr. Urmila Walia.
The ‘Memorandum of Family Settlement and Arrangement’ dated 16th
October, 2018, is merely a recordal of the oral agreement as to the mode and
manner of partition. Therefore, it is in the nature of a family settlement
which was arrived at between the parties. The partition had been agreed
upon between the parties by way of oral agreement with the intervention of
their counsels. The memorandum of settlement does not itself partition the
properties, but only records the same as an aid of memory.
8. The issue of registration of family settlements is no longer res integra.
If an understanding has been arrived at between the parties previously, and it
is only written down in a document after the settlement has been arrived at,
the same would not require registration. This is the settled position of law as
is clear from Kale & Ors. v. Deputy Director of Consolidation & Ors. [3
(1976) 3 SCC 119]. Taking into account the decision in Kale (supra), the
Supreme Court in a subsequent judgment in Sita Ram Bhama v. Ramvatar
Bhama [AIR 2018 SC 3057] has settled this position of law by holding as
“10. The only question which needs to be considered in
the present case is as to whether document dated
09.09.1994 could have been accepted by the trial court in
evidence or trial court has rightly held the said document
inadmissible. The Plaintiff claimed the document dated
09.09.1994 as memorandum of family settlement.
Plaintiff's case is that earlier partition took place in the
life time of the father of the parties on 25.10.1992 which
was recorded as memorandum of family settlement on
09.09.1994. There are more than one reasons due to
which we are of the view that the document dated
09.09.1994 was not mere memorandum of family
settlement rather a family settlement itself. Firstly, on
25.10.1992, the father of the parties was himself owner
of both, the residence and shop being self-acquired
properties of Devi Dutt Verma. The High Court has
rightly held that the said document cannot be said to be a
Will, so that father could have made Will in favour of his
two sons, Plaintiff and Defendant. Neither the Plaintiff
nor Defendant had any share in the property on the day
when it is said to have been partitioned by Devi Dutt
Verma. Devi Dutt Verma died on 10.09.1993. After his
death Plaintiff, Defendant and their mother as well as
sisters become the legal heirs under Hindu Succession
Act, 1955 inheriting the property being a class I heir.
The document dated 09.09.1994 divided the entire
property between Plaintiff and Defendant which
document is also claimed to be signed by their mother as
well as the sisters. In any view of the matter, there is
relinquishment of the rights of other heirs of the
properties, hence, courts below are right in their
conclusion that there being relinquishment, the document
dated 09.09.1994 was compulsorily registrable Under
Section 17 of the Registration Act.
11. Pertaining to family settlement, a memorandum of
family settlement and its necessity of registration, the law
has been settled by this Court. It is sufficient to refer to
the judgment of this Court in Kale and Ors. v. Deputy
Director of Consolidation and Ors.
propositions with regard to family settlement, its
registration were laid down by this Court in paragraphs
10. 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
(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
(2) The said settlement must be voluntary and
should not be induced by fraud, coercion or undue
(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 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 prepared after the family
arrangement had already been made either for the
purpose of the record or for information 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 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 owner, then the antecedent title must
be assumed and the family arrangement will be
upheld and the courts will find no difficulty in
(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.
11. 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.
12. We are, thus, in full agreement with the view taken by
the trial court as well as the High Court that the
document dated 09.09.1994 was compulsorily
registrable. The document also being not stamped could
not have been accepted in evidence and order of trial
court allowing the application Under Order XII Rule 3
Code of Civil Procedure and the reasons given by the
trial court in allowing the application of the Defendant
holding the document as inadmissible cannot be
faulted.”
9. The Division Bench of this Court has held in Nitin Jain v. Anuj Jain
& Anr. [ILR (2007) II DELHI 271] that a memorandum recording an oral
family settlement which has already taken place is not an instrument
dividing or agreeing to divide property and is therefore, not required to be
stamped. The relevant observations from the said judgment have been
“6. A Partition Deed is an instrument of partition and
has been defined in Section 2(15) of the Stamp Act. The
said investment is chargeable to duty as per Schedule 1.
Article 45 of the Stamp Act. Stamp duty payable on an
instrument of partition is @ 1% of the value of the
property. A decree of partition passed by a Court is also
an instrument of partition as defined in Section 2(15) of
the Stamp Act, which reads as under:
"2(15). "Instrument of partition" means any
instrument whereby co-owners of any property
divide or agree to divide such property in severalty,
and includes also a final order for effecting a
partition passed by any revenue-authority or any
Civil Court and an award by an arbitrator directing
7. However, Courts have recognised oral partitions in
cases of joint families. An oral partition is not an
instrument of partition as contemplated under Section
2(15) of the Stamp Act. Therefore, as it is not an
instrument. on an oral partition no stamp duty is
payable.
8. The Courts have recognised that it is legally
permissible to arrive at an oral family settlement
dividing/partitioning the properties and thereafter record
a memorandum in writing whereby the existing joint
owners for the sake of prostriety record that the property
has been already partitioned or divided. The
memorandum does not by itself partition the properties
but only records for information what has already been
done by oral partition. The memorandum itself does not
create or extinguish any rights. A record of oral partition
in writing is created. The writing records a pre existing
right and does. not by itself partition the properties for
the first time. As the memorandum only records oral
partition which has already taken place but does not in
praesenti create any right, it cannot be treated as an
instrument creating B partition. [Refer. Tek Bahadur
Bhujil v. Debi Singh Bhujil and others reported in AIR
1966 SC 292), Bakhtawar Singh v. Gurdev Singh
reported in (1996) 9 SCC 370, Kale v. Dy. Director of
Consolidation reported in (1976) 3 SCC 119, Roshan
Singh v. Zile Singh reported in AIR 1988 SC 881 and
Bachan Singh v. Kartar Singh and others reported in
9. In view of the legal position explained above. it
follows that a decree of partition is an instrument of
partition and therefore is required to be stamped under
Schedule I of Article 45 r/w Section 2(15) of the Stamp
Act. However, an oral family settlement dividing or
partitioning the property is not D required to be
stamped. Similarly, a memorandum recording an oral
family settlement which has already taken place is not an
instrument dividing or agreeing to divide property and is
therefore not required to be stamped.”
10. Thus, it is clear that family settlements are not required to be
compulsorily registered, and stamp duty is not required to be compulsorily
paid in respect of the same, when the settlement has been arrived at initially
as an oral partition and is thereafter put into writing for the purpose of
information. Considering the said position, it is clarified that there is no
requirement of valuation of the suit properties in the present case. The
payment of stamp duty by the legal heirs of Late Sh. S.S. Walia and Dr.
Urmila Walia shall stand waived. Notices issued by the various authorities
shall also stand cancelled and withdrawn, without any further orders.
11. Decree sheet be drawn by the Registry, within a period of eight
weeks, and compliance be reported. Accordingly, EX.APPL.(OS) 338/2022
is disposed of, in the above terms.
12. List on 9th May, 2022, the date already fixed.
(corrected & released on 28th March, 2022) | The Delhi High Court has observed that there is no requirement to compulsorily register family settlements and to pay stamp duty for the same when such settlement is initially arrived at as an oral partition, however, later is put into writing for the purpose of information. "The partition had been agreed upon between the parties by way of oral agreement with the intervention of their...
The Delhi High Court has observed that there is no requirement to compulsorily register family settlements and to pay stamp duty for the same when such settlement is initially arrived at as an oral partition, however, later is put into writing for the purpose of information.
"The partition had been agreed upon between the parties by way of oral agreement with the intervention of their counsels. The memorandum of settlement does not itself partition the properties, but only records the same as an aid of memory," Justice Pratibha M Singh observed.
The Court was dealing with an application in a partition suit seeking waiver of payment of stamp duty in respect of the assets inherited by the various parties from the estate in question.
Further, the application also sought cancellation of the notice dated 14th February, 2022 received from the Registry of the High Court and the notice dated 3rd March 2022 received from the Office of the Assistant Collector.
The suit seeking partition and other reliefs was filed before the High Court by the legal heirs of one Late Sh. S.S. Walia who had passed away on 10th December, 2017.
During the pendency of the suit itself, the three children and the wife of the deceased with the assistance of their Counsels had arrived at a settlement. Thereafter, the terms of settlement were incorporated into the 'Memorandum of Family Settlement and Arrangement' dated 16th October, 2018.
The said family settlement was approved and a decree in terms thereof was passed by the Court, vide order dated 16th October, 2018.
However, in order to prepare the decree sheet, the High Court Registry had directed furnishing of valuation reports of the assets for the purpose of calculating the stamp duty. Thus, the application sought waiver of payment of stamp duty and cancellation of the notices.
"The 'Memorandum of Family Settlement and Arrangement' dated 16th October, 2018, is merely a recordal of the oral agreement as to the mode and manner of partition. Therefore, it is in the nature of a family settlement which was arrived at between the parties. The partition had been agreed upon between the parties by way of oral agreement with the intervention of their counsels. The memorandum of settlement does not itself partition the properties, but only records the same as an aid of memory," the Court noted.
The Court noted that its a settled position of law that if an understanding has been arrived at between the parties previously, and it is only written down in a document after the settlement has been arrived at, the same would not require registration. Reliance was placed on Supreme Court's judgment in Kale & Ors. v. Deputy Director of Consolidation & Ors., (1976) 3 SCC 119.
Therefore, the Court concluded that there was no requirement of valuation of the suit properties in the present case.
"The payment of stamp duty by the legal heirs of Late Sh. S.S. Walia and Dr. Urmila Walia shall stand waived. Notices issued by the various authorities shall also stand cancelled and withdrawn, without any further orders," the Court ordered.
The application was disposed of accordingly.
Case Title: HIMANI WALIA v. HEMANT WALIA & ORS. |
2. The present appeal is directed against the judgment and order
dated 01.02.2018 passed by the High Court of Judicature at Patna
in LPA No. 2035 of 2016, whereby the High Court has dismissed
the appeal filed by the Appellant-Bank and confirmed the order
passed by the Single Bench.
respondent while posted as a Branch Manager at Marufganj
Branch and at various other branches, was found to have
committed various lapses, in respect of which he was suspended
on 14.06.1993 in terms of Rule 50A(i)(a) of SBIOSR, 1992. On the
departmental proceedings having been conducted against him, the
Inquiry Authority had submitted its report on 09.03.1998, whereby
some of the allegations were found to be proved and some were
found to be partly proved. The Disciplinary Authority agreed with
some of the findings recorded by the Inquiry Authority and called
upon the respondent to make his submissions on the same.
However thereafter the matter was sent to the Appointing Authority,
which imposed the penalty of “Dismissal from Service” as per the
order dated 11.08.1999.
4. The respondent being aggrieved by the said order had filed a Writ
Petition being no. 2739 of 2000 before the High Court which came
to be allowed by the Single Bench vide order dated 26.03.2003.
The Appellant-Bank aggrieved by the said order had filed an LPA
being no. 378 of 2003. On 09.05.2003, the Division Bench stayed
the implementation of the order dated 26.03.2003 passed by the
Single Bench, however finally dismissed the said LPA vide order
dated 22.04.2010. In the meantime, the respondent attained the
age of superannuation on 30.11.2009. The Appellant-Bank having
filed SLP (C) No. 16541 of 2010 challenging the order dated
22.04.2010 passed by the Division Bench, the same came to be
allowed by this Court on 25.11.2013. While allowing the SLP, this
Court observed as under:
“10. We have heard learned counsel for the parties to
the lis.
11. The Writ Court while deciding the writ petition filed
by the respondent against the orders passed by the
Appointing Authority had followed the dicta of this
court wherein it is said that the person who hears the
matter should necessarily pass an order. The Division
Bench of the High Court in its judgment has referred
to the subsequent decisions of this Court. In our
opinion, we need not have to refer to those decisions.
It is now a well settled principle that the person who
hears the matter requires to pass an order.
12. Since, that is the view of the Learned Single
Judge, we are of the opinion that such a view cannot
be taken exception to by us. However, the Division
Bench while rejecting the Letters Patent Appeal filed
by the appellant-bank has made certain observations
which in our opinion, would not arise in the matter of
this nature. Therefore, we cannot sustain the
judgment and order passed by the Division Bench of
the High Court.
13. In the result, we allow this appeal and set aside
the judgment and order passed by the Division Bench
of the High Court in Letters Patent Appeal No.378 of
2003. Since we are told that the delinquent officer has
already retired from service on attaining the age of
superannuation, we now direct the Appointing
Authority to take appropriate decision as expeditious
as possible, at any rate within two months from the
receipt of copy of this order.
14. All the contentions of all the parties are kept open.
Ordered accordingly.”
5. In view of the above order passed by this Court, the Appointing
Authority issued a show-cause notice to the respondent on
06.02.2014, to which the respondent submitted his response on
10.02.2014. The Appointing Authority after granting personal
hearing to the respondent on 14.02.2014, passed an order on
17.02.2014 imposing upon the respondent the penalty of
“Dismissal from Service” in terms of Rule 67(J) of SBISOR w.e.f.
11.08.1999 and treating his period of suspension as not on duty.
6. Being aggrieved by the said order passed by the Appointing
Authority, the respondent filed Departmental appeal before the
Appellate Authority on 24.02.2014, which came to be dismissed on
09.08.2014. The respondent therefore again approached the High
Court by way of filing CWJC No. 10192 of 2014. The Single Bench
of the High Court vide the order dated 22.08.2016 allowed the said
petition, and quashed and set aside the order of dismissal passed
by the Appellant-Bank and directed the Appellant-Bank to pay all
the consequential benefits i.e., arrears of salary and retiral benefits
within 3 months thereof. The aggrieved appellant-bank filed LPA
being no. 2035 of 2016 on 17.10.2016, which came to be
dismissed by the Division Bench vide the impugned order dated
7. The learned ASG Mr. Balbir Singh for the Appellant-Bank
vehemently submitted that the High Court had committed gross
error in confirming the order passed by the Single Bench, and in
misinterpreting the Rule 19(1) and 19(3) of the SBIOSR, 1992.
According to him, this Court in the first round of litigation had
allowed the appeal filed by the Appellant-Bank and set aside the
order passed by the Division Bench, and while observing that the
person who hears the matter requires to pass an order, had
directed the Appointing Authority to take appropriate decision
within 2 months, keeping all the contentions of the parties open.
The appointing authority, therefore had issued a show-cause
notice to the respondent and after giving him an opportunity of
hearing had passed the order of dismissal, which was wrongly set
aside by the Single Bench and by the Division Bench.
8. However, the learned counsel Mr. Kripa Shankar Prasad
appearing for the respondent submitted that an affirmative action
was expected to be taken by the Appellant-Bank in view of the
order passed by the Supreme Court on 25.11.2013, as the
respondent had already attained the age of superannuation
pending the proceeding before the High Court. He further
submitted in the said order the Supreme Court had set aside the
order of Division Bench, however had agreed with the view
expressed by the Single Bench that as per the settled legal
principle, the person who hears the matter is required to pass an
order. According to him, the Supreme Court had granted the liberty
only to the extent of directing the Appointing Authority to take
appropriate action in accordance with law as the respondent had
attained the age of superannuation. Under the circumstances, the
Appointing Authority was required to take steps either to extend
the service of the respondent in terms of Rule 19(1), or to continue
the disciplinary proceedings, even after the superannuation of the
respondent under Rule 19(3) of the Rules, however the Appellant-
Bank did not take recourse to any of the said rules. He further
submitted that the discretion to continue with the disciplinary
proceedings had to be exercised as an affirmative action by taking
a conscious decision, which the Appointing Authority of the
Appellant-Bank had failed to take, and on the contrary passed the
order of dismissal with retrospective effect which was not legally
permissible.
9. Since much reliance has been placed by the learned counsel
appearing for the respondent on Rule 19(1) and 19(3) of the
SBIOSR Rules, the same are reproduced for the sake of
convenience.
"19.(1) An officer shall retire from the service of the
Bank on attaining the age of fifty-eight years or upon
the completion of thirty years' service or thirty years'
pensionable service if he is a member of the Pension
Fund, whichever occurs first.
Provided that the competent authority may, at
its discretion, extend the period of service of an officer
who has attained the age of fifty-eight years or bas
completed thirty years' service or thirty years'
pensionable service as the case may be, should such
extension be deemed desirable in the interest of the
Bank, so however, that the service rendered by the
concerned officer beyond 58 years of age except to
the extent of the period of leave due at that time will
not count for purpose of pension.
Provided further that an officer who had joined
the service of the Bank either as an officer or
otherwise on or after July, 19, 1969 and attained the
age of 58 years shall not be granted any further
extension in service.
Provided further that an officer may, at the
discretion of the Executive Committee, be retired from
the Bank's service after he has attained 50 years of
age or has completed 25 years' service or 25 years'
pensionable service as the case may be, by giving
him three months' notice in writing or pay in lieu
Provided further that an officer who has
completed 20 years' service or 20 years' pensionable
service, as the case may be, may be permitted by the
competent authority to retire from the Bank's service,
subject to his giving three months' notice or pay in lieu
thereof unless this requirement is wholly or partly
waived by it.
19.(3) In case disciplinary proceedings under
the relevant rules of service have been initiated
against an officer before he ceases to be in the
Bank's service by I the operation of, or by virtue of,
any of the said rules or the provisions of these rules,
the disciplinary proceedings m'ay, at the discretion of
the Managing Director, be continued and concluded
by the authority by which the proceedings were
initiated in the manner provided for in the said rules
as if the officer continues to be in service, so however,
that he shall be deemed to be in service only for the
purpose of the continuance and conclusion of such
Explanation: An officer will retire on the last
day. of the month in which he completes the stipulated
service or age of retirement."
10. On the bare perusal of the said Rules it clearly transpires that as
per Rule 19(1) of the Rules, an officer could retire from the service
of the bank on attaining the age of 58 years or upon the
completion of 30 years’ service or 30 years’ of pensionable service
if he is a member of the Pension Fund whichever occurs first,
subject to the provisos mentioned therein. As per the Rule 19(3), in
case the disciplinary proceedings under the relevant rules of
service have been initiated against an officer before he ceases to
be in the Bank’s service by operation of, or by virtue of any of the
rules, the disciplinary proceedings may at the discretion of
Managing Director be continued and concluded, as if the officer
had continued to be in service. However, the officer in that case
shall be deemed to be in service only for the purpose of the
continuance and conclusion of such proceedings.
11. So far as the facts of the present case are concerned, the
disciplinary proceedings against the respondent were already
initiated and had stood concluded, culminating into dismissal from
service as per the order dated 11.08.1999 passed by the
Appointing Authority. The said order was challenged by the
respondent by filing the Writ Petition, which came to be allowed by
the Single Bench on 26.03.2009 whereby the order of dismissal
was set aside, nonetheless the Appellant-Bank having preferred
the LPA No. 378 of 2003, the Division Bench had stayed the
operation and implementation of the said order passed by the
Single Bench on 09.05.2003. The said LPA came to be dismissed
on 22.04.2010, in the meantime on 30.11.2009, the respondent
attained the age of superannuation i.e., during the time, when the
operation of the order of Single Bench was stayed. Thus, the order
of Single Bench setting aside the order of dismissal passed by the
Appointing Authority having been stayed by the Division Bench,
the respondent could not be deemed to have continued in service,
and also when he had attained the age of superannuation on
30.11.2009. Thereafter, the order of Division Bench dated
22.04.2010 passed in the LPA 378 of 2003 having been set aside
by this Court while allowing the appeal filed by the Appellant-Bank
vide the order dated 25.11.2013, again it could not be said that the
respondent was continued in service, till he attained the age of
superannuation.
12. The reliance placed by the learned counsel for the respondent on
Rule 19(3) of the Rules is also thoroughly misplaced in as much as
Rule 19(3) contemplates a situation, when the disciplinary
proceedings against a bank officer, have already been initiated,
and are pending when the officer ceases to be in the Bank’s
service, and in that case the Managing Director in his discretion
may continue and conclude the disciplinary proceedings against
the officer as if the officer continues to be in service. However, in
the instant case, there was no question of Managing Director
exercising such discretion under Rule 19(3) as the disciplinary
proceedings initiated against the respondent had already
culminated into his dismissal as per the order dated 11.08.1999
passed by the Appointing Authority. Though the said order of
dismissal was set aside by the Single Bench, the order of Single
Bench had remained stayed pending the LPA filed by the Bank;
and though the LPA was dismissed by the Division Bench, the said
order in LPA was set aside by this Court, observing that the person
who hears the matter has to decide it.
13. It was only pursuant to the direction given by this Court vide the
order dated 25.11.2013, the Appointing Authority was expected to
hear the respondent and pass appropriate order. This Court had
kept all the contentions of all the parties open. Hence the
Appointing Authority after issuing show-cause notice and granting
opportunity of hearing to the respondent had passed the order
imposing the penalty of “Dismissal from Service” w.e.f. 11.08.1999,
i.e., from the date when the first order of dismissal was passed by
the Appointing Authority. Since all the contentions were kept open
by this Court while allowing the appeal filed by the Appellant-Bank,
as such no affirmative action was expected from the Appellant-
Bank, as sought to be submitted by the learned counsel for the
respondent. The said order of Appointing Authority dismissing the
respondent from service after granting opportunity of hearing to
the respondent was in consonance with the direction given by this
Court and could not be said to be arbitrary illegal or in violation of
Rule 19(3) of the said Rules. The impugned order of the High
Court setting aside the said order of dismissal being under
misconception of facts and law deserves to be quashed and set
aside.
14. In that view of the matter the impugned order passed by the
Division Bench confirming the order passed by the Single Bench,
is hereby accordingly set aside. | The Supreme Court Bench comprising Justices Krishna Murari and Bela M Trivedi has held that when the first dismissal order against a person in service is in force, irrespective of all pending litigations or his age of superannuation, he cannot be deemed to be continuing in service.
Factual background of the Civil Appeal including its Judicial History
The brief facts of the appeal goes that the respondent, while posted as a Branch Manager at various branches, was found to have committed various lapses, in respect of which he was suspended on 14.06.1993 in terms of Rule 50A(i)(a) of SBIOSR, 1992. On the departmental proceedings having been conducted against him, the Inquiry Authority had largely found the allegations to be proved. The Disciplinary Authority agreed with some of the findings recorded by the Inquiry Authority and called upon the respondent to make his submissions on the same, after which the Respondent was dismissed from service by the Appointing Authority as per the order dated 11.08.1999.
The respondent being aggrieved by the said order had filed a Writ Petition before the High Court which was allowed by the Single Bench. An LPA was filed against that order with was finally dismissed.
In the meantime, the respondent attained the age of superannuation on 30.11.2009. The Appellant-Bank having filed a SLP challenging the order dated 22.04.2010 passed by the Division Bench, the same was allowed by the Supreme Court on 25.11.2013.
In view of the order passed by the top Court, the Appointing Authority issued a show-cause notice to the respondent on 06.02.2014, to which the respondent submitted his response on 10.02.2014.
The Appointing Authority after granting personal hearing to the respondent on 14.02.2014, again passed the order of dismissal from service against the Respondent on 17.02.2014 in terms of Rule 67(J) of SBISOR w.e.f. 11.08.1999 and treating his period of suspension as not on duty.
Being aggrieved by the said order passed by the Appointing Authority, the respondent filed Departmental appeal which was dismissed on 09.08.2014. The Respondent had then approached the High Court which allowed the said petition, and quashed and set aside the order of dismissal and ordered for payment of all arrears and benefits.
The aggrieved appellant-bank filed an LPA on 17.10.2016, which came to be dismissed by the Division Bench vide the impugned order dated 01.02.2018. Therefore the present Civil Appeal was initiated by the Appellant Bank.
State's Stand
The primary contention raised by the state was that the High Court had wrongly interpreted Rule 19(1) and 19(3) of the SBIOSR, 1992.
ASG Balbir Singh, appearing for the Appellant-Bank, argued, “The Supreme Court in the first round of litigation had allowed the appeal filed by the Appellant-Bank and set aside the order passed by the Division Bench, and while observing that the person who hears the matter requires to pass an order, had directed the Appointing Authority to take appropriate decision within 2 months, keeping all the contentions of the parties open. The appointing authority, therefore had issued a show-cause notice to the respondent and after giving him an opportunity of hearing had passed the order of dismissal, which was wrongly set aside by the Single Bench and by the Division Bench.”
Respondent's Arguments
The Respondent's arguments were in three parts:
a) An affirmative action was expected to be taken by the Appellant-Bank in view of the order passed by the Supreme Court on 25.11.2013, as the respondent had already attained the age of superannuation pending the proceeding before the High Court.
b) The said order the Supreme Court had set aside the order of Division Bench, however had agreed with the view expressed by the Single Bench that as per the settled legal principle, the person who hears the matter is required to pass an order. The Supreme Court had granted the liberty only to the extent of directing the Appointing Authority to take appropriate action in accordance with law as the respondent had attained the age of superannuation. Under the circumstances, the Appointing Authority was required to take steps either to extend the service of the respondent in terms of Rule 19(1), or to continue the disciplinary proceedings, even after the superannuation of the respondent under Rule 19(3) of the Rules, however the Appellant- Bank did not take recourse to any of the said rules.
c) The discretion to continue with the disciplinary proceedings had to be exercised as an affirmative action by taking a conscious decision, which the Appointing Authority of the Appellant-Bank had failed to take, and on the contrary passed the order of dismissal with retrospective effect which was not legally permissible.
Discussion by the Court
On the Legal Provisions Involved
Discussing Rule 19(1) of the SBIOSR 1992, the Court held, "On the bare perusal of the said Rules it clearly transpires that as per Rule 19(1), an officer could retire from the service of the bank on attaining the age of 58 years or upon the completion of 30 years’ service or 30 years’ of pensionable service if he is a member of the Pension Fund whichever occurs first, subject to the provisos mentioned therein.
The court further held, "As per the Rule 19(3), in case the disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceases to be in the Bank’s service by operation of, or by virtue of any of the rules, the disciplinary proceedings may at the discretion of Managing Director be continued and concluded, as if the officer had continued to be in service. However, the officer in that case shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings."
‘Rule 19(3) Not Relevant’
On the reliance placed on Rule 19(3) by the Respondent, the court held that Rule 19(3) contemplates a situation, when the disciplinary proceedings are pending when the officer ceases to be in the Bank’s service, and in that case the Managing Director in his discretion may continue and conclude the disciplinary proceedings against the officer as if the officer continues to be in service. That is not the situation in the present case.
Stating that since all the contentions were kept open by the Court while allowing the appeal filed by the Appellant-Bank, the court held that therefore no affirmative action was expected from the Appellant- Bank. Finally, the Court held, "The said order of Appointing Authority dismissing the respondent from service after granting opportunity of hearing to the respondent was in consonance with the direction given by this Court and could not be said to be arbitrary illegal or in violation of Rule 19(3) of the said Rules." Therefore, based on the above reasoning, the court went on to set aside the impugned order of the High Court setting aside the said order of dismissal.
The court held, "the disciplinary proceedings against the respondent were already initiated and had stood concluded, culminating into dismissal from service as per the order dated 11.08.1999 passed by the Appointing Authority. The said order was challenged by the respondent by filing the Writ Petition, which came to be allowed by the Single Bench…nonetheless the Appellant-Bank having preferred the LPA…The said LPA came to be dismissed on 22.04.2010, in the meantime on 30.11.2009, the respondent attained the age of superannuation i.e., during the time, when the operation of the order of Single Bench was stayed.”
The Court then held, “Thus, the order of Single Bench setting aside the order of dismissal passed by the Appointing Authority having been stayed by the Division Bench, the respondent could not be deemed to have continued in service, and also when he had attained the age of superannuation on 30.11.2009. Thereafter, the order of Division Bench dated 22.04.2010 passed in the LPA 378 of 2003 having been set aside by this Court while allowing the appeal filed by the Appellant-Bank vide the order dated 25.11.2013, again it could not be said that the respondent was continued in service, till he attained the age of superannuation.”
Case Title: STATE BANK OF INDIA & ORS. VERSUS KAMAL KISHORE PRASAD CIVIL APPEAL NO. 175 OF 2023 (Arising out of SLP (C) No. 9819 of 2018)
For Petitioner(s) Mr. Balbir Singh, Ld. ASG Mr. Sanjay Kapur, AOR Ms. Megha Karnwal, Adv. Mr. Arjun Bhatia, Adv. Mr. Lalit Rajput, Adv. Ms. Anu Sura, Adv. Ms. Akshata Joshi, Adv.
For Respondent(s) Mr. Kripa Shankar Prasad, AOR Ms. Alisha Shaili, Adv. Mr. Ainul Ansari, Adv.
Service Law -SBI Officers Service Rules -when the first dismissal order against a person in service is in force, irrespective of all pending litigations or his age of superannuation, he cannot be deemed to be continuing in service.
Read the Judgment Here |
1. A Single Judge of the High Court of Gujarat dismissed the petitions under
Section 482 of the Code of Criminal Procedure, 1973 1, instituted by the
appellants to quash the criminal complaint2 instituted by the second respondent
for offences punishable under Section 138 of the Negotiable Instruments Act,
1881 3, and challenge an order of summons dated 3 November 2017 of the JMFC
Mundra on the complaint. The complaint arises from the dishonour of a cheque in
the amount of Rs.2,67,84,000/-. In the two appeals which arose from the order of
the High Court, the appellants are respectively, four Directors 4 and the Managing
Director 5 of a company by the name of R.L. Steels & Energy Limited 6.
2. The background in which the controversy has arisen needs to be noticed.
On 19 December 2015, a Letter of Intent was issued by the company to the
second respondent for providing uninterrupted power supply at the plant of the
company situated at Aurangabad in Maharashtra. Clause (k) of the Letter of
Intent envisages that all payments would be made within sixty days through a
Letter of Credit7 to be opened by the company. On 29 April 2016, an email was
addressed by the company stating that payment security would be by cheque for
an amount equivalent to the quantum of energy to be scheduled for forty-five
days. Payments for monthly billing were to be made by LC within seven days of
the receipt of bills. This was agreed upon in a communication dated 30 April
2016 addressed on behalf of the second respondent. On 30 June 2016, the
company addressed a communication to the second respondent that it was
issuing two cheques “only for security deposit” and that the cheques were to be
deposited “after getting confirmation only”. The details of the cheques were :
3. A cheque post-dated 28 August 2017 in the amount of Rs.2,67,84,000/-
was accordingly issued with the following endorsement on its reverse: “to be
deposited after confirmation only for security purpose”. The power supply
commenced from 1 July 2016. On 4 July 2016, the company addressed a
communication to its banker, Karur Vysya Bank, requesting to stop payment of
the above two cheques. On 24 July 2016, a Power Supply Agreement 8 was
entered into between the second respondent and the company. The agreement
envisages that the company would make payment to the second respondent on
the tenth day of every calendar month by a LC. Clause 2.5.1 of the agreement
“2.5.1 The Member Consumer shall on the date of execution
of this Agreement or not later than 30 (thirty) days prior to the
Date of Commencement of Supply furnish to GENERATOR
an BG/postdated cheque of 45 days energy bill, in a form and
substance acceptable to the Generator, for an amount equal
to energy charge payable for the Contracted Capacity, from
any Indian Bank acceptable to the Generator.”
4. The relevant terms of the Power Supply Agreement were as follows:
(a) Letter of Credit - Under Clause 2.5, the company was required to make
payments for the power supply through LCs’. Clause 2.6 envisages that
the Company would issue a LC in accordance with the requirements of
(b) Payment Date and Delay Penalty– Under Clause 2.7, the Company
was required to make payment on the tenth day of every month; in
default of which a late payment charge of fifteen per cent per annum
(c) Default in Payments – Clause 8.2 provided that parties would be bound
by the obligations even in the case of a dispute, unless there was a
failure of payment without justification; and
(d) Entire Agreement – Clause 14 provided that the PSA shall represent
the entire agreement, and supersede and extinguish any previous
drafts, agreements or understandings.
5. On 10 August 2016, 12 September 2016 and 27 September 2016, three
LCs’ favouring the second respondent were issued by Punjab National Bank at
the behest of the company.
6. According to the complaint, the LCs’ provided by the company were not in
the format required by their bankers. The company was stated to have been
informed of this position in an exchange of emails in spite of which, it is alleged
that it failed to provide LCs in the correct format.
7. On 4 August 2016, the second respondent raised a provisional bill for
Rs.1,77,56,157/- for electricity supplied during the period from 1 July 2016 to 31
July 2016. On 27 August 2016, an invoice for Rs.1,66,48,028/- was issued for
power supply during the month of July 2016. On 1 September 2016, an invoice
was raised in the amount of Rs.2,17,24,875/- for power supplied during August
2016. On 1 October 2016, an invoice was raised in the amount of
Rs.2,19,18,186/- for power supplied during September 2016.
8. On 20 October 2016, the company terminated its agreement with the
second respondent. The cheque which was issued by the company was
deposited on 28 August 2017. On 18 September 2017, a legal notice was issued
by the second respondent to the appellants alleging the commission of offences
under Section 138 of the NI Act. It was alleged in the notice that according to the
ledger maintained by the second respondent in its books of account, a sum of
Rs.6,02,91,089/- remained outstanding. The notice alleged that the appellants
had issued a cheque dated 28 August 2017 drawn on Karur Vysya Bank,
Aurangabad which had been dishonoured for the reason of ‘payment stopped by
drawer’. A reply dated 5 October 2017, was addressed in response to the legal
notice. It was stated that the cheque that was issued was only for the purpose of
Security and not for encashment.
9. On 2 November 2017, a criminal complaint was filed by the second
respondent in the court of the Additional Chief Judicial Magistrate, Mundra
against the appellants seeking issuance of summons and imposition of fine of Rs.
5,35,68,000. An affidavit was filed on 3 November 2017, in support of the
complaint. On 6 November 2017, the Magistrate issued summons to the
appellants. The appellants instituted petitions under Section 482 of the CrPC for
quashing of the criminal complaint. Simultaneously, the complainant filed a
Regular Civil Suit for recovery of dues.
10. By the impugned judgment and order dated 24 June 2019, the High Court
has dismissed the petitions for quashing the complaint. However, it allowed a
petition for quashing filed by a nominee director who was not in-charge of the
day-to-day management of the company and by a woman non-executive
Director. The reasons that guided the High Court for dismissing the petition are
(i) The issues pertaining to the issuance of cheques, non-payment of
electricity charges, issuance of LCs, among others, are questions of fact.
They will have to be decided by the trial court;
(ii) The complaint appears to be genuine. The High Court cannot exercise its
jurisdiction under Section 482 CrPC unless it is established that there was
an ulterior motive behind the initiation of criminal proceedings; and
(iii) Both civil and criminal proceedings are maintainable on the same set of
facts, as in this case.
11. Mr. Sidharth Luthra and Ms. Meenakshi Arora, learned senior counsel
have appeared on behalf of the appellants in support of the appeals. Mr. Mohit
Mathur and Ms Rebecca John, learned senior counsel have appeared on behalf
of the second respondent. Ms. Aastha Mehta, learned counsel appeared on
behalf of the State of Gujarat.
12. Mr. Sidharth Luthra, learned senior counsel has urged three submissions
(i) The cheques which were issued to the second respondent were intended
at all material times to be a security towards payment. This is evident from
the endorsement made on the reverse of the cheque in the amount of
Rs.2,67,84,000/- dated 28 August 2017, and is buttressed by the
stipulation under PSA that payment was to take place by means of LC. A
suit has been instituted by the company against the second respondent in
the court of the Civil Judge, Senior Division, RCS 15/2017 in which the
a. There was a default by the company in the payment of electricity
consumption charges from July to September 2016; and
b. Though the company had issued LC to cover the dues of the
electricity bills/ invoices, it had intentionally avoided to furnish them
in terms of the draft LCs’ furnished by the bankers of the company.
In the suit instituted by the second respondent against the company,
being CS 236/2019 before the High Court of Judicature at Madras,
the pleading in paragraph 8 of the plaint is that the cheques were
“8. As agreed between the parties, the Defendant
thereafter by its issued two cheques bearing
Nos.013287 & 013286 of amount of Rs.1,33,92,000/-
(One Crore Thirty Three Lakhs and Ninety Two
Thousand only) and Rs.2,67,84,000/- (Two Crores
and Sixty Seven Lakhs and Eighty Four Thousand
Only) respectively as security deposit to the Plaintiff
deposited after obtaining permission. The Plaintiff
states that the same was accepted, and the condition
was further incorporated under Clause 2.5.1 of the
PSA. The associated cheques are filed herewith as
Plaint Document No.5 (Colly). However, the
Defendant subsequently vide letter dated 04.07.2016
ordered their bank to stop payment of their cheques.
The communication is filed herewith as Plaint
Consequently, since the cheques have been issued by way of security and
were not intended to be deposited, the institution of a complaint under
Section 138 is an abuse of the process. Therefore, the invocation of the
jurisdiction under Section 482 CrPC is justified;
(ii) Section 202 CrPC envisages the postponement of the issuance of process
where the accused resides beyond the jurisdiction of the territory of the
court. Despite the clear provisions of Section 202, no inquiry was carried
(iii) The summoning order shows non-application of mind inasmuch as no
reasons have been adduced by the Magistrate.
In this backdrop, the following sequence of events was emphasized in the course
• 30 September 2016: complainant stopped the supply of power;
• 20 October 2016: termination of the PSA by the company;
• 30 June 2017: instructions issued to the bankers to stop payment;
• 31 August 2017: presentation of the cheques;
• 2 November 2017: complaint under Section 138 filed;
• 3 November 2017: affidavit filed in support of the complaint; and
• 6 November 2017: summoning order issued.
13. On the basis of the above sequence of events, it has been submitted that
recourse to the filing of a complaint under Section 138 of NI Act is an abuse of
the process. In the course of evaluating the submissions, the line of precedent to
which a reference has been made would be considered.
14. Ms. Meenakshi Arora, learned senior counsel submitted that a clear case
for the invocation of the jurisdiction under Section 482 CrPC was established for
(i) Though the contract was terminated on 20 October 2016 by the company,
the cheques were presented to the bank only on 31 August 2017;
(ii) The fact that the cheques were issued towards security for payment is
evident from the endorsement on the reverse of the cheques and from the
admission in paragraph 8 of the plaint instituted by the second respondent
(iii) Under the terms of the PSA, payment was envisaged to be made through
(iv) A civil suit has been instituted by the second respondent for the recovery
(v) MSEDCL has raised an additional charge which has been occasioned by
(vi) Apart from the bald statement that the Directors are in-charge of and
responsible for the management of the company, no specific role has been
ascribed to them in the plaint so as to invoke the doctrine of vicarious
liability.
15. On the other hand, Mr. Mohit Mathur and Ms. Rebecca John, learned
senior counsel appearing on behalf of the second respondent have submitted
(i) The High Court has noted in the impugned judgment that there is no
dispute in regard to the liability of the company for electricity supplied
during the months of August, September and October 2016;
(ii) Though the PSA envisaged that payment would be made through LC, they
could not be honoured because the LC were not in a format acceptable to
(iii) The Law does not prohibit the invocation of Section 138 of the NI Act even
in a situation where the cheques have been issued initially as a security;
(iv) The summoning order of the Magistrate conforms to law. The complaint
was instituted on 2 November 2017 and was duly supported by an affidavit
dated 3 November 2017. A summoning order is not required to furnish
detailed reasons particularly in a case under Section 138 of the NI Act,
having due regard to the summary nature of the proceedings; and
(v) The complaint spells out the role attributed to the Directors and prima facie
at this stage, the test of vicarious liability is duly met.
On the above premises, it has been submitted that there is no reason for this
Court, to interfere with the judgment of the High Court since detailed reasons
have been furnished by the High Court for rejecting the petitions under Section
482 of the CrPC.
16. Ms. Aastha Mehta, learned counsel for the State of Gujarat has submitted
that the trial has not proceeded since 2017 due to the pendency of the
proceedings before the High Court and this Court. Learned counsel urged that
there is no ground to interfere with the order of the High Court.
17. The issues which arise for our consideration are as follows:
(i) Whether the dishonor of a cheque furnished as a ‘security’ is covered
under the provisions of Section 138 of the NI Act;
(ii) Whether the Magistrate, in view of Section 202 CrPC, ought to have
(iii) Whether a prima facie case of vicarious liability is made out against the
appellants.
18. The first submission which has been urged on behalf of the appellants is
that a complaint under Section 138 of the NI Act would not be maintainable since
the cheque of Rs 2.67 crores was issued by way of a security and, is thus not
against a legally enforceable debt or liability. The appellant has placed reliance
on the judgment of a two judge Bench of this Court in Indus Airways Private
Limited v. Magnum Aviation Private Limited 9. The issue in that case was
whether the post-dated cheques which were issued by the appellants who were
purchasers, as an advance payment in respect of purchase orders, could be
considered to be in discharge of a legally enforceable debt or other liability and
whether the dishonor of the cheques amounted to an offence under Section 138.
The appellants had placed two purchase orders for the supply of aircraft parts
with the first respondent and had issued two post-dated cheques as advance
payment. The supplier received a letter from the purchasers cancelling the
purchase and requesting the return of both the cheques. Following a notice by
the suppliers, a complaint was instituted under Section 138 upon which
cognizance was taken by the Magistrate and summons were issued. The High
Court allowed a petition under Section 482 CrPC and set aside the order issuing
process by construing the expression “discharge of any debt or other liability” in
Section 138 holding that there must be a liability at the time of issuing the
cheque 10. In appeal, Justice R M Lodha writing for a two-Judge Bench allowed
“138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a
person on an account maintained by him with a banker for payment of any amount of money to another person
from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank
unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the
“9. The Explanation appended to Section 138 explains the
meaning of the expression “debt or other liability” for the
purpose of Section 138. This expression means a legally
enforceable debt or other liability. Section 138 treats
dishonoured cheque as an offence, if the cheque has been
issued in discharge of any debt or other liability. The
Explanation leaves no manner of doubt that to attract an
offence under Section 138, there should be a legally
enforceable debt or other liability subsisting on the date of
drawal of the cheque. In other words, drawal of the cheque in
discharge of an existing or past adjudicated liability is sine
qua non for bringing an offence under Section 138. If a
cheque is issued as an advance payment for purchase of the
goods and for any reason purchase order is not carried to its
logical conclusion either because of its cancellation or
otherwise, and material or goods for which purchase order
was placed is not supplied, in our considered view, the
cheque cannot be held to have been drawn for an existing
debt or liability. The payment by cheque in the nature of
advance payment indicates that at the time of drawal of
cheque, there was no existing liability.”
19. Drawing the distinction between civil and criminal liability, it was observed
that if there is a breach in the condition of advance payment, it would not incur
criminal liability under Section 138 of the NI Act since there is no legally
enforceable debt or liability at the time when the cheque was drawn. The Court
held that if at the time when a contract is entered into, the purchaser has to pay
cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other
provision of this Act, be punished with imprisonment for 8 [a term which may be extended to two years’], or with
fine which may extend to twice the amount of the cheque, or with both:
Provided that nothing contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or
within the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of
the said amount of money by giving a notice; in writing, to the drawer of the cheque, 9 [within thirty days] of the
receipt of information by him from the bank regarding the return of the cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case
may be, to the holder in due course of the cheque, within fifteen days of the receipt of the said notice.
Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other
It was held that the view taken by the Andhra Pradesh High Court in Swastik Coaters v. Deepak Bros, 1997
Cri LJ 1942 (AP), the Gujarat High Court in Shanku Concreates v. State of Gujarat, 2000 Cro LJ 1988 (Guj),
the Madras High Court in Balaji Seafoods Exports v. Mac Industries, (1999) 1 CTC 6 (Mad).
an advance and there was a breach of that condition, the purchaser may have to
make good the loss to the seller, but this would not occasion a criminal liability
under Section 138. The issuance of a cheque towards advance payment at the
time of the execution of the contract would not - in the view which has adopted in
Indus Airways - be considered as a subsisting liability so as to attract an offence
under Section 138 upon the dishonor of the cheque.
20. A later judgment of a two judge Bench in Sampelly Satyanarayana Rao v.
Indian Renewable Energy Development Agency Limited 12 considered the
decision in Indus Airways. In Sampelly, the appellant was the Director of a
company which was engaged in power generation, while the respondent was a
government enterprise engaged in renewable energy. The respondent agreed to
advance a loan for setting up a power project and the agreement envisaged that
post-dated cheques towards payment of installments of the loans would be given
by way of security. The cheques having been dishonored, complaints were
instituted under Section 138 which led to quashing petitions filed before the High
Court. The submission which was urged before this Court was that dishonor of
the post-dated cheques given by way of security did not amount to a legally
enforceable debt or liability under Section 138 in presentia. This Court held, after
adverting to the decision in Indus Airways that if on the date of the cheque, a
liability or debt exists or the amount has become enforceable, Section 138 would
stand attracted and not otherwise. The decision in Indus Airways was
distinguished in Sampelly (supra) on the ground that in that case, the cheque
had not been issued for discharge of a liability but as advance for a purchase
order which was cancelled. On the other hand, in Sampelly, the cheque was for
the repayment of a loan installment which had fallen due. The Court noted that
though the deposit of cheques towards the repayment of installments was
described as a security in the loan agreement, the true test was whether the
cheque was in discharge of an existing enforceable debt or liability or whether it
was towards an advance payment without there being a subsisting debt or
21. Besides the distinguishing features which were noticed in Sampelly, there
was another ground which weighed in the judgment of this Court. The Court
adverted to the decision in HMT Watches v. MA Habida 13 to hold that whether
the cheques were given as security constitutes the defense of the accused and is
a matter of trial. The extract from the decision in HMT Watches which is cited in
“10. Whether the cheques were given as security or not, or
whether there was outstanding liability or not is a question of
fact which could have been determined only by the trial court
after recording evidence of the parties. In our opinion, the
High Court should not have expressed its view on the
disputed questions of fact in a petition under Section 482 of
the Code of Criminal Procedure, to come to a conclusion that
the offence is not made out. The High Court has erred in law
in going into the factual aspects of the matter which were not
admitted between the parties.
22. In a more recent judgment of a two judge Bench in Sripati Singh v. State
of Jharkhand 14, an order of the Magistrate taking cognizance and issuing
summons on a complaint under Section 420 IPC and Section 138 of the NI Act
was challenged before the High Court. There was a transaction between the
second respondent and the complainant pursuant to which the appellant had
advanced sums of money. Several cheques were handed over but they were
dishonored on presentation. The High Court allowed the petitions. An appeal was
filed before this Court. Before this Court, the appellant urged that a cheque
issued towards discharge of the loan and presented for recovery could not be
construed as a security for the transaction. In appeal, this Court noted that there
were four loan agreements under which the second respondent agreed to pay a
total sum of Rs 2 crores and six cheques were issued as security. The High Court
had held that since under the loan agreement the cheques were given by way of
security, the complaint could not be maintained. Justice AS Bopanna, speaking
for the two judge bench, adverted to the earlier decision in Indus Airways and
the distinguishing features which were noticed in the decision in Sampelly. The
Court held that where in the case of a loan transaction, the borrower agrees to
repay the amount in a specified time frame and issues a cheque as a security to
secure the repayment and the loan is not repaid, the cheque which is issued as
security would mature for presentation. The Court observed:
“17. A cheque issued as security pursuant to a financial
transaction cannot be considered as a worthless piece of
paper under every circumstance. ‘Security’ in its true sense is
the state of being safe and the security given for a loan is
something given as a pledge of payment. It is given, deposited
or pledged to make certain the fulfilment of an obligation to
which the parties to the transaction are bound. If in a
transaction, a loan is advanced and the borrower agrees to
repay the amount in a specified timeframe and issues a
cheque as security to secure such repayment; if the loan
amount is not repaid in any other form before the due date or if
there is no other understanding or agreement between the
parties to defer the payment of amount, the cheque which is
issued as security would mature for presentation and the
drawee of the cheque would be entitled to present the same.
On such presentation, if the same is dishonoured, the
consequences contemplated under Section 138 and the other
provisions of N.I. Act would flow.”
“18. When a cheque is issued and is treated as ‘security’
towards repayment of an amount with a time period being
stipulated for repayment, all that it ensures is that such cheque
which is issued as ‘security’ cannot be presented prior to the
loan or the instalment maturing for repayment towards which
such cheque is issued as security. Further, the borrower would
have the option of repaying the loan amount or such financial
liability in any other form and in that manner if the amount of
loan due and payable has been discharged within the agreed
period, the cheque issued as security cannot thereafter be
presented. Therefore, the prior discharge of the loan or there
being an altered situation due to which there would be
understanding between the parties is a sine qua non to not
present the cheque which was issued as security. These are
only the defences that would be available to the drawer of the
cheque in a proceedings initiated under Section 138 of the N.I.
Act. Therefore, there cannot be a hard and fast rule that a
cheque which is issued as security can never be presented by
the drawee of the cheque. If such is the understanding a
cheque would also be reduced to an ‘on demand promissory
note’ and in all circumstances, it would only be a civil litigation
to recover the amount, which is not the intention of the statute.
When a cheque is issued even though as ‘security’ the
consequence flowing therefrom is also known to the drawer of
the cheque and in the circumstance stated above if the cheque
is presented and dishonoured, the holder of the
cheque/drawee would have the option of initiating the civil
proceedings for recovery or the criminal proceedings for
punishment in the fact situation, but in any event, it is not for
the drawer of the cheque to dictate terms with regard to the
nature of litigation.”
The complaint, insofar as it invoked the provisions of Section 138 of the NI Act,
was accordingly restored to the Judicial Magistrate to proceed in accordance with
23. In the present case, the PSA between the parties envisaged that the
second respondent would supply power to the company of which the appellants
are directors or as the case may be, managing director. The agreement
postulated that payment for the power supplied would be made by means of LCs.
Though, the LCs’ were provided, they were allegedly not in a form acceptable to
the bankers of the second respondent. The appellants do not dispute that prior to
the termination of the agreement, power was supplied for a period of three
months to the company. In other words, the agreement for the supply of power
was acted upon and power was supplied to by the second respondent and
consumed by the company.
24. In Sampelly and Sripati Singh, post-dated cheques were issued as a
security for loan installments that were due. On the dates on which the cheques
were drawn, there was an outstanding debt. In the present case, the cheques
were issued on 30 June 2016. The second respondent commenced the supply of
electricity immediately from the next day that is from 1 July 2016. The facts of
this case are in contrast with the facts in Indus Airways. In Indus Airways,
since the purchase agreement was cancelled, there was no outstanding liability
incurred before the encashment of the cheque. The transaction between the
parties did not go through as a result of the cancellation of the purchase orders.
25. The explanation to Section 138 of the NI Act provides that ‘debt or any
other liability’ means a legally enforceable debt or other liability. The proviso to
Section 138 stipulates that the cheque must be presented to the bank within a
period of six months from the date on which it is drawn or within its period of
validity. Therefore, a cheque given as a gift and not for the satisfaction of a debt
or other liability, would not attract the penal consequences of the provision in the
event of its being returned for insufficiency of funds. Aiyar’s Judicial Dictionary
defines debt as follows: “Debt is a pecuniary liability. A sum payable or
recoverable by action in respect of money demand.” Lindey L.J in Webb v.
Strention 15 defined debt as “… a sum of money which is now payable or will
become payable in the future by reason of a present obligation, debitum in
praesenti, solvendum in futuro.” The definition was adopted by this Court in
Keshoram Industries v. CWT 16. Justice Mookerjee writing for a Full Bench of
the Calcutta High Court in Banchharam Majumdar v. Adyanath
Bhattacharjee17 adopted the definition provided by the Supreme Court of
“Standing alone, the word ‘debt’ is as applicable to a sum of
money which has been promised at a future day as to a sum
now due and payable. If we wish to distinguish between the
two, we say of the former that it is a debt owing, and of the
latter that it is a debt due. In other words, debts are of two
kinds: solvendum in praesenti and solvendum in future … A
sum of money which is certainly and in all events payable is
a debt, without regard to the fact whether it be payable now
or at a future time. A sum payable upon a contingency,
however, is not a debt or does not become a debt until the
contingency has happened.”
Thus, the term debt also includes a sum of money promised to be paid on a
future day by reason of a present obligation. A post-dated cheque issued after
the debt has been incurred would be covered by the definition of ‘debt’. However,
if the sum payable depends on a contingent event, then it takes the color of a
debt only after the contingency has occurred. Therefore, in the present case, a
debt was incurred after the second respondent began supply of power for which
payment was not made because of the non-acceptance of the LCs’. The issue to
be determined is whether Section 138 only covers a situation where there is an
outstanding debt at the time of the drawing of the cheque or includes drawing of
a cheque for a debt that is incurred before the cheque is encashed.
26. The object of the NI Act is to enhance the acceptability of cheques and
inculcate faith in the efficiency of negotiable instruments for transaction of
business. The purpose of the provision would become otiose if the provision is
interpreted to exclude cases where debt is incurred after the drawing of the
cheque but before its encashment. In Indus Airways, advance payments were
made but since the purchase agreement was cancelled, there was no occasion of
incurring any debt. The true purpose of Section 138 would not be fulfilled, if ‘debt
or other liability’ is interpreted to include only a debt that exists as on the date of
drawing of the cheque. Moreover, Parliament has used the expression ‘debt or
other liability’. The expression “or other liability’ must have a meaning of its own,
the legislature having used two distinct phrases. The expression ‘or other liability’
has a content which is broader than ‘a debt’ and cannot be equated with the
latter. In the present case, the cheque was issued in close proximity with the
commencement of power supply. The issuance of the cheque in the context of a
commercial transaction must be understood in the context of the business
dealings. The issuance of the cheque was followed close on its heels by the
supply of power. To hold that the cheque was not issued in the context of a
liability which was being assumed by the company to pay for the dues towards
power supplied would be to produce an outcome at odds with the business
dealings. If the company were to fail to provide a satisfactory LC and yet
consume power, the cheques were capable of being presented for the purpose of
meeting the outstanding dues.
27. According to the complainant, the LCs’ were not in a format agreed to by
their bankers. The cheques which were initially towards security could not have
been presented before the payments under the PSA fell due. Moreover, if the
company were to discharge its liability to pay the outstanding dues under the
power supply agreement through the agreed modality of an LC to the satisfaction
of the second respondent’s bankers, there would be no occasion to present the
cheque thereafter. In other words, once payments for electricity supply became
due in terms of the PSA, and the company failed to discharge its dues, the
second respondent was entitled in law to present the cheque for payment. Merely
labelling the cheque as a security would not obviate its character as an
instrument designed to meet a legally enforceable debt or liability, once the
supply of power had been provided for which there were monies due and
payable. There is no inflexible rule which precludes the drawee of a cheque
issued as security from presenting it for payment in terms of the contract. . It all
depends on whether a legally enforceable debt or liability has arisen.
28. At this stage, it would be instructive to note the order of a two judge Bench
of this Court in M/s Womb Laboratories Pvt Ltd v. Vijay Ahuja 19. In that case,
the High Court had quashed proceedings initiated against the first respondent for
offences punishable under Section 138 of the NI Act merely on the basis of the
assertion in the complaint that “security cheques were demanded” in response to
which the accused had issued three signed blank cheques with the assurance
that if the amount was not returned, the cheques could be encashed. The High
Criminal Appeal Nos 1382-1383 of 2019, decided on 11 September 2019
Court held that the cheques were given only by way of security and therefore not
towards the discharge of a debt or liability on the basis of which the complaint
was quashed. Allowing the appeal by the drawee, this Court observed:
“5. In our opinion, the High Court has muddled the entire
issue. The averment in the complaint does indicate that the
signed cheques were handed over by the accused to the
complainant. The cheques were given by way of security, is a
matter of defence. Further, it was not for the discharge of any
debt or any liability is also a matter of defence. The relevant
facts to countenance the defence will have to be proved - that
such security could not be treated as debt or other liability of
the accused. That would be a triable issue. We say so
because, handing over of the cheques by way of security per
se would not extricate the accused from the discharge of
liability arising from such cheques.”
29. The order of this Court in Womb Laboratories holds that the issue as to
whether the cheques were given by way of security is a matter of defence. This
line of reasoning in Womb Laboratories is on the same plane as the
observations in HMT Watches, where it was held that whether a set of cheques
has been given towards security or otherwise or whether there was an
outstanding liability is a question of fact which has to be determined at the trial on
the basis of evidence. The rationale for this is that a disputed question of this
nature cannot be resolved in proceedings under Section 482 CrPC, absent
evidence to be recorded at the trial.
30. The submission which has been urged on behalf of the appellants,
however, is that the fact that the cheques in the present case have been issued
as a security is not in dispute since it stands admitted from the pleading of the
second respondent in the suit instituted before the High Court of Madras. The
legal requirement which Section 138 embodies is that a cheque must be drawn
by a person for the payment of money to another “for the discharge, in whole or
in part, of any debt or other liability’. A cheque may be issued to facilitate a
commercial transaction between the parties. Where, acting upon the underlying
purpose, a commercial arrangement between the parties has fructified, as in the
present case by the supply of electricity under a PSA, the presentation of the
cheque upon the failure of the buyer to pay is a consequence which would be
within the contemplation of the drawer. The cheque, in other words, would in
such an instance mature for presentation and, in substance and in effect, is
towards a legally enforceable debt or liability. This precisely is the situation in the
present case which would negate the submissions of the appellants.
31. The second submission which has been urged on behalf of the appellants
turns upon Section 202 CrPC, which is extracted:
“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 which has been made over
to him under section 192, may, if he thinks fit, 1 [and shall, in
a case where the accused is residing at a place beyond the
area in which he exercises his jurisdiction,] 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
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 complainant and the witnesses present (if
any) have been examined on oath under section 200.
(2) In an 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 complainant to produce all his witnesses and
examine them on oath.
(3) If an investigation under sub-section (1) 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 in charge of a police station except the power to arrest
without warrant.”
32. Under Sub-Section (1) of Section 202, a Magistrate upon the receipt of a
complaint of an offence of which he/she is authorized to take cognizance is
empowered to postpone the issuance of process against the accused and either
(i) enquire into the case; or (ii) direct an investigation to be made by a police
officer or by such other person as he thinks fit. The purpose of postponing the
issuance of process for the purposes of an enquiry or an investigation is to
determine whether or not there is sufficient ground for proceeding. However, it is
mandatory for the Magistrate to do so in a case where the accused is residing at
a place beyond the area in which the Magistrate exercises jurisdiction. The
accused persons in the present case reside at Aurangabad while the complaint
under Section 138 was filed before the Magistrate in Mundra. The argument of
the appellants is that in these circumstances, the Magistrate was duty bound to
postpone the issuance of process and to either enquire into the case himself or to
direct an investigation either by a police officer or by some other person. Section
203 stipulates that if the Magistrate is of the opinion on considering the statement
on oath, if any, of the complainant and of the witnesses, and the result of the
enquiry or investigation if any under Section 202 that there is no sufficient ground
for proceeding, he shall dismiss the complaint recording briefly his reasons for
doing so. The requirement of recording reasons which is specifically incorporated
in Section 203 does not find place in Section 202. Section 204 which deals with
the issuance of process stipulates that if in the opinion of the Magistrate taking
cognizance of an offence, there is sufficient ground for proceeding, he may issue
(a) in a summons case, a summons for attendance of the accused; (b) in a
warrant case, a warrant or if he thinks fit a summons for the appearance of the
accused. These proceedings have been interpreted in several judgments of this
Court. For the purpose of the present case, some of them form the subject matter
of the submissions by the appellants and the second respondent.
33. The provisions of Section 202 which mandate the Magistrate, in a case
where the accused is residing at a place beyond the area of its jurisdiction, to
postpone the issuance of process so as to enquire into the case himself or direct
an investigation by police officer or by another person were introduced by Act 25
of 2005 with effect from 23 June 2006. The rationale for the amendment is based
on the recognition by Parliament that false complaints are filed against persons
residing at far off places as an instrument of harassment. In Vijay Dhanuka v.
Najima Mamtaj 20, this Court dwelt on the purpose of the amendment to Section
“11. Section 202 of the Code, inter alia, contemplates
postponement of the issue of the process ‘in a case where
the accused is residing at a place beyond the area in which
he exercises his jurisdiction’ and thereafter to either inquire
into the case by himself or direct an investigation to be made
by a police officer or by such other person as he thinks fit. In
the face of it, what needs our determination is as to whether
in a case where the accused is residing at a place beyond the
area in which the Magistrate exercises his jurisdiction, inquiry
is mandatory or not.
12. The words ‘and shall, in a case where the accused is
residing at a place beyond the area in which he exercises his
jurisdiction’ were inserted by Section 19 of the Code of
Criminal Procedure (Amendment) Act (Central Act 25 of
2005) w.e.f. 23-6-2006. The aforesaid amendment, in the
opinion of the legislature, was essential as false complaints
are filed against persons residing at far-off places in order to
harass them. The note for the amendment reads as follows:
‘False complaints are filed against persons residing at far-off
places simply to harass them. In order to see that innocent
persons are not harassed by unscrupulous persons, this
clause seeks to amend sub-section (1) of Section 202 to
make it obligatory upon the Magistrate that before
summoning the accused residing beyond his jurisdiction he
shall enquire into the case himself or direct investigation to be
made by a police officer or by such other person as he thinks
fit, for finding out whether or not there was sufficient ground
The use of the expression “shall” prima facie makes the
inquiry or the investigation, as the case may be, by the
Magistrate mandatory. The word “shall” is ordinarily
mandatory but sometimes, taking into account the context or
the intention, it can be held to be directory. The use of the
word “shall” in all circumstances is not decisive. Bearing in
mind the aforesaid principle, when we look to the intention of
the legislature, we find that it is aimed to prevent innocent
persons from harassment by unscrupulous persons from false
complaints. Hence, in our opinion, the use of the expression
“shall” and the background and the purpose for which the
amendment has been brought, we have no doubt in our mind
that inquiry or the investigation, as the case may be, is
mandatory before summons are issued against the accused
living beyond the territorial jurisdiction of the Magistrate.”
34. This Court has held that the Magistrate is duty bound to apply his mind to
the allegations in the complaint together with the statements which are recorded
in the enquiry while determining whether there is a prima facie sufficient ground
for proceeding. In Mehmood UI Rehman v. Khazir Mohammad Tunda 21, this
Court followed the dictum in Pepsi Foods Ltd. v. Special Judicial Magistrate 22,
and observed that setting the criminal law in motion against a person is a serious
matter. Hence, there must be an application of mind by the Magistrate to whether
the allegations in the complaint together with the statements recorded or the
enquiry conducted constitute a violation of law. The Court observed:
“20. The extensive reference to the case law would clearly
show that cognizance of an offence on complaint is taken for
the purpose of issuing process to the accused. Since it is a
process of taking judicial notice of certain facts which
constitute an offence, there has to be application of mind as
to whether the allegations in the complaint, when considered
along with the statements recorded or the inquiry conducted
thereon, would constitute violation of law so as to call a
person to appear before the criminal court. It is not a
mechanical process or matter of course. As held by this Court
in Pepsi Foods Ltd. v. Judicial Magistrate [Pepsi Foods
Ltd. v. Judicial Magistrate, (1998) 5 SCC 749 : 1998 SCC
(Cri) 1400] to set in motion the process of criminal law against
a person is a serious matter.”
“22. The steps taken by the Magistrate under Section
190(1)(a) CrPC followed by Section 204 CrPC should reflect
that the Magistrate has applied his mind to the facts and the
statements and he is satisfied that there is ground for
proceeding further in the matter by asking the person against
whom the violation of law is alleged, to appear before the
court. The satisfaction on the ground for proceeding would
mean that the facts alleged in the complaint would constitute
an offence, and when considered along with the statements
recorded, would, prima facie, make the accused answerable
before the court. No doubt, no formal order or a speaking
order is required to be passed at that stage. The Code of
Criminal Procedure requires speaking order to be passed
under Section 203 CrPC when the complaint is dismissed and
that too the reasons need to be stated only briefly. In other
words, the Magistrate is not to act as a post office in taking
cognizance of each and every complaint filed before him and
issue process as a matter of course. There must be sufficient
indication in the order passed by the Magistrate that he is
satisfied that the allegations in the complaint constitute an
offence and when considered along with the statements
recorded and the result of inquiry or report of investigation
under Section 202 CrPC, if any, the accused is answerable
before the criminal court, there is ground for proceeding
against the accused under Section 204 CrPC, by issuing
process for appearance. The application of mind is best
demonstrated by disclosure of mind on the satisfaction. If
there is no such indication in a case where the Magistrate
proceeds under Sections 190/204 CrPC, the High Court
under Section 482 CrPC is bound to invoke its inherent power
in order to prevent abuse of the power of the criminal court.
To be called to appear before the criminal court as an
accused is serious matter affecting one's dignity, self-respect
and image in society. Hence, the process of criminal court
shall not be made a weapon of harassment.”
These decisions were cited with approval in Abhijit Pawar v. Hemant Madhukar
Nimbalkar 23. After referring to the purpose underlying the amendment of Section
“25. … the amended provision casts an obligation on the
Magistrate to apply his mind carefully and satisfy himself that the
allegations in the complaint, when considered along with the
statements recorded or the enquiry conducted thereon, would
prima facie constitute the offence for which the complaint is filed.
This requirement is emphasised by this Court in a recent
judgment Mehmood Ul Rehman v. Khazir Mohammad
Tunda [Mehmood Ul Rehman v. Khazir Mohammad Tunda,
35. While noting that the requirement of conducting an enquiry or directing an
investigation before issuing process is not an empty formality, the Court relied on
the decision in Vijay Dhanuka which had held that the exercise by the Magistrate
for the purpose of deciding whether or not there is sufficient ground for
proceeding against the accused is nothing but an enquiry envisaged under
Section 202 of the Code.
36. In Birla Corporation Ltd. v. Adventz Investments and Holdings 24, the
earlier decisions which have been referred to above were cited in the course of
“26. The scope of enquiry under this section is extremely
restricted only to finding out the truth or otherwise of the
allegations made in the complaint in order to determine
whether process should be issued or not under Section 204
CrPC or whether the complaint should be dismissed by
resorting to Section 203 CrPC on the footing that there is no
sufficient ground for proceeding on the basis of the
statements of the complainant and of his witnesses, if any. At
the stage of enquiry under Section 202 CrPC, the Magistrate
is only concerned with the allegations made in the complaint
or the evidence in support of the averments in the complaint
to satisfy himself that there is sufficient ground for proceeding
against the accused.”
“33. The order of the Magistrate summoning the accused
must reflect that he has applied his mind to the facts of the
case and the law applicable thereto. The application of mind
has to be indicated by disclosure of mind on the satisfaction.
Considering the duties on the part of the Magistrate for
issuance of summons to the accused in a complaint case and
that there must be sufficient indication as to the application of
mind and observing that the Magistrate is not to act as a post
office in taking cognizance of the complaint, in Mehmood Ul
Rehman [Mehmood Ul Rehman v. Khazir Mohammad Tunda,
The above principles have been reiterated in the judgment in Krishna Lal
Chawla v. State of U.P 25.
37. In this backdrop, it becomes necessary now to advert to an order dated 16
April 2021 of a Constitution Bench in Re: Expeditious Trial of Cases under
Section 138 of N.I. Act 1881 26. The Constitution Bench notes “the gargantuan
pendency of complaints filed under Section 138” and the fact that the “situation
has not improved as courts continue to struggle with the humongous pendency”.
The court noted that there were seven major issues which arose from the
responses filed by the State Governments and the Union Territories including in
relation to the applicability of Section 202 of the CrPC. Section 143 of the NI Act
provides that Sections 262 to 265 of the CrPC (forming a part of Chapter XXI
dealing with summary trials) shall apply to all trials for offences punishable under
Section 138 of the NI Act. On the scope of the inquiry under Section 202 CrPC in
cases under Section 138 of the NI Act, there was a divergence of view between
the High Courts. Some High Courts had held that it was mandatory for the
Magistrate to conduct an inquiry under Section 202 CrPC before issuing process
in complaints filed under Section 138, while there were contrary views in the
other High Courts. In that context, the Court observed:
“10. Section 202 of the Code confers jurisdiction on the
Magistrate to conduct an inquiry for the purpose of deciding
whether sufficient grounds justifying the issue of process are
made out. The amendment to Section 202 of the Code with
effect from 23.06.2006, vide Act 25 of 2005, made it
mandatory for the Magistrate to conduct an inquiry before
issue of process, in a case where the accused resides
beyond the area of jurisdiction of the court. (See: Vijay
Dhanuka & Ors. v. Najima Mamtaj & Ors. 1 , Abhijit Pawar v.
Hemant Madhukar Nimbalkar and Anr. and Birla Corporation
Limited v. Adventz Investments and Holdings Limited & Ors.).
There has been a divergence of opinion amongst the High
Courts relating to the applicability of Section 202 in respect of
complaints filed under Section 138 of the Act. Certain cases
Suo Motu Writ Petition (Crl) No. 2 of 2020, decided on 16 April 2021
under Section 138 have been decided by the High Courts
upholding the view that it is mandatory for the Magistrate to
conduct an inquiry, as provided in Section 202 of the Code,
before issuance of process in complaints filed under Section
138. Contrary views have been expressed in some other
cases. It has been held that merely because the accused is
residing outside the jurisdiction of the court, it is not
necessary for the Magistrate to postpone the issuance of
process in each and every case. Further, it has also been
held that not conducting inquiry under Section 202 of the
Code would not vitiate the issuance of process, if requisite
satisfaction can be obtained from materials available on
record.
11. The learned Amici Curiae referred to a judgment of this
Court in K.S. Joseph v. Philips Carbon Black Ltd & Anr.
where there was a discussion about the requirement of
inquiry under Section 202 of the Code in relation to
complaints filed under Section 138 but the question of law
was left open. In view of the judgments of this Court in Vijay
Dhanuka (supra), Abhijit Pawar (supra) and Birla Corporation
(supra), the inquiry to be held by the Magistrate before
issuance of summons to the accused residing outside the
jurisdiction of the court cannot be dispensed with. The
learned Amici Curiae recommended that the Magistrate
should come to a conclusion after holding an inquiry that
there are sufficient grounds to proceed against the accused.
We are in agreement with the learned Amici.”
38. Section 145 of the NI Act provides that evidence of the complainant may
be given by him on affidavit, which shall be read in evidence in an inquiry, trial or
other proceeding notwithstanding anything contained in the CrPC. The
Constitution Bench held that Section 145 has been inserted in the Act, with effect
from 2003 with the laudable object of speeding up trials in complaints filed under
Section 138. Hence, the Court noted that if the evidence of the complainant may
be given by him on affidavit, there is no reason for insisting on the evidence of
the witnesses to be taken on oath. Consequently, it was held that Section 202(2)
CrPC is inapplicable to complaints under Section 138 in respect of the
examination of witnesses on oath. The Court held that the evidence of witnesses
on behalf of the complainant shall be permitted on affidavit. If the Magistrate
holds an inquiry himself, it is not compulsory that he should examine witnesses
and in suitable cases the Magistrate can examine documents to be satisfied that
there are sufficient grounds for proceeding under Section 202.
39. In the present case, the Magistrate has adverted to:
(ii) The affidavit filed by the complainant;
(iii) The evidence as per evidence list and; and
(iv) The submissions of the complainant.
40. The order passed by the Magistrate cannot be held to be invalid as
betraying a non-application of mind. In Dy. Chief Controller of Imports &
Exports v. Roshanlal Agarwal27, this Court has held that in determining the
question as to whether process is to be issued, the Magistrate has to be satisfied
whether there is sufficient ground for proceeding and not whether there is
sufficient ground for conviction. Whether the evidence is adequate for supporting
the conviction can only be determined at the trial.
[See also in this context the decision in Bhushan Kumar v. State (NCT of
41. The High Court did not quash the complaint against the appellants since it
was prima facie established that they were triable for dishonour of cheque.
141. Offences by companies.—(1) If the person
committing an offence under section 138 is a company,
every person who, at the time the offence was
committed, was in charge of, and was responsible to, the
company for the conduct of the business of the company,
as well as the company, shall be deemed to be guilty of
the offence and shall be liable to be proceeded against
Provided that nothing contained in this sub-section shall
render any person liable to punishment if he proves that
the offence was committed without his knowledge, or that
he had exercised all due diligence to prevent the
[Provided further that where a person is nominated as a
Director of a company by virtue of his holding any office
or employment in the Central Government or State
Government or a financial corporation owned or
controlled by the Central Government or the State
Government, as the case may be, he shall not be liable
(2) Notwithstanding anything contained in sub-section (1),
where any offence under this Act has been committed by
a company and it is proved that the offence has been
committed with the consent or connivance of, or is
attributable to, any neglect on the part of, any director,
manager, secretary or other officer of the company, such
director, manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be liable to
be proceeded against and punished accordingly.
Explanation.—For the purposes of this section, — (a)
“company” means anybody corporate and includes a firm
or other association of individuals; and (b) “director”, in
relation to a firm, means a partner in the firm.”
42. Section 141 of the NI Act stipulates that if a company is alleged to have
committed an offence under Section 138, then every person who ‘was in charge
of, and responsible to, the company for the conduct of the business of the
company’ shall also be deemed guilty of the offence. The proviso provides an
exception if she proves that the offence was committed without her knowledge or
that she had exercised due diligence. In Sunil Bharati Mittal v. CBI 29, a three
judge Bench of this Court observed that the general rule is that criminal intent of
a group of people who undertake business can be imputed to the Company but
not the other way around. Only two exceptions were provided to this general rule:
(i) when the individual has perpetuated the commission of offence and there is
sufficient evidence on the active role of the individual; and (ii) the statute
expressly incorporates the principle of vicarious liability. Justice Sikri writing for a
“43. Thus, an individual who has perpetrated the
commission of an offence on behalf of a company can be
made an accused, along with the company, if there is
sufficient evidence of his active role coupled with criminal
intent. Second situation in which he can be implicated is in
those cases where the statutory regime itself attracts the
doctrine of vicarious liability, by specifically incorporating
such a provision.
44. When the company is the offender, vicarious liability of
the Directors cannot be imputed automatically, in the
absence of any statutory provision to this effect. One such
example is Section 141 of the Negotiable Instruments Act,
1881. In Aneeta Hada [Aneeta Hada v. Godfather Travels
350 : (2012) 3 SCC (Cri) 241] , the Court noted that if a
group of persons that guide the business of the company
have the criminal intent, that would be imputed to the
body corporate and it is in this backdrop, Section 141 of
the Negotiable Instruments Act has to be understood.
Such a position is, therefore, because of statutory
intendment making it a deeming fiction. Here also, the
principle of “alter ego”, was applied only in one direction,
namely, where a group of persons that guide the business
had criminal intent, that is to be imputed to the body
corporate and not the vice versa. Otherwise, there has to
be a specific act attributed to the Director or any other
person allegedly in control and management of the
company, to the effect that such a person was responsible
for the acts committed by or on behalf of the company.”
43. In SMS Pharmaceuticals v. Neeta Bhalla 30, a three judge Bench while
construing the provisions of Section 141 of the Negotiable Instruments Act 1881,
has noted that the position of a Managing Director or a Joint Managing Director of
a company is distinct since persons occupying that position are in charge of and
responsible for the conduct of the business. It was observed that though there is
a general presumption that the Managing Director and Joint Managing Director
are responsible for the criminal act of the company, the director will not be held
liable if he was not responsible for the conduct of the company at the time of the
commission of the offence. The Court observed:
“9. The position of a managing director or a joint
managing director in a company may be different. These
persons, as the designation of their office suggests, are in
charge of a company and are responsible for the conduct
of the business of the company. In order to escape liability
such persons may have to bring their case within the
proviso to Section 141(1), that is, they will have to prove
that when the offence was committed they had no
knowledge of the offence or that they exercised all due
diligence to prevent the commission of the offence.
Every person connected with the company shall not fall
within the ambit of the provision. It is only those persons
who were in charge of and responsible for the conduct of
business of the company at the time of commission of an
offence, who will be liable for criminal action. It follows
from this that if a director of a company who was not in
charge of and was not responsible for the conduct of the
business of the company at the relevant time, will not be
liable under the provision. The liability arises from being
in charge of and responsible for the conduct of
business of the company at the relevant time when
the offence was committed and not on the basis of
merely holding a designation or office in a company.
Conversely, a person not holding any office or designation
in a company may be liable if he satisfies the main
requirement of being in charge of and responsible for the
conduct of business of a company at the relevant time.”
The same principle has been followed by a Bench of two judges in Mainuddin
“12. The respondent has adduced the argument that in
the complaint the appellant has not taken the averment
that the accused was the person in charge of and
responsible for the affairs of the Company. However, as
the respondent was the Managing Director of M/s Salvi
Infrastructure (P) Ltd. and sole proprietor of M/s Salvi
Builders and Developers, there is no need of specific
averment on the point. This Court has held in National
Small Industries Corpn. Ltd. v. Harmeet Singh
(2010) 2 SCC (Cri) 1113] , as follows : (SCC p. 346, para
“39. (v) If the accused is a Managing Director or a
Joint Managing Director then it is not necessary to make
specific averment in the complaint and by virtue of their
position they are liable to be proceeded with.”
44. The test to determine if the Managing Director or a Director must be
charged for the offence committed by the Company is to determine if the
conditions in Section 141 of the NI Act have been fulfilled i.e., whether the
individual was in-charge of and responsible for the affairs of the company during
the commission of the offence. However, the determination of whether the
conditions stipulated in Section 141 of the MMDR Act have been fulfilled is a
matter of trial. There are sufficient averments in the complaint to raise a prima
facie case against them. It is only at the trial that they could take recourse to the
proviso to Section 141 and not at the stage of issuance of process.
45. In the present case, it is evident that the principal grounds of challenge
which have been set up on behalf of the appellants are all matters of defence at
the trial. The Magistrate having exercised his discretion, it was not open to the
High Court to substitute its discretion. The High Court has in a carefully
considered judgment, analysed the submissions of the appellants and for
justifiable reasons has come to the conclusion that they are lacking in substance.
46. For the above reasons, we have come to the conclusion that there is no
merit in the appeals. The appeals shall stand dismissed.
47. Pending applications, if any, are disposed of. | "Merely labelling the cheque as a security would not obviate its character as an instrument designed to meet a legally enforceable debt or liability."The Supreme Court observed that Section 138 of Negotiable Instruments Act is attracted in cases where debt is incurred after the drawing of the cheque but before its encashment.The true purpose of Section 138 would not be fulfilled, if 'debt or other liability' is interpreted to include only a debt that exists as on the date of drawing of the cheque, the bench comprising Justices DY...
The Supreme Court observed that Section 138 of Negotiable Instruments Act is attracted in cases where debt is incurred after the drawing of the cheque but before its encashment.
The true purpose of Section 138 would not be fulfilled, if 'debt or other liability' is interpreted to include only a debt that exists as on the date of drawing of the cheque, the bench comprising Justices DY Chandrachud and AS Bopanna observed.
The court added that merely labelling the cheque as a security would not obviate its character as an instrument designed to meet a legally enforceable debt or liability.
One of the issues considered in this appeal was whether the dishonor of a cheque furnished as a 'security' is covered under the provisions of Section 138 of the NI Act? The appellants in this case contended that a complaint under Section 138 of the NI Act would not be maintainable since the cheque in question was issued by way of a security and, is thus not against a legally enforceable debt or liability. ? They relied on a Supreme Court judgment in Indus Airways Private Limited v. Magnum Aviation Private Limited (2014) 12 SCC 539.
The court noticed that a later judgments in Sampelly Satyanarayana Rao v. Indian Renewable Energy Development Agency Limited (2016) 10 SCC 458 and Sripati Singh v. State of Jharkhand LL 2021 SC 606 has distinguished the judgment in Indus Airways. In Sampelly and Sripati Singh, post-dated cheques were issued as a security for loan installments that were due. On the dates on which the cheques were drawn, there was an outstanding debt, the court noted.
Referring to the meaning of debt, the court observed that a post-dated cheque issued after the debt has been incurred would be covered by the definition of 'debt'. It said:
26. The object of the NI Act is to enhance the acceptability of cheques and inculcate faith in the efficiency of negotiable instruments for transaction of business. The purpose of the provision would become otiose if the provision is interpreted to exclude cases where debt is incurred after the drawing of the cheque but before its encashment. In Indus Airways, advance payments were made but since the purchase agreement was cancelled, there was no occasion of incurring any debt. The true purpose of Section 138 would not be fulfilled, if 'debt or other liability' is interpreted to include only a debt that exists as on the date of drawing of the cheque. Moreover, Parliament has used the expression 'debt or other liability'. The expression "or other liability' must have a meaning of its own, the legislature having used two distinct phrases. The expression 'or other liability' has a content which is broader than 'a debt' and cannot be equated with the latter. In the present case, the cheque was issued in close proximity with the commencement of power supply. The issuance of the cheque in the context of a commercial transaction must be understood in the context of the business dealings. The issuance of the cheque was followed close on its heels by the supply of power. To hold that the cheque was not issued in the context of a liability which was being assumed by the company to pay for the dues towards power supplied would be to produce an outcome at odds with the business dealings. If the company were to fail to provide a satisfactory LC and yet consume power, the cheques were capable of being presented for the purpose of meeting the outstanding dues."
The court noted that, in the present case, a debt was incurred after the respondent began supply of power for which payment was not made because of the non-acceptance of the LCs'.
"A cheque may be issued to facilitate a commercial transaction between the parties. Where, acting upon the underlying purpose, a commercial arrangement between the parties has fructified, as in the present case by the supply of electricity under a PSA, the presentation of the cheque upon the failure of the buyer to pay is a consequence which would be within the contemplation of the drawer. The cheque, in other words, would in such an instance mature for presentation and, in substance and in effect, is towards a legally enforceable debt or liability.", the court added while dismissing the appeal.
Case name: Sunil Todi vs State of Gujarat
Case no. and Date: CrA .446 of 2021 | 3 December 2021
Coram: Justices DY Chandrachud and AS Bopanna
Counsel: Sr.Adv Sidharth Luthra, Sr. Adv Meenakshi Arora for appellants, Sr.Adv Mohit Mathur, Sr. Adv Rebecca John for respondents, Adv Aastha Mehta for state |
(TO BE PUBLISHED IN THE GAZETTE OF INDIA, PART 1 SECTION 2)
Jaisalmer House, 26, Man Singh Road,
NEW DELHI-110 011, dated 10th June, 2021.
In exercise of the power conferred by clause (1) of Article 217 of the Constitution
oflndia, the President is pleased to appoint Shri Sanjay Yadav, Judge of the Allahabad
High Court, to be the Chief Justice of the Allahabad High Court with effect from the
date he assumes charge of his office.
Additional Secretary to the Government of India
Minto Road, New Delhi.
No. K.13012/01l2021-US.II Dated 10.06.2021
1 Shri Justice Sanjay Yadav, Acting Chief Justice, Allahabad High Court, Prayagraj.
2 The Secretary to Governor of Uttar Pradesh, Lucknow.
3 The Secretary to Chief Minister Uttar Pradesh, Lucknow.
4 The Secretary to Chief Justice, Allahabad High Court, Prayagraj.
5 The Chief Secretary, Government of Uttar Pradesh, Lucknow.
9 PS to Principal Secretary to Prime Minister, New Delhi.
10 Registrar (Conf.), 0/0 Chief Justice ofIndia, 7 Krishna MenonMarg, New Delhi.
11 PS to ML&J/PPS to Secretary (J).
12 Technical Director, NIC, Department of Justice, with a request to upload on the
Website of the Department (www.doj.gov.in). | President of India has appointed Shri Sanjay Yadav, Judge of the Allahabad High Court, to be the Chief Justice of the Allahabad High Court with effect from the date he assumes charge of his office.Shri Justice Sanjay Yadav, M.A., LL.B, was enrolled as an Advocate on 25.08.1986. He practiced at Jabalpur for 20 years in Civil, Constitutional, Labour and Service matters and has specialized in...
President of India has appointed Shri Sanjay Yadav, Judge of the Allahabad High Court, to be the Chief Justice of the Allahabad High Court with effect from the date he assumes charge of his office. Shri Justice Sanjay Yadav, M.A., LL.B, was enrolled as an Advocate on 25.08.1986. He practiced at Jabalpur for 20 years in Civil, Constitutional, Labour and Service matters and has specialized in Labour and Service matters. He worked as Government Advocate from March 1999 to October 2005. He was Deputy Advocate General with effect from October 2005. He was appointed as an Additional Judge of the Madhya Pradesh High Court on March 2, 2007 and as Permanent Judge on January 15, 2010. |
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 03.07.2019 passed by the High
Court of Judicature at Madras in Tax Case Appeal No.429 of
2019, by which the High Court has dismissed the said appeal
preferred by the revenue and has confirmed the order dated
04.04.2013 passed by the learned Income Tax Appellate
Tribunal (hereinafter referred to as the learned ITAT) in ITA
No.2244/Mds/2012, the revenue has preferred the present
appeal.
2. The facts leading to the present appeal in nutshell are as
2.1 The Assessing Officer (hereinafter referred to as the AO)
passed an assessment order under Section 143 (3) of the
Income Tax Act (hereinafter referred to as the Act) for the
assessment year (AY) 200809 vide assessment order dated
30.12.2010. The Commissioner of Income Tax initiated
revision proceeding under Section 263 of the Act to revise the
assessment order passed by the learned Assessing Officer
and issued a notice to the assessee respondent herein on
01.02.2012. The assessee – respondent herein filed written
submissions on 07.03.2012 and 12.03.2012. That the
learned Commissioner passed an order under Section 263 of
the Act on 26.03.2012 holding that the Assessing Officer had
failed to make relevant and necessary enquiries and to make
correct assessment of income after due application of mind
and thus the assessment order made under Section 143 (3)
of the Act was held to be erroneous and prejudicial to the
interest of the revenue. The learned Commissioner set aside
the assessment order with a direction to Assessing Officer to
make necessary enquiries on the aspects mentioned in the
order under Section 263. The order passed by the learned
Commissioner in exercise of powers under Section 263 of the
Act was challenged by the assessee – respondent herein
before the learned ITAT. At this stage, it is required to be
noted that the order passed under Section 263 of the Act was
dispatched by the office of the Commissioner on 28.03.2012.
2.2 The assessee – respondent herein filed an appeal before the
learned ITAT on 29.11.2012 submitting that it had come to
know about the revision order only when he received notice
dated 06.08.2012 under Section 143 (2) read with Section
263 of the Act from the office of the Assessing Officer.
Thereafter, the respondent had requested the Assessing
Officer to furnish the copy of the order passed by the learned
Commissioner which was supplied to him on 29.11.2012.
Before the learned ITAT, it was the case on behalf of the
assessee – respondent herein that the order passed by the
learned Commissioner was beyond the period of limitation
prescribed/mentioned under Section 263 (2) of the Act. Vide
order dated 04.04.2013 the learned ITAT accepted the
contention on behalf of the assessee – respondent herein and
allowed the appeal filed by the assessee by holding that the
revision order passed by the learned Commissioner was
passed beyond the period of limitation.
2.3 Feeling aggrieved and dissatisfied with the order passed by
the learned ITAT quashing and setting aside the revisional
order passed by learned Commissioner under Section 263 of
the Act and holding that the order passed by the learned
Commissioner was beyond the period of limitation prescribed
under Section 263 (2) of the Act, the revenue – appellant
herein preferred appeal before the High Court, raising the
following substantial question of law:
circumstances of the case, the case, the
Tribunal had applied its mind and was right
in holding that the revision order of the
Commissioner of Income Tax under section
263 dated 26.3.2012 revising the assessment
order dated 31.12.2010 is barred by
limitation provided under section 263(2) by
assuming that the last date for passing the
assessment order is 31.3.2012 and on the
2.4 By the impugned judgment and order, the High Court has
dismissed the said appeal and has confirmed the order
passed by learned ITAT holding that the order passed by the
learned Commissioner under Section 263 of the Act was
barred by limitation. The High Court held that the date on
which the order was received by the assessee – respondent
herein is the relevant date for the purpose of determining the
period of limitation under Section 263 (2) of the Act.
2.5 Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court, the revenue –
appellant herein has preferred the present appeal.
3. Shri Vikramjit Banerjee, learned Additional Solicitor General
(ASG) appearing on behalf of the revenue – appellant has
vehemently submitted that the High Court as well as the
learned ITAT both have misconstrued and misinterpreted the
provision of Section 263, more particularly subsection (2) of
Section 263 of the Act. It is submitted that the High Court
has erred in holding that the revision order dated 26.03.2012
passed by the Commissioner under Section 263 of the Act
was barred by period of limitation provided under Section
263 (2) of the Act.
3.1 It is submitted that the High Court has materially erred in
holding that the order passed under Section 263 is barred by
limitation provided under Section 263 (2) on the ground that
order under Section 263 was served on the assessee –
respondent herein on 29.11.2012 which was after the expiry
of two years from the end of the financial year in which the
order was sought to be revised.
3.2 It is vehemently submitted by learned ASG that subsection
(2) of Section 263 of the Act provides that no order shall be
‘made’ under subsection (1) of Section 263 after the expiry
of two years from the end of the concerned financial year and
the relevant date in the present case to pass the order under
Section 263 would be 31.03.2012. It is submitted that in the
present case the order in fact was passed on 26.03.2012 and
in fact dispatched on 28.03.2012. It is submitted that
therefore the order passed by the learned Commissioner
under Section 263 was within the period of limitation
prescribed under Section 263 (2) of the Act.
3.3 Shri R. Sivaraman, learned Advocate appearing on behalf of
the respondent – assessee relying upon para 15 of the
counter affidavit has submitted that as such the order
passed by the learned Commissioner under Section 263 of
the Act has been acted upon before it was set aside by
learned ITAT and thereafter a fresh assessment order has
been passed by the Assessing Officer. It is submitted that
therefore as such the issue involved in the present appeal
has become academic.
4. We have heard the learned counsel appearing on behalf of
the respective parties at length. Though it is the case on
behalf of the respondent – assessee that by now the issue
involved in the present appeal has become academic,
considering the fact that the question of law raised in the
present appeal is the pure question of law and therefore we
are inclined to decide the said question of law.
4.1 The short question of law which is posed for consideration
before this court is, whether in the facts and circumstances
of the case, the High Court and the learned ITAT are right in
holding that the order passed by the learned Commissioner
passed under Section 263 was barred by period of limitation
provided under Section 263 (2) of the Act? Whether the High
Court is right in holding that the relevant date for the
purpose of considering the period of limitation under Section
263(2) of the IT Act would be the date on which the order
passed under Section 263 by the learned Commissioner is
4.2 While deciding the aforesaid issues and question of law,
Section 263 (2) of the Income Tax Act, which is relevant for
our consideration is required to be referred to, which reads
“(2) No order shall be made under subsection (1)
after the expiry of two years from the end of the
financial year in which the order sought to be
revised was passed.”
4.3 On a fair reading of subsection (2) of Section 263 it can be
seen that as mandated by subsection (2) of Section 263 no
order under Section 263 of the Act shall be “made” after the
expiry of two years from the end of the financial year in
which the order sought to be revised was passed. Therefore
the word used is “made” and not the order “received” by
the assessee. Even the word “dispatch” is not mentioned in
Section 263 (2). Therefore, once it is established that the
order under Section 263 was made/passed within the period
of two years from the end of the financial year in which the
order sought to be revised was passed, such an order cannot
be said to be beyond the period of limitation prescribed under
Section 263 (2) of the Act. Receipt of the order passed under
Section 263 by the assessee has no relevance for the purpose
of counting the period of limitation provided under Section
263 of the Income Tax Act. In the present case, the order was
made/passed by the learned Commissioner on 26.03.2012
and according to the department it was dispatched on
28.03.2012. The relevant last date for the purpose of passing
the order under Section 263 considering the fact that the
assessment was for the financial year 200809 would be
31.03.2012 and the order might have been received as per
the case of the assessee – respondent herein on 29.11.2012.
However as observed hereinabove, the date on which the
order under Section 263 has been received by the assessee is
not relevant for the purpose of calculating/considering the
period of limitation provided under Section 263 (2) of the Act.
Therefore the High Court as such has misconstrued and has
misinterpreted the provision of subsection (2) of Section 263
of the Act. If the interpretation made by the High Court and
the learned ITAT is accepted in that case it will be violating
the provision of Section 263 (2) of the Act and to add
something which is not there in the section. As observed
hereinabove, the word used is “made” and not the “receipt
of the order”. As per the cardinal principle of law the
provision of the statue/act is to be read as it is and nothing
is to be added or taken away from the provision of the statue.
Therefore, the High Court has erred in holding that the order
under Section 263 of the Act passed by the learned
Commissioner was barred by period of limitation, as provided
under subsection (2) of Section 263 of the Act.
5. In view of the above and for the reasons stated above the
question of law framed is answered in favour of the revenue –
appellant and against the assessee – respondent herein and
it is held that the order passed by the learned Commissioner
under Section 263 of the Income Tax Act was within the
period of limitation prescribed under subsection (2) of
Section 263 of the Act. The present appeal is allowed
accordingly. No costs. | The Supreme Court has held that the date of the receipt of the assessment order has no relevance in computing the limitation period for the Revision by the Principal Commissioner under Section 263 of the Income Tax Act.A Bench of Justices M.R.Shah and A.S.Bopanna made the above observation in Commissioner of Income Tax, Chennai vs Mohammed Meeran Shahul Hameed- a case dealing with...
The Supreme Court has held that the date of the receipt of the assessment order has no relevance in computing the limitation period for the Revision by the Principal Commissioner under Section 263 of the Income Tax Act.
A Bench of Justices M.R.Shah and A.S.Bopanna made the above observation in Commissioner of Income Tax, Chennai vs Mohammed Meeran Shahul Hameed- a case dealing with the calculation of limitation period under S.263 of the Income Tax Act.
Brief Factual Background
The respondent-assessee was served an assessment order under S.143 of the Income Tax Act in 2010. Soon thereafter, the Commissioner of Income Tax initiated revision proceedings under S.263 of the Act and an order was passed on 26.03.2012 holding that the assessment order was erroneous. The respondent-assessee received notice on 29.11.2012 and filed an appeal before the ITAT. The respondent-assessee argued that the order passed by the Commissioner was beyond the period of limitation mentioned under S.263(2). ITAT held that the revision order passed was beyond the limitation period and the Madras High Court in its impugned judgement upheld the order passed by the ITAT. The impugned judgement held that the date on which the assessee-respondent received the order was the relevant date for determining the period of limitation under S.263 (2) of the Act.
The Supreme Court, in a judgement authored by Justice M.R.Shah framed the primary question of law for the consideration as: whether the relevant date for the purpose of considering the period of limitation under S.263(2) of the IT Act would be the date on which the order is actually received by the assessee?
Answering the above question in negative, the Bench held that S.263 (2) of the Act requires that no revision order be made after the expiry of two years from the end of the financial year in which order sought to be revised was passed. Since S.263 uses the word made and not received, the Bench holds, the receipt of the order has no relevance for the purpose of determining limitation.
It holds:
"the word used is "made" and not the order "received" by the assessee. Even the word "dispatch" is not mentioned in Section 263 (2). Therefore, once it is established that the order under Section 263 was made/passed within the period of two years from the end of the financial year in which the order sought to be revised was passed, such an order cannot be said to be beyond the period of limitation prescribed under Section 263 (2) of the Act. Receipt of the order passed under Section 263 by the assessee has no relevance for the purpose of counting the period of limitation provided under Section 263 of the Income Tax Act.." (Para 4.3)
Thus, the judgement held that the order of the Commissioner of Income Tax dated 31.03.2012 is well within the limitation period prescribed under S.263. The receipt of the order on 29.11.2013 is irrelevant for the purpose of calculating limitation.
Case Title : Commissioner of Income Tax, Chennai vs Mohammed Meeran Shahul Hameed |
This writ petition has been filed seeking quashment of G.O. (D)
No.372, Home (Prison-IV) Department dated 22.07.2019, in and by which,
the State Level Committee's recommendation for premature release of John
David (Life Convict Prisoner No.4897), the son of the petitioner herein, has
been turned down and for a mandamus to the respondents to release John
David in terms of G.O. (Ms.) No.64 Home (Prison-IV) Department dated
01.02.2018 (for short “G.O. 64”).
2 The brief facts leading to the filing of this writ petition are as
2.1 John David faced a prosecution in S.C. No.63 of 1997 before
the Principal Sessions Court, Cuddalore (for short “the trial Court”) for the
alleged murder of one Navarasu, a I year student of MBBS course in
Annamalai University and the son of a retired Vice Chancellor of Madras
2.2 Eventually, by judgment and order dated 11.03.1998, he was
found guilty by the trial Court of the offences under Sections 364, 342, 302
and 201 IPC and was sentenced to various terms of imprisonment, the
maximum being, imprisonment for life for the offences under Sections 364
and 302 IPC.
2.3 The Madras High Court allowed his appeal in Crl.A. No.267 of
1998 on 05.10.2001 and the Supreme Court, on 20.04.2011, in
Crl.A.No.384 of 2002, reversed the acquittal order of the Madras High
Court and restored the conviction and sentence imposed on John David by
the trial Court, pursuant to which, John David is now undergoing the
sentences.
2.4 Be that as it may, to commemorate the birth centenary
celebrations of Dr. M.G. Ramachandran, the Government of Tamil Nadu
issued G.O.64, for premature release of the convict prisoners fixing several
eligibility conditions.
2.5 Since the case of John David was not considered by the
authorities for premature release by extending the benefit under G.O. 64, his
mother, the petitioner herein, filed H.C.P. No.525 of 2019 seeking premature
release of her son.
2.6 During the pendency of the said habeas corpus petition, the
State Government passed G.O.(D) No.372, Home (Prison-IV) Department
dated 22.07.2019, rejecting the recommendation of the State Level
Committee for premature release of John David, challenging which, the
present writ petition has been filed for the relief, as stated in the opening
paragraph of this order.
3 Heard Mr. A. Ramesh, learned Senior Counsel representing
Mr.G.R. Hari, learned counsel on record for the petitioner and Mr. Hasan
Mohamed Jinnah, learned Public Prosecutor, assisted by
Mr.R.Muniyapparaj, learned Additional Public Prosecutor appearing for the
respondents/State.
4 The State has filed a counter affidavit dated 25.08.2021 and an
additional counter affidavit dated 31.01.2022 in defence of the impugned
order. The operative portion of the impugned order reads as under:
“3. The State Level Committee constituted in the
Government Order second read above has recommended for the
premature release of the life convict prisoner No.4897, John David,
son of David Marimuthu, confined in Central Prison-I, Puzhal.
4. The Government have examined the State Level
Committee's recommendation for the premature release of the life
convict prisoner No.4897, John David with relevant records. The life
convict prisoner No.4897, John David, son of David Marimuthu,
confined in Central Prison-I, Puzhal was convicted by the Principal
Sessions Judge, Cuddalore on 25.04.2011 in Sessions Case No.63 of
1997 under Section 302, 342 364, 201 of IPC. As the life convict
prisoner No.4897, John David, Son of David Marimuthu by using
doctor's knife severed the head and torso of Navarasu, (junior student
of MBBS in Annamalai University, Chidambaram), son of
Dr.P.K.Ponnusamy, then Vice Chancellor of Madras University and
thrown the severed parts in various places. In this case, the above life
convict prisoner is involved in a brutal murder/heinous crime.
Considering the cruel nature of the offence committed by him, the
Government has decided to reject the State Level Committee's
recommendation for premature release of the Life Convict Prisoner
No.4897, John David, son of David Marimuthu, confined in Central
Prison-I, Puzhal and order accordingly.
Additional Chief Secretary to Government”
5 At the outset, Mr. A. Ramesh, learned Senior Counsel
appearing for the petitioner, brought to the notice of this Court, the track
record of John David and submitted that after John David was acquitted by
the High Court, he did not at all get involved in any offence and after the
judgment of the Supreme Court reversing the acquittal made by the High
Court and confirming the judgment and order of conviction and sentence
passed by the trial Court, he surrendered and his conduct in the prison
thereafter has been exemplary. He placed before this Court the details of
educational qualifications John David had acquired while in prison and also
the conduct certificate dated 29.12.2017 given by the Superintendent of
Prisons, Central Prison - I, Puzhal, which reads thus:
He is a well behaved and obedient person and he has sincerely
carried out the work allotted to him in an appreciable manner. He
was released on leave on many occasions and he has returned to
prison on time without any issues.
He has also shared his knowledge with his fellow inmates,
teaching them on English and Computer Science.
He is well reformed now and fit to be reinstated into the
society.
His conduct is good and satisfactory.”
Therefore, according to Mr. A. Ramesh, since John David has turned into a
new leaf, the State Government should have considered his case favourably
and released him under G.O. 64. In support of his contention that John
David should have been released prematurely based on his good conduct in
the prison, Mr. Ramesh placed reliance on the judgment of the Supreme
Court in Satish @ Sabbe vs. The State of Uttar Pradesh [2020 SCC
OnLine SC 811] and Home Secretary (Prison) and Others vs. H.Nilofer
6 Next, Mr. Ramesh took this Court through the impugned
Government Order and submitted that the Government had misdirected itself
by saying that “John David by using doctor's knife, severed the head and
torso of Navarasu”, which is factually incorrect, inasmuch as there is no
reference to the usage of doctor's knife in the alleged act of John David, but,
on the contrary, the findings of the trial Court shows that the knives viz.,
M.Os.9 to 11, were used for cutting fruits and they were not surgical
instruments. This according to Mr. Ramesh, shows non-application of mind
on the part of the authorities.
7 Finally, Mr. Ramesh contended that the State Government had
released the accused involved in far more heinous offences like the ones in
infamous Dharmapuri bus burning case and Melavalavu case, which is
discriminatory.
8 Per contra, Mr. Hasan Mohamed Jinnah, learned Public
Prosecutor, refuted the aforesaid contentions and submitted that the
Government had rejected the case of John David based on the manner in
which the crime was committed and not on the basis that it was committed
with a doctor's knives. He also submitted that there cannot be any negative
equality under Article 14 of the Constitution of India.
9 We initially propose to address two arguments of Mr.A.Ramesh,
viz., his reliance on Satish @ Sabbe (supra) and release of the accused in
Dharmapuri bus burning case and Melavalavu case.
10 As far as the judgment in Satish @ Sabbe (supra) is
concerned, the issue before the Supreme Court was non-application of
Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938, by
the executive authorities. This is limpid from paragraph 16 of the judgment
“16. It is no doubt trite law that no convict can claim
remission as a matter of right. However, in the present case, the
circumstances are different. What had been sought and directed by
this Court through repeated orders was not premature release itself,
but due application of mind and a reasoned decision by executive
authorities in terms of existing provisions regarding premature
release. Clearly, once a law has been made by the appropriate
legislature, then it is not open for executive authorities to
surreptitiously subvert its mandate. Where the authorities are found
to have failed to discharge their statutory obligations despite judicial
directions, it would then not be inappropriate for a Constitutional
Court while exercising its powers of judicial review to assume such
task onto itself and direct compliance through a writ of mandamus.”
In Tamil Nadu, we do not have similar provisions as in the State of Uttar
Pradesh and hence, this judgment may not be of much avail to John David.
In fact, in the same judgment, the Supreme Court has clearly held that no
convict prisoner can claim remission as a matter of right. Thus, the case of
John David should be decided only within the four corners of G.O. 64.
11 As regards the second argument of Mr. Ramesh, as rightly
contended by the learned Public Prosecutor, there cannot be negative
equality. At this juncture, apropos it is to allude to paragraph 28 of a very
recent judgment of the Supreme Court in R. Muthukumar and Others vs.
“28. A principle, axiomatic in this country's constitutional
lore is that there is no negative equality. In other words, if there has
been a benefit or advantage conferred on one or a set of people,
without legal basis or justification, that benefit cannot multiply, or be
relied upon as a principle of parity or equality.....”
Therefore, just because the Government had fallen in error in releasing the
accused in the infamous Dharmapuri bus burning case and Melavalavu case,
the same error cannot be allowed to be perpetrated and relief granted to John
12 Mr. A. Ramesh placed strong reliance on a Division Bench
judgment of this Court in K.Rajasekar vs. State and Others
(MANU/TN/0641/2022), in which, one of us (PNPJ), was a Member, in
support of his contention relating to equality under Article 14 of the
Constitution of India.
13 In Rajasekar (supra), the husband, Rajasekar, and his wife,
Shanthi, on account of abject poverty, smothered their three month old child
and killed her. The Government granted remission to Rajasekar, but,
refused to grant remission to Shanthi, on the ground that the crime was a
heinous one. In that case, both of them were convicted under Section 302
read with 34 IPC, as nobody knew, who amongst the two had actually
smothered the child, as that was done in secrecy. Therefore, on those facts,
this Court held that, if according to the Government, the act of the husband
was not heinous, the Government cannot be heard to say that, the act of the
wife was heinous and deny her premature release.
14 As regards the submission of Mr. A. Ramesh that John David
has turned into a new leaf and hence, he should not be deprived of the
benefit of G.O. 64, it is true that the conduct of John David in the prison has
been exemplary, as could be seen from the conduct certificate issued by the
Superintendent of Prisons, Central Prison-I, Puzhal, extracted in
paragraph 5 (supra) and that is the reason why the State Level Committee
had recommended his premature release. However, be it noted, the State
Government and the Governor are not bound by the recommendations of the
State Level Committee, as the exercise of power for premature release of a
convict prisoner under G.O. 64 is under Article 161 of the Constitution of
India. This is manifest from paragraph 5 of G.O. 64. That apart, G.O. 64
“5(V) The above cases shall be examined with reference to
the above guidelines on a case to case basis.
(VIII) The life imprisonment prisoners cannot claim
premature release as a matter of right.”
The State Level Committee which is composed of the Inspector General of
Prisons and the Deputy Inspector General of Prisons (Headquarters) can
only recommend a case to the State Government and cannot exercise the
power under Article 161 of the Constitution of India. The Governor of the
State would exercise the power under Article 161, ibid., on the
recommendation of the Cabinet. Thus, the Cabinet has the authority to
accept or reject the recommendation of the State Level Committee and
accordingly, give their advice to the Governor. In the instant case, it is
obvious that the Governor has chosen to reject the recommendation of the
State Level Committee qua premature release of John David, by the
impugned Government Order.
15 Further, in Nilofer Nisha (supra), it has been clearly held at
“26. We would also like to point out that the grant of
remission or parole is not a right vested with the prisoner. It is a
privilege available to the prisoner on fulfilling certain conditions.
This is a discretionary power which has to be exercised by the
authorities conferred with such powers under the relevant
rules/regulations. The court cannot exercise these powers though once
the powers are exercised, the Court may hold that the exercise of
powers is not in accordance with rules. .....”
In this case, the Government exercised its powers via the impugned order
and what remains to be done by this Court is to see whether the exercise of
powers by the authorities was in accordance with G.O. 64.
16 As contended by Mr. A. Ramesh, it is true that in the impugned
order, it is stated that John David had used a doctor's knife, which is
factually incorrect. However, we find that the impugned order is not
predicated only on this erroneous fact. The other facts, viz., the head and
torso of Navarasu was severed and the severed parts were thrown in various
places and were recovered by the police, have been accepted by the trial
Court and the Supreme Court as proved facts. What had weighed with the
Government for refusing to grant the relief under G.O. 64 is the brutal and
cruel manner in which the murder of Navarasu had been committed.
17 Now, the question is, can this Court, in exercise of powers
under Article 226 of the Constitution of India, step into the shoes of the
Governor and decide about the sufficiency of the reasons given in the
impugned order. The answer to this question is available in Epuru
Sudhakar and another vs. State of Andhra Pradesh and Others [(2006)
8 SCC 161], which has been extracted in the preamble portion of G.O. 64
itself. Nonetheless, the said portion is reproduced for ready reference.
“......T he President and the Governor are the sole judges of the
sufficiency of facts and of the appropriateness of granting the pardons
and reprieves. However, this power is an enumerated power in the
Constitution and its limitations, if any, must be found in the
Constitution itself. Therefore, the principle of exclusive cognizance
would not apply when and if the decision impugned is in derogation
of a constitutional provision. This is the basic working test to be
applied while granting pardons, reprieves, remissions and
Ergo, this Court cannot examine the sufficiency of the facts for quashing the
impugned Government Order.
18 As regards the reliance placed by the learned Senior Counsel on
Nilofer Nisha (supra), the Supreme Court, in that case, proceeded to
exercise its powers under Article 142 of the Constitution of India on a case-
to-case basis and directed the release of the convict prisoners therein. We do
not have the powers of the Supreme Court to engage in such an exercise,
however sympathetic we may be towards John David. In fact, in Nilofer
Nisha (supra), which arose from this Court, this Court had ordered
premature release of convict prisoners under G.O.64, challenging which, the
State went on appeal to the Supreme Court. After discussing the legal
position, the Supreme Court, in paragraph 47, has allowed the State's
appeals, but has, under Article 142 of the Constitution of India, gone into the
case of each convict prisoner and has granted relief.
19 That apart, in Sikkander vs. State, represented by its
Secretary to Government of Tamil Nadu and Others (2021 SCC Online
Mad 6586), a Division Bench of this Court, in which, one of us (PNPJ) was
a Member, has discussed all the aspects relating to premature release of
convict prisoners under G.O.64 and the law laid down therein is a binding
precedent.
20 In view of the foregoing discussion, we find no ground
whatsoever to interfere with the impugned Government Order.
In the result, this writ petition fails and is accordingly dismissed as
being devoid of merits, however, sans costs. Connected W.M.P. stand
closed.
1 The Additional Chief Secretary to Government
2 The Additional Director General of Police | The Madras High Court has refused to reconsider the case of John David, convicted prisoner in the 1996 infamous murder of Pon Navarasu, for premature release.A bench of Justices P.N. Prakash and A.A. Nakkiran observed that the State Government and the Governor are not bound by the recommendation made by the jail authorities in favour of John David. The Governor alone can exercise the...
The Madras High Court has refused to reconsider the case of John David, convicted prisoner in the 1996 infamous murder of Pon Navarasu, for premature release.
A bench of Justices P.N. Prakash and A.A. Nakkiran observed that the State Government and the Governor are not bound by the recommendation made by the jail authorities in favour of John David. The Governor alone can exercise the power conferred for granting premature release of a prisoner under Article 161 of the Constitution, upon advice rendered by the State Cabinet, the court added.
Supreme Court had reversed the acquittal of John David by Madras High Court and confirmed the order of conviction by the Cuddalore trial court sentencing him to double life imprisonment in 2011. John David was the prime accused in the murder of Pon Navarasu, a first-year MBBS Student in Annamalai University and the son of Madras University's former Vice-Chancellor. The public outcry after the heinous murder paved way for the first state legislation criminalising ragging in educational institutions, i.e, Tamil Nadu Prohibition of Ragging Act, 1997.
While refusing to entertain the plea made by Dr Esther, mother of the convicted prisoner, against the G.O(D) 372 depriving her son of the benefit of G.0. 64 in commemoration of the birth centenary celebrations of Dr M.G. Ramachandran, the Division Bench noted as below:
"The State Level Committee which is composed of the Inspector General of Prisons and the Deputy Inspector General of Prisons (Headquarters) can only recommend a case to the State Government and cannot exercise the power under Article 161 of the Constitution of India. The Governor of the State would exercise the power under Article 161, ibid., on the recommendation of the Cabinet. Thus, the Cabinet has the authority to accept or reject the recommendation of the State Level Committee and accordingly, give their advice to the Governor."
The bench observed that grant or remission of parole is not a right vested with the prisoner according to Home Secretary (Prison) and Others v. H.Nilofer Nisha [(2020) 14 SCC 161]. The bench further noted that though the Government was misdirected in saying that the convict used Doctor's knife instead of a fruit knife to cut the dead body into several pieces, it does not mitigate the heinous nature of the crime and 'the brutal and cruel manner in which the murder of Navarasu had been committed'.
The court also observed that it cannot interfere with the Government Order under Article 226 since it does have any powers under Article 142, unlike the Supreme Court and the release of prisoners in Nilofer Shah was on a case-case basis by the Supreme Court itself. The court also placed reliance on Epuru Sudhakar & Anr v. State of Andhra Pradesh & Ors. [(2006 8 SCC 161] to underscore that the President and the Governor are the 'sole judges of the sufficiency of facts and of the appropriateness of granting the pardons and reprieves'.
When the petitioner counsel contended that the convicts in much more heinous crimes have been released by the Government prematurely, the judges also noted that there cannot be 'negative equality'. The judgment in R. Muthukumar and Others vs. Chairman & Managing Director, TANGEDCO & Others, SC 140 was referred to wherein the apex court held that if there has been a benefit or advantage conferred on one or a set of people, without legal basis or justification, that benefit cannot multiply, or be relied upon as a principle of parity or equality.
"Therefore, just because the Government had fallen in error in releasing the accused in the infamous Dharmapuri bus burning case and Melavalavu case, the same error cannot be allowed to be perpetrated and relief granted to John David", the court added.
Dharmapuri Bus Burning occurred in 2000, shortly after the former CM J. Jayalalithaa was convicted for the Kodaikanal Pleasant Stay Hotel case. Three students from Tamil Nadu Agricultural University, Coimbatore succumbed to the burns and three AIADMK men were sentenced to death in the trial. Their sentences were commuted in a review petition before the apex court and then they were prematurely released by the state government in 2018.
In the Melavalavu massacre case, a Panchayat President and six Dalit men were killed by the upper caste villagers since they were irked by the election of a Scheduled Caste member as Panchayat President.
"...Again, as rightly pointed out, the act of the accused was not merely to murder the deceased but also to terrorise the entire Scheduled Caste community from daring to stand for Panchayat election", Madras High Court had noted while upholding the conviction of accused.
Thirteen such convicts were allowed premature release by the state government in 2019.
About the petitioner counsel's reliance on Satish @ Sabbe vs. The State of Uttar Pradesh [2020], the court observed that pre mature release was allowed since the executive authorities failed to comply with Section 2 of the Uttar Pradesh Prisoners Release on Probation Act, 1938 and not because remission can be claimed as a matter of right.
The court also clarified that the Madras High Court Division Bench Judgment in K.Rajasekar v. State and Other (2022) was on the basis of the fact that a couple had committed the murder of a child, and since no one knew who committed the murder, the husband alone can be granted remission while the wife is denied the same stating that she has committed a heinous crime.
The court acknowledged that the conduct certificate by the Superintendent of Police (Prisons) indicate that John David has turned a new leaf and has shown exemplary conduct while in jail. however, that alone wouldn't make him eligible for the premature release under the scheme and it will be the discretion of the Governor, the court concluded.
Case Title: Dr. Esther, MBBS, DGO v. State of Tamil Nadu & Ors
Case No: W.P. No.8237 of 2020 & W.M.P. Nos.9842 and 9845 of 2020 |
The FIR was lodged by the 2nd respondent alleging
that one Tulasa Ram – accused No.1 was due a sum of
Rs.66,00,000/- (Rupees Sixty Six Lakhs only) and he had
lodged the FIR against the accused No.1 before the
Halasoor Gate Police Station. Such being the case, when
the respondent No.2 and accused No.1 met at Prakash
Café as to settle the matter, at that point of time, the
accused No.1 and petitioner – accused No.2 herein, abused
the 2nd respondent in filthy language and gave threat to
his life and also assaulted him with their hands.
2. The police after investigation, submitted the
chargesheet against the petitioner and others for the
offences punishable under Section 323, 504, 506 r/w 34 of
3. The learned Magistrate after accepting the
chargesheet, took cognizance for the aforesaid offences
and issued summons to the petitioner – accused. Taking
exception to the same, this petition is filed.
4. Learned counsel for the petitioner submits that
the alleged incident had taken place 45 days prior to
lodging of the FIR. However, there is no plausible
explanation offered in the FIR for the delay in lodging the
FIR. He further submits that in the absence of any
statement of the employees or customers in the Prakash
Café, recorded under Section 161 of IPC, the chargesheet
filed by the police in the absence of any corroborative
material is without any substance.
5. Learned HCGP appearing for the State would
submit that the chargesheet material clearly discloses the
commission of the aforesaid offences alleged against the
petitioner and the same does not warrant any interference
by this Court.
6. I have considered the submissions made by
learned counsel appearing for the parties.
7. The FIR was lodged alleging that one and half
months back the petitioner and other accused abused him
in filthy language and assaulted him. However, there is no
plausible explanation offered in the impugned FIR for the
delay in lodging the FIR.
8. The Apex Court in the case of State of AP vs.
M.Madhusudhan Rao, reported in (2008) 15 SCC 582, at
para 30 has held as follows:
“30. Time and again, the object and importance
of prompt lodging of the first information report
has been highlighted. Delay in lodging the first
information report, more often than not, results
in embellishment and exaggeration, which is a
creature of an afterthought. A delayed report
not only gets bereft of the advantage of
spontaneity, the danger of the introduction of a
coloured version, an exaggerated account of the
incident or a concocted story as a result of
deliberations and consultations, also creeps in,
casting a serious doubt on its veracity.
Therefore, it is essential that the delay in
lodging the report should be satisfactorily
explained.”
9. In the absence of any plausible explanation
offered by the 2nd respondent – informant, the FIR lodged
against the petitioner – accused is with malice and without
any probable cause. Even otherwise, to constitute the
commission of the offence punishable under Section 323 of
IPC, the police have not placed any material that the
respondent No.2 sustained any simple injuries due to the
alleged assault made by the petitioner – accused.
10. To constitute the commission of offence
punishable under Section 504 and 506 of IPC, the intention
of insult must be of such a degree to provoke breach of
public peace or commission of any other offence. In the
present case, the abusive language alleged to have been
used by the petitioner – accused has not caused breach of
public peace or commission of any other offences. In view
of the same, it would be an abuse of process of law, if the
criminal proceedings are allowed to be continued against
the petitioners, since the probability of conviction of the
petitioner – accused No.2 is remote and bleak.
Accordingly, I proceed to pass the following:
Criminal petition is allowed.
C.C.No.20068/2015 pending on the file of
I ACMM, Bengaluru City insofar it relates
to petitioner – accused No.2 is hereby
quashed. | The Karnataka High Court has quashed criminal proceedings pending against a man holding that the FIR lodged by the complainant was 45 days after the alleged incident of assault and no plausible explanation was given for the delayed filing of FIR.
A single judge bench of Justice Hemant Chandangoudar allowed the petition filed by B.Durga Ram and quashed the proceedings initiated against him for offences punishable under sections 323, 504, 506, and 34 of the Indian Penal Code.
Case Details:
The FIR was lodged by the 2nd respondent alleging that one Tulasa Ram – accused No.1 was due a sum of Rs.66,00,000/- and he had lodged the FIR against the accused No.1 before the Halasoor Gate Police Station.
When the respondent No.2 (Babu Lal) and accused No.1 met at Prakash Café as to settle the matter, at that point of time, the accused No.1 and petitioner –accused No.2 herein, abused the 2nd respondent in filthy language and gave threat to his life and also assaulted him with their hands.
The police after investigation, submitted the chargesheet against the petitioner and others. The Magistrate after accepting the chargesheet, took cognizance for the aforesaid offences and issued summons to the petitioner – accused.
Petitioner's submissions:
The alleged incident had taken place 45 days prior to lodging of the FIR. However, there is no plausible explanation offered in the FIR for the delay in lodging the FIR. Further, in the absence of any statement of the employees or customers in the Prakash Café, recorded under Section 161 of IPC, the chargesheet filed by the police in the absence of any corroborative material is without any substance.
Respondent opposed the plea:
The chargesheet material clearly discloses the commission of the aforesaid offences alleged against the petitioner and the same does not warrant any interference by this Court.
Findings:
The bench relied on the Supreme Court judgment in the case of State of AP vs. M.Madhusudhan Rao, reported in (2008) 15 SCC 582 and said, "The FIR was lodged alleging that one and half months back the petitioner and other accused abused him in filthy language and assaulted him. In the absence of any plausible explanation offered by the 2nd respondent – informant, the FIR lodged against the petitioner – accused is with malice and without any probable cause."
As regards the sections invoked against the petitioner the court said,
"To constitute the commission of the offence punishable under Section 323 of IPC, the police have not placed any material that the respondent No.2 sustained any simple injuries due to the alleged assault made by the petitioner – accused. To constitute the commission of offence punishable under Section 504 and 506 of IPC, the intention of insult must be of such a degree to provoke breach of public peace or commission of any other offence. In the present case, the abusive language alleged to have been used by the petitioner – accused has not caused breach of public peace or commission of any other offences."
Following which it held,
"It would be an abuse of process of law, if the criminal proceedings are allowed to be continued against the petitioners, since the probability of conviction of the petitioner – accused No.2 is remote and bleak."
Accordingly it allowed the petition.
Case Title: B.DURGA RAM v. The State By BENGALURU CITY CENTRAL P.S.
Case No: CRIMINAL PETITION NO.2072 OF 2017
Date of Order: 02ND DAY OF JUNE, 2022
Appearance: Advocate CHANDRAHASA RAI B for petitioner; HCGP S. VISHWAMURTHY for R1 |
Petitioners are before this Court calling in question
proceedings in C.C.No.115 of 2021 pending before the Principal
Civil Judge & JMFC, Channapatna, arising out of PCR No.151 of
2018, initiated for offences punishable under Sections 494 and
109 of IPC r/w. Section 34 of the IPC.
2. Heard Sri Ravindranath K., learned counsel for the
petitioners and Sri S.G.Rajendra Reddy, learned counsel for the
3. Brief facts leading to the filing of the present petition, as
borne out from the pleadings, are as follows:-
Petitioner No.1 presently aged 76 years is the husband of
the complainant/wife/respondent who is aged 69 years.
Petitioner Nos.2 to 6 are all either family members, close
relatives or friends of the 1st petitioner/husband. Marriage
between the 1st petitioner and the respondent takes place on
02.05.1968. It is stated that from the wedlock of the 1st
petitioner and the respondent three children were born. Out of
the three, one is no more and two others who are daughters are
residing in their respective matrimonial houses. It is the
averment in the petition that in the year 1972-73, the 1st
petitioner with the consent of the respondent married one Smt.
Savitramma who is the sister of the respondent/complainant.
From that wedlock, the 1st petitioner and Smt. Savitramma have
two children – one is 45 years old and the other is 43 years old.
4. The 1st petitioner again gets married in the year 1993
with the 2nd petitioner/Smt. Varalakshmi. Again the averment is
that, it was with the permission and consent of the 1st and 2nd
wives. It is also stated that the properties of the 1st petitioner
were equally divided amongst all of them. Therefore, it is the
contention that the 1st wife - Smt. Chandramma/respondent
was aware of the marriage of the 1st petitioner with Smt.
Savitramma, the second marriage and both Smt. Savitramma
and the respondent were aware of the marriage of the 1st
petitioner with the 2nd petitioner i.e., the third marriage. It is
also stated that all of them lived together peacefully.
5. In the year 2008, it appears that the 1st petitioner
constructed a residential house in which the 1st and the 2nd
petitioners performed all the rituals in the presence of all the
members of the family and the wives. On 12-01-2015, it is
averred that a gift deed was registered by the 1st petitioner in
favour of the 2nd petitioner of a particular property. Likewise,
another property was also gifted to the 2nd petitioner. The gifts
made by the 1st petitioner in favour of the 2nd petitioner did not
go well with the respondent/wife referred to as the first wife. On
07-07-2017, the respondent causes a legal notice upon the 1st
and 2nd petitioners contending that the 1st and the 2nd
petitioners have got married on suppression of earlier marriage
that took place between the respondent and the 1st petitioner.
The 1st and the 2nd petitioners also replied to the notice.
Another civil proceeding is instituted by the daughters of the 1st
petitioner and the respondent in O.S.No.91 of 2017 claiming
partition and separate possession of various properties
belonging to the 1st petitioner. Both the 1st and the 2nd
petitioners are defendants in the said suit.
6. Things standing thus, the respondent files a private
complaint invoking Section 200 of the Cr.P.C. against the
petitioners herein alleging offences punishable under Section
494 of the IPC for bigamy, Section 109 of the IPC for abatement
and Section 34 of the IPC in PCR No.151 of 2018. The
respondent also files an application under Section 12 of the
Domestic Violence Act, 2015 on the very next day of registration
of the aforesaid private complaint in Criminal Miscellaneous
No.138 of 2018. The other petitioners appear to have given
evidence in Criminal Miscellaneous No.138 of 2018. Later, the
learned Magistrate in P.C.R.No.151 of 2018 issued summons to
the petitioners on 08-02-2021 after registering the crime in
C.C.No.115 of 2021 in terms of Section 204 of the Cr.P.C., which
was after an order taking cognizance of the offences against the
petitioners. It is this act of the learned Magistrate taking
cognizance that is called in question in the subject petition.
7. The learned counsel appearing for the petitioners would
vehemently argue and contend that the allegation of polygamy
against the 1st petitioner is unfounded as the
complainant/respondent was very well aware of the
relationships of the 1st petitioner as with her consent the 1st
petitioner married one Smt. Savitramma, sister of the
complainant and with the consent of both the sisters married
the 2nd petitioner. It is his submission that all these events have
happened first in the year 1972-73 and later, in the year 1993-
94. The complaint is registered in the year 2018, after about 25
years of the marriage with the 2nd petitioner and after about 45
years of the complainant being aware of the 2nd marriage. In all,
the submission of the learned counsel is that, the dispute with
regard to distribution of properties is racked up by registering a
private complaint 25 years after the marriage of the 2nd
8. On other hand, the learned counsel appearing for the
respondent would vehemently refute the submissions to contend
that the complainant was not even aware of the marriage of the
1st petitioner with the 2nd petitioner. Suppressing the fact that
the 1st petitioner is already married, he married the 2nd
petitioner which would definitely amount to bigamy and there
can be no delay in cases of bigamy is his emphatic submission.
9. I have given my anxious consideration to the
submissions made by the respective learned counsel appearing
for the parties and perused the material on record.
10. The afore-narrated graphic details of dates and events
are not disputed and are therefore not reiterated. The 3rd
marriage of the 1st petitioner is admitted even in the petition.
Therefore, the only issue that false for my consideration is,
“Whether the offence of bigamy is a continuing
offence or the proceedings instituted for offence punishable
for bigamy under Section 494 of the Cr.P.C. can be
obliterated on the ground of delay?
11. A few dates that would be needed for the said
consideration are that, the marriage of the 1st petitioner with the
complainant is on 02-05-1968. Marriage with the sister of the
complainant is in the year 1972-73. From the wedlock, the 1st
petitioner with the complainant or her sister has three and two
children respectively, who are all aged more than 45 years.
During the subsistence of these two marriages, the 1st petitioner
marries the 2nd petitioner on 12-04-1993. Therefore, the 1st
petitioner has admitted that he has contracted three marriages.
The complainant being aware of subsequent marriages are not
would be legally immaterial. The Apex Court in the case of
STATE OF BIHAR v. DEOKARAN NENSHI AND ANOTHER1,
has interpreted the phrase ‘continuing offence’ and holds as
“5. A continuing offence is one which is susceptible of
continuance and is distinguishable from the one which is
committed once and for all. It is one of those offences which
arise out of a failure to obey or comply with a rule or its
requirement and which involves a penalty, the liability for
which continues until the rule or its requirement is obeyed or
complied with. On every occasion that such disobedience or
non-compliance occurs and reoccurs, there is the offence
committed. The distinction between the two kinds of
offences is between an act or omission which constitutes an
offence once and for all and an act or omission which
continues, and therefore, constitutes a fresh offence every
time or occasion on which it continues. In the case of a
continuing offence, there is thus the ingredient of
continuance of the offence which is absent in the case of an
offence which takes place when an act or omission is
committed once and for all.”
The Apex Court holds that a continuing offence is one which is
susceptible of continuance and is distinguishable from the one
which is committed once and for all. Following the aforesaid
judgment, a learned single Judge of the High Court of Gujarat in
the case of JAFAR ABBAS RASOOLMOHAMMAD MERCHANT v.
STATE OF GUJARAT2, holds that bigamy is a continuing
offence. The learned Judge has held as follows:
“56. In interpreting Section 494 of the IPC, one
should look into the purpose of enactment and also to the
mischief to be prevented. The object of enacting Section
494 of the Penal Code, 1860, to my mind, clearly was to
punish persons, who in defiance of the law applicable to
them in matters of marriage and divorce, etc., take a
second wife during the existence of the first, but for the
Personal Law of the Muslim, as discussed above, the
applicant would be guilty of the offence of bigamy, if
ultimately proved, on the basis of the evidence recorded in
the course of the trial. He is able to get away with which
by misinterpreting and misusing to his advantage, the
message of the holy prophet Mohmmad, which is reflected
in the holy ‘Quran’. The ‘Quran’ does not say that a
Muslim can treat his wife cruelly, drive her out and without
dissolution the first marriage in accordance with law, he
can marry for the second time and upto four times. The
message of the holy prophet is loud and clear. Everyone
knows about it, but still do not want to follow it.
77. In the case of State of Bihar v. Deokaran Nenshi,
reported in (1972) 2 SCC 890: (AIR 1973 SC 908), it was
observed by the Apex Court that a continuing offence is one
which is susceptible of continuance and is distinguished
from the one which is committed once and for all. It is one
of those offences which arise out of a failure to obey or
comply with a rule or its requirement and which involves a
penalty, the liability for which continues until the rule or its
requirement is obeyed or complied with. On every occasion
that such disobedience or non-compliance occurs and
reoccurs, there is the offence committed. The distinction
between the two kinds of offences is between an act or
omission which constitutes an offence once and for all and
an act or omission which continues, and therefore,
constitutes a fresh offence every time or occasion on which
it continues. In the case of a continuing offence, there is
thus the ingredient of continuance of the offence which is
absent in the case of an offence which takes place when
an act or omission is committed once and for all.”
Several other High Courts have also taken the similar view that
bigamy is a continuing offence. If admitted facts as deliberated
hereinabove are taken note of, it cannot be in doubt that the 1st
petitioner has contracted second and even third marriages
during the subsistence of the 1st marriage with the complainant.
In the teeth of the admitted fact, no further interpretation need
be given, as even to day, the 1st petitioner admits that he is the
husband of three women. Therefore, he is in the web of the
offence punishable under Section 494 of the IPC. The
proceedings against the 1st and 2nd petitioners cannot be
quashed as the offence is admitted by the 1st petitioner in the
petition. It being with the consent of the 1st wife or with the
consent of the 1st and 2nd wives for the third time would become
immaterial for consideration of offence of bigamy. In the teeth of
the admitted facts of the petitioner marrying thrice and its
subsistence even as on day, the plea of delay in registration of
the crime would pale into insignificance, as bigamy in the case
at hand is a continuing offence. The 1st petitioner, the 2nd
petitioner and the other two wives of the 1st petitioner have all
married the 1st petitioner during the subsistence of each others
marriage and being fully aware of the preceding marriage.
Therefore, the proceedings will have to be continued against
12. Insofar as the case of petitioner Nos.3, 4, 5 and 6 is
concerned, it will have to be viewed with a different lens. The act
of bigamy generally is a triangle involving the husband, the 1st
wife and the 2nd wife. This is a peculiar case where it is a
quadrangle, though the 2nd wife is not before the Court.
Therefore, the 1st petitioner, 2nd petitioner and the complainant
will have to resolve the issue amongst themselves. Petitioner
Nos.3, 4, 5, and 6 who are other family members or friends of
the 1st petitioner cannot be hauled into these proceedings unless
there are instances to demonstrate that they were responsible
for the commission of second marriage or even the third
marriage. That is not the averment in the complaint. The 2nd
marriage has taken place in the year 1973 and the third
marriage in the year 1993. Dragging all other members of the
family and friends into the web of these proceedings sans
13. Therefore, criminal proceedings against petitioner
Nos.3, 4, 5 and 6 require to be obliterated and the charge sheet
against petitioner Nos.1 and 2 is required to be sustained only
for the offence under Section 494 of the IPC and not under
Section 109 of IPC.
14. It is for the protagonists in the quadrangle to resolve
the issue amongst themselves and not drag other persons into
these proceedings. If the proceedings against other petitioners
are not quashed, it would become an abuse of the process of
law, result in miscarriage of justice and quadruplet harassment
to petitioner Nos.3 to 6.
15. For the aforesaid reasons, I pass the following:
i. The Criminal Petition is allowed in part.
ii. Criminal Petition insofar as it concerns petitioner
Nos.1 and 2 stands dismissed.
iii. Criminal petition insofar as petitioner Nos.3, 4, 5 and
6 is concerned is allowed. Proceedings against them
stand quashed.
iv. It is made clear that the observations made in the
course of this order are only for the purpose of
consideration of the case of the petitioners either to
sustain or to obliterate the proceedings. The same
would not influence or bind further proceedings
against petitioner Nos.1 and 2 or any other accused
or any other proceedings pending before the
authorities. | The Karnataka High Court has said that bigamy under section 494 of the Indian Penal Code (IPC) is a continuing offence and the consent of wife for the subsequent marriage would become immaterial for consideration of the offence.
A single judge bench of Justice M Nagaprasanna made the observation while dismissing a petition filed by a 76-year-old man and his third wife, seeking to quash the criminal proceedings initiated against them by the man's first wife.
The court said,
"The proceedings against the 1st and 2nd petitioners cannot be quashed as the offence is admitted by the 1st petitioner in the petition. It being with the consent of the 1st wife or with the consent of the 1st and 2nd wives for the third time would become immaterial for consideration of offence of bigamy."
Case details:
The marriage between the 1st petitioner and the respondent took place in 1968. It is averred that in the year 1972-73, the 1st petitioner with the consent of the respondent married her sister, Savitramma. The 1st petitioner again got married in the year 1993 with the 2nd petitioner/ Smt. Varalakshmi. Again, the averment is that, it was with the permission and consent of the 1st and 2nd wives.
It was also stated that the properties of the 1st petitioner were equally divided amongst all of them. Therefore, it is the contention that the 1st wife was aware of the marriage of the 1st petitioner with Smt. Savitramma, the second marriage and both Smt. Savitramma and the respondent were aware of the marriage of the 1st petitioner with the 2nd petitioner i.e., the third marriage. It is also stated that all of them lived together peacefully.
The respondent in 2018, filed a private complaint invoking Section 200 of the Cr.P.C. against the petitioners herein alleging offences punishable under Section 494 of the IPC for bigamy, Section 109 of the IPC for abatement and Section 34 of the IPC. The respondent also filed an application under Section 12 of the Domestic Violence Act, 2015 on the very next day of registration of the aforesaid private complaint.
Later, the Magistrate issued summons to the petitioners in terms of Section 204 of the CrPC, which was after an order taking cognizance of the offences against the petitioners. It is this act of the Magistrate taking cognizance that was called in question in the subject petition.
Petitioners submissions:
It was said that the allegation of polygamy against the 1st petitioner is unfounded as the complainant/respondent was very well aware of his relationships as with her consent, the 1st petitioner contracted subsequent marriages. It was further submitted that the complaint was registered in the year 2018, after about 25 years of the marriage with the 2nd petitioner and after about 45 years of the complainant being aware of the 2nd marriage.
Respondents submissions:
The complainant submitted that she was not even aware of the marriage of the 1st petitioner with the 2nd petitioner. Suppressing the fact that the1st petitioner is already married, he married the 2nd petitioner which would definitely amount to bigamy and there can be no delay in cases of bigamy is his emphatic submission.
Findings:
The bench relied on the Apex Court judgment in the case of State Of Bihar V. Deokaran Nenshi And Another, (1972) 2 SCC 890, wherein it was held that a continuing offence is one which is susceptible of continuance and is distinguishable from the one which is committed once and for all. It was observed,
"Several other High Courts have also taken the similar view that bigamy is a continuing offence. If admitted facts as deliberated hereinabove are taken note of, it cannot be in doubt that the 1st petitioner has contracted second and even third marriages during the subsistence of the 1st marriage with the complainant. In the teeth of the admitted fact, no further interpretation need be given, as even today, the 1st petitioner admits that he is the husband of three women. Therefore, he is in the web of the offence punishable under Section 494 of the IPC."
It then held, "The 1st petitioner, the 2nd petitioner and the other two wives of the 1st petitioner have all married the 1st petitioner during the subsistence of each other's marriage and being fully aware of the preceding marriage. Therefore, the proceedings will have to be continued against them."
In regards to other petitioners the bench said, "Petitioner Nos.3, 4, 5, and 6 who are other family members or friends of the 1st petitioner cannot be hauled into these proceedings unless there are instances to demonstrate that they were responsible for the commission of second marriage or even the third marriage. That is not the averment in the complaint. The 2nd marriage took place in 1973 and the third marriage in 1993. Dragging all other members of the family and friends into the web of these proceedings sans countenance."
It added,
"It is for the protagonists in the quadrangle to resolve the issue amongst themselves and not drag other persons into these proceedings. If the proceedings against other petitioners are not quashed, it would become an abuse of the process of law, result in miscarriage of justice and quadruplet harassment to petitioner Nos.3 to 6."
Case Title: ANAND C. @ ANKU GOWDA & others v. CHANDRAMMA
Case No: CRIMINAL PETITION No.9849 OF 2021
Date of Order: 25TH DAY OF MAY, 2022
Appearance: Advocate RAVINDRANATH K for petitioners;Advocate S.G.RAJENDRA REDDY for respondent. |
ivil Appeal No. 1213 of 1979.
583 From the Judgment and Order dated 24.4.
1978 of the Gujarat High Court in L.P.A. No. 97 of 1978.
Appellant in person.
H.S. Parihar for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
The appellant, D.M. Bharati, challenges the validity of an order dated 30.9.
1976 passed by the Deputy Municipal Commissioner of the Municipal Corporation of the City of Ahmedabad.
By the said order, the Deputy Municipal Commissioner, consequent on the staff of the Municipal Corporation working in the Town Planning Estab lishment having to be absorbed in the Municipal Corporation, "reverted" the appellant from the post of junior draftsman in the Establishment and appointed him to act in the post of a tracer in the Town Development Department of the Corpora tion.
The High Court rejected his writ petition and hence the present appeal.
It is necessary to state the relevant facts.
The appel lant had been appointed as a tracer in the Estate Department of the Municipal Corporation on 26.6.
1955 and worked there till 18th February, 1957.
It appears that the Government appointed a Town Planning Officer under the provisions of section 31 of the Bombay Town Planning Act.
The Town Planning Officer had to be supplied with an establishment.
The establishment of the Town Planning Officer was admitted ly temporary.
An arrangement was entered into between the two authorities that the arbitrator in the planning office could select such persons from the Corporation for his establishment as he thought fit.
The Town Planning Officer demanded the services of the appellant and he was appointed as a tracer in the Town Planning Establishment on 22.2. 1957.
It is not clear whether the appellant went therein by way of transfer or by way of deputation as the original order dated 22.2.
1957 is not available with us.
However, the High Court and the appellant have proceeded on the footing that the appellant was deputed from the Municipal Corporation to the Town Planning Establishment.
Sometime later, the post of a junior draftsman fell vacant in the Town Planning Establishment.
The appellant tells us that he was asked to take charge of that post on 4.12.
It appears that Mr. Yevla (Respondent No. 6 in the W.P.) was posted to fill in that vacancy but, 584 on 21.4.
1960, his appointment was cancelled and the appel lant was appointed as junior draftsman in the Town Planning Establishment w.e.f.
The appellant tells us that he had also been subsequently recommended for appointment to the post of Surveyor cum Draftsman, which was a higher post and which had fallen vacant on 28.2.
But before this proposal could materialise the appellant was suspended on 5th December, 1962 by the Corporation and was removed from service on 13.5.64.
The Industrial Court granted approval to the removal of the appellant from service but made certain observations suggesting that he may be re appointed to the said post.
The appellant filed a writ petition against the order of the industrial court.
The High Court eventually, set aside the order of the industrial court on 1.2.
1969 and remanded the matter for fresh disposal to the industrial court.
The Municipal Corporation preferred S.L.P. 48/71 in this Court which was dismissed on 27.1.71.
The industrial court re heard the matter pursuant to the order of the High Court and declined approval to the order of removal of the appellant from service with the result that the order of removal dated 13.5.64 stood vacated and an order was passed on 3.3.71 by the Municipal Commissioner that the appellant was reappointed as a junior draftsman in the Town Planning Establishment.
In the meantime, on 16.8.
1965, consequent on the recom mendations of the industrial court, the appellant was ap pointed as junior draftsman in the Estates Department of the Municipal Corporation where he had been previously working.
This purported to be a fresh appointment and so the appel lant made a representation that he should be appointed in this post according to his seniority.
No orders were passed on this representation except a direction that the appellant should join service within a week of receipt of the memo and then represent his case for seniority, if he so desired.
Thereupon the appellant accepted the order re appointing him as junior draftsman in the Estates Department and took charge of his office.
The order of the High Court has found that the appellant was relieved from service on 1.10.1967 because of retrenchment.
When the above proceedings in the case of the appellant were taking place respondents 6 to 11 were directly selected as junior draftsmen by the Staff Selection Committee and promoted to the said post.
The appellant did not appear before the Staff Selection Committee perhaps because of the various proceedings above referred to, as a result of which he was under suspension from 5.12. 1962 to 13.5.
1964, when he was removed and then again till 16.8.65, when he was re 585 appointed as a draftsman.
Once the proceedings against the appellant came to a close, the Municipal Commissioner passed order on 3.3. 1971, cancelling the order dated 13.5.
1964 removing the appellant from service.
He was re appointed as a junior draftsman in the Town Planning establishment.
Subsequently, however, the Town Planning Establishment was abolished, and the appellant was served with the order dated 30.9.
1976, by which he was reverted to the services of the Municipal Corporation.
On such reverter, however, as we have seen, he was posted as a tracer and not as a junior drafts man.
The appellant filed an appeal against the said order before the Standing Committee but his appeal was rejected on 15.3.
1977 on the ground that in the Corporation direct recruits were already working as junior draftsmen, and that there was no post of junior draftsman vacant in the Corpora tion, to which the appellant could be appointed.
The appel lant thereupon filed a writ petition and, as already stated, he was unsuccessful therein and hence this present appeal.
The appellant 's contention before the High Court was two fold.
The first contention was that since he had been ap pointed as junior draftsman in the Town Planning establish ment by the order dated 21.4.
1960, he could not be repatri ated as a tracer in the Municipal Corporation, that is, to a lower post.
It was also contended that the order dated 30.9.
1976 has been passed by the Deputy Municipal Commissioner, who is a person lower in rank than the person who appointed him, namely, the Municipal Commissioner and that, therefore, the order dated 30.9.76 was passed by an officer without jurisdiction.
These two arguments have been reiterated before us also.
So far as the second contention is concerned it may at once be pointed out that if the order dated 30.9.76 is an order of reversion by way punishment, the appellant 's contention may be correct in view of the provi sions contained in sections 53 and 56 of the Bombay Provin cial Municipal Corporation Act.
However, if the order dated 30.9.76 has merely given effect to the abolition of the Town Planning establishment and restored the appellant to the post he can properly hold in the Municipal Corporation then no element of reversion would be involved and the Deputy Commissioner would be quite competent to pass the order in question.
The only question therefore that survives for consideration is regarding the validity of an order dated 30.9.76 in so far as it purported to appoint the appellant as a tracer in the Municipal Corporation instead of as a junior draftsman.
We may mention here that a point was also made that the appellant should not have been appointed as an "acting" tracer but it has been explained by the Corporation that it was a verbal inaccuracy and that the appointment 586 of the appellant in the Municipal Corporation is not an acting but a substantive one.
This point, therefore, does not survive.
We shall proceed on the assumption that the appellant went to the Town Planning establishment (which was a tempo rary one) by way of deputation from the Municipal Corpora tion.
There is some controversy as to whether the appellant was properly promoted as junior draftsman in the Town Plan ning establishment.
There is a suggestion that both the demand by the Town Planning establishment for the services of the appellant as well as his promotion therein were not acceptable to the Corporation and that they were the conse quence of undue favour shown to the appellant by the Arbi trator who was the appointing authority.
We do not think it is necessary to go into this controversy here because it is quite clear that the appellant 's promotion as junior drafts man and proposed promotion as Surveyor cum Draftsman in the Town Planning Establishment cannot confer any rights on him in his parent department.
When he left the Municipal Corpo ration and joined the Town Planning establishment he was a tracer and he can go back to the Estate Department or any other Department of the Municipal Corporation only to his original post i.e., as tracer, subject to the modification that, if in the meantime he had qualified for promotion to a higher post, that benefit cannot be denied to him.
In the present case, unfortunately, what happened was that when junior draftsmen were recruited by the Municipal Corporation in 1959 60 and in 1963 64, persons were selected and ap pointed to the said posts through the machinery of a Staff Selection Committee.
The appellant submits that he had been wrongly overlooked and that the respondents had been wrongly promoted as junior draftsmen.
He points out that, under the regulations, junior draftsmen had to be appointed by promo tion on the basis of seniority cure fitness and that the question of Staff Selection Committee did not at all arise.
According to him, the procedure for selecting by Staff Selection Committee would not come into force when the recruitment was restricted to persons in the municipal service.
In the present case, however, all the persons, who were appointed as junior draftsmen during the appellant 's absence were from the municipal service.
The appointment should, therefore, have been made directly by promotion without the intervening machinery of the Staff Selection Committee and the appellant being the seniormost tracer should have been appointed as junior draftsman in preference to respondents 6 to 11.
There are considerable difficulties in accepting this case of the appellant.
In the first place, what he is really attempting is to challenge 587 the appointments of respondents 6 to 11, which had been made in 1963 64, by a writ petition filed in 1978, more than a decade after the above selections and appointments had been made It is true that, at that time the appellant, was under a cloud because he had been suspended and subsequently removed from service.
But all the same, if he had desired to challenge those appointments, he should have taken immediate steps.
Anyhow, these obstacles had disappeared when the tribunal, on remand by High Court, had disapproved the appellant 's removal from service by the order dated 13.5.
At least in 1971.
when the order was passed restoring him to the position of junior draftsman in the Town Planning establishment, he could and should have taken steps to obtain his "pro forma" promotion in the parent department.
The appellant says he was making some representations but this was not enough.
The fact is that he took no effective steps to challenge the appointment of respondents 6 to 11 from 1963 64 right upto 15.2.1978, when he filed the writ petition or atleast upto 1.10.1976, when he made a represen tation against the order of reversion.
Quite apart from the above consideration, there is no material before us to show that the appointments of respond ents 6 to 11 were made irregularly and that the constitution of a Staff Selection Committee for selecting junior drafts men did not conform to the regulations and the provisions of the Bombay Provincial Municipal Corporations Act.
The Corpo ration has stated that they have been directly recruited.
The High Court has pointed out that the relevant regulation gave a discretion to the Commissioner to make the appoint ments by promotion or by direct recruitment.
section 54(2) of the Municipal Act, on which the petitioner relies, no doubt dispenses with the Staff Selection Committee when it is proposed to fill the appointment from among persons already in municipal service.
But the nature of the recruitment that took place is not known.
That apart, the constitution of a Staff Selection Committee to decide upon the selections cannot be said to be illegal even though not mandatory in the situation.
The High Court has found as a fact at more than one place in the judgment that the respondents 6 to 11 had been directly selected as junior draftsmen after proper scrutiny by the Staff Selection Committee.
Even the appel lant stated before us that there was a circular among the municipal employees in regard to these appointments and selections.
The appellant should have made an application for selection at that time or, if he thought it more appro priate, should have challenged the constitution of Staff Selection Committee and the direct recruitment and not forward his claim for promotion as junior draftsman by virtue of his 588 seniority.
That he failed to do at the crucial time.
It may be that this was because he had certain difficulties facing him by way of suspension and subsequent expulsion from service.
But even in 1971, after his original order of suspension and removal had been set aside, he took no imme diate steps to claim his rights in the parent department.
He was apparently satisfied with his restoration as junior draftsmen in the Town Planning establishment.
We are in agreement with the High Court that, having regard to the circumstances of the appointment of respondents 6 to 11, he was not entitled to any promotion in preference to them and that he cannot claim appointment as junior draftsman when there was no such post in 1976 to which he could be appoint ed.
It is not his case that any posts of junior draftsmen became vacant after his reversion to the parent department to which he could have been promoted.
The appellant contends that the fact that his eligibili ty for appointment as a junior draftsman in the parent department had been accepted by the order dated 16.8.1965 referred to earlier.
It is also pointed out that subsequent ly a question arose of the seniority as between the appel lant and one Kavadia.
This was gone into and the Municipal Corporation accepted the position that the appellant pos sessed qualifications required for the post of junior draftsman and that he was senior to Mr. Kavadia.
This was sometime in 1966.
We, however, find that this aspect of the matter does not help the appellant because the order dated 16.8.
1965 was passed in pursuance of the recommendation of the industrial court, while approving the appellant 's remov al, that he may be reconsidered for appointment.
In view of this order of the industrial court, the appellant had to be given a posting and since he had been discharged from serv ice when he was a junior draftsman, orders were passed appointing him as junior draftsman.
This again was made as an order of fresh appointment and the appellant 's represen tation that he should be given seniority was not accepted, rightly, for the reason mentioned above.
There is also the further fact that the appellant was relieved from this post with effect from October 1, 1967.
There has been, apparent ly, no challenge to this order.
Moreover, these orders lost their basis once the petitioner was restored to his post in the Town Planning Establishment.
In these circumstances the order dated 16.8.65 or the determination of seniority be tween appellant and Kavadia in 1966 do not help the appel lant 's case.
Learned counsel for the Municipal Corporation submitted to us that the appellant had not joined his post as a tracer in compliance 589 with the order dated 30.9.76 and that by now he has also reached the age of superannuation.
We are not here concerned in this appeal with the consequences of "non acceptance" of the order dated 30.9.76 by the appellant.
We are only con cerned with the question whether the appellant was rightly appointed as tracer on his reverter to the Municipal Corpo ration and that question we have answered in the affirma tive.
We do not express any opinion on the questions raised by the learned counsel for the respondent.
In the circumstances, we are of the opinion that there are no grounds to interfere with the order of the High Court.
We, therefore, dismiss this appeal but, in the cir cumstances, we make no order as to costs.
G.N. Appeal dis missed. | The appellant was appointed as a Tracer in the Municipal Corporation in 1955.
with the appointment of a Town Planning Officer in 1957.
the appellant came to be appointed as a Tracer in the Town Planning Establishment.
Later, the post of Junior Draftsman fell vacant in the Town Planning Estab lishment.
Respondent No. 6 was posted to fill the vacancy.
However, his appointment was cancelled shortly thereafter and the appellant was appointed as Junior Draftsman with effect from 4.12.
The next higher post of Surveyor cum Draftsman fell vacant in 1962.
Meanwhile, the appellant was suspended.
The Industrial Court granted approval for his removal from service, but suggested that he may be reappointed.
Accord ingly.
the appellant was appointed afresh as junior Drafts man in the Estates Department of the Municipal Corporation where he was previously working.
Aggrieved, the appellant filed a writ Petition before the High Court.
Setting aside the order.
the High Court remanded the matter to the Industrial Court for fresh dis posal.
The Special Leave Petition preferred by the employer, viz., the Municipal Corporation against the High Court 's order was dismissed.
The Industrial Court reheard the matter and declined approval for the removal of the appellant from service.
The appellant was reappointed as Junior Draftsman in the Town Planning Establishment which was abolished subsequently, and he was reverted to the service of the Municipal Corporation as a Tracer, and not as a Junior Draftsman.
The appellant filed an appeal against the said order.
but it was rejected on the ground that direct recruits were already working as Junior Draftsmen and that there was no vacancy against which the appellant could be appointed.
581 The appellant moved the High Court by way of a Writ petition.
contending that since he had been appointed as junior Draftsman in the Town Planning Establishment, he could not be repatriated to a lower post, viz. Tracer in the Municipal Corporation.
It was also contended that the Deputy Municipal Commissioner, was a person lower in rank than the appointing authority viz., the Municipal Commis sioner and hence the order passed by him was without juris diction.
The High Court proceeded on the footing that the appel lant was on deputation from Municipal Corporation to the Town Planning Establishment and dismissed the writ Petition.
The appellant has preferred this appeal against the High Court 's order dismissing his Writ Petition.
Dismissing the appeal, this Court.
HELD: 1.
I The appellant 's promotion as junior Draftsman and proposed promotion as Surveyor cum Draftsman in the Town Planning Establishment cannot confer any rights on him in his parent department.
When he left the Municipal Corpora tion and joined the Town Planning Establishment he was a Tracer and he can go back to the Estate Department or any other Department of the Municipal Corporation only to his original post i.e. as Tracer, subject to the modification that, if in the meantime he had qualified for promotion to a higher post.
that benefit cannot be denied to him.
1.2 The order dated 16.8.
1965 was passed in pursuance of the recommendation of the Industrial Court, while approv ing the appellant 's removal, that he may be reconsidered for appointment.
In view of this order of the Industrial Court, the appellant had to be given a posting and since he had been discharged from service when he was a Junior Draftsman.
orders were passed appointing him as junior Draftsman.
This again was made as an order of fresh appointment and the appellant 's representation that he should be given seniority was rightly not accepted.
There is also the further fact that the appellant was relieved from this post with effect from October 1, 1967.
There has been, apparently, no chal lenge to this order.
Moreover, theses orders lost their basis once the petitioner was restored to his post in the Town Planning Establishment.
In these circumstances the order dated 16.8.65 or the determination of his seniority in 1966 are of no relevance to the present case.
2.1 What the appellant is really attempting is to challenge the 582 appointments of Respondents 6 to 11, which had been made in 1963 64, by a Writ Petition filed in 1978, more than a decade after the above selections and appointments had been made.
It is true that, at that time the appellant, was under a cloud because he had been suspended and subsequently removed from service.
But all the same, if he had desired to challenge those appointments, he should have taken immediate steps.
Anyhow, these obstacles had disappeared when the tribunal, on remand by High Court, had and disapproved the appellant 's removal from service by the order dated 13.5.1964.
Atleast in 1971, when the order was passed re storing him to the position of Junior Draftsman in the Town Planning Establishment, he could and should have taken steps to Obtain his "pro forma" promotion in the parent depart ment.
The fact remains that he took no effective steps to challenge the appointment of respondents 6 to 11 from 1963 64 right upto 15.2.1978, when he filed the Writ Petition or atleast upto 1.10.1976, when he made a representation against the order of reversion.
2.2 section 54(2) of the Municipal Act, dispenses with the Staff Selection Committee when it is proposed to fill the appointment from among persons already in municipal service.
But the nature of the recruitment that took place is not known.
That apart, the constitution of a Staff Selection Committee to decide upon the selections cannot be said to be illegal even though not mandatory in the situation.
The High Court has found that respondents 6 to 11 had been directly selected as Junior Draftsmen after proper scrutiny by the Staff Selection Committee.
Admittedly there was a circular among the Municipal employees in regard to these appoint ments and selections.
The appellant should have made an application for selection at that time or, if he thought it more appropriate, should have challenged the constitution of Staff Selection Committee and the direct recruitment and put forward his claim for promotion as Junior Draftsman by virtue of his seniority.
That he tailed to do at the crucial time.
It may be that this was because he had certain diffi culties facing him by way of suspension and subsequent expulsion from service.
But even in 1971, after his original order of suspension and removal had been set aside, he took no immediate steps to claim his rights in the parent depart ment.
He.was apparently satisfied with his restoration as Junior Draftsman in the Town Planning Establishment.
Having regard to the circumstances of the appointment of respond ents 6 to 11, the appellant was not entitled to any promo tion in preference to them and he cannot claim appointment as Junior Draftsman when there was no such post in 1976 to which he could he appointed. |
The petitioners in Writ Petition (L) No. 13705 of 2022 filed
under Article 226 of the Constitution of India, have prayed for a writ of
certiorari for quashing and setting aside letter dated 4 th April, 2022
issued by the respondent no.4 Designated Officer and Executive
Engineer under section 354 of the Mumbai Municipal Corporation Act
read with section 489 of the said Act to the trust/owner/landlord of the
Building No. 225, C.S.No.2179 of Bhuleshwar Division, Junction of
J.S.S. Road & B.J.Marg, Thakurdwar, Mumbai – 400 002 calling upon
them to vacate and pull down the structure/building. The said letter
also called upon the petitioners to prevent all cause of danger therefrom
with a threat of prosecution under section 475-A of the said Act in case
of non compliance of the said notice within 30 days from the date of
service of the said notice and stating that the said building is in a
dangerous condition, likely to fall or in any way dangerous to any
person occupying, resorting to, or passing by such structure or any
other structure or place in the neighbourhood thereof.
2. The petitioners also prayed for a writ of certiorari for quashing
and setting aside the decision of the respondent nos. 1 to 4 to declare
the said building in C-1 category and minutes of the meeting held on
14th October, 2021 of the Technical Advisory Committee.
3. The petitioner in Writ Petition (L) No. 12803 of 2022 has prayed
for quashing and setting aside the notice dated 4 th April, 2022 and seeks
permission to inspect the first floor and take further action as required
as per the report of the Structural Engineer dated 15th July, 2021.
4. By consent of parties, both the writ petitions were heard together
and are being disposed off by a common order :-
5. We shall first summarize the facts in Writ Petition (L) No. 13705
6. The respondent no.5 is the landlord/owner of the building known
Mumbai – 400 002 (hereinafter referred to as the said building.) The
building has ground plus five floors and is more than 100 years old. It
is the case of the respondent no.5 that the said building was used for
providing hostel facilities to widows. The petitioners in this petition
are claiming to be the tenants in the said building. Sometime in the
year 2014, the backside of the building was repaired according to the
7. It is the case of the respondent no.5 that due to the dilapidated
condition of the said building, the widows who were occupying the
tenaments on the five upper floors, were moved to another hostel of the
respondent no.5.
8. The respondent no.5 forwarded a copy of the Structural Audit
Report prepared by a licensed structural consultant Mr.Ramkrishan
Kejriwal to the respondent no.4. As per the said report, the said
building is severely damaged, is in a dilapidated condition and
classified under C-1 category.
9. The respondent no.3 vide letter dated 10th May, 2021, called
upon the respondent no.5 to submit documentary evidence and the
names of the occupiers/tenants within three days from the receipt of the
said letter and directed to take necessary preventive measures such as
propping, barricading, etc. to prevent any untoward incident.
10. On 28th May, 2021, the respondent no.4 called upon the
petitioners stating that the respondent no.4 was in receipt of the
structural audit report of the said building and called upon them to
submit their structural audit report through a licensed structural
consultant within 30 days and/or submit their say in the event they had
any objections to the structural audit report submitted by the
respondent no.5 through Mr.Ramkrishan Kejriwal in accordance with
clause 1.04 of the guidelines issued by the Deputy Municipal
Commissioner dated 25th May, 2018.
11. On 18th June, 2021, the petitioners informed the respondent no.4
that the tenants would like to get a structural audit of the building done.
It is the case of the respondent no.5 that the said letter has not been
signed by Mr.Ramesh Jain and Mr.Praveen Jain. The signature of
Mr.Saroj Kumar Pandey does not match the signature in the writ
12. On 2nd July, 2021, the petitioners appointed Mr.Bhalchandra Oak
as the structural auditor. On 15 th July, 2021, the petitioners submitted a
structural audit report prepared by Mr.Bhalchandra Oak to the
respondent no.4.
13. On 11th August, 2021, the respondent no.5 addressed a letter to
the petitioners inviting their attention to the letter dated 5 th July, 2021
from the respondent no.1 directing them to take preventive measures
such as propping, barricading etc. The petitioners were informed that
the respondent no.5 had appointed M/s.Lakdawala Logistics for
carrying out the said work as instructed by the respondent no.1.
14. On 24th August, 2021, the respondent no.1 informed the parties
that the Deputy Chief Engineer (BP) City, Chairman, Technical
Advisory Committee wishes to inspect the building along with
Technical Advisory Committee and concerned C Ward members on 26 th
15. On 12th September, 2021, the said Mr.Bhalchandra Oak issued a
corrigendum to report dated 15th July, 2021 and opined that ‘the
building structure was classified as C-3, Minor Repairs only’.
16. On 22nd September, 2021, the petitioners filed a suit bearing LC
Suit No. 7793 of 2021 along with Notice of Motion No. 230 of 2021 in
the City Civil Court, Bombay for various reliefs including permanent
order of injunction restraining the Corporation from enforcing the
notice dated 5th July, 2021. On 6th October, 2021, the City Civil Court,
Bombay refused to grant any ad-interim relief holding that till then, no
notice under section 354 of the said Act has been passed and the
building was not classified as C-1 by the Corporation.
17. On 14th October, 2021, the Technical Advisory Committee held a
meeting and after comparing both the structural audit reports and
hearing the structural auditors came to the conclusion that the structure
of the building was in a dilapidated condition and may collapse thereby
endangering life and property of residents and passersby and opined
that the structure under reference needs to be vacated and demolished
immediately. The Technical Advisory Committee declared the said
structure falls in C-1 category.
18. On 1st December, 2021, the Technical Advisory Committee
passed an order directing the respondent no.5 to take necessary and
preventive measures such as propping of the building to avoid any
19. On 22nd December, 2021, the respondent no.1 Corporation
addressed a letter to the respondent no.5 stating that the structure has
been categorized as C-1 structure by the Technical Advisory
Committee on 1st December, 2021 and required the respondent no.5 to
submit the names of the occupiers and evidence of their occupation
within three days. The respondent no.1 once again directed the
respondent no.5 to take preventive action.
20. On 5th January, 2022, the respondent no.5 addressed a letter to
the respondent no.1 and pointed out that the building was more than
100 years old though there was no approval plan of the building. The
respondent no.5 contended that the trust had intended to take
preventive steps but the tenants have objected to the respondent no.5
from taking such preventive steps. On 18 th February, 2022, the
respondent no.5 addressed a letter to the petitioners informing that the
respondent no.5 had appointed a contractor to arrange for propping and
barricading which the petitioners did not permit the respondent no.5 to
21. On 24th February, 2022, the petitioners informed the respondent
no.5 that the contention of the respondent no.5 that the building was
dilapidated/dangerous is baseless and is yet to be adjudged upon by the
Technical Advisory Committee. The respondent no.5 had failed in its
duties to upkeep and repair the building due to which damage was
caused to the building. The petitioners objected to barricading and
propping up the building and informed that the petitioners themselves
would undertake necessary repairs as advised in the structural audit
report of their auditor.
22. On 14th March, 2022, the respondent no.4 issued notice under
section 488 of the said Act to the tenants/ occupiers stating that the
Designated Officer with assistants will enter the premises situated in
the building for the area measurements of shops and rooms as per the
policy guidelines of dangerous/dilapidated structure on 15th March,
23. On 29th March, 2022, the Designated Officer addressed a letter to
the petitioners and the respondent no.5 including a copy of the order
dated 1st December, 2021 passed by the Technical Advisory Committee
and directed the parties to act as per circular dated 25 th May, 2018 and
to take necessary preventive measures in order to avoid any mishap in
the meantime. On 31st March, 2022, the respondent no.4 issued an
area statement to the parties showing the measurement of the premises
taken during the site visit on 15th March, 2022.
24. On 4th April, 2022, the Designated Officer addressed a letter to
the parties under section 354 of the Mumbai Municipal Corporation
Act to vacate and pull down the building within 30 days along with a
threat of initiation of action against them in case of non compliance
under section 475-A of the said Act.
25. On 11th April, 2022, the respondent no.5 called upon the
petitioners to vacate the building within 15 days as the building was
required to be pulled down.
26. It is the case of the respondent no.5 that since the condition of
the building was dilapidated, in the year 2019 itself, the widows were
moved to another hostel of the respondent no.5 and since then the
tenament on the upper floors i.e. first to five floors are lying vacant.
27. The petitioner in Writ Petition (L) No. 12803 of 2022 claims to
be in occupation of shop bearing no. 302 on the ground floor of the
said building carrying on business for more than 70 years. It is also the
case of the petitioner in the said petition that the petitioner has been
paying the rent in respect of the said shop premises from time to time
to the respondent no.5.
28. Mr.Tamboly and Mr.Daver, learned counsel for the petitioners in
Writ Petition (L) No. 13705 of 2022 invited our attention to various
exhibits annexed to the writ petition and various averments from the
reply filed by the respondents.
29. It is submitted that the Technical Advisory Committee as well as
the respondent nos. 1 to 4 have not adhered to the guidelines laid down
by this Court by an order dated 23rd June, 2014 in Writ Petition (L) No.
1135 of 2014. It is submitted that the Technical Advisory Committee
had perused and considered only the structural audit report and carried
out visual observations and surprisingly came to the conclusion that the
said building was in dangerous and dilapidated condition, may collapse
and therefore needs to be vacated and demolished immediately.
30. It is submitted that the Technical Advisory Committee has not
carried out specific test like ultra sonic pulse velocity test, rebound
hammer test, half cell potential test, carbonation depth test, core test,
chemical analysis, cement aggregate ratio. On this ground alone, the
impugned order passed by the Technical Advisory Committee and
action initiated by the respondent nos. 1 to 4 is vitiated. It is submitted
that the Technical Advisory Committee could not have come to such
conclusion without carrying out any such test which were mandatory.
31. Learned counsel for the petitioners invited our attention to the
letter addressed by the Municipal Corporation calling upon the
petitioners to submit the structural audit report through licensed
structural consultant of the building along with Proforma B based on
non destructive testing (NDT) which includes above seven tests. It is
submitted that the said letter dated 28th May, 2021 itself would indicate
the mandatory requirement of carrying out various tests and obtain test
reports along with the structural audit report required to be submitted
by the petitioners.
32. It is submitted that admittedly the respondent no.5 did not carry
out any test in accordance with the mandatory requirement provided in
the guidelines and also Proforma B. No such test reports were
submitted along with the structural audit report submitted by the
respondent no.5. Learned counsel invited our attention to the structural
audit report submitted by Mr.Bhalchandra Oak appointed by the
petitioners submitted that the said report would clearly initiate the
nature of the test carried out by the petitioners before submission of the
said structural audit report. Our attention is also invited to the
corrigendum issued by the said structural auditor stating that the
building was in C-1 category and requires only repairs to be carried
33. Learned counsel for the petitioners invited our attention to the
order passed by the Technical Advisory Committee in the meeting held
on 14th October, 2021 and more particularly the comparison of the audit
report submitted by the parties at page 207 of the petition. It is
submitted that admittedly, the petitioners had carried out about 3 out of
10 tests and had submitted a test report along with structural audit
report submitted by the petitioners. Though the respondent no.5 had
not carried out any of the mandatory test, the Technical Advisory
Committee in the impugned report has only opined that these tests were
not required as the building was having load bearing wall and TW/M.S.
structure and declared the said structure under C-1 category.
34. It is submitted by the learned counsel for the petitioners that the
structural audit report submitted by the petitioners through their
consultant has been totally ignored. No reasons are recorded by the
Technical Advisory Committee as to why the structural audit report
submitted by the petitioners’ structural consultant was not considered
or was not acceptable as against the structural audit report submitted by
the respondent no.5 through their consultant were acceptable.
35. Learned counsel for the petitioners placed reliance on the
judgment of Supreme Court in case of Union of India vs. Mohan Lal
Capoor and others, (1973) 2 SCC 836 and submitted that whether
administrative quasi judicial order should reveal rational nexus
between the facts considered and the conclusions reached to show that
the decision was manifestly just and reasonable. It is submitted that the
reasons are the links between the materials on which certain
conclusions are based and the actual conclusions. Learned counsel
submits that the entire order passed by the Technical Advisory
Committee is without reasons. It is submitted that while accepting the
structural audit report submitted by the consultants of the respondent
no.5 and dismissing the report submitted by the petitioners, the
Technical Advisory Committee has violated the principles laid down by
the Supreme Court in case of Union of India (supra) and consequently
the impugned order is vitiated and deserves to be set aside on that
ground alone.
36. Learned counsel for the petitioners placed reliance on the
judgment delivered by this Court on 12th December, 2017 in Writ
Petition No. 211 of 2017 in case of Ansari Rizwan Ahmed Mohd.
Umer and Ors. vs. Municipal Corporation of Greater Mumbai and
Others and more particularly paragraph (4) and submits that the tests
were required to be conducted before submitting audit report. It is
submitted that this Court in the said judgment directed the Municipal
Corporation to refer the case of the subject building to Technical
Advisory Committee with a direction to comply with the directions
issued by this Court in case of Municipal Corporation of Greater
Mumbai vs. State of Maharashtra & Ors. (2014) SCC Online Bom.
666. It is submitted that the respondent no.5 not having carried out any
mandatory test, the Technical Advisory Committee could not have
accepted the structural audit report submitted by the structural
consultant of the respondent no.5.
37. Learned counsel for the petitioners placed reliance on the
circular dated 1st January, 2018 issued by the Municipal Corporation of
Greater Mumbai formulating certain guidelines since there were no
specific guidelines for appointment of structural consultant. He
submits that those guidelines were also not complied with by the
respondent nos. 1 to 4 or by the respondent no.5.
38. Learned counsel placed reliance on the judgment delivered by a
learned Single Judge of this Court in case of Jaspal A.Wig & Ors. vs.
Municipal Corporation of Greater Mumbai & Ors., 2018 SCC Online
Bom 16302 and in particular paragraphs 7, 8 and 10 in support of the
submission that in all such cases, where the visual inspection is not
carried out, the report of the Technical Advisory Committee should be
ignored or it would become illegal. Everything depends upon the facts
and circumstances of each case.
39. In paragraph (8) of the said judgment, it is held that it being a
load bearing structure, if the N.D. tests are not carried out and there is
proper explanation given by the Technical Advisory Committee for the
same, it cannot be said that the Technical Advisory Committee has not
followed the requisite procedure and therefore, the conclusion arrived
at by the Technical Advisory Committee should be ignored.
40. It is submitted by the learned counsel for the petitioners that
there is no differential settlement in the impugned structure. The
Technical Advisory Committee ought to have directed the respondent
no.5 to carry out all the tests before arriving at the conclusion of that
the building was classified in C-1 category. It is lastly submitted by the
learned counsel for the petitioners that the ground floor structures
occupied by the petitioners are in sound condition and are not required
to be demolished. The petitioners have no objection if the upper floors
are demolished by the Municipal Corporation or by the respondent
41. It is submitted by the learned counsel for the petitioners that the
facts of this case are very peculiar, where respondent no.5 has not even
come with any proposal for redevelopment of the building nor with the
proposal to shift the petitioners to any other alternate accommodation
till the building is redeveloped.
42. Mr.Ashish Kamath, learned counsel for the respondent no.4 in
Writ Petition (L) No. 12803 of 2022 and respondent no.5 in Writ
Petition (L) No. 13705 of 2022 submits that the order passed by the
Technical Advisory Committee on 1st December, 2021 does not show
any malafide or perversity. It is submitted that the said building is
about 120 years old. He invited our attention to the structural audit
report submitted by the structural engineer of the petitioners
Mr.Bhalchandra Oak and submitted that the said structural auditor has
erroneously considered the age of the construction of the said building
as approximately 60 years, though it is an admitted position that the
said building is about 120 years old or atleast about 100 years old. He
submits that the entire report submitted by the structural auditor of the
petitioners is on a wrong factual premise and is thus rightly ignored by
the Technical Advisory Committee. He considered that at the first
instance, the said consultant of the petitioners in the said report
submitted on 15th July, 2021 has classified the said building in C-2B
category. However, surprisingly by a corrigendum issued on 12 th
September, 2021 by the said structural engineer, the classification of
the said building was classified as C-3 that required minor repairs only
by correcting the alleged mistake on the second page of the forwarding
43. Learned counsel invited our attention to the said report submitted
by the structural engineer of the petitioners and submitted that even
according to the said report which was issued on the premise that the
building was 60 years old. He submits that the said consultant appears
to have submitted the said report on the basis of only ground floor
structure and has accordingly erroneously opined that all the load of the
upper floors are eventually transferred to the foundations through the
ground floor. The said consultant came to a conclusion that the life of
the building would be 15 years after repairs. He submits that on this
ground itself the said structural audit report submitted by the said
Mr.Bhalchandra Oak even otherwise could not have been considered as
authentic and reliable by the Technical Advisory Committee.
44. It is submitted that the entire report is based on the instructions
given by the petitioners. The said structural auditor had not admittedly
visited the upper floors of the said building before submitting the said
structural audit report.
45. Learned counsel for the respondent no.5 invited our attention to
the structural audit report submitted by Mr.Ramkrishan Kejriwal,
annexed at Ex.DD of the petition. The west side wall is in dangerous
condition and required all the lintels and internal and external plaster
also to be redone. The additional columns and beams had to be
provided to relieve the loading on wall and also give the bearing to
joist of the flooring. He submits that this crucial aspect which was
noticed by the structural auditor of the respondent no.5 was
unfortunately not noticed by the structural auditor appointed by the
petitioners while submitting the report while perusal of the Technical
46. It is submitted by the learned counsel for the respondent no.5
that the structural auditor appointed by the petitioners also did not
consider another crucial aspect that the structural columns and beams
of the ground floor are badly damaged/corroded in such a way that
columns and beams may deflect, which may cause collapse of the
building and necessitated a pull down of the entire building so as to
save the lives of occupants and passersby. The consultant of the
petitioners also did not consider that the repairs in the building were
uneconomical and building was dangerous for human habitation.
47. Insofar as the letter addressed by the Municipal Corporation
calling upon the petitioners to carry out various tests as per Proforma B
before submitting structural audit report is concerned, it is submitted by
the learned counsel for the respondent no.5 that the said requirement of
carrying out the test as per Proforma B does not apply in the case of the
load bearing structure. In support of this submission, learned counsel
invited our attention to the report of the structural auditor appointed by
the petitioners and submitted that it is an admitted position that the core
support structure is load bearing. The petitioners also during the course
of arguments, did not dispute that the impugned structure was load
48. It is submitted that the opinion of the structural auditor appointed
by the petitioners that the NDT tests could have been required in case
of structure being load bearing was totally unauthentic on the ground
that the building was not more than 60 years but rather was more than
100 years old. He submitted that the entire conclusion in the said
report of Mr.Bhalchandra Oak was totally unauthentic and he could not
opine correctly in view of the erroneous premise that the building was
only 60 years old and not 100 years old.
49. Insofar as letter addressed by the Municipal Corporation calling
upon the petitioners to carry out various tests in accordance with
Proforma B is concerned, it is submitted by the learned counsel for the
respondent no.5 that the petitioners have also not carried out all the
requisite tests as prescribed in Proforma B. They have carried out only
selective tests and there are no reasons given by the structural
consultant for not carrying out all tests. On this ground also, report of
the structural auditor submitted by the petitioners could not have been
considered as authentic by the Technical Advisory Committee.
50. Learned counsel for the respondent no.5 submitted that
substantial portion of the land beneath of the impugned structure is
affected by the setback area and on this ground also the proposal of the
redevelopment may not be void.
51. Learned counsel for the respondent no.5 invited our attention to
the reasons recorded by the Technical Advisory Committee in the
impugned report and submitted that the Technical Advisory Committee
has not only considered the report submitted by both the parties but had
also visited the site on 29th August, 2021 and observed that the building
was repaired in past by erecting steel beams and columns to support the
structure. Heavy vegetation was seen on external walls and top of the
building. Major vertical cracks are seen on the North West face of the
building from 2nd to 4th floor leakage marks, deflected and damaged
lintel above window sill and deterioration of wooden beams in slab
were seen in some of the rooms on 1st to 3rd floor.
52. It is submitted that the Technical Advisory Committee has also
raised various queries during the meeting and had asked for the views
of the structural consultant appointed by both the parties who were
present in the meeting. The structural auditor appointed by the
petitioners himself was present in the meeting and admitted that the
building was load bearing structure with wall thickness of 350 mm
equivalent about 14 inches.
53. In 2nd page of the said report at page 209 of the petition, when
the Technical Advisory Committee asked the structural consultant of
the petitioners whether the crack was due to differential settlement or
otherwise, the structural auditor of the petitioners opined that the crack
in the wall was from 2nd floor onward and hence it was not due to
differential settlement. Mr.Chaugule, the representative of the
consultant appointed by the respondent no.5 pointed out to the
consultant of the petitioners that the cracks were not superficial and
were major cracks in load bearing walls. He submits that after
considering and deliberating on both the reports, the Technical
Advisory Committee rightly opined that the building was in dangerous
and dilapidated condition and may collapse thereby endangering life
and property of the residents and passersby and needs to be vacated and
demolished immediately and classification of the said building as C-1
category is correct.
54. It is submitted by the learned counsel for the respondent no.5
that the entire arguments of the learned counsel for the petitioners is
that since no NDT and other tests were carried out by the respondent
no.5, the structural audit report submitted by the respondent no.5 could
not have been considered at all by the Technical Advisory Committee.
He submits that since the entire structure was a load bearing structure
and the dilapidated condition of the building was visible to the naked
eye, that was noticed during the site visit by the Technical Advisory
Committee, there was no necessity to carry out any such test. The
Proforma B relied upon by the Municipal Corporation is not applicable
in case of the structural being a load bearing structure.
55. Learned counsel for the respondent no.5 placed reliance on the
judgment of the Division Bench of this Court in case of Bharat
Choksey & Ors. vs. Life Insurance Corporation of India & Ors.,
2015 SCC OnLine Bom 6077 and more particularly paragraph (24) of
the judgment delivered by the learned Single Judge of this Court in
case of Anil Agrawal vs. The Municipal Corporation of Greater
Mumbai & Ors., delivered on 25th September, 2019 in Appeal from
Order (St) No. 25086 of 2019 and more particular paragraphs 4 and 5.
56. Learned counsel for the respondent nos. 4 and 5 distinguished
the judgment of this Court in case of Jaspal A.Wig & Ors. (supra)
relied upon by the learned counsel for the petitioners and submitted
that in the facts of this case, the Technical Advisory Committee had
clearly opined that it being a load bearing structure, the test was not
required. The order passed by the Technical Advisory Committee thus
could not have been interferred with. He relied upon paragraph (10) of
the said judgment and submitted that everything depends upon the facts
and circumstances of each case. The Technical Advisory Committee
has not only considered the report submitted by both the structural
audit engineers but has also visited the site before passing the
57. Insofar as circular dated 1st January, 2018 relied upon by the
learned counsel for the petitioners is concerned, it is submitted by the
learned counsel for the respondent no.5 that the said circular dated 1 st
January, 2018 was issued by the Municipal Corporation before framing
specific guidelines for appointment of structural consultant and for
referring the contract in a report submitted if any by the Technical
Advisory Committee. He submitted that the said circular thus would
not apply to the facts of this case and more so in view of the specific
guidelines already framed by the Municipal Corporation subsequently.
58. The next submission of the learned counsel for the respondent
no.5 is that the opinion formed by the Technical Advisory Committee
is not vitiated by any malafides, perversity, arbitrariness, hence this
Court has no power to interfere with such order passed by the
competent body while exercising powers under Article 226 of the
Constitution of India. He submits that this Court is not an expert to
interfere with the technical opinion of the Technical Advisory
Committee on various technical aspects. In support of this, learned
counsel for the respondent no.5 placed reliance on the following
(a) Judgment of Division Bench of this
particularly paragraphs 17, 19, 21 to 26, 31 to 33
and 35.
59. Learned counsel for the respondent no.5 also placed reliance on
the judgment of this Court in case of Jayant Sunderdas Karia & Ors.
vs. Municipal Corporation of Greater Bombay & Ors., 2017 (6)
Mh.L.J. 657 and more particularly paragraph (6) in support of the
submission that the suggestion of the learned counsel for the petitioners
that all upper floors can be demolished so as to protect the ground floor
structure would not be possible or viable on the ground that the entire
building is found dilapidated and is required to be demolished.
60. It is submitted by the learned counsel for the respondent no.5
that the petitioners had admittedly filed a suit bearing L.C.Suit No.
7993 of 2021 before the Bombay City Civil Court challenging the said
notice dated 5th July, 2021. He invited our attention to the order dated
6th October, 2021 passed by the Bombay City Civil Court refusing to
grant ad-interim relief. He submitted that in view thereof, no reliefs
can be granted by this Court in this writ petition.
61. Insofar as Writ Petition (L) No.12803 of 2022 is concerned, it is
submitted by the learned counsel for the respondent no.5 that the
petitioners therein claims to be one of the sub-tenant of the respondent
no.5 in the said building which claim is seriously disputed by the
respondent no.5. The petitioners have not submitted any structural
audit report separately in respect of the said building and thus cannot
be now allowed to challenge the order passed by the Technical
Advisory Committee on any ground.
62. In view of the submissions made by the learned counsel for the
respondent no.5 that the substantial part of the building is affected by
set back area, this Court passed an order on 12 th July, 2022 recording
such submission made by the learned counsel for the respondent no.5
that according to the respondent no.5 it would not be viable to carry out
any redevelopment without prejudice to the rights and contentions of
the respondent no.5 that no relief can be granted by this Court in favour
of the petitioners, this Court accordingly directed to take instructions
and to make a statement before this Court as to whether the land
beneath the offending structure is affected by set back and if so, how
much area and whether any reconstruction is permissible on the said
land if the offending structures are directed to be demolished.
63. In pursuance of the said order issued by this Court on 12 th July,
2022, the Municipal Corporation filed two affidavits.
64. Mr. Kamath, learned counsel for the respondent no.5 tenders a
copy of the notice issued by the Municipal Corporation on 12 th July,
2022 and served upon the owners/occupiers stating that the condition
of the building is absolutely deteriorated and/or may collapse any
moment. The Municipal Corporation made it clear by the said notice
that, if there is any loss of life or any other loss, the Municipal
Corporation will not be responsible for such untoward incident.
65. Ms. Dhond, learned counsel for the Municipal Corporation
invited our attention to the various averments made by the Municipal
Corporation in various affidavits filed in these petitions. It is submitted
by the learned counsel that the subject plot is situated in the residential
zone and no reservation is affecting the land. The subject plot falls
within the Coastal Regulation Zone as shown in the location plan and
thus shall be governed by the notification issued by the Government of
India dated 19th February, 1991 and amended upto date. He submits
that as per sanctioned CZMP, HTL/set back lines with map scale with
respect to subject plot i.e. the land under reference falls under CRZ II
category. The development shall be governed as per the Ministry of
Environment and Forest, Government of India in the notification dated
66. It is submitted that the subject plot abuts the proposed Metro
Rail alignment and/or falls within influence zone of station areas
thereof. Remarks from MMRDA shall be obtained before commencing
any development. She submits that the said plan is affected by the
sanctioned regular line of 29.26 mtrs. i.e. 90.6 feet approximately wide
Jagannath Shankarseth Road marked in red colour on the regular line
plan. She invited our attention to the development plan annexed to the
affidavit in reply dated 21st July, 2021.
67. Learned counsel for the Corporation also invited our attention to
various averments made in the affidavit in reply dated 21st July, 2022
filed by the Assistant Engineer (Building Proposal) on behalf of the
respondent nos. 1 to 3 and would submit that if any online proposal is
submitted for extensive repairs (beyond 75% of built up area) to any
existing building which have been constructed with the approval from
the competent authority or were in existence prior to 17 th April, 1964 in
respect of the residential structures and 1st April, 1962 in respect of
non-residential structures (before its demolition), it will be considered
by the Building Proposal Department on its own merits as per the
relevant provisions DCPR 2034 and more particularly Regulation 60,
Appendix IV of the DCPR 2034. He submits that depending upon the
category of a particular building, the plans may be approved as per the
relevant regulations of DCPR 2034 i.e. Regulation 33 or Regulation 30
of the DCPR 2034 which is applicable.
68. Learned counsel for the Municipal Corporation justified the
decision taken by the Technical Advisory Committee and submits that
no interference is warranted with the said decision.
69. Insofar as submission of the learned counsel for the petitioners
that even the Municipal Corporation has held that the petitioners were
required to carry out various tests and to annex along with structural
audit report is concerned, it is submitted that the said Proforma B
referred to in the said letter of the Municipal Corporation is a format
prescribed by the Municipal Corporation. The said proforma does not
provide that such test should be mandatory also in case of a load
bearing structure.
70. Mr. Tamboly and Mr. Daver, learned counsel for the petitioner in
their rejoinder argument submitted that carrying out such test
prescribed in Proforma B is mandatory. The tests are not carried out.
The Technical Advisory Committee would not be able to decide
whether the building is dilapidated and is under C-1 category or
otherwise without conducting such tests.
71. The questions that arise for consideration of this court in these
two petitions are (i) whether non-destructive and other tests described
in Proforma ‘B’ issued by the Municipal Corporation are required to be
carried out necessarily before submitting Structural Audit Report and
even if offending structure is load bearing structure? (ii) what are the
powers of court under Article 226 of the Constitution of India to
interfere with the order passed by the Technical Advisory Committee
(“TAC”) on the status of the building.
72. It is not in dispute that the said building in question is more than
100 years old and is a load bearing structure. The petitioners in both
these petitions are admittedly occupying the ground floor structures
having shops and carrying on business. Respondent no.5 landlord
obtained a Structural Audit Report from the licensed structural
consultant Shri Ramkrishan Kejriwal dated 10th August, 2020 certified
that the said building was in a dilapidated condition and classified the
said building in C-1 Category.
73. On the other hand, the petitioners appointed a Structural Auditor
Shri Bhalchandra Oak who submitted a report on 15 th July, 2021
classifying the building as a C2 B category thereby requiring “no
eviction and only structural repairs” and subsequently classified it as
C3 category requiring “minor repairs only.” In view of the conflict
between these two opinions obtained by the parties, the Municipal
Corporation referred both these reports to the TAC. The TAC visited
the said building and made various visual observations.
74. On 14th October, 2021 after comparing both these structural audit
reports submitted by the parties and after their own visual observations
during the site inspection, the Technical Advisory Committee opined
that the said building was in a dangerous and dilapidated condition and
may collapse thereby endangering the life and property of the residents
and passersby. The Technical Advisory Committee accordingly
suggested that the said building/structure needs to be evacuated and
demolished immediately and classified the said building as C-1
75. Based on the said order passed by the Technical Advisory
Committee on 14th October, 2021, further directions were issued by the
Technical Advisory Committee on 1st December, 2021 directing the
owner to take preventive measures such as propping of the building etc.
to avoid any mishap. Respondent no.5 in turn called upon the
petitioners to vacate their ground floor structures. It is not in dispute by
the petitioners, that the upper floors occupied and used as widows
home were vacated in the year 2019 by those occupants. According to
respondent no.5, those widows were required to be moved to another
hostel in view of the dilapidated condition of the said building.
76. In view of the structural auditors report submitted by respondent
no.5, the Municipal Corporation called upon the petitioner to submit a
report from a Licensed Structural Auditor vide letter dated 28 th May,
2021 requesting to submit such report along with Proforma ‘B’ based
on non destructive testing which includes around ten tests.
77. It is the case of the petitioners that in pursuance of the said letter
dated 28th May, 2021 issued by the designated officer and Executive
Engineer, the petitioners obtained a report from Shri Bhalchandra Oak
who carried out some of the tests described in the Proforma ‘B’. It is
not in dispute that after receiving of these two reports on record, the
Technical Advisory Committee along with its members and several
others visited the said building. We shall now deal with the issue as to
whether any test as prescribed in Proforma ‘B’ was at all mandatory or
necessitated for a structural audit report even if the structure was load
bearing structure.
78. According to the report submitted by the structural engineer of
the petitioners, the said building was constructed around 60 years back
and according to the respondent no.5’s Structural Engineer the said
building was more than 100 years old. The learned counsel for the
petitioners could not dispute before this court that the said building was
more than 100 years old during the course of arguments. The
petitioners also could not dispute that the report of Shri Bhalchandra
Oak, the Structural Engineer appointed by the petitioners submitting a
report was on the premise that the said building was about 60 years old.
79. A perusal of the said report submitted by Shri Bhalchandra Oak
indicates the admitted position that the structure is a load bearing
structure. The said report submitted by Mr. Bhalchandra Oak indicates
that the observations made by the said Structural Engineer itself refers
to the load bearing wall being 350mm thick equivalent to
approximately 14 inches thickness.
80. A perusal of the report submitted by respondent no.5 also
indicates that the said building is a load bearing structure. It is an
undisputed fact that the structure is a load bearing structure. On visual
inspection by the Technical Advisory Committee, the Technical
Advisory Committee has also in the impugned order rendered a
finding that the said structure is a load bearing structure. The Technical
Advisory Committee accordingly held that no test was required. In
support of the rival contentions of the parties, whether such test
described in Proforma ‘B’ are required to be carried out or not, even in
case of load bearing structure both the parties have relied upon various
judgments for consideration of this court.
81. The Division Bench of this Court in the case of Bharat Choksey
and Others (supra) accepted the contention of the Municipal
Corporation that the test laid down by the Municipal Corporation
appear to be in relation to the RCC structures and not in relation to load
bearing structures. This Court held that so long as the judgment of this
Court in case of Municipal Corporation of Greater Mumbai v/s. State
of Maharashtra, holds that if the Technical Advisory Committee is not
able to carry out the test laid down therein, the Technical Advisory
Committee will have to give reasons as to why the test could not be
conducted. It will ultimately depend upon the facts and circumstances
of each case.
82. It is held that what is material is whether members of the TAC
have applied their mind and whether the process adopted by the TAC is
legal and proper. In that case, though the reasons were not specifically
assigned by the TAC, this court held that as the structure of the
building which was constructed in the year 1908 was not a RCC
structure, the tests laid down could not be conducted. In our view, the
principles laid down by this Court in the said judgment in the case of
Bharat Choksey and others (supra) apply to the facts of this case. In
the facts of this case also the TAC has opined that such tests described
by the Municipal Corporation were not necessary in view of the said
structure being a load bearing structure.
83. The learned single Judge of this Court in Anil Agrawal (supra)
considered the facts where the TAC did not deem it necessary to order
any non-destructive test including core test on the structural members
of the building having regard to the nature of construction of it being
partly RCC and partly load bearing. This court accordingly held that
neither the approach of TAC nor the conclusion arrived at by it can be
said to be either perverse or unreasonable. What TAC was expected to
do was to assess the condition of the suit building having regard to the
various structural reports before it. The TAC had duly applied its mind
to the material circumstances disclosed in the reports. We are in
agreement with the views expressed by the learned single Judge of this
Court in case of Anil Agrawal (supra) and do not propose to take a
different view on the issue whether non-destructive test and other tests
are mandatorily required at all in the case of a load bearing structure or
84. Be that as it may, a perusal of the impugned order passed by the
TAC indicates that after site visit by the TAC on 29th August, 2021 it
was clearly observed that the building was ground plus 5 story load
bearing building. The building was repaired in past by erecting steel
beams and columns to support the structure in the south side. This
conclusion was arrived at by the TAC on the basis of the IOD issued by
the Municipal Corporation in respect of the south side wall including
other completion certificate dated 30th July, 2014. The TAC also
recorded a finding that there was heavy vegetation seen on external
walls and top of the building.
85. TAC noticed that major vertical cracks were seen on the North
West face of the floor from 2nd to 4th floor. Leakage marks, deflected
and damaged lintel above window sill and and deterioration of wooden
beams in slab were seen in some of the rooms on 1 st to 3rd floor. Very
heavy vegetation/root growth was seen on 3rd to 5th floor toilet blocks
at each floor. On 4th floor in North West corner of the building some
portion of the wall near the crack was also seen and have a tilted
exterior. The wooden beam was seen broken due to wall separation in
North West corner room. It was observed that the building was a load
bearing building and the wall separation may lead to major
collapse/incident in the building thereby making the entire building
86. A perusal of the said order passed by TAC further indicates that
various queries were raised by the Technical Advisory members to the
representatives of the structural consultants who had submitted their
respective reports. It was pointed out to the Structural Engineer of the
petitioners that the cracks were not superficial and were major cracks
in load bearing walls and the repair methodology as suggested was not
appropriate for such wide cracks in the load bearing walls. After
considering the structural audit report submitted by both the parties, a
visual inspection on site, report of the ward staff and relying on the
observations and opinions of both the structural consultants, TAC
found that the building was in distressed condition and may collapse
any time and accordingly needs to be evacuated and demolished being
in dangerous and dilapidated condition.
87. In our view the TAC rightly formed an opinion. We are not
inclined to form a different opinion than the opinion formed by the
TAC which opinion is after considering the structural audit report
submitted by both the parties, after visual inspection of the building
and after considering the various other material produced on record
and considered in the impugned order. The impugned order further
indicates that Shri Atul Kulkarni, the Deputy Chief Engineer (Building
Proposal) City was the Chairman of the TAC, Shri R. S. Dholay, the
Executive Engineer (Building Proposal) City-III was one of the
member of the TAC. Shri Suraj Pawar, Sub Engineer (Building &
Factory) Representative of Ward-E.E. ‘C’ Ward was also member of
the said committee as Member Secretary. The meetings were also
attended by Mr. Ambre, Assistant Engineer (Building Proposal) and the
representatives of both the structural consultants.
88. The said TAC was constituted as per policy guidelines
consisting of 4 members including Assistant Law Officer. There is no
substance in the submission of the learned counsel for the petitioner
that the order passed by the TAC is based on no reasons or based
mechanically without considering the structural audit report submitted
by the petitioners through their structural auditor. It is clear that the
opinion formed by TAC that, no such non-destructive test or other tests
were required in cases of load bearing structure was not merely taken
on the basis of the statement made by both the parties, that it was a
load bearing structure but after considering the factual situation that
was derived after personal visit of the site by the members of the TAC
who are engineers and experts in the field.
89. Perusal of the report submitted by Shri Bhalchandra Oak, the
structural auditor appointed by the petitioners indicates that the said
report proceeded on an erroneous basis that the said building was 60
years old which admittedly was factually incorrect. Be that as it may,
the said report was on the basis of the test carried out by the petitioner
in respect of ground floor structure only. The TAC considered these
aspects in the impugned order rightly and accepted the report submitted
by Structural Auditor appointed by the respondent no.5 having found it
more authentic and more particularly after visiting the site personally
and after having interacted with the structural engineers representing
the parties who had attended the meeting before TAC.
90. Insofar as the judgment delivered by the learned Single Judge of
this Court in case of Jaspal A. Wig & Ors. (supra) pressed in service by
the learned counsel for the petitioners is concerned, in our view the
said judgment would advance the case of the respondent no.5 and not
the petitioners. It is held in the said judgment that if the structure is a
load bearing structure and if the non-destructive tests are not carried
out and if there is proper explanation given by the TAC of the same, it
cannot be said that the TAC has not followed the requisite procedure
and therefore the conclusion arrived at by the TAC should be ignored.
In the facts of this case, the TAC has recorded reasons as to why non-
destructive test was not necessary to be carried out.
91. In our view, the TAC thus rightly formed an opinion that the
non-destructive test and other tests were not required to be carried out
in view of the structure being a load bearing structure. We do not find
any infirmity in this view taken by the TAC.
92. We shall now deal with the scope of parties of a writ Court
exercising powers under Article 226 of the Constitution of India while
dealing with an order passed by the TAC opining that the building has
become dilapidated and is required to be pulled down otherwise it
might cause loss of lives of the occupants of the building.
93. This Court after adverting to its earlier judgment in case of
Municipal Corporation of Greater Mumbai v/s. State of Maharashtra
& Ors., 2018 SCC OnLine Bom.816 held that the guidelines required
the Corporation to conduct an independent inspection and assessment
before classifying a building as category C-I. The structural audit was
required which was to be taken into account. It is held that the Court is
not permitted or even capable of determining whether the building is
truly so ruinous as to warrant its demolition. This Court does not
assess the structural condition of the building or its structural
vulnerability. The Court only assess the vulnerability in law of
demolition notices or the TAC recommendation or order. The Court
addressed not to the decision itself, but to the process by which the
decision was reached. The Court does not suggest that the mere age of
a structure invariably and unquestionably means that it is ruinous or
94. This Court held that only when the petition makes out a
sufficient cause for interference on one or more of the grounds, High
Court is not entitled to intervene in exercise of its limited jurisdiction
under Article 226 of the Constitution of India. In exercise of this
limited jurisdiction of the High Court it cannot substitute its view for
the technical view of the members of the TAC. It is only when the TAC
is clearly demonstrated to have acted arbitrarily, malafide or in the
manner that it can fairly be said to be perverse and that the TAC’s order
is implausible or one that no reasonable or rational person could ever
take, that this Court will intervene. The principles laid down by this
Court in the said judgment apply to the facts of the case.
95. In case of Vivek Kokate and Ors. (supra), a Division Bench of
this Court after adverting to various judgments culled out the principles
of law in paragraph 5 of the said judgment. It is held that it is never for
a Court in exercise of its limited jurisdiction under Article 226 of the
Constitution of India to decide whether a particular structure is or is not
actually in a ruinous or dilapidated condition. The rights of
tenants/occupants are not harmed by demolition ordered and carried
out. These rights are adequately safeguarded by Section 354(5) of the
Bombay Municipal Corporation Act and by the provisions of the
governing Maharashtra Rent Control Act, 1999 which fully occupies
the field regarding tenancy of built premises in Maharashtra.
96. This Court adverted to the judgment of the Supreme Court in
Saha Ratansi Khimji & Sons v/s. Kumbhar Sons Hotel Pvt. Ltd. &
Ors., (2014) 14 SCC 1 in which it was held that, the rights of tenants
and occupants are unaffected by the required demolition. The tenants
not only have rights but also remedies to keep their structure in
tenantable repair. This Court in the said judgment in case of Vivek
Kokate (supra) has held that Section 353B casts an obligation not only
on owners but also on occupiers of structures that are more than 30
years old to furnish a structural stability certificate. A writ Court
exercising jurisdiction will not substitute its own view for that of
technically qualified experts. Equally the writ Court will not prefer the
view of one expert over another. This Court held that in order to
succeed, a petitioner before the court must be able to show that the
impugned action suffers from Wednesbury unreasonableness i.e. it is so
unreasonable that no rational person could, having regard to the fact of
the case, ever have reached it.
97. In the facts of this case, there are no allegations of perversity or
of malafides with particulars. The principles laid down in the case of
Vivek Kokate (supra) would apply to the facts of this case. We do not
propose to take any different view in the matter.
98. A Division Bench of this Court in the case of Jayant S. Karia
(supra) considered the power of writ Court while considering an order
passed by the TAC. This Court held that merely by seeing
photographs, the condition of the structure cannot be decided.
Therefore, the structural audit reports, view of the experts are to be
looked into. In such cases, Corporation authorities too are duty bound
to resort to appropriate steps if it is found that the building/structure is
in a dilapidated condition or dangerous for the occupants to live. It is
an obligation on the authorities to take appropriate steps in accordance
with law. In case portion of the building/structure collapses, then it is
very likely that people residing in the said building would suffer loss of
life, property or may suffer severe injuries. The Corporation is duty
bound to avoid any loss of life and property to passersby, third parties
and persons residing in the immediate neighbourhood of such building.
From all these angles, such issues brought before the Court are required
to be looked into.
99. This Court also held that in exercise of its writ jurisdiction, this
Court would not sit over for reviewing the merits of the structural audit
reports. It is the job of experts. The opinion of the experts reached with
regard to the condition of the building being a subjective opinion, this
Court would not substitute its view, even if the opinion suffers from
some errors here or there. It is held that in cases of conflicting reports
of the structural auditors, the TAC would look into and evaluate
properly to decide regarding the sustainability of the structure. It is the
TAC who shall take appropriate decision as to whether the building is
in repairable condition or not and whether the persons should continue
to occupy such building.
100. It is held that if the structure is in such a dangerous condition
that it may collapse and cause loss of life and property, the TAC
evaluates the same and submits the report accordingly. This Court
accordingly held that they were not convinced to call for another report
from IIT as suggested by the petitioners in that case. We are also not
inclined to accept the suggestion of the petitioners to call for another
report from structural engineer on the issue of whether non-destructive
test or other tests can be carried out or ought to be carried out on the
offending structures or not.
101. In the said judgment, this Court also considered the submission
of the learned counsel for the tenants that the ground floor structure
was in good condition and whether without disturbing the ground floor
structure, the upper floors only could be demolished and ground floor
structure could be redeveloped or not. This Court rejected the said
submission on the ground that this Court cannot substitute its opinion
to the view adopted by the TAC in its report in respect of the subject
structure. We are thus not inclined to accept the submission of the
learned counsel for the petitioners that the upper floors can be
demolished and ground floor structures may be allowed to be retained.
As per order of the Technical Advisory Committee, entire building is
102. It is an admitted fact that the said building is situated on a plot of
land in a very congested and crowded area of Bhuleshwar and lots of
people are passing through the said road on which the said building is
constructed. If this building is allowed to be retained, if any untoward
incident occurs, there will be a loss of lives not only to the occupants of
the building but also the passersby.
103. This Court while considering the submissions of the petitioners
also cannot lose sight of an admitted position that the subject plot falls
within the Coastal Regulation Zone (CRZ) and is affected by the
sanctioned regular line of 29.26 meters i.e. 96 ft. approximately wide
Jagannath Shankarseth Road and also that the subject plot abuts the
proposed metro rail alignment or falls within influence zone of station
areas thereof. We are thus not inclined to accept the submission of the
learned counsel for the petitioners to permit to retain the ground floor
structures more so on account of the report of the TAC declaring the
entire building as C-1 category and as dilapidated. We also take note
of the fact that the substantial part of the land beneath the building in
question is affected by regular line as well as by metro and also as the
subject plot abuts metro rail alignment or falls within the influence
zone of the station area thereof. We are not impressed with the
arguments of the learned counsel for the petitioners that the tenancy
rights of the petitioners, if any, are in jeopardy if the demolition of the
building takes place in compliance with the recommendation made by
104. The apprehension of the petitioners is without any basis. The
remedies of the petitioners or occupants insofar as their claim of
tenancy or occupancy, it is protected in view of Section 354(5) of the
Mumbai Municipal Corporation Act and also under the provisions of
105. The learned counsel for the petitioners could not dispute that a
substantial part of the land beneath the same building is affected by
sanction regular line of 29.26 meters and also that the subject plot abuts
the proposed metro rail line or within influence zone station areas
thereof. In the event of the said building being demolished in
compliance with the recommendation made by the TAC and in case the
respondent no.5 does not carry out the reconstruction of the building,
the petitioners are always entitled to avail of the remedies in
accordance with law for permission to carry out redevelopment itself.
106. In our view, while exercising powers under Article 226 of the
Constitution of India, while dealing with the correctness of the
recommendation made by the TAC and holding that the building is in
dilapidated condition and may collapse any moment, thereby
endangering the life of the occupants of the building and passersby, this
Court cannot exercise powers of an appellate court in order to interfere
with such findings of fact. The powers of writ Court to interfere with
such order passed by the TAC comprising of experts on the subject
cannot be lightly interfered with. The Court cannot sit as an appellate
authority over the recommendations made by the TAC.
107. We are also unable to accede to the request of the petitioners,
who are the occupants/tenant of the ground floor to repair the building
and thereby protect their interests and rights and we cannot ignore the
rights of the other occupants and/or the landlord of the building. If the
submission of the petitioner is to be accepted and the upper floors
beyond the ground floor are to be demolished, then the rights of the
other occupants including that of the landlord could be severely
108. Mr. Bhosle, the learned counsel for the petitioners in Writ
Petition (L) no.12803 of 2022 adopted the arguments advanced by Mr.
Karl Tamboly along with Yash Dhakkad for the petitioners in Writ
Petition (L) no.13705 of 2022. In addition to these arguments, he
submitted that his client was not allowed to visit the upper floors of the
building for the purposes of taking out a separate structural audit
109. Mr. Kamat, the learned counsel for respondent no.4 in this
petition opposed the submission on the ground that the petitioner has
no locus to file this writ petition as the petitioner had not obtained any
structural audit report nor had appeared before the TAC. The issue
relating to the claim of tenancy made by the petitioner is pending
before the appellate court. In his rejoinder argument, Mr. Bhosale, the
learned counsel for the petitioner states that even if his client is in
occupation of the shop premises for last 17 years and has been paying
rent to the respondent no.5. He submits that even if the petitioner has
not undertaken any separate structural audit report in respect of entire
building or with his structure, he is still a person aggrieved which
gives him locus to file this petition. He is placing reliance on the
structural audit report submitted by the other tenants occupying various
shop premises on the ground floor. In our view petitioner in Writ
Petition (L) no.12803 of 2022 is entitled to rely upon the Structural
Audit Report submitted by the petitioners in the companion Writ
Petition. The petitioner in the said Writ Petition has locus to file the
said petition irrespective of the fact whether any eviction proceedings
filed by the respondent no.5 are pending against the petitioner or not.
110. In our view, the learned counsel for respondent no.5 is right in
his submission that the circular dated 1st January, 2018 issued by the
Municipal Corporation describing certain guidelines in absence of
regular guidelines is superseded by the regular guideline framed by the
Municipal Corporation subsequently and thus no reliance could be
placed on the said circular dated 1st January, 2018.
111. Both the writ petitions are totally devoid of merit. We
accordingly, pass the following order;
meeting of Technical Advisory Committee held on 14th
October, 2021 and order dated 1st December, 2021
passed by Technical Advisory Committee are upheld.
(ii) The petitioners in both the writ petitions along
with other occupiers, if any, of the offending structures
are directed to remove themselves along with their
articles and belongings within three weeks from today
without fail and handover the vacant possession
thereof to the respondent no.1 Corporation for carrying
out demolition. The undertaking rendered by the
petitioners forming part of the record of this Court also
to continue for a period of three weeks from today.
(iii) It is made clear that the rights of the
petitioners are not jeopardized by the order of
demolition passed by the Technical Advisory
Committee and upheld by this Court. The rights of the
petitioners are protected by Section 354 (5) of the
Mumbai Municipal Corporation Act and the provisions
of the Maharashtra Rent Control Act, 1999 and would
remain unaffected by the required demolition.
(iv) The rights of the petitioners, if any, are also
protected to apply for redevelopment of the entire
building as may be permissible in law, if the
respondent no.5 in Writ Petition (L) no.13705 of 2022
and respondent no.4 in Writ Petition (L) no.12803 of
2022 do not carry out redevelopment after demolition
of the building within the time prescribed in law.
(v) If the petitioner and the other occupants of the
shops on the ground floor of the building in question,
do not vacate within three weeks from today and
possession is not handed over to the Municipal
Corporation, the Municipal Corporation will be at
liberty to take forcible possession of all the respective
shops and structures on the ground floor and if
necessary take the assistance of the police to carry out
the demolition thereafter expeditiously.
(vi) Writ Petition (L) no.13705 of 2022 and Writ
Petition(L) no.12803 of 2022 are dismissed with the
aforesaid clarifications.
(vii) Parties to act on an authenticated copy of this
order.
At this stage learned counsel for the petitioners seeks stay
of the operation of this order for a period of three weeks. Since
this Court has already granted three weeks time to the petitioners
to vacate, staying the operation of the order for three weeks is
not warranted. Application for stay is accordingly rejected. | Bombay High Court has upheld the demolition order of an over 100-year-old dilapidated C-1 category building in Mumbai that was home to widows from the Parsi community. The court ruled that the seven tests to check the building's strength under BMC's 2018 guidelines were not mandatory for load bearing structures like the present one and the guidelines would apply only to cement...
Bombay High Court has upheld the demolition order of an over 100-year-old dilapidated C-1 category building in Mumbai that was home to widows from the Parsi community.
The court ruled that the seven tests to check the building's strength under BMC's 2018 guidelines were not mandatory for load bearing structures like the present one and the guidelines would apply only to cement concrete (RCC) structures.
"..the TAC (Technical Advisory Committee) thus rightly formed an opinion that the non-destructive test and other tests were not required to be carried out in view of the structure being a load bearing structure. We do not find any infirmity in this view taken by the TAC", the court held.
Petitioner shop-owners had contended that BMC's TAC wrongly categorised the building as 'C- 1' after a physical inspection and rejected the petitioner's structural report, which held the building was repairable based on two strength tests.
The court further reiterated that, "The powers of writ Court to interfere with such order passed by the TAC comprising of experts on the subject cannot be lightly interfered with. The Court cannot sit as an appellate authority over the recommendations made by the TAC."
Justices R. D. Dhanuka and Kamal Khata dismissed two writ petitions challenging BMC's order to demolish the building. It directed the shop owners to vacate the premises within three weeks and hand over the vacant premises to BMC for demolition.
The building was built by The Nesserwanjee Manockjee Petit Charity Fund, a Parsi Trust for women. The ground floor had been rented out to various businesses and shops while the first to fifth floors were used as a widows' hostel. In 2013, the Trust had repaired the backside of the building.
In 2019, the widows were moved to another hostel due to dilapidated condition of the building. The Trust submitted a Structural Audit Report (SAR) to the Designated Officer of the BMC B&F Department (Designated Officer) which stated that the building was in the C-1 category. The tenants of the ground floor obtained SAR by an independent structural consultant stating that the building was in C-3 category merely requiring minor repairs.
The TAC visited the building and compared both the reports. It concluded that the building was in a dilapidated condition and may collapse.
In April 2022, The Designated Officer issued notice under section 354 of the Mumbai Municipal Corporation Act for the building to be vacated and taken down within 30 days. The petitioners challenged this notice and the order of the TAC before the High Court.
The petitioners submitted that the TAC had not carried out mandatory Non-Destructive Testing (NDT) and completely ignored the SAR submitted by the petitioners without recording reasons. Finally, the petitioners submitted that the ground floor was in sound condition and they had no objection in the rest of the floors being demolished.
Advocate Ashish Kamath instructed by Rashmikant & Partners for the Trust submitted that the TAC report had no perversity and hence the court had no power under Article 226 to interfere with the TAC order as the court is not an expert. There was no need for NDT as it was a load bearing structure. The SAR submitted by the petitioners is based on the premise that the building it 60 years old when it is actually more than 100 years old. Hence the entire report is inauthentic.
The court noted that the building was undisputedly a load bearing structure. The court relied on its judgment in Bharat Choksey v. LIC which held that the tests are required for RCC structures and not for load bearing structures. The court stated, "what is material is whether members of the TAC have applied their mind and whether the process adopted by the TAC is legal and proper".
"In our view the TAC rightly formed an opinion. We are not inclined to form a different opinion than the opinion formed by the TAC which opinion is after considering the structural audit report submitted by both the parties, after visual inspection of the building and after considering the various other material produced on record and considered in the impugned order", the court stated.
On the question of power of court under Article 226 to interfere with the TAC's order, the Court relied on Vivek Shantaram Kokate v. MCGM which held that the court is cannot decide whether a particular structure is or is actually in a ruinous or dilapidated condition. A writ Court exercising jurisdiction will not substitute its own view for that of technically qualified experts. The court can intervene only is TAC has "Wednesbury unreasonableness".
The court further stated that the rights of the petitioners would remain unaffected as they are protected by Section 354 (5) of the Mumbai Municipal Corporation Act and the provisions of the Maharashtra Rent Control Act, 1999.
Case no. – Writ Petition (L) No. 13705 of 2022 and Writ Petition (L) No. 12803 of 2022
Case title – Farzin Ardeshir Adel & Ors. v. MCGM & Ors. and Jatin Bhankharia v. MCGM & Ors.
Coram – Justice R. D. Dhanuka and Justice Kamal Khata |
APPLICATION U/S 438 CR.P.C. No. - 299 of 2022
Counsel for Applicant :- Purnendu Chakravarty
Counsel for Opposite Party :- Anurag Kumar Singh
1. Heard Sri Purnendu Chakravarty, learned counsel for the
applicant and Sri Dharmendra Pratap Singh, Advocate holding
brief of Sri Anurag Kumar Singh, learned counsel for the C.B.I.
2. The present anticipatory bail application has been filed on
behalf of the applicant in Criminal Case No.690 of 2021, Crime
No. RC0062019A0008, under Sections 13(2) r/w 13(1)(e) of
PC Act, 1988 and Section 109 IPC, Police Station CBI/ACB,
District Lucknow, with a prayer to enlarge him on anticipatory
3. The present case has been registered on the basis of a written
complaint by Shri Anmol Sachan, PI/CBI/ACB/Lucknow, dated
23/05/2019 against Dr. Sunita Gupta, the then Sr. D.M.O.,
Lucknow and her husband Dr. Rajeev Gupta, Professor,
KGMU, Lucknow, U/s 109 IPC & Section 13(2) r/w 13(1)(e) of
P.C. Act, 1988. It is alleged in the complaint that Dr. Sunita
Gupta, the then Sr. D.M.O., Northern Railways, Divisional
Hospital, Charbagh, Lucknow was in possession of
disproportionate assets to her known sources of income to the
tune of Rs 1,80,96,585.33 during the period 01/01/2009 to
12/07/2016, which she can not satisfactorily account for. Dr.
Rajeev Gupta husband of Dr. Sunita Gupta also abetted the
possession of assets disproportionate to known sources of
income by Dr. Sunita Gupta.
4. The investigation revealed that Dr. Sunita Gupta was posted
as Sr. D.M.O., N.R., Division Hospital, Lucknow up to October,
2015. She was transferred to Modern Coach Factory, Rae Bareli
in same capacity wherein she joined on 16/11/2015 in
compliance of Order No. 940E/1A/Medical Officer, dated
05/11/2015, DRM, Lucknow. Since then she is serving in MCF,
Rae Bareli and staying in the Guest House of MCF, Rae Bareli.
Occasionally, she comes to Lucknow. Dr. Sunita Gupta retained
Government Accommodation allotted to her at Lucknow, with
due permission from competent authority. While Dr. Sunita
Gupta resided in Rae Bareli, her husband Dr. Rajeev Gupta
resided in her official residence at Type IV-24, Church Road,
5. During investigation of RC/006/2016/A/002, by Shri Anmol
Sachan, searches were conducted by Sh Sandeep Pandey.
PI/CBI/ACB/Lko in presence of the CBI Team & independent
witnesses at official residential premises of Dr. Sunita Gupta at
IV-24, Church Road, Railway Colony, near Fatehli Chauraha,
Charbagh, Lucknow on 12/07/2016. At the time of searches. Dr.
Sunita Gupta was posted at Rae Bareli. Her husband Dr. Rajeev
Gupta was present in the official residence of Dr. Sunita Gupta
6. During the course of house search, a Search List was
prepared vide which total six items including documents and
cash was seized. Two Steel Almirah were kept in the Drawing
Room which were opened with the keys provided by Dr. Rajeev
Gupta. The Almirah contained huge currency notes. Total Rs
1,59,00,000/ were found in the Almirah. Enquiry was made
from Dr. Rajeev Gupta about the source of money. He took the
plea that the said cash has been earned by him through private
practice. The plea taken by Dr. Rajeev Gupta was not found
satisfactory. Hence, the said amount was seized. In addition to
Rs 1,59,00,000/-, an amount of Rs 70,700/- was also found in
the Steel Almirah, which was left for their day to day
expenditure. During searches various documents pertaining to
investments by Dr. Sunita Gupta and Dr. Rajeev Gupta were
found and seized vide Search List, dated 12/07/2016 by Sh
Sandeep Pandey, the then PI/CBI/ACB/Lko i.e. "List of
Insurance Policies & FDs, "List of NSC/KVP", "List of SB A/c
detail and PPF A/c, Currency Notes Rs 1.59,00,000/ seized vide
"Details of Currency Notes". In the said house of the wife of the
applicant, the house hold items/articles a separate Inventory
Memo was prepared, annexed with the search list. In the
Inventory Memo details i.e. date, time, cost of requisition, mode
of acquisition and details of items/articles was noted. During
the house search of Dr. Sunita Gupta, a locker key of Locker No
203C, Central Bank of India, Alambagh Branch, Lucknow was
seized and the said locker was operated by Sh Atul Dikshit,
PI/CBI/ACB/Lucknow, in the presence of Dr. Sunita Gupta and
independent witnesses and vide "Bank Locker Operation Cum
Seizure Memo", dated 12/07/2019 amount of Rs. 9,43,000/-
was seized from the said locker. The I.O. of the present case
seized relevant documents. recovered cash amount from Shri
Anmol Sachan vide Handing Over/Taking Over taking Memo
7. The pay details of Dr. Sunita Gupta and Dr. Rajeev Gupta,
for the check period were collected and relevant witnesses
examined to prove their income Further, Sh Sandeep Pandey,
PI/CBI/ACB/Lko and his CBI team including independent
witnesses to the search conducted on the official residence of
Dr. Sunita Gupta were examined and they proved the Search
List along with Inventory Memo dated 12/07/2016. Dr. Rajeev
Gupta was present during the searches and was provided a copy
of Search List dated 12/07/2016. They corroborated the seizure
of Rs 1.59 crore from the official residential premises of Dr.
Sunita Gupta on 12/07/2016 along with other seized documents.
8. During investigation, the I.O. collected the records from
various banks pertaining to accounts maintained by Dr. Sunita
Gupta & Dr. Rajeev Gupta and examined relevant witnesses for
ascertaining balance at the start of the check period and at the
end of the check period. The I.O. also calculated the interest
received in the account and balance in the account at the end of
check period.
9. The I.O. collected the records from School, Colleges to prove
the expenditures incurred by Dr. Rajeev Gupta & Dr. Sunita
Gupta and recorded the statements of the relevant witnesses.
The I.O. collected the records from Post Offices to give the due
benefit to accused regarding their income during the check
period. The I.O. also collected the records from Post Offices to
prove investments in the name of Dr. Rajeev Gupta & Dr.
Sunita Gupta during the check period and recorded the
statement of relevant witnesses.
10. On 12/07/2019, the CBI team in presence of independent
witnesses had found & seized currency notes amounting Rs
1.59 crore from official residence of Dr. Sunita Gupta. At the
time of searches, Dr. Sunita Gupta was posted at Rae Bareli and
not present in the house. The currency notes were kept in
different shelves of almirah. A large number of envelopes of
different shape, size & colour were found in the almirah. The
envelopes were opened & inside the envelopes currency notes
of different denominations were found tied with rubber bands.
On the envelopes some details regarding cash in the envelope
was mentioned. All the currency notes were taken out from a
large number of different envelopes. Denomination wise the
currency notes were segregated, counted with the help of
Currency Note Counting Machine. Thereafter, denomination
wise bundles were made & seized. The envelopes/paper slips,
rubber band were not seized, as the same were not required. Dr.
Rajeev Gupta had claimed that every envelope (inside which
the currency notes were wrapped with rubber band) had the
paper slip containing details of the patient name along with the
amount received by the individual patient and that the CBI team
took the cash from the envelopes and taken the envelopes with
slip and left rubber bands. However, the CBI team stated that
only Rs. 1.59 crore cash was seized and no such slip or
envelope was taken/seized by them. Hence, accused Dr. Rajeev
Gupta was having all the opportunity to keep the said envelops,
paper slips with himself in safe custody so that he might
produce the same as documentary evidence in his defence, as he
has claimed that the said envelope/paper slip were having
details of patients and amounts received by him through private
practice. This shows that the said envelopes/paper slips were
not having any information/details of patients/amount as
claimed by Dr. Rajeev Gupta.
11. Dr. Sunita Gupta has taken the plea that the amount of Rs.
1.59 crore seized in the case has no relation with her and stated
that as the amount was seized from the almirah of Dr. Rajeev
Gupta, he will inform the source. Applicant/Dr. Rajeev Gupta
had claimed during the searches that the recovered amount of
Rs. 1.59 crore from the official residence of Dr. Sunita Gupta
belonged to him, earned by him through private practice. He
was issued Order (U/s 91 Cr.PC.) to produce documents/source
showing income pertaining to recovery of cash amount of Rs.
1.59 crore on 12/07/2016.
12. In response to notice U/s 91 Cr.P.C., applicant/Dr. Rajeev
Gupta stated that after marriage in 1993, he himself & his wife
Dr. Sunita Gupta started a clinic at their residence at Mahanagar
("Mamta Mother & Child Care Center"). On 24/03/2000, they
shifted to the Railway Quarter allotted to his wife and he was
doing practice from there. Patients were coming to him for
treatment of Cancer, consultancy in emergency and he charged
regular fees from the patients. He is paid by various Doctors,
owners of Nursing Home & patients for his professional advice,
wherein he treated cancer patients after office hours. He named
such Doctors and Nursing Homes. The amount received from
such practice always became a handsome amount every month.
He also visited some patients for their treatment. He attended
Hepatitis B Immunization & Cancer Awareness Program in
Lucknow in 2005 along with Dr. Uttam Tiwari, who used to run
NGO Research India. He gave consultancy to patients and
earned money. He used to get large number of patients through
this NGO for treatment of Cancer disease. Dr. Rajeev Gupta
further named various Doctors and Hospital owners who sent
him Cancer patients for consultation, prescription of medicine/
test. chemotherapy, radiation etc. and requested for their
13. The statements of the following witnesses were taken under
Hospital", Priyadarshani Colony, Sitapur Road, (In front of
Autar Hospital Diabetic & Trauma Centre, adjacent Diamond
(e) Dr. Maroof Ahmed, R/o 498/5KA, Nawab ganj, Barabanki,
Center" from 25 to 27 Vasundhara Complex, Sector 16, Behind
14. The aforesaid witnesses have stated that Dr. Rajeev Gupta
attended patients in their hospital, after office hours, gave
consultation, prescriptions for medicines/tests & also conducted
Chemotherapy of the patients. If any patients treated by Dr.
Rajeev Gupta needed Radiation, he helped in getting
Radiotherapy treatment at KGMC for which patient made
payments to KGMC Hospital. Dr. Rajeev Gupta received
payments from patients for their treatment, through the hospital
staff. They furnished the estimated payments made to Dr.
Rajeev Gupta towards treatment of cancer patients done by him.
Dr. Uttam Tiwari, who used to run NGO Research India could
not be examined as he has already expired around 2015. Further
Ami, PO Gahluya, PS Jahanbad, Pilibhit, U.P. on examination
stated that they sent a large number of patients to Dr. Rajeev
Gupta for their treatment of cancer and Dr. Rajeev Gupta took
his consultation/treatment charges on his own. Dr. Pankaj
Lucknow also stated that Dr. Rajeev Gupta treated few cancer
patients at his hospital. The above said Doctors were directed to
furnish the documentary evidence pertaining to details of the
patients treated in their hospitals/clinic/on their reference by Dr.
Rajeev Gupta. However, they could not furnish any
documentary evidence in this regard to prove the treatment of
the cancer patients by Dr. Rajeev Gupta, they expressed their
inability to furnish the records of patient treatment sought for
the period 2010-2016. The same being very old one and due to
lack of storage area and Medical Council of India guidelines
they are not required to maintain records of the period more
than 3 years and as such the same is burnt/destroyed.
15. The applicant or any other person (Doctors/Hospital
Owners) summoned/examined during the investigation could
not produce any valid documentary evidence in support of their
statement or explanation offered by applicant that the total
amount of Rs. 1.59 crore seized from the official residence of
Dr. Sunita Gupta on 12/07/2016 was actually earned by
applicant by indulging in private practice, after office hours.
16. In respect of the applicant, the Sanction for Prosecution, has
been accorded by the competent authority and the same has
been received vide Letter No. KGMU/C/79/2021, dated
30/06/2021, issued by Lt. Gen. (Dr.) Bipin Puri. Vice
for launching prosecution U/s 109 IPC r/w 13(2) r/w 13(1)(e) of
17. Learned counsel for the applicant has stated that the
applicant has been falsely implicated in the matter. The money
recovered from his possession is his genuine and hard earned
money. Learned counsel for the applicant has further placed
reliance on the statement of various doctors which have been
examined by the Investigating Officer during investigation, who
have categorically stated that the applicant used to treat various
cancer patients in private and the money is a result of the said
private practice.
18. Learned counsel for the applicant has further stated that the
applicant is the Head of Department (Radio Therapy) in
K.G.M.U., Lucknow. In case, the applicant is released on
anticipatory bail, he will not misuse the liberty of bail and the
applicant is ready to cooperate in trial.
19. Per contra, Sri Dharmendra Pratap Singh, Advocate holding
brief of Sri Anurag Kumar Singh, learned counsel for the C.B.I.
has vehemently opposed the anticipatory bail application on the
ground that the accused has not appeared in court on summons.
The present application has been filed after the bailable
warrants have been issued against the applicant. The sanction
for prosecution has already been received and the charge-sheet
has been filed in court.
20. Learned counsel for the CBI has further stated that the
applicant is a radio therapist and in the said field of radio
therapy, no private practice is ever seen. The said field is a
specialized field and is undertaken in large Institutions and the
set up required for practicing in radio therapy goes to the tune
of multi crores.
21. Learned counsel for the applicant has failed to accord any
tenable explanation for the recovered amount. He has further
argued that the applicant is not authorized to take private
practice as he is employed in a Government institution.
22. The Apex Court in para 92.3 and 92.4 of Sushila Aggarwal
and Others vs. State (NCT of Delhi) and Another reported in
"92.3. .....................While considering an application (for grant of anticipatory bail) the
court has to consider the nature of the offence, the role of the person, the likelihood of his
influencing the course of investigation, or tampering with evidence (including
intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc.
The courts would be justified - and ought to impose conditions spelt out in Section
437(3), Cr. PC [by virtue of Section 438(2)]. The need to impose other restrictive
conditions, would have to be judged on a case-by-case basis, and depending upon the
materials produced by the State or the investigating agency. Such special or other
restrictive conditions may be imposed if the case or cases warrant, but should not be
imposed in a routine manner, in all cases. Likewise, conditions which limit the grant of
anticipatory bail may be granted, if they are required in the facts of any case or cases;
however, such limiting conditions may not be invariably imposed.
92.4. Courts ought to be generally guided by considerations such as the nature and
gravity of the offences, the role attributed to the applicant, and the facts of the case, while
considering whether to grant anticipatory bail, or refuse it. Whether to grant or not is a
matter of discretion; equally whether and if so, what kind of special conditions are to be
imposed (or not imposed) are dependent on facts of the case, and subject to the discretion
23. In the case of P.S. Kirupanandhan Vs State, Cri. A. No.
381 of 2017 and Cri MP No. 8256 of 2017, the Hon'ble Madras
High Court has rejected the submissions made by the
accused/applicant and decided that in DA cases, the explanation
offered by the accused must be supported with valid
documentary evidences. Hence, the explanation/argument of the
accused/other person cited in defence is not tenable/valid and
lawful. The arguments tendered on behalf of the applicant are
not based on concrete facts but are vague and general. The case
is not fit for the anticipatory bail.
24. The medical practitioner administer an oath at the time of
convocation as provided by Indian Medical Association which
is an extension of Hippocratic oath taken the world over. The
oath is not merely a formality. It has to be observed and
followed in letter and spirit. It is on these lines that the apex
medical education regulator, National Medical Commission has
suggested that the Hippocratic oath be replaced by 'CHARAK
SHAPATH' during the convocation ceremony for graduates in
medical services. The medical and legal fields are more a
service than a profession especially the stream of oncology
which deals with life and death.
25. Corruption is a termite in every system. Once it enters the
system, it goes on increasing. Today, it is rampant and has
become a routine. Corruption is root cause of all the problems,
such as poverty, unemployment, illiteracy, pollution, external
threats, underdevelopment, inequality, social unrest. The
menace has to be put to account. The offence is against the
society. The Court has to balance the fundamental rights of the
accused to the legitimate concerns of the society at large vis-a-
vis the investigating agency.
26. The task of the Court is manifold. Firstly, it has to ensure
that there is no unwarranted misuse or abuse of process to
encroach upon life and liberty of the applicant as enshrined
under Article 21 of the Constitution. Secondly, it has to seen
that the Rule of law is followed and the administration of
justice is not hampered, the guilty is brought to book.
27. In view of the above, the present anticipatory bail
application is dismissed. | The Allahabad High Court recently made significant observations on the growing menace of corruption in society. It observed that it is like a termite in every system and once it enters the system, it keeps on getting bigger and bigger."Corruption is a termite in every system. Once it enters the system, it goes on increasing. Today, it is rampant and has become a routine. Corruption is the...
The Allahabad High Court recently made significant observations on the growing menace of corruption in society. It observed that it is like a termite in every system and once it enters the system, it keeps on getting bigger and bigger.
"Corruption is a termite in every system. Once it enters the system, it goes on increasing. Today, it is rampant and has become a routine. Corruption is the root cause of all the problems, such as poverty, unemployment, illiteracy, pollution, external threats, underdevelopment, inequality, social unrest. The menace has to be put into account. The offence is against society. The Court has to balance the fundamental rights of the accused to the legitimate concerns of the society at large vis-avis the investigating agency," the Court remarked
The bench of Justice Krishan Pahal averred thus while hearing the anticipatory bail plea of Dr. Rajeev Gupta M.D., who has been arraigned as an accused in a corruption case. While denying him bail, the Court also stressed that the medical practitioner should follow the oath which is administered to them at the time of convocation as provided by the Indian Medical Association.
"The medical practitioner administers an oath at the time of convocation as provided by Indian Medical Association which is an extension of Hippocratic oath taken the world over. The oath is not merely a formality. It has to be observed and followed in letter and spirit. It is on these lines that the apex medical education regulator, National Medical Commission has suggested that the Hippocratic oath be replaced by 'CHARAK SHAPATH' during the convocation ceremony for graduates in medical services," the Court averred.
The case in brief
A written complaint was made by ACB Lucknow in May 2019, wherein it was alleged that Dr. Sunita Gupta, the then Sr. D.M.O., Northern Railway (N.R.), Divisional Hospital, Charbagh, Lucknow and her husband Dr. Rajeev Gupta, Professor, KGMU, Lucknow (applicant herein) were in possession of disproportionate assets to the tune of Rs 1 Crore 80 Lacs during the period between Jan 2009 to July 2016.
It was further alleged that Dr. Rajeev Gupta abetted the possession of assets disproportionate to known sources of income by Dr. Sunita Gupta. Thereafter, a case was registered against him under Sections 13(2) r/w 13(1)(e) of PC Act, 1988 and Section 109 IPC. During the search of his house, a total of 1 Crore, 59 lakh rupees were found from the cupboard.
However, the counsel for Dr. Gupta, in his anticipatory bail plea, submitted that the applicant had been falsely implicated in the case and the money recovered from his possession was his own and hard-earned money which was the result of his private practice as he used to treat various cancer patients.
On the other hand, the Counsel for the CBI submitted that an anticipatory bail plea had been filed by Dr. Guptaafter the bailable warrants have been issued against him and that the sanction for prosecution had already been received and the charge sheet had been filed in court.
Court's observations
At the outset, the Court noted that the applicant or any other person (Doctors/Hospital Owners) summoned/examined during the investigation could not produce any valid documentary evidence in support of their statement or explanation offered by Dr. Gupta that the total amount of Rs. 1.59 crore seized from the official residence of Dr. Sunita Gupta was actually earned by the applicant by indulging in private practice, after office hours.
Further, the Court took into account the fact that the counsel for the applicant failed to accord any tenable explanation for the recovered amount and also noted that the applicant is not authorized to take private practice as he is employed in a Government institution.
Against this backdrop, the Court said that the task of the Court is manifold as firstly, it has to ensure that there is no unwarranted misuse or abuse of process to encroach upon life and liberty of the applicant as enshrined under Article 21 of the Constitution and secondly, it has to see that the Rule of law is followed and the administration of justice is not hampered, the guilty is brought to book.
Consequently, the Court dismissed the anticipatory bail plea, however, it did stress that the medical and legal fields are more a service than a profession especially the stream of oncology which deals with life and death. |
The above Crl.M.C is filed by the petitioner who is an accused
in C.C.No.340 of 2014 on the file of the Judicial First Class Magistrate
Court-III, Ernakulam, for offence punishable under Section 138 of the
Negotiable Instruments Act, 1881. The trial court as per Annexure-A2
judgment convicted and sentenced the petitioner to undergo simple
imprisonment for a period of one year and to pay a fine of Rs.7,17,000/-
with a default clause of three months. The appeal filed by the petitioner as
Crl.Appeal No.148 of 2017 on the file of the Additional Sessions Court-V,
Ernakulam was dismissed as per Annexure-A3 judgment. The Criminal
Revision Petition filed by the petitioner as Crl.R.P.No.41 of 2020 was
disposed of as per Annexure-A4 order by affirming the conviction but
modifying the sentence of simple imprisonment for one year as a sentence
to pay fine of Rs.7,17,000/- and in default of payment of fine, to undergo
simple imprisonment for a period of three months. The petitioner/accused
was granted a period of six months to remit the amount of fine in the trial
2. Pursuant to the said order, the petitioner paid the entire
amount of compensation/fine to the complainant/2nd respondent herein
and a receipt was also issued by the complainant acknowledging the
payment. The said receipt was produced before the trial court and the
petitioner filed C.M.P.No.315 of 2021 before the trial court to close the
case and to recall the non bailable warrant pending against the petitioner
since the entire compensation has been paid to the complainant. But, the
said petition was dismissed by the trial court as per Annexure-A1 order
holding that since the direction in Annexure-A4 order of this Court was to
remit the amount of fine in the trial court and since the petitioner has
directly paid the amount to the complainant, the court is not in a position to
accept the receipt of acknowledgement of money issued by the
complainant. It is challenging Annexure-A1 order passed in C.M.P.No.315
of 2021 in C.C.No.340 of 2014 that the present case is filed. In support of
the contention the petitioner relies on the judgment of this Court in
Sivankutty v. John Thomas (2012(4) KLT 21).
3. Heard the learned counsel appearing for the petitioner and
the 2nd respondent as well as the learned Public Prosecutor appearing for
the 1st respondent.
4. It is the case of the petitioner that even though in Annexure-
A4 order the petitioner was directed to remit the amount of fine in the trial
court, she has paid the amount directly to the complainant who is the 2 nd
respondent herein.
5. The learned counsel appearing for the 2nd respondent
submitted that she has received the entire amount of compensation and
has also issued a receipt acknowledging reception of the amount. Further
that, the 2nd respondent has also filed an affidavit before this Court as
Annexure-A5 stating that she has received the entire amount of
compensation and a receipt has been issued by her.
6. This Court has occasion to consider a similar issue in Beena
v. Balakrishnan (2010 (2) KLT 1017) and held as follows:
“5. That however, cannot be the end of the
matter so far as grievance of petitioners is concerned.
According to the petitioners they have already paid
amount payable to respondent No.1. That is revealed
from petitions filed by them in this Court. True, by the
final orders disposing of Revision Petitions this Court
while modifying the sentence as simple imprisonment till
rising of the court sentenced petitioners to payment of
fine which is to be deposited in the court concerned and
directed that fine if realised will be paid to respondent
No.1 under S.357(1)(b) of the Code. The proper
procedure for petitioners was to deposit fine in the court
concerned so that such court would pay the said amount
to respondent No.1 as provided under S.357(1)(b) of the
Code after making necessary entries in the fine register
of that court. Now that petitioners have paid the amount
to respondent No.1 to their satisfaction, what is required
is only to make necessary entries in the fine register that
amount of fine is realised and paid to respondent No.1.
In the particular facts and circumstances of these cases I
direct the learned Magistrate that if respondent No.1 filed
a statement within one month from this day in the court
concerned through his counsel in that court
acknowledging receipt of amount of fine ordered to be
paid as per final order disposing of the Revision
Petitions, learned Magistrate will accept that as sufficient
compliance of direction contained in the orders disposing
of the Revision Petitions and make necessary entries in
the fine register as if fine is realised and paid to
respondent No.1 and close the matter accordingly. The
warrant of arrest if any issued against petitioners will
stand in abeyance during the said period of one month
or statement is filed in the court concerned and
necessary entry in the fine register is made, whichever is
earlier.”
Doubting the correctness of the decision cited supra, a reference was
made by this Court which culminated in the judgment in Sivankutty's case
(supra) which is relied on by the petitioner in support of her contention. In
Sivankutty's case (supra) this Court found that there is no error or defect
in the direction given in Beena's case (supra) and held thus:
“.............. But if the Court permits payment of fine as
compensation to the complainant directly, it enables
the accused to pay the entire fine as compensation
directly to the complainant, as is the case with the
sentence in C.C.785/2003, the Magistrate cannot insist
that fine is to be paid in Court and it cannot be paid
directly to the complainant and is to be paid to the
complainant only after making necessary entries in
Form No.20. In such a case when the statement is
filed by the complainant regarding satisfaction of the
compensation, the Magistrate has to make necessary
entry in Form No.20, based on that statement, as in
the case of compensation payable under S.357(3) of
Code of Criminal Procedure. …........”
7. Admittedly, there is substantial compliance of the direction
issued by this Court in Annexure-A4 order in as much as the total amount
of fine was directed to be paid as compensation to the complainant and in
fact the complainant has received the amount also. An affidavit endorsing
the said fact was also placed before this Court by the 2 nd respondent. In
view of the above said facts and circumstances, in the interest of justice I
set aside Annexure-A1 order in C.M.P.No.315 of 2021 in C.C.No.340 of
2014 and direct the court below to make necessary entry in the fine
register recording the factum of settlement between the parties, as if fine
is realised and paid to the complainant.
With the abovesaid direction, the above case is disposed of. | The Kerala High Court observed that a convict in a cheque bounce case can pay the fine amount directly to the complainant. It is not necessary to deposit the fine amount in court.In this case, while disposing of the Criminal Revision Petition filed by the accused, the High Court had affirmed the conviction but modified the sentence of simple imprisonment as a sentence to pay fine...
The Kerala High Court observed that a convict in a cheque bounce case can pay the fine amount directly to the complainant. It is not necessary to deposit the fine amount in court.
In this case, while disposing of the Criminal Revision Petition filed by the accused, the High Court had affirmed the conviction but modified the sentence of simple imprisonment as a sentence to pay fine of Rs.7,17,000/-. The accused was granted a period of six months to remit the amount of fine in the trial court.
Thereafter, the accused paid the entire amount of compensation/fine directly to the complainant and a receipt was also issued by the complainant acknowledging the payment. The said receipt was produced before the trial court and the accused requested the trial court to close the case and to recall the non-bailable warrant pending against him. But, the said petition was dismissed by the trial court holding that since the direction was to remit the amount of fine in the trial court and since she has directly paid the amount to the complainant, the court is not in a position to accept the receipt of acknowledgement of money issued by the complainant.
Challenging this order, the accused approached the High Court. The complainant also filed an affidavit stating that she has received the entire amount of compensation and a receipt has been issued by her.
In this regard, Justice Viju Abraham referred to the following observations made in Sivankutty v. John Thomas (2012(4) KLT 21) :
"".............. But if the Court permits payment of fine as compensation to the complainant directly, it enables the accused to pay the entire fine as compensation directly to the complainant, as is the case with the sentence in C.C.785/2003, the Magistrate cannot insist that fine is to be paid in Court and it cannot be paid directly to the complainant and is to be paid to the complainant only after making necessary entries in Form No.20. In such a case when the statement is filed by the complainant regarding satisfaction of the compensation, the Magistrate has to make necessary entry in Form No.20, based on that statement, as in the case of compensation payable under S.357(3) of Code of Criminal Procedure. …........""
In the instant case, the Court noted that there is "substantial compliance" with the order to pay fine. The complainant has admitted the receipt of the entire fine amount.
Therefore, the Court directed the court below to make necessary entry in the fine register recording the factum of settlement between the parties, as if fine is realised and paid to the complainant.
Case name: Rajeswary vs State of Kerala
Case no.: Crl.MC No.6699 of 2021
Coram: Justice Viju Abraham
Counsel: V. John Sebastian Ralph for petitioner, C. Anilkumar for respondent, PP S. Rekha for state |
1. The petitioner has approached this Court assailing the
correctness of the impugned order under Annexure-1 dated 7th
June, 2022 passed in CRP No.117 of 2019 by the learned Judge,
Family Court, Cuttack on the ground that restoration of the
application under Section 125 Cr.P.C. dismissed for non-
prosecution could not have been entertained since the court
cannot recall or review its order in view of Section 362 Cr.P.C.
2. As claimed by the petitioner, opposite party No.1 wife filed an
application under Section 125 Cr.P.C. in the Family Court
registered as CRP No.89 of 2015, however, since no steps were
taken repeatedly, it was dismissed for default, whereafter,
restoration thereof was applied through CRP No.117 of 2019 in
terms of Section 126 Cr.P.C. followed by a request to condone
the delay in terms of Section 5 of the Limitation Act later to which
the petitioner was summoned and on his appearance, he filed an
objection by claiming that a proceeding under Section 125 Cr.P.C.
cannot be restored to file and the court as is not vested with any
inherent power has become functus officio after passing of the
CRLMC No.1943 of 2022 Page 1 of 4
final order, hence, it cannot recall or review the dismissal order in
view of the bar envisaged in Section 362 Cr.P.C. However, the
learned Judge, Family Court, Cuttack entertained the application
for restoration and proceeded to hold that the question of
limitation to be decided at a later stage on receiving evidence
since it is a mixed question of fact and law. It is the said decision
of the Family Court vide order 7th June, 2022 is under challenge
at the behest of the petitioner.
3. Heard Mr. Devashis Panda, learned counsel for the petitioner
and Ms. Anima Ku. Dei, learned counsel for the opposite parties.
4. Mr. Panda, learned counsel for the petitioner cited a decision
in the case of Md. Yusuf T. Attarwala Vrs. Jumana Yusuf
T.Attarwala and Another MANU/WB/0128/1987: I (1988) DMC
442 to contend that the Family Court did not have the power to
restore the proceeding or entertain an application in that regard
since it had become functus officio after the final order of
dismissal. Ms. Dei, learned counsel for the opposite parties
however would submit that an action for maintenance is basically
in the nature of civil proceeding and in case of its dismissal for
default, the same can be restored to file and while contending so,
Ms. Dei refers to a decision in the case of Kehari Singh Vrs. The
State of U.P. and Smt. Rekha Singh (2005) CriLJ 2330.
5. The seminal question is whether the learned Family Court
could have received and entertained the application for
restoration of the proceeding under Section 125 Cr.P.C?
6. Admittedly, opposite party No.1 did not turn up, as a result of
which, the proceeding under Section 125 Cr.P.C. was dismissed
for default, whereafter, restoration was moved by her and it was
received and entertained by the Family Court which has been
challenged on the ground that there is no any provision in the Cr.
CRLMC No.1943 of 2022 Page 2 of 4
P.C. to restore the proceeding once dismissed for non-
prosecution. In Md. Yusuf T. Attarwala (supra), the Calcutta High
Court expressed a view that there is no jurisdiction to restore a
proceeding under Section 125 Cr.P.C. when it is dismissed for
default. However, the Allahabad High Court in Kehari Singh
(supra) was of the view that an application under Section 125
Cr.P.C. claiming maintenance cannot be termed as a complaint as
the definition of word ’complaint’ as occurring in Section 2(d)
Cr.P.C. cannot be borrowed. While referring to a decision of
Andhra Pradesh High Court in Abdul Wahed Vrs. Hafeeza Begum
and Others 1987 CriLJ 726, the Allahabad High Court in said
decision concluded that the maintenance proceeding can be
restored to file by recalling or setting aside the order of dismissal
for effective adjudication and its disposal on merit. In Kehari
Singh (supra), other citations in Shabihul Hasan Jafari Vrs. Zarin
Fatma (2000) CriLJ 3051 and Sk. Alauddin@ Alai Khan Vrs.
Khadiza Bibi @ Mst. Khodeja Khattun and Others (1991) CriLJ
2035 with similar view expressed with the conclusion that the
power of recall is implicit with the court dealing with such
applications for maintenance have been quoted with approval.
7. When a proceeding of maintenance is dismissed on account of
default and if it is claimed that the court lacks jurisdiction to
restore it in absence of any provision, how it could have been
dismissed for non-prosecution, again for having no provision in
the Cr.P.C. According to the Court since such is action is
predominantly civil in nature, the power to restore a proceeding
under Section 125 Cr. P.C. is inherent. An application for
maintenance is not a complaint as defined in Section 2(d) Cr.P.C.
so to hold that in the event of its dismissal for default, the bar
contained in Section 362 Cr. P.C. would be attracted. In the
decision of Kehari Singh (supra), it is observed that if there is any
CRLMC No.1943 of 2022 Page 3 of 4
lacuna in the statute, then a court is obliged to pass a judicial
order to give effect to the intent and purport of the law and
therefore, a proceeding under Section 125 Cr.P.C. even though
dismissed for non-appearance can still be restored. With due
respect, this Court is in disagreement with the decision of the
Calcutta High Court in Md. Yusuf T. Attarwala (supra). Even
though the proceeding is before the Family Court which is
essentially dealing with the claim of maintenance is having
authority to recall and restore a proceeding under Section 125
Cr.P.C. disposed of and dismissed due to non-appearance of the
applicant. It is reiterated that the power to restore in such
proceedings in absence of provision in Section 126 Cr.P.C. is
implicit as has been held in Kehari Singh (supra) supported by
other decisions with similar view. So, the Court is not persuaded
to accept the contention of Mr. Panda, learned counsel for the
petitioner on the point of maintainability vis-à-vis restoration of
the proceeding. As a corollary, the learned Family Court cannot
be said to have committed any error or illegality in entertaining
the restoration application moved by opposite party No.1 and
rightly received the same and proceeded further.
8. Accordingly, it is ordered.
9. In the result, CRLMC stands dismissed. In the circumstances,
however, there is no order as to cost. | The Orissa High Court has held that the Family Courts possess the 'inherent power' to restore a Section 125 CrPC application dismissed earlier for non-prosecution.
While holding so, a Single Bench of Justice Radha Krishna Pattanaik observed,
"When a proceeding of maintenance is dismissed on account of default and if it is claimed that the court lacks jurisdiction to restore it in absence of any provision, how it could have been dismissed for non-prosecution, again for having no provision in the Cr.P.C. According to the Court since such is action is predominantly civil in nature, the power to restore a proceeding under Section 125 Cr. P.C. is inherent."
Factual Background:
The wife filed an application under Section 125 Cr.P.C. in the Family Court, which was subsequently dismissed for default for non-appearance and non-prosecution.
A restoration application was filed in terms of Section 126 Cr.P.C. Then, the husband was summoned and on his appearance, he filed an objection by claiming that a proceeding under Section 125 Cr.P.C. cannot be restored to file as the Family Court is not vested with any inherent power and it has become functus officio after passing of the final order. The husband argued that the family court cannot recall or review the dismissal order in view of the bar envisaged under Section 362 Cr.P.C.
However, the Family Court, Cuttack entertained the application for restoration and proceeded with the matter. Being aggrieved by the said order, the husband approached the High Court challenging the same.
Contentions:
Mr. Devashis Panda, counsel for the petitioner while relying on the judgment of the Calcutta High Court in Md. Yusuf T. Attarwala v. Jumana Yusuf T. Attarwala & Anr., (1988) DMC 442 submitted that the Family Court did not have the power to restore the proceeding or entertain the application since it had become functus officio after passing the final order of dismissal.
However, on the other hand, Ms. Anima Kumari Dei, counsel for the opposite parties contended that an action for maintenance is basically in the nature of civil proceeding and in case of its dismissal for default, the same can be restored to file. She placed reliance on the judgment of Allahabad High Court in Kehari Singh v. The State of U.P. & Anr.
Court's Findings
The Court discussed the judgments cited on behalf of both the parties.
It noted, in Md. Yusuf T. Attarwala, the Calcutta High Court expressed a view that there is no jurisdiction to restore a proceeding under Section 125 Cr.P.C. when it is dismissed for default.
However, the Allahabad High Court in Kehari Singh was of the view that an application under Section 125 Cr.P.C. claiming maintenance cannot be termed as a complaint as the definition of word 'complaint' as occurring under Section 2(d), Cr.P.C. cannot be borrowed. Thus, it had concluded that the maintenance proceeding can be restored to file by recalling or setting aside the order of dismissal for effective adjudication and its disposal on merit.
The Court observed that an application for maintenance is not a complaint as defined in Section 2(d) Cr.P.C. so as to hold that in the event of its dismissal for default, the bar under Section 362, Cr.P.C. would be attracted.
It noted that in Kehari Singh, it was observed that if there is any lacuna in the statute, then a Court is obliged to pass a judicial order to give effect to the intent and purport of the law and therefore, a proceeding under Section 125 Cr.P.C. even though dismissed for non-appearance can still be restored.
Accordingly, it expressed its disagreement with the conclusion reached by the Calcutta High Court in Md. Yusuf T. Attarwala. It further held that though the proceeding is before the Family Court which is essentially dealing with the claim of maintenance, it still has the authority to recall and restore a proceeding under Section 125 Cr.P.C. disposed of and dismissed due to non-appearance of the applicant.
It was reiterated that the power to restore in such proceedings in the absence of any express provision is implicit as has been held in Kehari Singh, supported by other decisions with similar view.
Hence, the Court was not persuaded to accept the contention of the petitioner on the point of maintainability vis-à-vis restoration of the proceeding. Consequently, the order passed by the Family Court was upheld.
Case Title: Sachindra Kumar Samal v. Madhusmita Samal @ Swain & Anr.
Case No.: CRLMC No. 1943 of 2022
Judgment Dated: 11th November 2022
Coram: R.K. Pattanaik, J.
Counsel for the Petitioner: Mr. Devashis Panda, Advocate
Counsel for the Opposite Parties: Ms. Anima Kumari Dei, Advocate |
Writ Petition(s)(Civil) No(s).708/2021
Date : 27-07-2021 This petition was called on for hearing today.
For Petitioner(s) Mr. Chinmoy Pradip Sharma, Sr. Adv.
Mr. Mohit Paul, AOR
Mr. Irfan Haseib, Adv.
Ms. Sunaina Phul, Adv.
For Respondent(s)
UPON hearing the counsel the Court made the following
1Among the reliefs which have been sought in these proceedings under Article 32
of the Constitution is a mandamus in the following terms, in prayer (a):
“a direct the respondents to restrain beggars and
vagabonds/homeless from begging on traffic junctions,
markets and public places to avoid the spread of Covid-
19 pandemic in all the states and union territories across
India and "rehabilitating them" and to further ensure
food, shelter and basic medical amenities including
covid-19 vaccination to them.”
(emphasis supplied)
2The relief sought in prayer (a) indicates that the petitioner seeks a direction to
the respondent to "restrain beggars and vagabonds/ homeless from begging on
traffic junctions, markets and public places to avoid the spread of Covid-19
pandemic in all the States and Union T erritories across India”. The latter part of
prayer (a) is for “rehabilitating them” so as to ensure that basic amenities
including food, shelter and medical facilities including vaccination are provided.
3At the outset, the Court has indicated to Mr Chinmoy Pradip Sharma, learned
Senior Counsel appearing on behalf of the petitioner, with Mr Mohit Paul, learned
counsel, that the prayer for a direction in the above terms cannot be
countenanced. A large number of people, including children, are compelled to
be on the streets to beg due to the absence of education and employment. This
is a socio-economic issue and cannot be remedied by a direction of the nature
that is sought in prayer (a). This is a human problem which has to be redressed
by the welfare State in a manner which accords with Part III and IV of the
Constitution.
4Mr Chinmoy Pradip Sharma, learned Senior Counsel, has submitted to the Court
that the object and purport of the petition under Article 32 is not what is
conveyed by a prima facie reading of the first part of prayer (a) and that, as a
matter of fact, the petitioner seeks appropriate directions for the rehabilitation of
those who are compelled to be on the streets to eke out their livelihood by
pursuing avocations such as begging. In the context of the Covid-19 pandemic,
it has been submitted that there is an urgent need to ensure that the vaccination
programme includes them like all other citizens.
5Since the first part of prayer (a) is not pressed before this Court, we are inclined
to issue notice. However, the petitioner shall amend prayer (a) so as to bring in
conformity with the above position and the submissions which have been urged
before this Court.
6Issue notice to the Union of India and to the Government of National Capital
T erritory of Delhi, at the present stage.
7Dasti, in addition, is permitted.
8Liberty is granted to serve the Union of India through the Central Agency.
9Since the immediate issue which needs to be attended is that of vaccinating the
persons to whom the petition relates and to ensure the due provision of medical
facilities in the Covid-19 pandemic, we would expect a response from the Union
of India and the Government of National Capital T erritory of Delhi on what steps
are being taken to deal with this human concern.
10We request the learned Solicitor General to assist the Court.
11.List the petition on 10 August 2021. | The Supreme Court on Tuesday remarked that people resorting to begging on streets is a socio-economic problem and the Court will not pass any directions to restrains beggars from seeking alms during COVID-19.
The Court cannot take an elitist view in that regard, a Bench of Justices DY Chandrachud and MR Shah said.
"We cannot grant the prayer to restrain them from begging, this is a socio economic problem. As Supreme Court, we will not take an elitist view," said Justice Chandrachud.
"Please do not press the prayer to restrain beggars from begging," Justice Shah also maintained.
The Court was hearing a plea for rehabilitation of beggars. However, one of the prayers in the petition was to restrain beggars from begging in view if COVID-19.
The petitioner submitted that he won't press the prayer for restraining begging but maintained that the object of the plea is to ensure that beggars are rehabilitated and proper medical facilities are provided to them.
The Court recorded the same in its order and issued notice to the Central and Delhi governments.
"The manner in which Prayer (a) has been drafted seems as if a direction has been sought to restrain beggars from begging from all across India to contain the spread of Covid 19. The latter part of the petition is to seek rehabilitation of beggars. At the outset, the Court has indicated that it is not inclined to grant the prayer seeking a direction in the above terms. The reason why people generally are required to take to the streets to beg is to eek out a elementary livelihood. This is a socio economic problem and cannot be remedied by a direction as urged for under Prayer A. Sr Adv Sharma states that what is intended is not what is put through prayer (a) and that they seek rehabilitation for those who take to streets for begging. In the context of COVID19, they (beggars, vagabonds, homeless) are entitled to medical facilities as others. We issue notice. Permission granted to amend the plea so as to bring conformity as prayer (a) will not be pressed. Notice issued to Centre and NCT," the order said.
The plea was filed though Advocates Mohit Paul and Sunaina Phul. |
1 Reportable
Writ Petition (Civil) No. 1011 of 2022
Supriyo @ Supriya Chakraborty & Anr. …Petitioners
Versus
Union of India …Respondent
Writ Petition (Civil) No. 93 of 2023
T. C. (Civil) No. 5 of 2023
T. C. (Civil) No. 8 of 2023
T. C. (Civil) No. 9 of 2023
T. C. (Civil) No. 11 of 2023
T. C. (Civil) No. 12 of 2023
Writ Petition (Civil) No. 1020 of 2022
Writ Petition (Civil) No. 1105 of 2022
Writ Petition (Civil) No. 1141 of 2022
2 With
Writ Petition (Civil) No. 1142 of 2022
Writ Petition (Civil) No. 1150 of 2022
Writ Petition (Civil) No. 159 of 2023
Writ Petition (Civil) No. 129 of 2023
Writ Petition (Civil) No. 260 of 2023
T. C. (Civil) No. 6 of 2023
Writ Petition (Civil) No. 319 of 2023
T. C. (Civil) No. 7 of 2023
T. C. (Civil) No. 10 of 2023
T. C. (Civil) No. 13 of 2023
And with
Writ Petition (Civil) No. 478 of 2023
Dr Dhananjaya Y Chandrachud, CJI
Table of Contents
ii. Societal violence against the queer community .................................. 11
i. This Court is vested with the authority to hear this case ................... 68
a. Article 32 vests this Court with the power to enforce the rights in Part III
c. The power of this Court to enforce rights under Article 32 is different
d. The power of judicial review must be construed in terms of the
Constitution of India and not in terms of the position of law in other
4 ii. Is queerness ‘un -Indian’? Who is an Indian? What practices are
a. Queerness is a natural phenomenon which is known to India since
c. The rise of Victorian morality in colonial India and the reasons for the
VII. The implications of the discussion in this segment .......................... 108
c. The implications of this discussion for the right of queer persons to
iv. The significance of marriage as a socio -legal institution ................. 111
v. The nature of fundamental rights: positive and negative postulates
5 vi. Approaches to identifying unenumerated rights ............................... 126
vii. The scope of the State’s regulation of the ‘intimate zone’ ................ 128
a. Have the courts recognised the right to marry? ................................... 133
II. The decision of the South African Constitutional Court in Fourie .... 143
III. The decision of the UK House of Lords in Ghaidan ......................... 147
IV. Institutional limitations with respect to the interpretation of SMA ..... 150
a. The goal of self -development and what it means to be human ........... 157
I. The right to freedom of speech and expression and to form intimate
c. Facets of the right to life and liberty under Article 21 .......................... 167
d. The right to freedom of conscience under Article 25 ........................... 174
x. Restrictions on the right to enter into a union ................................... 179
6 a. The right to enter into a union cannot be restricted based on sexual
b. Recognizing the right of queer persons to enter into a union will not lead
b. The judgment of this Court in NALSA and the Transgender Persons Act
c. Transgender persons in heterosexual relati onships can marry under
I. The right against discrimination under the Transgender Persons Act
III. Harmonious interpretation of the laws governing marriage and the
xii. The conditions for the exercise of the rights of LGBTQ persons .... 200
a. The right of queer persons under the Mental Healthcare Act .............. 200
b. The right of LGBTQ persons to freedom from coercion from their
families, the agencies of t he state, and other persons ............................... 202
xiii. The right of queer persons to adopt children ................................. 204
I. Regulation 5(3) of the Adoption Regulations exceeds the scope of the
7 II. Regulation 5(3) of the Adoption Regulations violates Article 14 of the
III. Regulation 5(3) of the Adoption Regulations violates Article 15 of the
E. Response to the opinion of Justice Ravindra Bhat ............................... 227
8 1. The Transfer Petitions in these proceedings are allowed.
2. The terms ‘LBGTQ’ and ‘queer’ are used interchangeably and as umbrella
expressions to capture the various sexual orientations and gender identities that
exist.
3. The term ‘ union between queer persons ’ or similar terms have been used to
mean relationship between parties where one or both of them have an atypical
gender identity or sexual orientation.
A. Background
i. The decision of this Court in Navtej Singh Johar
4. Section 377 of the Indian Penal Code 18601 criminalizes “carnal intercourse
against the order of nature.” History is replete with instances of the State having
used the provision to rip -off the dignity and autonomy of individuals who engaged
in sexual activity with persons of the same sex.2 A colonial provision which
reflected Victorian morality continued in the statute after Independence. Section
377 was also weaponized against gender non- conforming persons.3 Intimate
relationships and activities were subject to public ridicule and judicial scrutiny. By
criminalizing sexual behavior of homosexual and gender non- conforming persons,
the State stripped them of their identity and personhood. Those who defied the
mandate of the law and dodged prosecution were socially ostracized.
2 Meharban Nowshirwan Irani v. Emperor, AIR 1934 Sind. 206
3 Queen Empress v. Khairati, ILR (1884) 6 All 204
9 5. In Naz Foundation v. Government of NCTD4, a Division Bench of the High
Court of Delhi read down Section 377 of the IPC to exclude consensual
homosexual sexual activity between adults. On appeal, a two- Judge Bench of this
Court in Suresh Kumar Koushal v. Naz Foun dation5 reversed the judgment of
the High Court of Delhi. A writ petition seeking to declare the right to sexuality, the
right to sexual autonomy, and the right to choice of a sexual partner as a part of
the rights guaranteed under Article 21 of the Const itution and to declare Section
377 of the IPC to be unconstitutional was listed before a three -Judge Bench of this
Court. The petitioners argued that the matter must be referred to a five -Judge
Bench in view of the decisions of this Court in National Legal Services Authority
v. Union of India6 and Justice KS Puttaswamy (9J) v. Union of India.7 In
NALSA (supra), this Court held that the state must recognize persons who fall
outside the male- female binary as ‘third gender persons’ and that they are entitled
to all constitutionally guaranteed rights. It also directed the Union and State
Governments to grant legal recognition to the self -identified gender of transgender
persons, including when they identify as male and female. In Justice KS
Puttaswamy (9J) (su pra), this Court held that the Constitution protects the right of
a person to exercise their sexual orientation. The three -Judge Bench referred the
judgment of this Court in Suresh Kumar Koushal (supra) to a larger Bench. The
three- Judge Bench also observed that the “order of nature” referred to in Section
377 of the IPC is not a constant but is guided by social morality as opposed to
10 constitutional values, and that a section of the population should not remain in a
constant state of fear while exercising their choices.
6. This Court answered the reference in Navtej Singh Johar v. Union of
India8, holding that Section 377 is unconstitutional to the extent that it criminalizes
consensual sexual activ ities by the LGBTQ community. It held that: (i) Section 377
violated Article 14 because it discriminated between heterosexual persons and
non-heterosexual persons, although both groups engage in consensual sexual
activities 9; (ii) While Article 14 permi ts reasonable classification based on
intelligible differentia, a classification based on an ‘intrinsic and core trait’ is not
reasonable; Section 377 classified individuals on the basis of the core trait of
‘sexual orientation’10; (ii) Article 15 pr ohibits discrimination based on ‘sex’ which
includes within its meaning sexual orientation as well11 and Section 377 indirectly
discriminated between heterosexual persons and the LGBTQ community based on their sexual orientation; and (iii) Section 377 violated Article 19(1)(a) because
Section 377 inhibited sexual privacy.
7. One of us (DY Chandrachud, J.) observed that the right to sexual privacy
also captures the right of the LGBTQIA+ community to navigate public places free from State interference. The c ommunity does not face discrimination merely based
on their private ‘sexual’ activities . It extends to their identity, expression, and
existence. The Court declared that the members of the LGBTQIA+ community are
entitled to the full range of constitutional rights including the right to choose whom
9 Chief Justice Dipak Misra in Navtej Singh Johar
10 Justice Indu Malhotra in Navtej (supra)
11 Justice DY Chandrachud in Navtej (supra)
12 Chief Justice Dipak Misra and Justice DY Chandrachud in Navtej (supra)
11 to partner with, the ability to find fulfilment in sexual intimacies, the benefit of equal
citizenship, and the right not to be subject to discriminatory behaviour. This Court
in Navtej (supra) went beyond decrimi nalizing the sexual offence. It recognized
that persons find love and companionship in persons of the same gender ;
protected the class against discriminatory behavior ; and recognized the duty of the
State to end the discrimination faced by the queer community.
ii. Societal violence against the queer community
8. Despite the de- criminalization of queer relationships and the broad sweep
of the decision in Navtej, members of the queer community still face violence and
oppression, contempt, and ridicule in various forms , subtle and not so subtle, every
single day. The State (which has the responsibility to identify and end the various
forms of discrimination faced by the queer community) has done little to
emancipate the community from the shackles of oppression. The ghost of Section
377 lives on in spite of the decriminalization of the sexual offence and the
recognition of the rights of queer persons in Navtej (supra).
9. The law, in the form of Section 377, imposed social morality on homosexual
relationships. The legal regime was the chariot which propels social norms on love and unions. The impact of Section 377 on society must be viewed in terms of its
effect on the social conceptions of love and companionship. Section 377 enforced
morality through law by shaping beliefs about queer identity. This far -reaching
impact of the legal regime is one of the primary reasons for the continuing, widespread revulsion against the LGBTQIA+ community even after homosexual
sexual acts have been decriminalized. The lack of sensitization and the ensuing
12 discrimination has pushed the members of the community into the proverbial
closet. For many members of the LGBTQIA+ community, expressing their sexual
orientation and gender identity is an act of defiance which requires str ength and
courage. The ostracism extends across the full range of social values, from
parenting to public office.
10. The discrimination faced by the LGBTQIA+ community in various forms is,
in so many ways, a product of social morality as much as it is a product of the lack
of effort from the State to sensitize the general public about issues concerning queer rights. Social norms and beliefs which were internalised over centuries were
not overhauled at the stroke of midnight when the nation became the source of its
destiny and when the Constitution was adopted in 1950. Similarly, the stigma against the members of the LGBTQIA+ community did not end with a stroke of the
pen when this Court decriminalized consensual homosexual sexual activity.
11. Despite this Court recognizing that sexual orientation is a core and innate
trait of an individual, the members of the queer community continue to face
economic, social and political oppression in both visible and invisible ways. At a
primary level, they face oppression beca use of their inability to express their
gender identity due to the fear of public disapproval. Researchers have recorded
incidents where the public has subjected members of the queer community to
violence for publicly displaying affection towards one another. A woman who
eloped with another woman was beaten, stripped and paraded around the village within a blackened face and a garland of shoes around her neck.
13 Queer
13 Maya Sharma, Loving Women: Being Lesbian in Underprivileged India (2nd edn, Yoda Press 2021)
13 individuals who are from socio- economically marginalised backgrounds are at an
even greater risk of being subject to harassment.
12. The LGBTQIA+ community also faces discrimination in the public space
because of the lack of accommodation in the public sphere for persons who do not
conform to the gender binary. All the services provided by the State including public
washrooms, security check points, and ticket counters at railway stations and bus
depots are segregated based on a strict gender binary. Transwomen have
recounted experiences of being asked to shift to the men’s queue in security c heck
points.14 Although they are women and identify with the female gender, they are
forced to accept a third party’s assessment of their gender as being male. Just as
a cisgender woman may feel intensely uncomfortable at using facilities meant for
men, tr ansgender women too may feel very uncomfortable. Over time,
misgendering a person can have deleterious effects on their mental health and negatively impact their ability to function in the world.
13. Places of education and employment are also not spaces wh ere gender
identity and sexual orientation may be expressed devoid of discriminatory attitudes.
The members of the queer community may be forced to quit their education or their job if they face oppression in these spaces. This would mean that they do not have
equal opportunity. In professional environments, members of the queer community may face various forms of discrimination which may range from being denied
opportunities to secure jobs to not being invited to office gatherings and to being
passed over for promotions. A human rights organization interviewed 3,619
14 Also see: e-Committee Supreme Court of India, Sensitisation Module for the Judiciary on LGBTQIA+ community
14 transgender persons out of which only 12 % were employed, with half of them
earning less than Rs. 5, 000 per month .15 Contrary to popular perception, the
significant percentage of unemployment in the transgender community is not
because transgender persons do not wish to work or because they prefer to beg,
but because employers are unwilling to employ them due to their gender
nonconformity. In another study conducted by the National Human Rights
Commission (NHRC) it was revealed that seventy -five percent of transgender
persons in the National Capital Region and eighty -two percent of transgender
persons in Uttar Pradesh never attended school or dropped out before tenth grade.
Further, members of the transgender community face difficulty in obtaining proper
identification documents which prevents them from accessing even those
opportunities which are available to them.
14. The biological family is often the first site of violence and oppression for the
queer community. It begins with family members rejecting the gender identities of
their transgender children or consenting to “gender normalizing surgeries” for their
intersex children (that is, those who have reproductive or sexual anatomy that does
not fit into an exclusive male or female sex classification) without giving the child
an opportunity to choose for themselves16. At a very young age, they face familial
rejection. Instead of being nurtured with love and affection, they face contempt because of their identity which in turn makes them vulnerable and inexpressive.
The natal families of some homosexual persons force t hem to marry a person of
15 Shreya Raman, ‘Denied Visibility in Official Data, Millions of Transgender Indians Cant Access Benefits’ (India
Spend, 11 June 2021)
16 Also see Arunkumar v. Inspector General of Registration, AIR 2019 Mad 265
15 the opposite sex once they come to know about their sexual orientation.17 A woman
also recounted that she was wary of communicating the truth about her sexual
orientation to her family because she was worried that they would stop her from
going to school.18 Another woman recounted that after she disclosed her sexual
orientation to her family, her movements were constantly monitored and even if she went away from home for an hour, her phone would be traced with the
assistance of the Station House Officer.
19 Families also consider a queer person’s
desire of gender expression to be a mental illness which requires cure. A person
from the queer community recounted being forced to undergo ‘conversion therapy’
where they were given electroc onvulsive shocks.20 Another queer person recounts
the harrowing experience that they underwent at a rehabilitation centre:
“It was only later that I realised that I had been shifted to
another rehabilitation centre [...]. Here, I was undressed and
checke d by a female warden. Afterward, I went to sleep for
the night.
There was one bathroom in this rehabilitation centre, which
everyone used together. There was no door, and there was
no question of privacy. I have never been to jail in my life, but
I've heard that it's better than this.”
15. The transgender community is also discriminated against in other ways. The
members of the community are not treated in a dignified manner in the healthcare
sector for reasons which range from administrative formalities which are not
gender -inclusive to a lack of knowledge about gender -related diseases.21 Similarly,
17 Shakthi Shalini, “ The Unspoken: A qualitative research on natal family violence” 23
18 Ibid.
19 ibid
20 Ibid,110.
21 Lakshya Arora, ‘PM Bhujang, Muthusamy Sivakami, Understanding discrimination against LGBTQIA+ patients
in hospitals using human rights perspective: an exploratory qualitative st udy’ Sex Reprod Health Matters’ 2022
29(2) https://www.ncbi.nlm.nih.gov/pmc/articles/PMC9423841/ .
16 the community also faces discrimination in the housing sector. Studies have shown
that it is very difficult for members of the queer community to rent a house.22 Some
members of the queer community recounted that they have shifted houses twice in four years because of neighbours who assumed that they had parties and
caused disturbances.
16. Often, instruments of the State which are tasked with protecting human
rights, perpetuate violence. Police and prison officials exhibit violence towards the
queer community. Research conducted by the National Institute of Epidemiology
involving around 60,000 transgender participants revealed that the law
enforcement agencies are the largest perpetrators of violence against the
transgender community.24 A trans -woman lodged in a prison housing two
thousand male inmates recounted the violence that she faced during her
imprisonment. She reported that the male prisoners sexually assaulted and
mentally harassed her.25 Lesbian and gay couples often approach the police for
protection from family violence. However, instead of granting protection to the couple, the police ‘hand over’ the couple to their families.
26 In one such case, the
police colluded with the family despite court orders granting protection to a couple
from the queer community. The parents of a cis -woman (who was in a relationship
22 Sejal Singh and Laura E. Durso, ‘ Widespread discrimi nation continues to shape LGBT people’s lifes in both
subtle and significant ways ’ (American Progress , 2 May 2017)
https://www.americanprogress.org/article/widespread- discrimination-continues -shape-lgbt -peoples -lives -subtle-
significant -ways/
23 Bindisha Sarang, ‘ Why its doubly difficult for gay renters to find homes ’ , (First Post, November 13, 2013)
24 International Commission of Jurists, Unnatura l Offences: Obstacles to Justice in India Based on Sexual
Orientation and Gender Identity (ICJ, 2017)
25 Sukanya Shantha, ‘ Misgendering, sexual violence, and harassment: What it is like to be a transgender person
in an Indian prison’ ( The wire, 11 Feb 2021) https://thewire.in/lgbtqia/transgender -prisoners -india
26 Centering Familial Violence in the Lives of Queer and Trans Persons in the Marriage Equality Debates, A report
on the findings from a closed door public hearing on April 1, 2023 organised by P UCL and National Network of LBI
Women and Transpersons.
17 with a trans man) filed a missing persons case, The couple already had already
filed an affidavit in court that they were in a live- in relationship. However, the police
‘tracked them down’.27 In some instances, the family’s complaint is not recorded
by the police. Instead, they try to force persons of the queer community to speak
to their family.28 The violence and the discrimination that the queer community is
subjected to leads to them being closeted or feeling compelled to imitate the expressive attitudes of heterosexual persons.
17. This Court in NALSA (supra) declared that the transgender community must
not be subsumed within the gender binary and must be treated as a “third gender” in the eyes of the law. This Court also directed the Central and the State
governments to take steps to address the stigma and oppression faced by the
community and create public awareness about the community and their struggles.
Parliament enacted the Transgender Persons (Protection of Rights) Act 2019
30 to
protect the rights of the transgender community and provide welfare measures for their betterment. The enactment aims to protect the transgender community from
discrimination and includes provisions for providing them with opportunities in the educational and social sectors. However, in spite of the decision of this Court in NALS A (supra) and the provisions of the Transgender Persons Act, members of
the transgender community continue to be denied equal citizenship. They face immense physical and sexual violence. They are often forced to undergo sex -
reassignment surgeries before their rights as transgender persons are recognized,
27 ibid
28 ibid
29 Sejal Singh and Laura E. Durso (n 22)
30 “Transgender Persons Act”
18 and are frequently subjected to hate speech. Stereotypes about the community are
also reinforced in the media.
18. The grievance of the petitioners (who are members of the LGBTQIA+
community) is not that soci ety discriminates against them in an informal (and
invisible) manner. That is a secondary but an equally important stage of how
discrimination pans out against a marginalised class. The petitioners claim that
they are discriminated on a more formal (and vi sible) level. The petitioners contend
that the State through the operation of the current legal regime discriminates
against the queer community by impliedly excluding the queer community from a
civic institution: marriage. The petitioners have invoked the equality code of the
Constitution to seek legal recognition of their relationship with their partner in the
form of marriage. The petitioners do not seek exclusive benefits for the queer
community, which are unavailable to heterosexuals. They claim that the State
ought to treat them on par with the heterosexual community.
B. Submissions
19. Learned counsel appearing for the petitioners made the submissions
detailed below. Since this Court is a court of record, the submissions of each of the
counsel are set out.
20. Mr. Mukul Rohatgi, learned senior counsel, made the following submissions:
a. This Court’s existing jurisprudence on LGBTQIA+ rights declares that
LGBTQIA+ persons are entitled to dignity, equality, and privacy, which
encompasses the fundamental right of LGB TQIA+ persons to marry a person
19 of their choice. Accordingly, statutory recognition of such fundamental rights
of LGBTQIA+ persons is merely a consequence of this Court’s
jurisprudence31;
b. Article s 19 and 21 of the Constitution guarantee all persons the right to marry
a person of their choice, including LGBTQIA+ persons ;
c. The Special Marriage Act (SMA) violates the right to dignity and decisional
autonomy of LGBTQIA+ persons and therefore violates Article 2132;
d. Excluding LGBTQIA+ persons from the SMA discri minates against them on
the basis of their sexual orientation and the sex of their partner. This violates Article 15 of the Constitution;
e. The SMA is violative of Article 14 of the Constitution because:
i. It denies LGBTQIA+ persons equal protection of the l aws. Non -
recognition of same -sex and gender -non conforming marriage causes
prejudice to LGBTQIA+ persons and denies them rights under social
welfare and beneficial legislations;
ii. It is manifestly arbitrary to exclude LGBTQIA+ persons from the SMA. There is no fair or reasonable justification to exclude LGBTQIA+
couples from the institution of marriage;
31 Reliance was placed on K.S. Puttaswamy v. Union of India (2017) 10 SCC 1 [9- Judge Bench], Navtej Singh
Johar v. Union of India (2018) 10 SCC 1, National Legal Services Authority v. Union of India (2014) 5 SCC
438, and Deepika Singh v. Central Administrative Tribunal 2022 SCC OnLine SC 1088
32 Reliance was placed on Shakti Vahini v. Union of India (2018) 7 SCC 192
20 iii. There is no constitutionally valid, intelligible differentia between
LGBTQIA+ and non- LGBTQIA+ persons. The classification in the
present case is based only on the sexual orientation and gender
identity of the parties to a marriage, which is constitutionally
impermissible. Further, there is no rational nexus with the object
sought to be achieved by the SMA. The object of the SMA is to provide
a civil form of marriage for couples who cannot or choose not to marry
under their personal law. The exclusion of LGBTQ couples from the
SMA has no rational nexus with this object;
f. There is no 'legitimate state interest' promoted or safeguarded by denying LGBTQ+ indiv iduals the fundamental right of marriage;
g. Recognizing the right of LGBTQIA+ couples to marry upholds constitutional morality . Constitution al morality urges the organs of the state, including the
judiciary, to preserve the heterogeneous nature of our society and encourage it to be pluralistic and inclusive;
h. Every person is entitled to marry someone of their choice. Queer people are equally enti tled to the exercise of this right
i. Denying LGBTQ+ individuals the right to marry inflicts personal harm on them
and also inflicts a significant economic cost on the country;
33 Reliance was placed on Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368, Shakti Vahini (supra), Laxmibai
Chandaragi B. v. State of Karnataka (2021) 3 SCC 360, Deepika Singh (supra)
21 j. Denial of the right to marry amounts to a deprivation of the entitlement to f ull
citizenship as well as a denial of the right to intimacy ;
k. The Constitution is a living document and ought to adapt to changing social
realities. Notions of marriage equality are not necessarily opposed to social
morality.;
l. If a statute appears to viol ate the Constitution, then this Court may either
declare it unconstitutional, or read it expansively to save its constitutionality .
Matrimonial as well as other statutes can be read in a gender -neutral manner
to include LGBTQIA+ couples within their ambit ;
m. There is growing international consensus (including judicial consensus) which
recognizes same- sex and gender non- conforming marriages, and this is in
line with India’s international obligations;
n. Article 32 of the Constitution vests in persons or citizens a fundamental right
to approach this Court for the enforcement of the rights guaranteed in Part III of the Constitution. It is therefore incorrect to argue that queer people must
wait for Parliament to enact a law granting marriage equality;
o. Consequential reliefs must necessarily follow a declaration that the right to
marry is vested equally in all persons including LGBTQIA+ persons ;
p. The SMA ought to be read in a gender -neutral manner . Gendered terms such
as “husband” and “wife” ought to be read as “spouse.” The language used in the SMA facilitates a gender neutral interpretation. Section 4 of the SMA is
22 with reference to “any two persons,” Section 4(1)(a) refers to a “spouse” and
Section 4(1)(b) refers to a “party”;
q. The age that must be attained before a person is eligible to marry under the SMA ought to be twenty -one years for all persons; and
r. Transgender persons may fall into the categories of either “man” or “woman” in the SMA, depending on the gender they identify with.
21. Dr. Abhishek Manu Singhvi, learned senior counsel, made the following
submissions:
a. The SMA is unconstitutional because it discriminates on the grounds of sexual
orientation by preventing same- sex couples from solemnizing their marriages .
Article 15(1) of the Constitution prohibits discrimination on the grounds of sex,
which subsumes sexual orientation. The requirement in the SMA that a couple
should consist of a man and a woman is one which is based on ascriptive
characteristics (attributes that are pre- determined or designated by society or
other external norms) and is an exclusion based on a marker of identity ;
b. Marriage is not simply a benefit or privilege. Rather, it forms the very basis of
a couple’s ability to fully participate in society. Marriage is a source of soci al
validation, dignity, self -respect, fulfilment, security (financial and otherwise),
and other legal and civil benefits including in the domain of tax, inheritance, adoption, etc.;
c. The exclusion of same- sex couples from the SMA is violative of Article 14 of
the Constitution. While there is an intelligible differentia for the classification
23 in that the sexual orientation of heterosexual and homosexual persons is
different, there is no rational nexus with any legitimate state purpose. A
legislative purpose c annot itself be discriminatory or unconstitutional;
d. The exclusion of same- sex couples from the SMA is violative of Article 19 of
the Constitution. The act of entering into a marital relationship is protected
under Article 19(1)(a) of the Constitution, and is a socially valuable form of
expression. The restriction on the right of queer persons to marry is not a reasonable restriction under Article 19(2)
e. The exclusion of same- sex couples from the SMA is violative of their right to
dignity and is therefore violative of Article 21 of the Constitution. The exclusion
of same- sex couples from the institution of marriage is being used to send a
public message about their worth as unequal moral members of society and is inter alia akin to caste -based restrictions on temple entry and the refusal to
accommodate disability in public examinations ;
f. The SMA authorizes the solemnisation of same- sex marriages, when
interpreted consistent with the Constitution. It can be read down in the
following manner to include the solemnization of marriages between non-
heterosexual persons :
i. The word "man" in Section 2(b) includes "any person", and that
correspondingly, the word "woman" includes "any person";
34 Reliance was placed on Union of India v. Naveen Jindal (2004) 2 SCC 510
24 ii. The words "man" and "woman" include trans -men and trans - women,
intersex and non- binary individuals as the case may be35;
iii. Section 4(c) enacts only an age- based exclusion for pers ons
otherwise eligible to marry under the provisions of Section 4, and shall
not be construed to impose any disabilities based on gender, sexual
orientation, or sexual identity of the parties. For same sex couples in
particular, Section 4(c) can be read as a single age- restriction, be it
eighteen or twenty -one. In the alternative, Section 4(c) may be read
as prescribing the minimum age as eighteen for both parties in the case of a lesbian relationship and twenty -one for both parties in the
case of a gay rel ationship. For non- binary and inter -sex persons, the
SMA may be read as imposing no restriction beyond that imposed by
other laws which stipulate the age at which persons become capable
of binding themselves under law i.e., eighteen years. In the
alternati ve, this Court may lay down guidelines as an interim measure
while leaving it open to Parliament to fill the vacuum in due course of time;
iv. The reference to "widow" and "widower" in Schedules II and III must
be read as "widow or widower" and "widower or wi dow," as the case
may be, and shall not be construed to impose any disabilities based
on gender, sexual orientation, or sexual identity of the parties ;
35 Reliance was placed on National Legal Services Authority (supra)
25 v. References to “bride” and “bridegroom” in Schedules III and IV must
be read as “bride or bridegroom”, as the case may be, and shall not
be construed to impose any disabilities based on gender, sexual
orientation, or sexual identity of the parties.
g. The F oreign Marriage Act 1969 can similarly be read down;
h. The relief sought by the petitioners is workable;
i. In reading down the SMA and the FMA to achieve a constitutionally compliant
interpretation, neither the text of the statute nor the intention of Parliament act
as a limitation. Only the underlying thrust of the legislation and the institutional
capacity of this Court are relevant . The underlying thrust of the SMA is that it
was designed to facilitate marriages lying outside the pale of social acceptability. Reliance was placed on Ghaidan v. Godin -Mendoza [2004]
j. In the alternative, the principle of updating construction ought to be applied to
the SMA. Courts may expand the existing words of a statute to further the
march of social norms and contemporary realities;
k. Some laws (such as the Protection of Women Against Domestic Violence Act 2005, the Dowry Prohibition Act 1961, provisions pertaining to cruelty in the
Indian Penal Code 1860
36) were enacted to address structural imbalances of
power between m en and women in a heteronormative setting. These
provisions of law do not impact whether same- sex couples have a right to
26 marry. These provisions are beyond the scope of the petitions and need not be
interpreted in favour of either spouse in a non- heterosexual marriage;
l. There is no timeless and immutable conception of marriage. The SMA itself
was enacted contrary to the cultural and social understanding of marriage
which prevailed at the time. Further, the SMA is a secular and areligious law
which was meant to serve as an alternative for those who could not or did not
want to solemnize their marriages under the applicable personal law, which is
rooted in religion. The conditions for the solemnization of a marriage under the
SMA need not, therefore, conform to the cultural , social, or religious
understandings of marriage;
m. The principles of equality and non- discrimination cannot be trumped by societal
values. These principles, by definition, require a challenge to majoritarian social norms ;
n. This Court is not being asked to act as a substitute for the legislature or to alter the “concept of marriage.” Rather, this Court is being asked to find that the
exclusion of a group of people from the SMA solely by virtue of their ascriptive
characterist ics is unconstitutional. A constitutionally compliant reading of the
SMA to allow for marriage equality is within the bounds of legitimate statutory
interpretation and is not judicial legislation; and
o. Civil unions are not an equal alternative to the legal and social institution of
marriage. Relegating non- heterosexual relationships to civil unions would send
the queer community a clear message of subordination – that their
27 relationships are inferior to relationships that comply with the entrenched
heteronormative social order.
22. Mr. Raju Ramachandran, learned senior counsel, made the following
submissions:
a. The petitioners have a fundamental right to marry a person of one's own choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any
exclusio n or discrimination, as incorporated in Section 4(c) and other
provisions of the SMA, is ultra- vires the Constitution. The denial of their right
to marry violates Articles 14, 15, 19, 21 and 25. Article 21 encompasses the right to happiness, which includes a fulfilling union with a person of one’s
choice ;
b. The exclusion of the petitioners from the institution of civil marriage under
SMA, 1954, is inconsistent with the very object of the law, i.e., to facilitate any marriage between two Indians, irrespective of caste, creed or religion;
c. The systemic nature of natal family violence against LGBTQIA+ persons, owing to their sexual or gender identity, and the misuse of the criminal law
machinery by the families, often in collusion with local police, makes it imperative for this Court to frame guidelines concerning the police action in
dealing with cases of adult and consenting queer and transgender persons
d. The special provisions for a wife in a heterosexual marriage under the SMA need not be inter preted by this Court while deciding this batch of petitions
37 Reliance was placed on Shakti Vahini (supra)
28 because they are protective provisions for women in pursuance of the
constitutional mandate in Article 15(3). Similarly, gender -specific laws
including penal laws need not be subject to any interpretative exercise.
Religious personal laws are also not required to be interfered with;
e. Declarations by the court as to rights of people are followed by legislation. For
instance, the rights declared in National Legal Services Authority (supra)
were given effect to in the Transgender Persons Act ;
f. The doctrine of reading- in is well- recognised in Indian jurisprudence; and
g. The Union of India has sought to argue that only Parliament can grant a new ‘socio -legal status of marriage’ to LGBTQ persons, after undert aking
extensive consultations and eliciting views from every part of the nation. The
rights of the LGBTQIA+ community cannot be made contingent on the opinion
of the majority .
23. Mr. K V Vishwanathan, learned senior counsel, submitted that:
a. Under Article 21 of the Constitution, all persons have a fundamental right to
choose a partner;
b. International covenants to which India is a signatory including the Universal Declaration of Human Rights
38 and the International Covenant on Economic,
Social and Cultural Rights39 enjoin a duty upon the state to not interfere with
the right of a person to marry and have a family in terms of their own choice
29 as well as to protect the familial rights of all pers ons without discrimination on
the basis of inter alia sexuality, race, and religion;
c. Statutes regulating marriage in India must be read as inclusive of all gender
identities and sexualities in view of the pronouncements of this Hon’ble Court
in National Le gal Services Authority (supra) and Navtej (supra) . Such a
reading is necessary to ensure that these statutes pass muster on the
touchstone of Part III of the Constitution;
d. Courts across the country as well as state policies and welfare schemes have
recognised and accorded equal status to unions between LG BTQ persons. A
necessary corollary of the right to self -identify gender is to be able to express
personal preference in terms of choice of partner, and, therefore a marriage
entered into by a transgender person must be fully recognised by the State40;
e. This Court has previously issued guidelines to protect citizens against
discrimination in cases where there existed a lacuna in the law41.;
f. The freedom to choose a partner in marriage would be covered under Ar ticle
19(1)(a) as an expression, under Article 19(1)(c) as an association or union
and Article 19(1)(e), as an exercise of the right to reside and settle in any part
of the territory of India42;
40 Reliance was placed on Arunkumar v. Inspector General of Registration AIR 2019 Mad 265, Sushma v.
Commissioner of Police , W.P. No. 7248 of 2021, Madras High Court, Mansur Rahman v. Superintendent of
Police 2018 SCC OnLine Mad 3250, Chinmayee Jena v. State of Orissa 2020 SCC OnLine Ori 602, Latha v.
Commissioner of 2021 SCC OnLine Mad 7495, Veera Yadav v. The Chief Secretary, Government of Bihar ,
CW No. 5627 of 2020, Patna High Court, and Vithal Manik Khatri v. Sagar Sanjay Kamble , Crl. W.P. No. 4037
of 2021, Bombay High Court
41 Reliance was placed on Vishaka v. State of Raja sthan (1997) 6 SCC 241, D.K Basu v. Union of India (1997)
42 Reference was made to Saroj Rani v. Sudarshan Kumar Chadha (1984) 4 SCC 90
30 g. Excluding transgender persons from matrimonial statutes fails the reasonable
classification test under Article 14;
h. Transgender persons have a right against discrimination under Articles 15 and 16;
i. The right of transgender persons to marry is enjoined by the Transgender Persons Act . The classification s ought to be made by the Union of India
between “biological” and transgender persons is untenable;
j. Procreation is not the sole purpose of marriage. Marriage is not merely the meeting and mating of two individuals but much more - it is the union of two
souls ;
k. If the contention of the Union of India that ‘male’ and ‘female’ as provided in
statutes are to be construed to refer to cisgender males and females, it would
lead to absurd and unjust outcomes in implementation of several laws. For
instance, the Hindu Succession Act 1956
43 defines an ‘heir’ as any person
‘male or female’ entitled to succeed to the property of an intestate under said
Act. If the Union of India’s argument is taken to be correct, it would lead to a
situation where a transgender heir of a person who has died intestate would not be able to inherit the property, even if they happen to be the sole heir ;
l. The National Commission for Protection of Child Rights (NCPCR) has made unscientific claims on the effect of puberty blocker / sex -transition therapy on
children. They are in complete disregard to the internationally accepted
43 “Hindu Succession Act”
31 guidelines issued by World Profession Association for Transgender Health,44
which are also referenced in the Transgender Persons Act; and
m. The petitioners' constitutional r ights cannot be denied based on an argument
that it would offend the "will of the people." Constitutional morality cannot and
ought not to be replaced by social morality.
24. Ms. Geetha Luthra, learned senior counsel, made the following
submissions:
a. The FMA i s applicable to a couple if at least one of them is an Indian citizen.
The FMA travels with the citizen to a foreign jurisdiction to extend its protection by recognizing the citizen’s marriage contracted under foreign law,
or by allowing a citizen to solem nize their marriage under Indian law even
when they are abroad . In terms of Section 17 of the FMA, a marriage must be
valid in terms of foreign law and consistent with international law ;
b. All citizens including LGBTQIA+ citizens are entitled to all rights available to
Indian citizens, even if they are abroad. Articles 19 and 21 of the Constitution
guarantee all persons the right to marry a person of their choice, including LGBTQIA+ citizens. The FMA violates the right to dignity and decisional autonomy of LGBTQIA+ persons and is discriminatory. Reliance was placed
on National Coalition for Gay and Lesbian Equality v. Minister of Home
Affairs [2000] 4 LRC 292;
32 c. The object of the FMA in adopting the scheme of the SMA is to provide a
uniform, civil and s ecular marriage law for a couple, either of whom is an
Indian citizen. However, by recognizing marriages only between opposite sex
couples, the effect of the law is to deny same- sex and gender non -conforming
couples the right to marry a person of their choice, solely on grounds of their sexual orientation and gender identity. This is violative of Article 15 of the
Constitution;
d. The SMA and the FMA are violative of Article 14 of the Constitution because
they deny LGBTQIA+ persons the equal protection of law s, are manifestly
arbitrary, and fail the rational nexus test. There is no intelligible differentia
between LGBTQIA+ and non- LGBTQIA+ couples. The object of the FMA is
to extend the protection of the Indian Constitution and its laws to a citizen abroad regardless of who they choos e to marry and under whichever law they
choose to do so, to provide for maximum international validity of a marriage, and in adopting the framework of the SMA, to provide for a uniform, civil and
secular law to govern foreign marri ages. The exclusion of same- sex and
gender non -conforming couples from the FMA has no rational nexus with
these objects;
e. The FMA is pari materia to the SMA. They must be interpreted similarly with
regard to same -sex and gender non- conforming marriages;
f. Recognition of marriage of same -sex and gender non- conforming couples
under the FMA furthers the comity of nations; and
33 g. The grant of reliefs does not render the provisions of the FMA or other statutes
employing gendered terminology unworkable.
25. Mr. Anand Grover, learned senior counsel, made the following submissions:
a. Marriage remains fundamental to the functioning of the society, and to avail
important schemes under the modern nation - state, such as joint tax benefits
and rights of surrogacy;
b. The FMA must be interpreted liberally to advance the cause of society at
large. It must not be interpreted to cause hardship;
c. The failure of the SMA to recognize same- sex marriages violates Articles 14
and 15 of the Constitution because it fails the reasonable classificat ion test ,
is manifestly arbitrary , and discriminates based on gender identity and sexual
orientation;
d. The failure of the SMA to recognize same- sex marriages violates Article
19(1)(a) of the Constitution because sexuality, gender expression, and marriage ar e forms of expression;
e. The right to intimate associations is protected by Article 19(1)(c) of the Constitution. Reliance was placed on Griswold v. Connecticut 381 US 479
f. Same -sex marriages or gender non- conforming marriages form a part of
Indian tr adition and culture. Reliance was placed on National Legal Services
Authority (supra);
34 g. Queerness or homosexuality is not an urban, elite conception or expression.
Numerous queer or homosexual couples from villages and towns in India
have expressed their sexuality, chosen their partner, and entered into the
institution of marriage ; and
h. There is no traditional bar on marriage between non- heterosexual persons.
Excerpts from various scriptures support this proposition.
26. Ms. Jayna Kothari, learned senior counsel, made the following submissions:
a. The SMA ought to be read to include the words “spouse” and “person” so as
to include transgender persons within its ambit . Failure to do so amounts to a
violation of the right of transgender persons to equality and to equal protection
of the laws under Article 14 of the Constitution;
b. The SMA discriminates on the basis of sex, gender identity, and sexual orientation, thereby violating Article 15 of the Constitution;
c. The denial of the right to marry to persons based on their gender identity is a
denial of the right to dignity, personal autonomy, and liberty under Article 21
of the Constitution;
d. Inter-sex persons have the same rights as all other persons in India, including
the right to marry; and
e. The right to a family is available under Article 21, and this right includes the
right to marry. The SMA is violative of the right of transgender persons to have
35 a family. Reliance was placed on Oliari v. Italy Applications nos. 18766/11
and 36030/11.
27. Dr Menaka Guruswamy, learned senior counsel, made the following
submissions:
a. The Indian Parliament is a creature of the Constitution and does not enjoy
unfettered sovereignty. The supremacy of the Constitution is protected by this
Court by interpreting law s in consonance with constitutional values ;
b. This Court’s power of judicial review over legislative action is part of the basic
structure of the Constitution;
c. Constitutional courts are empowered to review statutory law to ensure its conformity with constitutional values. The courts do not need to wait for the
legislature to enact/amend law to recognize same- sex marriage;
d. The provisions of SMA, insofar as they do not recognize same- sex marriages,
are unconstitutional as being violative of Articles 14, 15, 19, 21 and 25 of the
Constitution. Hence, to save it from the vice of unconstitutionality, the SMA
must be read up to recognise same- sex marriages;
e. Recognition of same- sex marriages under the SMA is consistent with the
evolving conception of the institution of marriage;
f. Same -sex marriage is a time honoured tradition in the Indian society;
g. The gendered references in the SMA are capable of being read to recognize same -sex marriages;
36 h. The State has no legitimate interest in restricting the institution of marriage to
heterosexual couples alone; and
i. The codification of Hindu personal laws commenced in 1941 with the colonial
Government appointing the Hindu Law Committee, which prepared the first
draft of the Hindu Code Bill. There was vociferous opposition to the Hi ndu
Code Bill, which was later enacted into four distinct legislations - the Hindu
Marriage Act 1955,45 the Hindu Succession Act, 1956, the Hindu Minority and
Guardianship Act 1956, and the Hindu Adoptions and Maintenance Act 1956.
Inter-caste marriages, s agotra marriages, the prescription of monogamy, and
the introduction of divorce were met with great opposition. Despite vehement
opposition, these reforms have stood the test of time and society has
prospered overall as a result. Today, the objections raised on behalf of the Union of India opposing the recognition of same- sex marriage are akin to the
opposition to the Hindu Code Bill.
28. Mr. Saurabh Kirpal, learned senior counsel, submitted that :
a. Depriving LGBTQ+ individuals of the right to marry violates Articles 14, 15,
19(1)(a) and 21 of the Constitution;
b. The right to marry a person of one's choice is itself a Fundamental Right under
the Constitution;
37 c. The SMA is unconstitutional if it is interpreted to exclude access to LGBTQ
individuals from its ambit ;
d. The intent of Parliament when it enacted the SMA is not relevant. The doctrine
of reading in does not aim to discover the intention of Parliament. The
jurisprudential basis of the doctrine is that courts read something in to save a
statute from the vice of unconstitutionality;
e. Having found a right to marry, this Court cannot hold that there is no remedy or a real possibility for the exercise of that right; and
f. By virtue of Article 13, the C onstitution trumps a statute which violates the
Constitution. Analysis under Article 13 does not extend to whether or not a
statute or a system of law is workable after it is read up or after certain words
or phrases are read in to save it from being unconstitutional . It cannot be that
a complex statute can defeat a fundamental right by virtue of its complexity .
29. Ms. Vrinda Grover, learned senior counsel, made the following submissions:
a. Interference, opposition and violence from natal families, irrespective of
marital status, violates the fundamental right to life and personal Liberty under
Article 21 of the Constitution;
b. Non-recognition of ‘atypical families’ or ‘chosen families’ beyond constraints
of marriage, blood or adoption violates Articles 14, 15, 19 and 21;
38 c. Non-recognition of marriage between two consenting adults on the basis of
gender identity or sexual orientation under the SMA violates Articles 14, 15,
19 and 21;
d. Constitutional courts sometimes accord undue deference to the natal family.
This ign ores the coercion and violence that queer and transgender persons
face within their homes. Reference was made to Devu G v. State of Kerala,
SLP (Criminal) No. 5027/2023, Order dated 6 February 2023;
e. This Court ought to issue directions to all state governments to instruct police
officers to compulsorily follow the mandate of Sections 41 and 41- A of the
Code of Criminal Procedure 197346 when responding to complaints involving
queer and transgender adults who voluntarily leave natal homes ;
f. Issues of ‘workabi lity’ in statutory provisions do not preclude this Court from
protecting rights under Part III of the Constitution.
30. Ms. Karuna Nundy, learned counsel, submi tted that :
a. A spouse of foreign origin of an Indian Citizen or Overseas Citizen of India47
cardholder is entitled to apply for registration as an OCI under Section 7A(1)(d) of the Citizenship Act 1955.
48 Section 7A(1)(d) is gender, sex and
sexuality neutral, as distinct from the FMA and SMA. The absence of any
conditions qua gender/ sex/sexuality of the parties is a casus omissus in the
48 “Citizenship Act”
39 statute. This Court cannot supply a casus omissus into a statute by judicial
interpretation, except in circumstances of clear necessity;
b. The recognition of a foreign marriage between two non- citizens is a mere
ministerial Act. Only the substantive law of the foreign jurisdiction is relevant;
c. It would be manifestly arbitrary and contrary to Article 14, for the law to accord
a larger ambit for registration of marriages to an OCI than to a citizen of the
country married in a foreign jurisdiction, and to the extent of the inconsistency
a harmonious constructi on of the FMA with the Citizenship Act is required;
d. A denial of the right to marry for queer persons is violative of Articles 14, 15,
19, and 21 of the Constitution; and
e. Rule 5 of the Transgender Persons (Protection of Rights) Rules 2020 recognises marriage of transgender persons because Form 2 contains the
word “spouse” .
31. Ms. Anitha Shenoy, learned senior counsel, submitted that:
a. The petitioners have a fundamental right to marry a person of one’s own
choice under Articles 14, 15, 19, 21 and 25 of the Constitution, and any
exclusion or discrimination from solemnization or registration, as incorporated
in Section 4(c) and 17(2) and other provisions of the FMA is ultra-vires the
Constitution;
40 b. The denial of recognition of the petitioners’ marriage is inconsistent with the
very object of the FMA not to invalidate marriages duly solemnized under
foreign law by Indian citizens;
c. The requirement of proof of a ‘marital relationship’ by a ‘married couple’ for the purpose of joint adoption under Regulations 5(2)(a) and 5(3) is beyond
the remit of Section 57 of the JJ Act that extends joint adoption to relationships
that are ‘marriage like’ including marriages between same -sex couples
solemnized overseas;
d. Regulations 5(2)(a) and 5(3) of the Adoption Regulati ons 2022
49 are ultra
vires the Juvenile Justice (Care and Protection of Children) Act 2015.50 They
also violate :
i. The principle of equality and non- discrimination on the basis of sexual
orientation under Articles 14 and 15;
ii. The right to adoption and motherhood protected under Article 21; and
iii. The right of a child to be adopted recognised under the Hague Convention on Protection of Children and Co- operation in respect of
Inter-country Adoption 1980 and the Convention on the Rights of
Children 1989.
49 “Adoption Regulations”
41 32. Ms. Arundhati Katju, learned counsel, made the following submissions:
a. Article 21 protects the right to found a family and the right to a meaningful
family life for all persons including LGBTQ persons. The law defines “family”
and “household” broadly and is not limit ed to a “biological” man and woman
and their children. Surrogacy and adoption are available only to married couples, thus, denying LGBTQ couples the right to found a family;
b. A child’s right to a meaningful family life under Article 21, and its best interes t,
is protected by recognizing its parents’ relationship through marriage;
c. Denying LGBTQ couples the right to marry violates Article 14 qua them and
their children;
d. The SMA should be read expansively to save it from the vice of
unconstitutionality and in the alternative, it should be struck down ;
e. Any interpretative difficulties which arise because of the exercise of reading-in must be decided on a case- by-case basis b y the courts before which such
issues arise; and
f. A declaration of the rights of queer people by this Court will not preclude any
debates or discussions about queerness either in Parliament or in society .
42 33. Ms. Amritananda Chakravorty, learned counsel, made the following
submissions:
a. The Office Memorandum issued by CARA on 16 June 202251 is
unconstitutional because they prevent same- sex couples and gender non-
conforming couples from availing of joint adoption; and
b. The requirements prescribed in the CARA Circular travel beyond the remit of
the JJ Act. Section 2(49) of the JJ Act defines the term “prospective adoptive
parents” to mean “a person or persons eligible to adopt a child as per the
provisions of section 57.” Section 2(49) does not require the prospective
adoptive parents to be heterosexual. Further, Section 57 does not specify
marital status as a relevant factor to be considered while determining the
eligibility of prospective adoptive parents.
34. Mr. Raghav Awasthi, learned counsel, sought to make submissions
regarding the Hindu Marriage Act. This Court declined to hear arguments on this
issue in the present proceedings .
35. Mr. Shivam Singh, learned counsel, made the following submissions:
a. It is unconstitutional for the st ate to discriminate against persons
because of their innate characteristics;
b. Upholding the heterosexual notion of marriage as the only
constitutionally and legally sanctioned notion of marriage will serve to
51 CARAICA013/1/2022Administration; “CARA Circular”
43 perpetuate gender -based stereotypes proscribed by the Constitution
and is therefore violative of Article 15; and
c. Resorting to the provisions of the General Clauses Act 1897, Section
4(c) of the SMA (which otherwise appears to be unconstitutional) can
be read down such that the singular “male” and “female” includes the
plural as well.
36. Manu Srinath, learned counsel, made the following submissions:
a. Persons whose fundamental rights are violated are entitled to seek judicial review of the violating act;
b. It is permissible for judicial review to result in an increase in the size of
the intended pool of beneficiaries of a legislation. Such an exercise will
not amount to legislation by courts; and
c. Judicial review is a tool to achieve social justice. It is also a tool by which constitutional aspirations and ideals are achieved.
37. Jaideep Gupta, learned counsel, made the following submissions:
a. If recognition is accorded to marriage by queer persons , they will be
protected from so- called “conversion therapies” which attempt to
“convert” the sexual orientation of queer people into a heterosexual
orientation as well as forced marriages;
b. Queer marriages do not fall within the degrees of prohibited relationshi ps; and
44 c. The classification on the basis of age in the SMA ought to be declared
unconstitutional insofar as it mandates a different minimum age
requirement for men and women. This Court ought to declare twenty -
one years as the ideal age for all marriages. The Prohibition of Child Marriage (Amendment) Bill 2021, which seeks to raise the legally
permissible age of girls to marry from eighteen years to twenty -one
years is currently pending in Parliament.
38. Thulasi Raj, learned counsel, submitted that:
a. The exclusion of the LGBT community from the institution of marriage
is “demeaning” as defined by Deborah Hellman; and
b. Prejudicial notions about sexuality inform the SMA although its provisions may not expressly contain words which indicate such
prejudices.
39. Tanushr ee Bhalla, learned counsel, submitted that:
a. The word “man” in the SMA ought to be read as meaning a cisgender
man, a transgender man, and any person who assumes a role in the
marriage that the statute or society or the institution of marriage confers on men. The word “woman” must be interpreted in a similar fashion;
b. Section 4(c) of the SMA excludes intersex persons; and
c. A minimum age at which persons of the “third gender” may marry may
be read in, in Section 4(c) of the SMA.
45 40. In addition to the above submi ssions, some senior counsel and counsel
sought to address this Court on the ‘notice and objections regime’ in the SMA (i.e.,
Sections 5 to 9 of the SMA which stipulate a set of procedural preconditions to the
solemnization of marriages under the SMA ). This Court has not heard arguments
on this issue in the present proceedings.
41. Mr. R. Venkataramani, learned Attorney General of India appearing for the
Union of India, made the following submissions:
a. This Court has already issued constitutional declarations on the right to form
a family, and the right to marry of non- heterosexual persons in Navtej (supra).
The issue in this batch of petitions relates to fitting the constitutional
declaration into relevant laws;
b. The SMA is a species of the general marriage laws . Marriage is conceived to
be a union between heterosexuals across all laws on marriage and
procreation is an essential aspect of marriage;
c. At the time when the SMA was enacted, an alternative conception of a union of persons (other than heterosexuals) did not exist. The SMA is intended to
regulate marriage between heterosexuals irrespective of caste and religion.
Thus, the omission of non- heterosexual unions from the purview of the
enactment would not render the enactment unconstitutional because of under -inclusiveness. The SMA will be underinclusive only when a class of
heterosexuals is excluded by the statute;
46 d. There would be no internal cohesion in the SMA if Section 4 is read in a
gender -neutral manner. Such an interpretation would render the
implementat ion of Sections 19 to 21A which link the SMA with other personal
and non- personal laws difficult;
e. Courts can use the interpretative tool of reading- in only when the stated
purpose of the law is not achieved. Since the purpose of SMA is to regulate
heteros exual marriages, this Court cannot read words into the enactment to
expand its purview beyond what was originally conceptualized;
f. It is up to Parliament to enact a special code regulating non- heterosexual
unions and the specific issues that such unions would face during and after
the partnership, after comprehensively engaging with all stakeholders;
g. The course adopted by this Court i n Vishaka (supra) cannot be replicated for
two reasons: one, there is no legislative vacuum in the instant case, and
second, the non- inclusion of all possible kinds of unions cannot be construed
as a constitutional omission;
h. Courts cannot issue directions granting legal recognition to non- heterosexual
marriages because it would require the redesigning of several enactments and rules. Marriage rights must be given only through the parliamentary
process after wide consultation; and
i. A declaration by this Cour t granting legal recognition to non- heterosexual
marriages accompanied with a scheme of rights would be anathema to
47 separation of powers. This Court must not venture into the realm of policy
making and law making.
42. Mr. Tushar Mehta, learned Solicitor Gener al appearing for the Union of
India, made the following submissions:
a. The institution of marriage occupies a central role in the sustenance and
progression of humankind. The prominent components of a marriage are
companionship, sexual intimacy, and most im portantly, procreation. Marriage
(from an individual perspective) serves the purpose of sustaining an individual’s gene pool. From a societal perspective, marriage contributes
towards the proliferation of future generations for the sustenance of
humankind;
b. The Constitution does not recognize a right to marry. An expression of a person’s sexuality is protected under Article 19(1)(a) of the Constitution.
However, marriage cannot be traced to the right to freedom of expression or
the right to form unions under Article 19(1)(c);
c. This Court has not previously recognized the right to marry under the Constitution. The observations of this Court in Shafin Jahan (supra) and Shakti Vahini (supra) that the petitioners’ right to marry has been violated
must be read i n the specific context of these judgments. In these cases, the
right to marry which is conferred by the legislature to inter -caste and inter -
religious couples was violated by State and non- State actors;
48 d. Marriage is a creation of statutes. The State by virt ue of Entry 5 of List III of
the Seventh Schedule has the power to regulate the institution of marriage.
In exercise of this power, the legislature has prescribed various conditions
which must be fulfilled before legal recognition can be given to a union. These
conditions inter alia include the minimum age to be able to consent to a
marriage, the prohibition of bigamy, and the bar against marrying within the
degrees of prohibited relationship;
e. The State is not under an obligation to grant legal recognition to every type of
relationship. The State only recognizes relationships when there exists a legitimate state interest. The State has a legitimate State interest in legally
recognizing heterosexual relationships for the sustenance of society;
f. After the dec riminalization of homosexuality in Navtej (supra) , members of
the LGBTQIA+ community have the freedom and autonomy to choose their
partners without restraints on gender and sexuality. However, the
decriminalization of the sexual offence does not cast an obligation on the
State to grant legal recognition to such relationships or unions. Marriage is a
legal privilege. It is conditional upon statutory or societal conditions. The right
to choose a partner does not necessarily imply that there is a right to marr y a
partner of choice;
g. The Courts do not have the power to decide if legal recognition can be granted
to a union of non- heterosexual individuals. This is an issue which must
necessarily be decided by the legislature, being the elected representatives of the citizens;
49 h. It would become impossible to deny legal recognition to practices such as
incest or polygamy if non- heterosexual couples are granted the right to marry;
i. Marriage is a public institution. It falls in the outer -most zone of privacy and is
thus, s usceptible to the highest degree of State regulation. This Court in
Navtej (supra) only granted protection to the intimate and intermediate zone
of privacy of non- heterosexual couples;
j. Both the father and the mother have a significant and unique role in the upbringing of children. In non- heterosexual unions, the child born out of
surrogacy or artificial reproductive technology or adopted by the couple would
feel the absence of either a father or a mother. The State does not grant legal
recognition to homosexual unions in the form of marriage to protect the
interest of the children. This is a legitimate State interest. The petitioners have
not submitted sufficient data to back their claim that the interest of a child
brought up by a non -heterosexual couple is protected;
k. Granting legal recognition to non -heterosexual unions would dilute
heterosexual marriages. For example, in Netherlands, more heterosexual
couples have opted for domestic partnerships and cohabitation after legal recognition was granted to non- heterosexual unions. Non- heterosexual
unions are not granted legal recognition to protect the institution of marriage;
l. The impugned provisions of the SMA are constitutional because:
50 i. The legislative debates during the introduction of the SMA indicate that
Parliament made a conscious decision to exclude non- heterosexual
unions from the ambit of the SMA;
ii. The object of the SMA is to grant (and regulate) legal recognition to
inter-faith and inter -caste unions of heterosexual couples. The
provisions of the SMA have a reasonable nexus to this object;
iii. There is an intelligible differentia in classifying unions into heterosexual
and non- heterosexual partnerships because heterosexual couples
sustain a society through precreation. In fact, the Transgender Persons
Act also classifies persons into homosexuals and heterosexuals and
grants substantive rights to the members of the LGBTQIA+ community in furtherance of the mandate of substantive equality. The Transgender
Persons Act recognizes the autonomy of the members of the LGBTQI+
community to choose a partner of their choice;
iv. The constitutionality of a statute cannot be challenged on the ground
of under -inclusion;
v. An emerging body of evidence indicates that homosexuality may be an
acquir ed characteristic and not an innate characteristic . Children who
have been exposed to homosexual experiences are more likely to identify as a homosexual on attaining adulthood. Thus, this Court must
not approach this issue from a “linear reductionist perspective.”
Further, the argument of the petitioners that the SMA is unconstitutional
51 because it is excludes a class based on innate characteristics is
erroneous;
vi. The SMA would become unworkable if it is read in a gender -neutral
manner. It would also amount to this Court re- drafting a large number
of provisions:
A. Section 2(b) read with the First Schedule prescribes distinctive
degrees of prohibited relationships for the bride and the groom;
B. According to Section 4(c), the male must have completed twenty -
one years of age and the female must have completed eighteen
years of age at the time of marriage. Reading the phrase ‘spouse’
in place of ‘male’ and ‘female’ would render the distinctive
minimum age requirement for marriage based on gender otiose;
C. The form of the statutory oath which the parties are required to take for the solemnization of their marriage expressly uses the
phrases ‘wife’ and ‘husband’;
D. According to Section 21, the rules of succession provided in the Indian Succession Act 1925
52 govern the succession of property
of any person who is married under the SMA. The ISA prescribes
different rules and procedures for succession based on gender.
52 Reading the provi sions of the SMA in a gender -neutral manner
would impact the interpretation of the provisions of the ISA as well;
E. By virtue of Section 21A, the rules of succession under the HMA
shall apply for marriages solemnized between a male and female
professing the Hindu, Buddist, Sikh or Jain religion. The HSA
prescribes different rules for succession based on gender.
Reading the provisions of the SMA in a gender -neutral manner
would render the H SA unworkable; and
F. Other provisions of the SMA such as Sections 27, 31, 36, and 37
cater to the needs and requirements of a woman in a heterosexual marriage. A reading of the SMA in a gender -neutral manner would
impact the interpretation of these provisions.
m. By declaring that non -heterosexual couples have a right to marry, t his Court
would be granting legal recognition to a new social relationship. Such a declaration by this Court could also pre- empt debates on this issue in the
legislature; and
n. The term ‘spouse’ in Section 7A of the Citizenship Act 1955 cannot be read in a gender neutral manner. Section 7A of the Citizenship Act applies to the same
class of persons to whom the FMA applies. The FMA expressly uses the
phrases ‘bride’ and ‘bridegroom.’ Section 4 of the FMA prescribes the same
conditions for the registration of a marriage as Section 4 of SMA.
53 43. Mr. Kapil Sibal, learned senior counsel appearing for intervenor made the
following submissions:
a. Marriage was defined by the social acceptability of a relationship even before
it was codified. The heterosexual nature of a marriage was not introduced by
law. Law merely regulated unions which were socio- historically recognised.
The law has always differentiated between heterosexual and non-heterosexual unions;
b. A legal recognition of a union is premised on the recognition of a r elationship
on an individual level, family level, and societal level;
c. The right of a person to choose a partner of their choice is protected under
Article 21. However, the legislative recognition of such a choice is not a
fundamental right;
d. The right to m arry cannot be traced to the right to privacy. The right to privacy
postulates the right to be left alone. There is a negative obligation on the State
and the society to not interfere with choices of individuals. However, if the
exercise of the right to pr ivacy has a public dimension, the State must regulate
the exercise of the right in the larger interest of the community. The State has,
in the past, regulated the parameters of choice within the realm of marriage
with respect to the number of partners and the age of marriage. Thus, the
right to the recognition of non- heterosexual unions is not traceable in Article
54 e. The South African Supreme Court in Minister of Home Affairs v. Fourie53
and the United States Supreme Court in Obergefell v. Hodges, Director,
Department of Health54 while recognising the right to marry acknowledged
the importance and relevance of social debate and public discourse on the
issue. The courts observed that the public has become more accepting of
non-heterosexual unions. While it m ay not be necessary to reach public
consensus on social issues, it is still important to have some form of discourse on the issue be it through law commissions, referendums, bills in the legislature, or even High Court decisions;
f. Public engagement also goes hand- in-hand with an incrementalistic approach
by the courts or the legislature. For example, Mexico City recognised
cohabitation partnership of homosexual unions in 2006. Three years later,
their right to marry was recognised. In South Africa, before the judgment in
Fourie (supra), the constitutional court had dealt with the criminalisation of
sodomy,
55 the rights of same- sex immigrant partners56, the right to adoption
of same- sex partners57, and the non- inclusion of same- sex partners in a
statute providing pension rights58;
g. This Court instead of limiting its judgment to the reliefs sought by the petitioners, must also address the following issues:
55 Sodomy Case, 1999(1) SA 6 (CC)
56 Home Affairs case, 2000(2) SA 1 (CC)
57 Du Troit, 2003 (2) SA 198 (CC)
58 Satchwell, 2002 (6) SA 1 (CC)
55 (i) Whether the LGBTQIA+ community, being a sexual minority, is entitled
to be protected even in the absence of a law;
(ii) The recognition of the hindrances faced by LGBTQIA+ unions and the procedure to resolve the difficulties; and
(iii) The necessity of administrative procedures and guidelines recognizing that sexual orientation is a physiological phenomenon and that same
sex unions must not be discriminated against.
h. The assumption of the petitioners that both law and society must consider non-heterosexual unions as belonging to the same class as heterosexual
unions without distinction based on sexual orientation is w rong. The exclusion
of non- heterosexual unions from the SMA is not violative of Articles 14 and
15 of the Constitution;
i. Marriage between “any two persons” as provided in Section 4 of SMA and
FMA cannot include non- heterosexual unions for the following reasons:
(i) Section 4(a) states that marriage cannot be solemnised if either party has a spouse living at the time of marriage. The SMA, when it was
enacted, referred to marriages which had taken place before it came into force. In that case, the word ‘spouse’ could have only been used
in the context of heterosexual marriages; and
(ii) The mere usage of a gender -neutral term does not indicate the
legislative will to include non- heterosexual unions within the ambit of
the enactment.
56 j. The statute is not underinclusive for impliedly excluding non- heterosexual
unions from its purview because Parliament did not contemplate the inclusion
of non- heterosexual marriages at the time of enactment. A statute will be
under -inclusive only where a statute which must necessarily cove r a category
excludes them from the benefits it confers. The principle will not apply to
persons who are not ex-facie covered by the statute;
k. The interpretative tool of “reading -in” means reading into the text of the statute
and not altering it. Reading t he word “spouse” into SMA where the words
“husband” and “wife” are used would render provisions which are enacted
based on conventional ideas about a heterosexual relationship redundant;
l. The legislative regime related to marriage and other allied issues has been enacted in response to the unique challenges that heterosexual marriages
face. Even if this Court finds that the Constitution grants a right to legal
recognition of non- heterosexual unions, a new legislative regime regulating
non-heterosexual marriages must be introduced to respond to the unique
challenges they face; and
m. This Court can use its power under Article 142 to fill legislative vacuums to
the limited extent of laying down procedural guidelines. The court cannot
create substantive rights and obligations to fill a legislative vacuum because
it would amount to judicial legislation. This Court can neither direct the
legislature to enact a law nor direct the legislature when to enact a law. These
are established parameters of separation of powers and must be respected.
57 44. Mr. Arvind P Datar, learned senior counsel appearing for one of intervenors
made the following submissions:
a. This Court has recognised the right to marry in KS Puttaswamy (9J) (supra) ,
Shafin Jahan (supra), Shakti Vahini (supra) and Navtej (supra). However,
only Justice Nariman’s opinion in Navtej (supra) held that non- heterosexual
couples also have a right to marry;
b. A statute can be struck down after a passage of time only if the rationale of
the law ceases to exist as in the case of Section 377 of the IPC where medical research indicated that same sex relationships are not unnatural or against
the order of nature;
c. This Court while interpreting provisions of a statute can “iron out the creases but not alter the fabric.” The exercise of reading up can only be undertaken
by the Courts when it would be consistent with legislative intention, when it would not alter the nature of the enactment, and when the new state of affairs
would be of the same kind as t he earlier state of affairs to which the enactment
applies;
d. The judgment of the High Court of Madras in Arunkumar (supra) interpreting
the word “bride” in the Hindu Marriage Act to include transgender and intersex
persons is contrary to the judgment of thi s Court in Madhu Kishwar v. State
of Bihar
59 where it was held that male pronouns must not be expansively
interpreted to include female pronouns within their ambit;
58 e. The legal recognition of non- heterosexual unions is a polycentric issue which
cannot be resolved solely by the judiciary;
f. Unenumerated rights or derivate rights, which are recognised by courts
through judicial interpretation are inchoate rights because they are an
exception to the rule of ubi jus ibi remedium.60 Thus, even if this Court
recogni ses the petitioners’ right to marry, it is not enforceable.
45. Ms. Aishwarya Bhati, learned Additional Solicitor General, appearing for one
of the intervenors made the following submissions:
a. Article 21 guarantees that every child will have the best upbringing. The
petitioners have not submitted any data to prove that the interests of the child
would be protected if they are raised by non- heterosexual parents. A child
born to a heterosexual couple is innately adaptable to a similar family environment and na turally seeks out a family environment which is
comparable to their birth family;
b. Chapter II of the JJ Act which lays down the General Principles of Care and
Protection of Children stresses upon the best interest of the child. Principle
xiii states that ev ery child in the juvenile justice system has a right to be
restored to the same socio- economic and cultural status as they were earlier
in;
c. Men and women are differentiated for the purpose of adoption, assisted
reproduction, and surrogate reproduction. For example, the law does not
60 HM Seervai, The Privy Purse Case: A Criticisum, (1972) 74 Bom LR (journal) 37
59 permit a man to adopt a girl child. The scheme of the laws relating to adoption
and surrogacy must be revamped for the inclusion of any of the excluded
categories of intending parents; and
d. The law protects a child by assuming that they are incapable of entering in contracts, of committing an offence, and of consenting to a sexual
relationship. Thus, children cannot be imposed upon with emerging and
evolving notions of gender fluidity. Children cannot be made guinea pigs of
an evol ving social experiment. The state is justified in prescribing reasonable
restrictions for adoption, assisted reproductive technology, and surrogacy
based on the welfare of children.
46. Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the
State of Madhya Pradesh made the following submissions:
a. Only thirty -four of the one hundred and ninety -four countries have recognised
marriage between non- heterosexual individuals. Out of the thirty -four
countries, the legislature has recognized it in twenty -four of them. At least
twenty of the twenty -four countries enacted a framework for registered
partnerships or civil unions for granting legal recognition to non -heterosexual
unions. In ten countries, the courts have directed the State to recognise non-heter osexual marriages. The approach taken by the courts in these ten
countries is not uniform. The approach is specific to social complexities and legal arrangements in each of the countries;
b. The laws relating to marriage, and the benefits (and rights) which accrue because of marriage are not uniform. The laws take into account religious and
60 regional differences. The principle of non- discrimination in Article 14 and
15(1) does not mandate that marriage must be organised and recognised in
a uniform manner. The principle of equality does not postulate uniformity;
c. The principle of non- discrimination in Article 14 is not violated if the law is not
“all-embracing.” The legislature can choose to remedy certain degrees of
harm;
d. It is for the legislature to decide if non -heterosexual unions must be legally
recognised, and what benefits and entitlements must be conferred to the
union;
e. Legislations governing unions and the benefits which accrue because of unions do not become unconstitutional after the decriminalisation of
homosexuality in Navtej (supra). Decriminalisation of a sexual offence does
not automatically confer legal recognition to a union;
f. The opinion of the majority in Navtej (supra) held that homosexuals have a
right to form a union under Article 21. This Court specifically observed that a
union does not mean marriage. Thus, Navtej (supra) has ruled out the
possibility of non- heterosexual marriages; and
g. The observation in Puttaswamy (9J) (supra) that the State has a positive
obligation to provide legal protect ion to enable the exercise of choice was
limited to the specific context of data protection. Such an obligation can be imposed on the State only when a right is infringed because of actions of the
State.
61 47. Mr. Maninder Singh, learned senior counsel, submitted that Section 112 of
the Indian Evidence Act 1872 which provides that birth during the sustenance of
marriage or two hundred and eighty days after the dissolution of marriage is a
conclusive proof of legitimacy establishes that procreation is a chief component of
marriage. He further submitted that an alteration of the chief component of
marriage would render other laws which are premised on the heteronormative
nature of marriage unworkable.
48. Mr. Atamaram Nadkarni, senior counsel appearing for an intervenor (Akhil
Bharatiya Sant Samiti) submitted that the SMA is interwoven with personal law. He argued that the recognition of non- heterosexual marriages under the SMA would
impact personal laws on succession, and adoption.
49. Ms. Manisha Lavkumar, learned senior counsel appearing for the State of
Gujarat made the following submissions: a. Though the rules of marriage continue to evolve, they are still grounded in
heterosexual relationships;
b. There is an overarching State interest in excluding non- heterosexual unions
from the ambit of marriage because it: (a) regulates matrimonial conduct; (b) preserves social order; and (c) ensures the progression of society in a
legitimate manner;
c. The State can impose reasonable restrictions on individual autonomy and consent by introducing conditions such as the number of marriages, the
62 minimum age for marriage and the degrees of prohibited relationship. The
heterosexual nature of a relationship is one such reasonable restriction; and
d. The FMA is modelled on the SMA. The FMA also envisages a heterosexual union. Section 23 of the FMA states that the Central Government may
recognise marriages solemnised in a foreign country as valid in India only if
the law in the foreign country on marriage is similar to the FMA. Since the
FMA o nly includes heterosexual unions, a non- heterosexual marriage
solemnised in a foreign country cannot be recognised in India.
50. Mr. J Sai Deepak, learned counsel appearing on behalf of an intervenor
made the following submissions:
a. A judicial sanctioned legal recognition of non- heterosexual union would be a
colonial top- down imposition of morality. Such an approach would diminish
democratic voices in the process;
b. The issue of lack of legal recognition of non- heterosexual unions is placed
differently as opposed to the legislative vacuum on sexual harassment at
workplaces. The history and purpose of the SMA does not permit the Court
to issue guidelines under Article 141 as it did in Vishaka (supra). The power
under Article 141 to issue guidelines must be used sparingly. The power must
not be used to take over the functions of the other organs of the State;
c. The judgments of this Court in NALSA (supra) and the Madras High Court in
Arun Kumar (supra) suffer from internal and external inconsistencies; and
63 d. The LGBTQIA + community is not a homogenous class. The court cannot
cater to the interests of a heterogenous class which they constitute. The
legislature would be better placed to cater to their needs .
51. Mr. MR Shamshad, learned counsel appearing for an intervenor submi tted
that a declaration that non- heterosexual couples have a right to marry would
conflict with the tenets of religion where marriage is considered a heterosexual union.
52. Ms. Priya Aristotle, learned counsel appearing for an intervenor submitted
that granti ng non- heterosexual couples parental rights would affect the children of
heterosexual couples.
53. Mr. Sasmit Patra, learned counsel appearing for the intervenor submitted
that:
a. Granting legal recognition to non- heterosexual unions would require wide
ranging amendments to various laws. It is only the legislature which has the
capacity and functionality to deal with matters of such wide implication;
b. A declaration by this Court that non- heterosexual unions have a right to marry
cannot be implemented without the aid of the legislature and executive; and
c. A social change of this magnitude will not be fructified if the role of the polity
in the process is negligent.
64 54. Ms. Archana Pathak Dave, learned counsel appearing for an intervenor (Ex -
Servicemen Advocates Welfare Association) submitted that non- heterosexual
marriages must not be permitted particularly for personnel working in the armed
forces because Article 33 per mits restrictions on their fundamental rights. It was
submitted that granting legal recognition to non- heterosexual marriages may dilute
the disciplinary code in the army, the navy, and the air force, would create conflicts
in the workplace over personal and religious beliefs, and would raise concerns
about shared facilities such as communal showers and shared rooms.
55. Ms. Manisha Narain Agarwal, learned counsel appearing for an intervenor
submitted that the petitioners are seeking social acceptance of their relationships
through an order the Court. This Court does not have powers of such magnitude.
56. Mr. Atulesh Kumar, Ms. Sanjeevani Agarwal, and Mr. Som Thomas
appearing on behalf of various intervenors adopted the above arguments.
C. Relief s sought in the pro ceedings
57. The petitioners in this batch of petitions have made certain general prayers,
in addition to the prayers specific to the facts of their case. The general reliefs
sought are summarized below . The petitioners seek that this Court declare that:
a. LGBTQ persons have a right to marry a person of their choice regardless of
religion, gender and sexual orientation;
b. The SMA is violative of Articles 14, 15, 19, 21, and 25 of the Constitution
insofar as it does not provide for the solemnization of marriage between same -sex, gender non- conforming or LGBTQ couples;
65 c. The SMA applies to any two persons who seek to get married, regardless of
their gender identity and sexual orientation;
d. The words “husband” and “wife” as well as any other gender -specific term in
the SMA ought to be substituted by the word “party” or “spouse” ;
e. All rights, entitlements and benefits associated with the solemnization and
registration of marriage under the SMA are applicable to LGBTQ persons;
f. Sections 5, 6, 7, 8, 9, 10 and 46 of the SMA which contain requirements
regarding the publication of a public notice of a proposed marriage and the domicile of the couple, and which empower the Marriage Registrar to receive
and decide objections to the proposed marriage are violative of Articles 14,
15, 19 and 21 of the Constitution;
g. The validity of marriages already solemnized or registered under the SMA will not be jeopardized if one spouse transitions to their self -determined gender
identity;
h. The word “spouse” in Section 7A(1)(d) of the Citizenship Act is gender -neutral
and is applicable to all spouses of foreign origin regardless of sex or sexual
orientation;
i. LGBTQ couples have a right to register their marriages under Section 5 of the
HMA and under Section 17 of the FMA if they are lawfully married in a foreign
jurisdiction and at least one of them is an Indian citizen;
66 j. The FMA violates Articles 14, 15, 19 and 21 of the Constitution of India and
is unconstitutional and void insofar as it does not provide for the registration
of marriages between same- sex or gender non- conforming or LGBTQ
couples;
k. The FMA applies to any two persons who seek to get married, regardless of their gender identity and sexual orientation;
l. The words “bride” and “bridegroom” as well as any other gender -specific term
in the FMA have to be substituted by the word “party” or “spouse”;
m. All rights, entitlements, and benefits associated with the solemnization and
registration of marriage under the FMA are applicable to LGBTQ persons;
n. Regulations 5(2)(a) and 5(3) read with Schedules II, III and VI of the Adoption
Regulations are unconstitutional and ultra vires the JJ Act insofar as they
exclude LGBTQ couples from joint adoption;
o. The words “married couple” and “marital relationship” used in Regulations
5(2)(a) and 5(3) of the Adoption Regulations encompass LGBTQ couples married under foreign laws;
p. The phrases “male applicant” and “female applicant” are substituted by the
phrases “Prospective Adoptive Parent 1” and “Prospective Adopti ve Parent 2
(in case of applicant couples) ” in Schedules II, III, VI and VII of the Adoption
Regulations;
67 q. Section 5 of the HMA does not distinguish between homosexual and
heterosexual couples and the former have a right to marry under the HMA;
r. LGBTQ persons have a constitutional right to a “chosen family” in lieu of next of kin under all laws as an intrinsic part of their right to a dignified life under
Article 21;
s. An unmarried person can nominate “any person(s)” to act as their nominee or next of kin, irr espective of whether such person is a “guardian, close relative
or family member ,” with respect to healthcare decisions in case of incapacity
such as the execution of Advance Directives and assigning any legal right, interest, title, claim or benefit accrued to the person;
t. The State Governments must apply all preventative, remedial, pr otective, and
punitive measures including the establishment of safe houses similar to the
Garima Greh welfare scheme, in order to guarantee the safety and security
of all individuals irrespective of gender identity and sexual orientation;
u. The provisions of matrimonial statutes including the rules and regulations
framed thereunder, to the extent that they are construed as requiring one
“male” or “bridegroom” and one “female” or “bride” for the solemnization of
marriage be read as neutral as to gender identit y and sexual orientation; and
v. All marriages between couples in which either one or both partners are transgender or gender non- conforming or who otherwise do not identify with
the sex assigned to them at birth, may be solemnized under matrimonial statutes regardless of their gender identity and sexual orientation .
68 58. In addition, the petitioners have sought directions to the Union Government,
the State Governments, and district and police authorities to adopt and follow a
protocol in cases which concern adult, consenting LGBTQ persons who require
protection from their families, regardless of whether such persons are married;
D. Analysis
i. This Court is vested with the authority to hear this case
59. The respondents argued that this Court shoul d not decide the issue of
whether legal recognition in the form of marriage can be given to non- heterosexual
relationships. It was argued that this issue must necessarily be decided by the
people by themselves or through the elected representatives. It was also submitted
that this Court, by deciding the issue one way or the other, would pre- empt any
debate in the legislature.
60. The respondent’s submission is two- fold: first, the Court does not have the
power to decide this issue; and second, such a decision can be arrived at only
through a process that reflects the electoral will.
a. Article 32 vests this Court with the power to enforce the rights in Part
III of the Constitution
61. Part III of the Constitution of India enshrines the fundamental rights of the
people of India. Article 13 of the Constitution stipulates that the State shall not
make any law which takes away or abridges the rights conferred in Part III and that
any law made in contravention of this condition, shall, to the extent of the
69 contravention, be void. Article 32 complements Article 13 and provides the right to
a constitutional r emedy for the enforcement of rights conferred by Part III:
“Article 32. Remedies for the enforcement of rights
conferred by this Part.
(1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred
by this P art is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the
nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”
(emphasis supplied)
62. The Constitution of India is unique in that its provisions expressly accord the
judiciary with the power to review the actions of the legislative and executive
branches of government , unlike in many other countries. Article 32 makes
fundamental rights justiciable and is worded broadly. The right to approach this
Court for the enforcement of the fundamental rights embodied in Part III is itself a
fundamental right by virtue of Clause (1) of Article 32. It states that this Court may
be moved “by appropriate proceedings.” This expression means that the
appropriateness of the proceedings depends on the relief sought by the petitioner.
61 Clause (1) of Article 32 does not place any constraints on the power
of this Court to entertain claims that the rights enumerated in Part III have been
violated.
61 Daryao v. State of U.P, (1962) 1 SCR 574
70 63. Similarly, Clause (2) is worded expansively and enlarges the scope of the
powers of this Court to enforce fundamental rights. This is evident from two parts
of the clause:
a. First, Clause (2) provides this Court with the power to issue “directions,
orders, or writs,” which indicates that th is Court may mould the relief
according to the requirements of the case before it and that it is not
constrained to a particular set of cases in which a particular relief or set of
reliefs may be granted. This expression indicates that the power of this Court
is not limited to striking down an offending statute, rule, or policy. Rather , it
extends to issuing directions or orders or writs for the enforcement of fundamental rights. Put differently, this means that the power of this Court is
not only ‘negative’ in the sense that it may restrain the state from doing
something which infringes upon the fundamental rights of people but is also
‘positive’ in the sense that it may compel the state to do something or act in a
manner which gives effect to such rights; and
b. Second, the word “including” in Clause (2) indicates that the five writs
ment ioned in that clause are illustrative. The word “including” is used as a
word of enlargement. This Court may issue directions, orders, or writs other
than the five writs specified.
Therefore, the manner in which Article 32 has been drafted does not limi t the
powers of this Court. To the contrary, it clearly and unambiguously vests this Court
62 State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
71 with the power to conduct judicial review and give effect to the fundamental rights
enumerated in Part III.
64. The extent of the powers vested in this Court by Article 32 as envisaged by
the framers of the Constitution can be understood from the Constituent Assembly’s
discussion of the provision which was eventually adopted as Article 32. 63 Mr. H V
Kamath was of the opinion that it was unwise to particularize the writs which this
Court ought to issue, and that this Court should have the power to issue any
directions it considered appropriate in a case. 64 In service of this idea, he moved
an amendment to substitute clause (2) of the provision which is now Article 32. The
substituted clause was to read:
“The Supreme Court shall have power to issue such directions
or orders or writs as it may consider necessary or appropriate
for the enforcement of any of the rights conferred by this part.”
65. Responding to this proposal, Dr. B R Ambedkar underscored that this Court
had been endowed with wide powers of a general nature:
“…what has been done in the draft is to give general power
as well as to propose particular remedies. The language of
the artic le is very clear … These are quite general and wide
terms.
… these writs … ought to be mentioned by their name in the
Constitution without prejudice to the right of the Supreme
Court to do justice in some other way if it felt it was
desirable to do so. I, therefore, say that Mr. Kamath need
have no ground of complaint on that account.”66
(emphasis supplied)
63 Vikram Aditya Narayan and Jahnavi Sindhu, ‘A historical argument for proportionality under the Indian
Constitution’ (2018) Vol. 2(1) ILR 51
64 Constituent Assembly Debates, Volume 7, 9 December 1948.
65 Constituent Assembly Debates, Volume 7, 9 December 1948.
66 Constituent Assembly Debates, Volume 7, 9 December 1948.
72 The power of this Court to do justice is not, therefore, limited either by the manner
in which Article 32 has been constructed or by any part of the Constitution. It is
amply clear from both the plain meaning of Article 32 as well as the Constituent Assembly Debates that this Court has the power to issue directions, orders, or writs
for the enforcement of the rights incorporated in Part III of the Constitution.
b. Judicial review and separation of powers
66. The doctrine of separation of powers, as it is traditionally understood, means
that each of the three organs of the state (the legislature, the executive, and the
judiciary) perform distinct functions in dis tinct spheres. No branch performs the
function of any other branch. The traditional understanding of this doctrine (also
termed the “pure doctrine”
67) does not animate the functioning of most modern
democracies. That our Constitution does not reflect a rigid understanding of this
doctrine has long been acknowledged by this Court.68 In practice, a functional and
nuanced version of this doctrine operates , where the essential functions of one
arm of the state are not taken over by another arm and institutional comity guides
the actions of each arm.69 In other words, the functional understanding of the
separation of powers demands that no arm of the state reigns supreme over another.
67. Thu Union of India suggested that this Court would be violating the doctrine
of separation of powers if it determines the lis in this case. The separation of
powers undoubtedly forms a part of the basic structure of the Constitution, but
67 MJC Vile, Constitutionalism and the Separation of Powers ( 2nd ed. Liberty Fund 1967).
68 Rai Sahib Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225
69 Kalpana Mehta v. Union of India, (2018) 7 SCC 1
73 equally, the power of courts to conduct judicial review is also a basic feature of the
Constitut ion.70 The doctrine of separation of powers certainly does not operate as
a bar against judicial review.71 In fact, judicial review promotes the separation of
powers by seeing to it that no organ acts in excess of its constitutional mandate. It
ensures that each organ acts within the bounds of its remit. Further, as discussed
in the previous segment of this judgment, the Constitution demands that this Court
conduct judicial review and enforce the fundamental rights of the people. The
framers of our Constitution were no doubt conscious of this doctrine when they provided for the power of judicial review. Being aware of its existence and what it
postulates, they chose to adopt Article 32 which vests this Court with broad powers.
The doctrine of separation of powers cannot, therefore, stand in the way of this
Court issuing directions, orders, or writs for the enforcement of fundamental rights.
The directions, orders, or writs issued for this purpose cannot encroach upon the
domain of the legislature. This Court cannot make law, it can only interpret it and
give effect to it.
68. The existence of the power of judicial review cannot be conflated with the
manner in which the power is exercised. The exercise of the power of judicial
review abides by settled restraints which acknowledge that the power of law
making is entrusted to democratically elected legislative bodies and that the
formulation and implementation of policy is entrusted to a government which is
accountable to the legislature. In the exercise of its the legislative function the
legislature may incorporate policies which will operate as binding rules of conduct
70 S P Sampath Kumar v. Union of India, (1987) 1 SCC 124
71 State of W.B. v. Committee for Protection of Democratic Rights, (2010) 3 SCC 571
74 to operate in social, economic and political spaces. Judicial review is all about
adjudicating the validity of legislative or executive action (or inaction) on the anvil
of the fundamental freedoms incorporated in Part III and on the basis of
constitutional provisions which structure and limit the exercise of power by the
legislative and executive arms of the State.
69. Judicial review is a constitutionally entrenched principle which emanates
from Article 13. It is no t a judicial construct. The power of judicial review has been
expressly conferred by the Constitution. In the exercise of the power of judicial
review, the Court is cognizant of the fact that the legislature is a democratically
elected body which is mandat ed to carry out the will of the people. It is in
furtherance of this mandate that Parliament and the State legislatures enact laws. Courts are empowered to adjudicate upon the validity of legislation and
administrative action on the anvil of the Constituti on. In the exercise of the power
of judicial review, the Court does not design legislative policy or enter upon the legislative domain. This Court, will hence not enter into the legislative domain by
issuing directions which for all intents and purposes would amount to enacting law
or framing policy.
c. The power of this Court to enforce rights under Article 32 is different
from the power of the legislature to enact laws
70. In Powers, Privileges and Immunities of State Legislatures, In re,72 a seven-
Judge Bench of this Court held:
75 “…whether or not there is distinct and rigid separation of
powers under the Indian Constitution, there is no doubt that
the Constitution has entrusted to the Judicature in this country
the task of construing the provisions of the Constitution and of
safeguarding the fundamental rights of the citizens … If the
validity of any law is challenged before the courts, it is never
suggested that the material question as to whether legislative
authority has been exceeded or f undamental rights have been
contravened, can be decided by the legislatures themselves.
Adjudication of such a dispute is entrusted solely and
exclusively to the Judicature of this country…”
Hence, it falls squarely within the powers of this Court to adjudicate whether the
fundamental rights of queer persons have been infringed, as claimed by the
petitioners.
71. This Court will not issue a mandamus to Parliament but will determine the
scope and effect of certain fundamental rights. What do these rights mean and
what are their incidents? What do they require of the state? What are their
boundaries? In answering these questions, this Court is not enacting law or framing
policy but is performing its constitutionally mandated function of interpreting the
Constituti on and enforcing the rights it recognizes . This Court cannot ignore its duty
to fulfil the mandate of Articles 13 and 32. The distinction between law -making and
adjudicating the rights of the people by interpreting the Constitution and enforcing these rights, as required by Article 32, cannot be forgotten.
72. This Court has previously utilized its power under Article 32 to issue
directions or orders for the enforcement of fundamental rights. This power does not extend only to striking down an offending legisl ation but also to issuing substantive
directions to give effect to fundamental rights, in certain situations. In Common
76 Cause v. Union of India ,73 a Constitution Bench of this Court (of which one of us,
Justice D Y Chandrachud was a part) found that the ri ght to life, dignity, self -
determination, and individual autonomy meant that people had a right to die with
dignity. This Court delineated guidelines and safeguards in terms of which Advance
Directives could be issued to cease medical treatment in certain circumstances.
Similarly, in Vishaka (supra) this Court issued guidelines for the protection of
women from sexual harassment at the workplace. These guidelines were grounded in the fundamental rights to equality under Article 14, to practise any profession or
to carry out any occupation, trade or business under Article 19(1)(g), and to life
and liberty under Article 21. The decisions of this Court in Common Cause (supra)
and Vishaka (supra) are significant because this Court issued directions for the
enforcement of fundamental rights in the absence of a law which was impugned before it.
d. The power of judicial review must be construed in terms of the
Constitution of India and not in terms of the position of law in other
jurisdictions
73. A common mistake in the legal community is to refer to the doctrines and
decisions of other jurisdictions regardless of the context in which they arose. The
jurisprudence of other countries no doubt facilit ates an exchange of ideas and
acquaints us with the best practices in the field. It illuminates the potential benefits and pitfalls of a particular approach and enables us to dwell on whether to accept
and if we do so, whether to improve on that approach. However, a particular
77 doctrine or legal standard ought not to be borrowed blindly. The first and foremost
authority is the Constitution or any law in India. An appropriate tool of interpretation
must be used to discern the law as laid down by the Constitut ion or by any statute,
rule, or regulation. This precept applies with equal force to the question of judicial review in India. Judicial review has to be conscious of our own social and cultural
milieu and its diversity.
74. Parliament being sovereign in England, the courts of England do not have
the power to strike down a statute as being contrary to its basic law. This status of
affairs cannot, of course, be superimposed on the relationship between our
legislative bodies and courts. In Powers, Privileges and Immunities of State
Legislatures, In re (supra), this Court held that the Constitution is supreme and
sovereign in India and that legislative bodies in India are not sovereign in the same way as Parliament is in England. Hence, the limitations which apply to the Supreme
Court of the United Kingdom while it conducts judicial review do not apply to this
Court. Similarly, the restrictions on judicial review in the United States of America
cannot be imported without any regard to our Constitution.
75. The Union of India relied on various decisions of the Supreme Court of the
United States of America including the decisions in Day -Brite Lighting Inc. v.
Missouri
74 and the dissenting opinion of Oliver Wendell Holmes, J. in Lochner v.
New York75 for the proposition that this Court would be in danger of becoming a
“super legislature” if it decided the issues which arise in the present proceedings.
This argument misses the crux of the matter. The Supreme Court of the United
78 States of America established its power of judi cial review in Marbury v. Madison .76
The text of the US Constitution does not vest their courts with this power, unlike in
India. The Constitution of India expressly authorises judicial review . While doing
this the Constitution confers broad powers on this Court as discussed in the
previous segment of this judgment. This being the case, it is injudicious to borrow
from the jurisprudence of the US on judicial review, its boundaries, legitimacy , and
the type of cases which warrant deference to legislative bodies. In State of Madras
v. V.G. Row,77 a Constitution Bench of this Court held:
“20. …we think it right to point out, what is sometimes
overlooked, that our Constitution contains express provisions
for judicial review of legislation as to its conformity wi th the
Constitution, unlike as in America where the Supreme Court
has assumed extensive powers of reviewing legislative Acts
… If, then, the courts in this country face up to such important
and none too easy task, it is not out of any desire to tilt at legislative authority in a crusader's spirit, but in discharge of a
duty plainly laid upon them by the Constitution.”
Similarly, in Romesh Thappar v. State of Madras,78 this Court held that there was
no remedy in the US which was analogous to the one provided by Article 32 of the
Constitution of India. Therefore, the contours of the power of this Court to conduct
judicial review mus t be construed in terms of the Constitution of India and not in
terms of the position of law in other jurisdictions.
e. The role of courts in the democratic process
76. The argument of the respondents that any decision by this Court on this
issue would be anti -democratic is not an argument that is specific to the issues
79 which have been raised before us in this batch of petitions. Rather, it is an
argument which strikes at the legitimacy of the judicial branch. The argument that
the decision of the elected branch i s democratic and that of the judicial branch is
not is premised on the principle of electoral representation. The proposition is that the exercise of the power of judicial review would constrain the right of citizens to
participate in political processes. This is because courts are vested with the power
to overturn the will of the people which is expressed through their elected
representatives.
77. This is a narrow definition of democracy, where democracy is viewed
through electoral mandates and not in constitutional terms. Additionally, it overlooks the importance of a Constitution which prescribes underlying values and
rules of governance for the s ustenance of a democratic regime. If all decisions of
the elected wing of the State are considered to be democratic decisions purely because of the manner in which it is vested with power, what then, is the purpose
of the fundamental rights and the purpose of vesting this Court with the power of
judicial review? Framing the argument on the legitimacy of the decisions of this
Court purely in terms of electoral democracy ignores the Constitution itself and the values it seeks to engender.
78. Electoral democracy – the process of elections based on the principle of
‘one person one vote’ where all citizens who have the capacity to make rational
decisions (which the law assumes are those who have crossed the age of
eighteen) contribute towards collective decision m aking is a cardinal element of
constitutional democracy . Yet the Constitution does not confine the universe of a
80 constitutional democracy to an electoral democracy. Other institutions of
governance have critical roles and functions in enhancing the values of
constitutional democracy. The Constitution does not envisage a narrow and
procedural form of democracy. When the people of India entered into a social contract in the form of a Constitution, they chose the conception of democracy
which not only focused on rule by elected bodies but also on certain substantive
values and on institutional governance. The Constitution defined democracy in terms of equal rights in political participation and of self -determination.
79. When democracy is viewed in this substanti ve and broad manner, the role
of courts is not democracy -disabling but democracy -enabling. Much like the
elected branch, the legitimacy of courts is also rooted in democracy. It is rooted in
not operating in a democratic manner because if it was, then courts may be swayed
by considerations which govern and guide electoral democracy.
79 By vesting the
judicial branch with the power to review the actions of other institutions of
governance (including the legislature and the executive) on the touchstone of
constitutional values, the Constitution assigns a role to the judiciary .80 The
institutions of governance place a check on the exercise of power of the other
institutions to further constitutional values and produce better, more democratic
outcomes.
80. Courts contribute to the democratic process while deciding an issue based
on competing constitutional values, or when persons who are unable to exercise
79 Robert M Cover, ‘The Origins of Judicial Activism in the Protection of Minorities ’, 1982 Yale law journal, Vol 1(7)
June 1982
80 Mathew EK Hall, Judicial Review as a Limit on Government Domination: Reframing, resolving, and replacing the
counter -majoritarian difficulty, 2016 Perspectives on politics, Volume 14(2) June 2016 , 391
81 their constitutional rights through the political process knock on its doors. For
instance, members of marginalized communities who are excluded from the
political process because of the struc tural imbalance of power can approach the
court through its writ jurisdiction to seek the enforcement of their rights.
ii. Is queerness ‘un- Indian’? Who is an Indian? What practices are Indian?
a. Queerness is a natural phenomenon which is known to India since ancient times
81. The question of whether homosexuality or queerness is unnatural is no
longer res integra, in view of the decision in Navtej Singh Johar (supra) where
this Court held that it is innate and natural. The contention of the Union of India
that heterosexual unions precede law while homosexual unions do not cannot be
accepted in view of the decision in Navtej Singh Johar (supra) where this Court
held that queer love has flourished in India since ancient times.
82. The respondents have also averred that homosexuality or gender
queerness is not native to India. This contention does not hold any water. In India, persons with a gender queer identity who do not fit into the binary of ‘male’ and
‘female’ have long been known by different names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas and nupi maanbis. In fact, the
term ‘transgender person’ as it is understood in English or the ‘third gender’ does
not always fully or accurately describe the gender identity of those who are known
by some of these terms. Additionally, the social structure of the communities of
transgender persons in India is unique and does not mirror ‘western’ structures. It
is native to our country. The judgment of this Court in NALSA (supra) also explored
82 the presence of the transgender identity and other forms of gender queerness in
Indian lore.
83. In With Respect to Sex: Negotiating Hijra Identity in South India,81 Gayatri
Reddy documents the different manifestations of kinship in hijra communities,
including the guru- chela (or teacher -disciple) relationship, the mother -daughter
relationship, and the ‘jodi’ (or bond) with a husband. She describes how many hijras enter into unions with men, who are referred to as their ‘pantis.’ These unions
span over many months or many decades, depending on the couple in question. Many men in such unions have made their natal families aware about their
relationship with their partner, and in some cases, the hijras would sometimes meet
their partner’s natal family. They sometimes ref erred to their relationship as one of
‘marriage.’ Men also assaulted their partners and displayed other violent tendencies. Some hijras maintained contact with their biological family, most
notably the mother. Although many hijras were in romantic, long- lasting
partnerships with men or in touch with their natal family, they considered other hijras as constituting their family as opposed to their ‘pantis’ or their biological
families.
82 In many communities, hijras are customarily invited to auspicious events
(such as the birth of a child) to bless the family in question.
84. Like the English language, some English words employed to describe queer
identities may have originated in other countries. However, gender queerness,
transgenderism, homosexuality, and queer sexual orientations are natural, age- old
81 Gayatri Reddy, With Respect to Sex: Negotiating Hijra Identity in South India (The University of Chicago Press
82 ibid
83 phenomena which have historically been present in India. They have not been
‘imported’ from the ‘west.’ Moreover, if queerness is natural (which it is), it is by
definition impossible for it to be borrowed from another culture or be an imitation of
another culture.
b. Queerness is not urban or elite
85. The respondents, including the Union of India, have contended that
homosexuality and queer gender identities or transgenderism are predominantly present in urban areas and amongst the elite sections of society. They assert that variations in gender and sexual identity are largely unknown to rural India and
amongst the working classes. Nothing could be further from the truth. While they
may not use the words “homosexuality, ” “queer,” “lesbian,” “gay” or any other term
which populates the lexicon of English- speaking persons, they enter into unions
with persons of the same sex as them or with gender queer persons; these unions
are often long- lasting, and the couple performs a marriage ceremony. The
incidence of queerness amongst the rural and working- class communities has
been documented in academic scholarship as well as newspaper reports. In the
absence of evidence aliunde, the details narrated in newspaper reports are not facts which are proved in terms of the Indian Evidence Act 1872.
83 However, in
cases (such as the present one) which require this Court to examine social phenomena and their incidence, newspaper reports serve as a useful tool in the
exercise of illuminating social realities.
83 Laxmi Raj Shetty v. State of T.N., (1988) 3 SCC 319
84 86. This Court need look no further than the petitioners in this case to illustrate
the point that queerness is neither urban nor elite:
a. One of the petitioners grew up in Durgapur, West Bengal and Delhi and states
that she came to terms with her sexuality when she was an adult. Another
petitioner in the same case grew up in Varanasi, Uttar Pradesh and states
that she knew that she was a lesbian from a young age;
b. One of the petitioners hails from Muktsar, Punjab and happens to be OBC. Another petitioner in the same case happens to be Dalit. They come from working class backgrounds;
c. Another petitioner was born in Mumbai to Catholic parents. She attempted to die by suicide and later had to beg on the streets in order to survive;
d. Some petitioners before this Court are transgender persons and activists. One of them is a public personali ty – Akkai Padmashali. She hails from a non-
English speaking, working class background. At a young age, she left home. She worked as an assistant in a shop selling ceramics but quit because she
unable to hide her true gender identity. Circumstance forced her to become a
sex worker to sustain herself. Later, she was awarded the Karnataka Rajyotsava Award, Karnataka’s second highest civilian award, for her
contribution to social service.
e. Yet another petitioner who is a transgender person was born in a family of
farmers who grew coconuts and betel leaves. She later worked in a factory.
85 In her case, too, circumstance forced her to become a sex worker. She is now
a social activist; and
f. One of the petitioners is a lesbian who lives in Vadodara, Gujarat.
87. Ruth Vanita, an academician, studied the history of queer marriage in India
in her scholarly works. She narrates that she married a Jewish woman in 2000 with both Hindu and Jewish ceremonies.
84 Her book titled Love’s Rite: Same- Sex
Marriage in India and the West85 records numerous instances of queer unions and
partnerships in India:
a. Two young women who were classmates fell in love. One of them underwent
a sex reassignment surgery in 1989. The two then married each other but one
of their fathers (a wireless operator) opposed their union. He filed a complaint
stating that the partner of his child had abducted her. When the young woman
was produced in court, she stated that she wished to live with her husband.
She was then released and the couple proceeded to live together;
b. In 1993, two women in Faridabad married each other in a Banke Bihari temple, with a priest officiating;
c. Two men, one Indian and the other American, married according to Hindu
rites in a ceremony in New Delhi in 1993;
84 Ruth Vanita, ‘ ’Wedding of Two Souls”: Same-Sex Marriage and Hindu Traditions’ 2004 Journal of Feminist
Studies in Religion, Vol 20(2)
85 Ruth Vanita, Love’s Rite: Same -Sex Marriage in India and the West (Palgrave Macmillan, 2005)
86 d. In 2004, a twenty -four year old Dalit woman and a twenty -two year old Jat
woman travelled to Delhi and performed the rites of marriage in a temple.
Their families opposed the union;
e. Two young women, whose parents were construction workers in Bhopal, Madhya Pradesh, lived in a slum. One of them was employed as a peon in a
school and the other was unemployed. They ran away in 2004 and are
reported to have told the police that they would live together regardless of any
attempts to separate them;
f. Also in 2004, a twenty -one year old Christ ian woman and a twenty -three year
old Hindu woman from a southern state in India declared their life- long
commitment to one another after a tabloid alleged that they were lesbians;
g. Two young Muslim men (one aged twenty -two and the other aged twenty -
eight) married in Ghaziabad, Uttar Pradesh. Their friends and family
physically assaulted them for marrying but it was reported that they continued to intend to live together; and
h. Two nurses in Patel Nagar, Delhi met as students, fell in love, declared that they were life partners, and decided to live together. At the time the book was
written, they had shared a home for fifteen years. Their neighbours were
aware of their relationship and were unfazed by it.
88. In addition, other sources record varied instances of persons entering into
atypical unions or expressing their homosexuality or gender identity:
87 a. Two women who happened to be Adivasi married according to the customs
of their tribe, in a small village in Koraput district, Orissa;86
b. A woman who was the daughter of a government school teacher and a
woman whose father was a labourer garlanded each other in Hamirpur
district, Uttar Pradesh and sought to register their marriage at the local sub-
registrar’s office. They each divorced their husbands before entering int o this
union;87
c. Two women from Kanpur travelled to Delhi to marry each other;88 and
d. Young, gay men in a small town called Barasat in West Bengal expressed
their desire to be a part of the queer community. One of them worked in a clerical job.
89. The AIDS Bhedbhav Virodhi Andolan (the AIDS Anti -Discrimination
Movement) released a citizen’s report on the status of homosexuality in Indi a, titled
‘Less Than Gay’ in 1991.90 The report discusses some of the arguments which
were put forth more than three decades ago. In its attempt to address whether
homosexuality is a ‘western’ concept or is restricted to the socioeconomically privileged cl asses, it asserts that the queer community is not a “ coherent, easily
definable group.”
91 The report details the various lived experiences of gay men and
lesbian women, information regarding which was collected by interviewing them. It
86 Satyanarayan Pattnaik, ‘Two Orissa girls defy norms, get married’ (Times of India, 5 November 2006)
87 India Today ‘U P: In love for 7 years, two women divorce husbands to marry each other’ (India Today, 1 January
88 Deccan Herald ‘Two girls from Kanpur elope, 'marry' each other in Delhi’ (Deccan Herald, 19 September 2015)
89 Paul Boyce and Rohit K Dasgupta, ‘Utopia or Elsewhere: Queer Modernities in Small Town West Bengal’ in
Tereza Kuldova and Mathew A Varghese (eds.), Urban Utopias (Palgrave Macmillan, 2017)
90 AIDS Bhedbhav Virodhi Andolan, ‘Less Than Gay’ (1991)
91 ibid
88 tells the stories of a lesbian hostel warden, a gay teacher at a government
polytechnic college in Madhya Pradesh, an auto- rickshaw driver in Pune, two male
municipal sweepers in Mumbai who lived together and loved each other, and a gay
man from a slum in Delhi.92
90. Ruth Vanit a also documents attempted suicides and suicides arising from
the difficulties faced by persons in queer relationships:93
a. In 1980, Jyotsna and Jayshree died by suicide after they jumped in front of a train in Gujarat. In a letter they left behind, they explained that they chose to die because they could not endure having to live apart after their marriages
to men;
b. Gita Darji and Kishori Shah died by hanging in a village in Gujarat, in 1988. They were nurses and worked in a hospital; and
c. In January 2000, tw o young women named Bindu and Rajni were stopped
from eloping. A few days later, they jumped into a granite quarry in Kerala
and died. They each left behind notes to their families in which they explained
that they wished to die because it was impossible f or them to live together.
91. In Loving Women: Being Lesbian in Unprivileged India,
94 Maya Sharma
gives an account of various persons (most of whom are women) in same- sex or
queer relationships. The book was written after detailed interviews with its subjects,
92 ibid
93 Vanita (n 8 5)
94 Maya Sharma, Loving Women: Being Lesbian in Unprivileged India (Yoda Press, 2006)
89 and focuses on working class persons. The author explains that one of the
purposes of the book was to:
“… dispel the myth that lesbians in India were all urban,
Westernised and came from the upper and middle classes.”
The author also highlights that publi c discourse has not created space for the
voices and experiences of persons from the LGBTQ community who also belong
to marginalized communities:
“… the lives of most of our subjects are equally distant and
alienated from upperclass, urban Indian as well a s all Western
representations of homosexuality, and their personal
struggles, which cannot be separated from their
socioeconomic struggles and traditional contexts, are largely unmirrored and therefore remain largely unknown.”
The book variously gives accounts of women in queer relationships from different
religions and communities, hailing from different parts of the country. They or their
family members worked as domestic workers, factory workers, construction
labourers, and Home Guards, amongst other professions.
92. The discussion in this segment has not scratched the surface of the rich
history of the lives of LGBTQ persons in India, which continue into the present. Yet,
even the limited exploration of the literature and reportage on the subject makes it
abundantly clear that homosexuality or queerness is not solely an urban concept,
nor is it restricted to the upper classes or privileged communities. The discussion
in the preceding paragraphs reveals the diversity of the queer population. People
may be queer regardless of whether they are from villages, small towns, or semi -
urban and urban spaces. Similarly, they may be queer regardless of their caste and economic location. It is not just the English- speaking man with a white- collar
90 job who lives in a metropolitan city and is otherwise affluent who can lay claim to
being queer but also (and equally) the woman who works in a farm in an agricultural
community. Persons may or may not identify with the labels ‘queer,’ ‘gay,’ ‘lesbian,’
‘trans,’ etc. either because they speak languages which are not English or for other
reasons, but the fact remains that many Indians are gender queer or enter into
relationships with others of the same sex. In the words of a person (assigned
female at birth) who worked at a factory in Ajmer:
“You ask if I have heard the word “lesbian”. No, I have not
heard it. … I consider myself a male. I am attracted to women.
Why create categories, such deep differences between male
and female? Only our bodies make us different. We are all human beings, aren't we? … When a human being is born, he
does not know anything. He is told, “These are your parents, sisters, father and brothers”. Similarly we are told, “You are boys, and you are girls”. But I say I am a man. I choose to be one. Despite our physical differences, we can be who we want
to be and do what we want to do. … But the final analysis, we are all the same, we are all human beings, we are all equal, regardless of what kind of bodies we have. This common
factor should be considered, not the ways in which we are
different.”
93. To imagine queer persons as existing only in urban and affluent spaces is
to erase them even as they exist in other parts of the country. It would also be a
mistake to conflate the ‘urban’ with the ‘elite.’ This renders invisible large segments of the population who live in urban spaces but are poor or otherwise marginalized.
Urban centres are themselves geographically and socially divided along the lines
of class, religion, and caste and not all those who live in ci ties can be termed elite
merely by virtue of their residence in cities.
95 ibid
91 94. Finally, it is essential to recognize that expressions of queerness may be
more visible in urban centres for a variety of reasons. For one, cities may afford
their inhabitants a degree of anonymity, which permit them to live their true lives or
express themselves freely. This may not always be possible in smaller towns or villages, where the families or communities of queer persons may subject them to
censure and dis approbation, or worse.
96 The experiences of queer persons may
also be more visible in urban spaces because such persons have greater access to the various resources required to make one’s voice heard. This only means that the marginalized are yet to be heard when they speak and not that they do not
exist. This is not to say that society does not inflict violence upon the LGBTQ
community in cities but only to indicate potential reasons for their increased
visibility in cities. In conclusion, queerness is not urban or elite. Persons of any
geographic location or background may be queer.
c. The rise of Victorian morality in colonial India and the reasons for the
re-assertion of the queer identity
95. In pre- colonial times, the Indian subcontinent was home to a diver se
population with its own, unique understanding of sexuality, companionship, morality and love. Stories, history, myths, and cultural practices in India indicate
that what we now term ‘queerness’ was present in pre- colonial India. It would not
be a faithf ul description of the times to say that queerness was “accepted” by the
populace. Rather, society did not often view (many manifestations of) the queer
96 For instance, many transmen migrate from villages to metropolitan cities to escape violence and discrimination.
Agaja Puthan Purayil, ‘“Families We Choose”: Kinship Patterns among Migrant Transmen in Bangalore, India’ in
Douglas A Vakoch (ed.), Transgender India: Understanding Third Gender Identities and Experiences (Springer
92 identity as something that required acceptance to begin with because it formed a
part of ordinary, day -to-day life, similar to the heterosexual or cisgender identities.
This was true for many parts of the country at many points of time, though perhaps not everywhere and at all times. This is not to suggest that society did not inflict
any violence upon members of the LBGTQ community in pre- colonial times.
Rather, it is to highlight that current beliefs, attitudes, and practices which are hostile to the LGBTQ community are not necessarily natural successors of the
past.
96. The native way of life gradually changed with the entry of the British, who
brought with them their own sense of morality. It was not their morality alone that they brought with them but also their laws. This Court discussed the legal legacy
of the colonizers at length in National Legal Services Authority (supra) and
Navtej Singh Johar (supra). To recapitulate, Section 377 of the IPC inter alia
criminalized queer sexual acts and in so doing, imposed the morality of the British
on the Indian cultural landscape. The British also enacted the Criminal Tribes Act
97 to provide for the “ registration, surveillance and control of certain criminal
tribes and eunuchs. ”98 It permitted the government to declare a group of persons
a “criminal tribe ” if it was of the opinion that the group was “ addicted to the
systematic commission of non- bailable offences .”99 Part II of the Criminal Tribes
Act regulated transgender persons (which it referred to as ‘eunuchs’) and subjected them to enormous indignity inter alia by permitting the government to medically
exami ne them, providing for harsh penalties if they dressed “ like a woman” or
97 “Criminal Tribes Act”
98 Preamble, Criminal Tribes Act
99 Section 2, Criminal Tribes Act
93 danced or played music, preventing them from making gifts, and rendering their
wills invalid. Although the Criminal Tribes Act was repealed by the government
after independence, its underlying prejudices seem to continue in various central and state enactments on ‘habitual offenders.’
97. The criminalization of the LGBTQ community and their resultant prosecution
and conviction under these laws
100 coupled with the violence enabled by these
laws drove large sections of the community underground and into the proverbial
closet. Society stigmatized any sexual orientation which was not heterosexual and any gender identity which was not cisgender. Persons with an atypical gender
identity and / or s exual orientation were therefore compelled to conceal their true
selves from the world. Their presence in the public sphere gradually shrunk even as homophobia and transphobia flourished. Despite their alienation from
mainstream society, many queer persons continued to live their lives in ways that
were visible to the public eye. Indeed, many of them (such as hijras) often did not have a choice but to do so. Others expressed their sexual orientation only in the
comfort of their homes, in the presence of their families and friends. Yet others led
double lives – they pretended to be heterosexual in public and while with their
families and made their sexual orientation known to a select few persons, who
were often themselves of an atypical sexual orientation. S ome people entered into
‘lavender marriages’ or ‘front marriages’ which are marriages of convenience meant to conceal the sexual orientation of one or both partners.
100 See, for instance, Queen Empress v. Khairati, ILR (1884) 6 All 204; (Meharban) Nowshirwan Irani v. Emperor,
AIR 1934 Sind. 206; D P Minwalla v. Emperor, AIR 1935 Sind. 78.
94 98. It is evident that it is not queerness which is of foreign origin but that many
shades of prejudice in India are remnants of a colonial past. Colonial laws and
convictions engendered discriminatory attitudes which continue into the present.
Those who suggest that queerness is borrowed from foreign soil point to the
relatively recent increase in the expression of queer identities as evidence of the
fact that queerness is ‘new,’ ‘modern,’ or ‘borrowed.’ Persons who champion this view overlook two vital details. The first is that this recent visibility of queerness is
not an assertion of an entirel y novel identity but the reassertion of an age- old one.
The second factor is that establishment of a democratic nation- state and the
concomitant nurturing of democratic systems and values over six decades has enabled more queer persons to exercise their inherent rights. An environment has
been fostered which is conducive to queer persons expressing themselves without
the fear of opprobrium. This Court also recognizes that queer persons have
themselves been crucial in the project of fostering such an environment. The
constitutional guarantees of liberty and equality have gradually been made
available to an increasing number of people. This seems to be true across the
world – the global turn towards democracy has created the conditions for the
empowerment of q ueer people everywhere. Progress has perhaps been
inconsistent, non- linear, and at a less than ideal pace but progress there has been.
We must recognize the vital role of Indian society in contributing to the evolving
social mores. The evolution may at tim es seem imperceptible, but surely it is.
95 d. Who is an Indian and what practices are Indian?
99. The tenor of the arguments put forth by some of the respondents implied
that a union between two persons of the same sex is not Indian. To determine
whether this contention is correct, it is necessary to query when something or
someone is ‘Indian.’ This question is all the more important in a country as diverse
as ours, with twenty -eight States, eight Union Territories, a population of more than
one billion persons, twenty -two languages recognized by the Constitution and
scores more which are spoken by its people, at least eight religions, tribal and non-tribal populations, and varying cultures which are sometimes at odds with one
another.
A thing, an occurrence, or a practice is ‘Indian’ when it is present in India, takes place here, or is practised by Indian citizens. Something which is Indian could be
present from time immemorial or it could be a recent development. Regardless,
this is no t a game of numbers. The constitutional guarantee certainly does not fade
based on the level of acceptability that a particular practice has achieved. Sexual and gender minorities are as Indian as their fellow citizens who are cisgender and
heterosexual.
iii. Understanding the institution of marriage
a. There is no universal conception of marriage
100. There is no universal definition of marriage. Marriage is understood
differently in law, in religion, and in culture. Some religions consider marriage a
sacrament whil e others consider it a contract. The law defines the conditions for a
96 valid marriage, such as the minimum age required of a party to the marriage,
whether both parties have consented to the marriage, or whether the parties are
within the degrees of prohibi ted relationship. A marriage is valid in the eyes of the
law as long as the preconditions in the concerned law(s) are satisfied. A
precondition is different from a feature or characteristic in that the former is a
prerequisite to a valid marriage whereas t he latter is not. The law provides
remedies which either party may avail of in the presence or absence of certain features or characteristics . For example, Section 27 of the SMA provides that a
party to a marriage may present a petition for divorce on the ground that the other
party is undergoing a sentence of imprisonment for seven years or more for an
offence as defined in the IPC. However, it does not automatically render a marriage
void if one of the parties is imprisoned.
101. Once a couple marries, it is left to them to give meaning ang content to their
relationship. It is their prerogative to determine the characteristics of their marriage and give meaning to their relationship. These aspects of a marriage vary with each
relationship, and it is impossible for this Court to authoritatively state that a
particular idea of marriage is the only valid understanding of marriage. This being
the case, any attempt to formulate a general and universally applicable definition
of marriage is frau ght with difficulty. With this qualification, this Court will list some
features of marriage that are considered its core components.
102. Marriage is a voluntary union – of the mind, the body, and the soul. Marriage
signifies a deep and abiding commitment to one another and a devotion to the
relationship. When two people marry, they intend to be in a life- long relationship.
97 Both the parties to the marriage provide emotional, financial, and spiritual support
to the other. Each is an intellectual partner of the other, as also a friend. Love,
respect and companionship are said to be the hallmarks of a successful marriage.
Marriage is a gateway into the creation of a family through childbearing and
childrearing, although it is not a precondition to the creation or existence of a family.
The sole purpose of marriage is not to facilitate sexual relations or procreation,
although that may be one of the main motivations for entering into a marriage.
Marriage has emotional and associational components to it, which cannot be relegated to the background even as the sexual component is foregrounded.
Important as they are, s exual relations and procreation alone are not the exclusive
foundation for marriage. Although the aspects of marriage discussed in this
paragraph are considered to be core components of marriage, the existence of a
valid marriage (by legal, religious, or cultural definitions) is not predicated upon the
existence of any of these elements. This may be due to choice or circumstance or
even some combination of the two.
103. A married couple may not have biological children because of their age,
problems with fertility, or simply because they choose not to. Many couples who
choose to have children may do so through assisted reproductive technologies ,
surrogacy, adopt ion or other methods which are not traditional. Many married
couples may choose not to engage in sexual relations for various reasons . In some
marriages, the couple may not reside in the same home or even city , temporarily
or permanently. The emotional, fi nancial, or spiritual contribution to a marriage may
vary with each couple. While the law identifies certain conduct or behaviour as
grounds for divorce they do not render a marriage void in and of themselves. The
98 marriage continues to be a marriage, even if it is atypical or runs contrary to the
notion of an ‘ideal marriage’ that a person may have. This is not only true for the
legal conception of marriage, but also of the cultural and social conceptions. Society continues to consider a marriage to be a marriage even if, say, a married
couple decides to live apart because they work in different cities or countries or if
they do not have children. This is equal ly true of the other facets of marriage
discussed in this paragraph. The exercise of defining the content of the institution
of marriage as well as delineating its purpose is a subjective exercise undertaken by the couple in question.
104. The respondents suggested that an ‘ideal marriage’ has many or all of the
components discussed in the preceding paragraphs. This argument acknowledges
that many of these components are not necessarily present in the institution of
marriage but places them in the realm of norm ative or aspirational values . In other
words, the argument is that marriages ought to fit with these components even if a
given marriage does not fit with them . The answer to this argument is
straightforward – there is no legal basis to elevate these personals ideals to the
status of normative requirements . To the contrary, every effort must be made to
practice and inculcate constitutional ideas – the ideals of human dignity, liberty,
equality, and fraternity – in our everyday lives. These constitutional ideals demand
that we respect the autonomy and dignity of each person. We must respect their
decisions and choices. It is only when a particular decision or action is contrary to
the law or an affront to constitutional values that this Court may step in. In all other instances, citizens are empowered to define the content of their lives and find
meaning in their relationships.
99 105. Different religions may have different understandings of marriage, for
instance, whether marriage is a sacrament or a contract. There may be diverse
social constructs of marriage within a religio us grouping. Similarly, there may be
different conceptions of marriage within a particular community . This is best
understood with the aid of an example. Section 5(iv) of the HMA stipulates that a
marri age may be solemnised between two persons if they are not within the
degrees of prohibited relationship, unless a custom or usage governing the parties
permits their marriage. One of the degrees of prohibited relationship is an uncle
and his niece.101 In many communities, an uncle cannot marry his niece because
the community does not have a custom or usage which permits such a marriage.
Yet, in many other communities such a marriage is customar y and therefore
permitted in terms of the HMA. The customs of many tribes of the country similarly
permit an uncle to marry his niece. Many tribal communities are governed by their
own customs and usages . Such marriages are valid and recognised by tribal
customs although they are not recognised by the law governing other communities
in the country. The solemnisation of a marriage, too, takes different forms in
different communities. What may be customary, and therefore not only accepted
but encouraged in a particular religion or community may not have a parallel in
another religion or community.
106. While each individual is entitled to their own conception of marriage, a
universal conception of marriage, its purpose, and content would be difficult to
encapsulate in an exhaustive enumeration. Consequently, the argument advanced
101 Section 3(g)(iv), HMA
100 by the respondents that the very conception of marriage does not permit queer
individuals to marry cannot be accepted. Each religion, each community, each
couple defines the institution of marriage for itself. The queer community is just as
much a community as any other, though perhaps not in the traditional sense in
which the term is used with respect to customs which govern marriage.
107. There is no gainsaying the fact that procreation and the human desire to
have a family constitute significant characteristics of the institution of marriage. Yet,
even heterosexual couples may find themselves unable or unwilling to procreate. Age, health and a variety of circumstances may bear on the decision of a
heterosexual couple to bear or not to bear children. The inability of queer couples
to procreate does not act as a barrier to the entry of queer persons to the institution of marriage just as it does not prevent heterosexual couples who are unable or
choose not to procreate. Viewing marriage solely through the lens of sexual relations or procreation is a disservice to married couples everywhere including
heterosexual couples because it renders invisible the myriad other aspects of a marriage as an emotional union. It relegates the aspects of companionship and
love in a marriage to an inferior status. Such a conception of marriage is narrow
and factually incorrect.
b. The conception of marriage i s not static
108. The understanding of marriage – socially, culturally, and legally – has
undergone a sea change over time. Some changes which are specific to India are
discussed in this segment. This segment is not an exhaustive discussion of the
101 changes to the institution of marriage in India. It illustrates some changes in service
of the point that the conception of marriage is not static.
I. Sati
109. Although far from a universal practice, sati was once permitted and practiced
in India. This abhorrent practice was inextricably intertwined with the institution of marriage because a widow was either tied to the funeral pyre of her deceased
husband or pressed upon to jump into it. Various rules and regulations restricted
and later, barred the practice in the colonial era. In modern day India, the Commission of Sati (Prevention) Act 1987 criminalizes attempts to commi t sati, the
abetment of sati, as well as its glorification.
II. Widow remarriage
110. In accordance with long- standing custom, w omen (mostly from the dominant
castes) were not permitted to remarry if their husbands died. In many communities,
the heads of widows were shaved and they were prohibited from wearing jewellery or colourful clothes. This was considered a ‘living death.’ Many (including Mahatma
Jyotirao Phule, the Brahmo Samaj , Ishwar Chandra Vidyasagar, and Tarabai
Shinde) attempted to reform the institution of marriage to permit widows to remarry .
Civil society offered tremendous resistance to their attempts at reform .
Ultimately, t he Hindu Widows ’ Remarriage Act 1856 was enacted, permitting
widows to remarry .
102 Rosalind O’Hanlon, Issues of Widowhood in Colonial Western India (Institute of Commonwealth Studies ,
University of London, 1989)
102 III. Child marriage and the age of consent
111. A discussion of the history of marriage in India would be incomplete without
reference to child marriage and the legal age of consent . Child marriage was
widespread in most religions and communities . The age of consent for girls was
fixed at ten years in 1860. In 1890, a thirty -five year old man called Hari Mohan
Maity caused the death of his ten year old wife Phulmoni Das (also known as
Phulomonee Das) through violent sexual intercourse with her. While this would be
considered rape and / or aggravated penetrative sexual assault of a child by
prevailing legal standards , the concerned court ruled that Hari Mohan Maity had a
legal right to engage in sexual relations with Phulmoni Das because she was above
the age of consent at the time.103 The age of consent for girls was then raised to
twelve.
112. Decades later, t he Child Marriage Restraint Act 1929 raised the minimum
age of marriage for girls from twelve to fourteen. In 1949, the criminal law of the
country stipulated that the age of consent for girls was fifteen years. The HMA set
the minimum age of marriage at fifteen for girls and eighteen for boys. In 1978, the
HMA was amended to raise the minimum age of m arriage to eighteen for girls and
twenty -one for boys. The Prohibition of Child Marriage Act 2006 provided that child
marriages would be voidable at the option of the contracting party who was a child at the time of the marriage. Further, this statute crim inalizes the act of performing,
conducting, directing, abetting, promoting or permitting a child marriage.
103 Flavia Agnes ‘Controversy over Age of Consent’ (2013) EPW Vol 48(29)
103 113. The Protection of Children from Sexual Offences Act 2012104 was enacted
about a decade ago. It is a child- specific legislation which inter alia crimi nalizes
sexual abuse in its various forms. A “child” is defined as any person below the age
of eighteen years. In Independent Thought v. Union of India ,105 this Court was
confronted with the inconsistency between the POCSO Act which criminalized sexual relations with a child and Exception 2 to Section 375 of the IPC which
provided that sexual intercourse by a man with his wife was not rape if the wife was
above fifteen years of age. As a consequence of this inconsistency, a person could
have been guilty under the POCSO Act but not under Section 375 of the IPC. This
Court held that Exception 2 was violative of Articles 14, 15 and 21 of the
Constitution and was an affront to constitutional morality. The Court read down
Exception 2 as exempting a man from the offence of rape if his wife was above the age of eighteen. Currently, it is a punishable offence for a man to have sexual
intercourse with a child, regardless of whether that child is his wife. It is evident
that the law governing marriage has come a long way from Phulmoni Das’ time.
IV. Other violence in marriage
114. Acts which were once considered the norm in a marriage are no longer
countenanced by the law. The gi ving and taking of dowry, which was and continues
to be prevalent in most communities, was criminalised by the enactment of the Dowry Prohibition Act 1961. Prior to its enactment, there was no penalty in law for
demanding, giving, or accepting dowry. The family of the bride was often expected
to pay large sums of money or present “gift” items of value to the groom or his
104 family, as a condition of the marriage. The maternal families of innumerable women
are harassed and violence is inflicted upon them, in relation to demands for dowry.
Parliament inserted Section 498- A of the IPC in 1983. Section 498- A criminalizes
the act of a husband or his relative subjecting her to cruelty, as defined in the
section. In many cases, the matrimonial families (the husband, t he mother -in-law,
the father -in-law, and other relatives) murdered the woman because of what they
viewed as insufficient dowry or unmet demands for dowry. This led to Parliament
amending the IPC in 1986 to include Section 304- B which criminalises ‘dowry
death.’
115. These provisions of law did not, however, adequately account for gender -
based violence in a marriage which are unconnected to dowry. Domestic violence
was (and continues to be) prevalent. About two decades ago, the Protection of Women from Domestic Violence Act 2005 was enacted to protect the rights of
women who were survivors or victims of domestic violence, either by their
husbands or the relatives of their husbands. Prior to the enactment of the law ,
intimate partner violence which women are generally subject to was not
criminalized .
V. Inter -caste and interfaith marriage
116. Inter-caste and interfaith marriages were uncommon in the colonial era and
established customs or usages did not govern such marriages. Then, as now,
society subjected those who entered into inter -caste and interfaith marriages to
discrimination and violence. There was initially no legal framework in place which
governed such marriages. The Special Marriage Act 1872 was enacted to enable
105 the solemnisation of marriages independent of personal law. If two people
belonging to different religions wished to marry, they were each required to
renounce their respective religion in order to avail of its provisions. The law at the
time did not supply a framework in terms of which two persons belonging to
different religions could retain their association or spiritual connection to their
respec tive religions and still marry one another.
117. Parliament was conscious of the limiting and restrictive character of the
Special Marriage Act 1872 and enacted the SMA in 1954, which was a more
permissive legislation in that any two persons could marry, without having to
repudiate their respective religions. By stipulating that “ a marriage between any
two persons may be solemnized under this Act ,”106 the SMA also set out a
mechanism for inter -caste marriages to be solemnized independent of personal
law.
118. The families or relatives of couples who entered into inter -caste or interfaith
marriages would frequently inflict violence upon them, even to the extent of brutally
murdering them. Their communities would either ordain or participate in these
atrocities. Such murders are colloquially referred to as “honour killings” and are
more accurately termed as caste -based murders. It is a most unfortunate truth that
this culture of violence persists to date. Couples who face this opprobrium have
knocked on the doors of this Court inter alia seeking protection from their families
and others who oppose their relationship107 and this Court has otherwise been
106 Section 4, SMA
107 See, for instance, Lata Singh v. State of U.P., (2006) 5 SCC 475.
106 seized of cases arising from violence in this context .108 In Shakti Vahini v. Union
of India ,109 this Court took note of the violence against couples in inter -caste and
interfaith marriages. It directed the state machinery to take preventive as well as
remedial measures to protect such couples who wished to marry or who were
recently marrie d.
119. It is beyond dispute that couples in inter -caste and interfaith relationships
have historically been forced to contend with and continue to contend with
enormous difficulty while solemnizing their unions . As evident from the discussion
in the pr eceding paragraph, large sections of society were and are fiercely opposed
to such marriages. The opposition stems, at least in part, from a belief that a marriage ought to consist of two individuals from the same religion or caste.
Parliament chose to enact the SMA despite the opposition to atypical marriages
and has not chosen to repeal the SMA or otherwise exclude the celebration of inter -
caste marriages under personal laws despite continuing hostility from the
communities of such couples. Parliament has presumably done so because it is
cognizant of the fact that the exercise of fundamental rights is not contingent upon the approval of the community . Similarly, this Court has carried out the
constitutional mandate by protecting the rights of individuals and couples in the
face of considerable opposition from their families. In a democracy, certain rights
inhere in all individuals. If the exercise of rights was contingent upon everyone else
or, at least a substantial portion of the community approving of such exercise, we would be doing a disservice to a constitutional democracy. The Constitution does
108 See, for instance, Gang -Rape Ordered by Village Kangaroo Court in W.B., In re, (2014) 4 SCC 786; Vikas
Yadav v. State of U.P., (2016) 9 SCC 541.
107 not require individuals to first convince others of the legitimacy of the exercise of
constitutional rights before they exercise them .
VI. Divorce
120. Section 10 of t he Indian Divorce Act 1869, which is applicable to Christians,
previously permitted the husband to file a petition for divorce on the ground that his
wife was guilty of adultery. However, the wife was permitted to file a petition for
divorce on the ground that her husband was guilty of adultery only in conjunction
with certain other grounds (such as conversion to another religion or bigamy). In
Mary Sonia Zachariah v. Union of India ,110 the Kerala High Court inter alia struck
down a part of Section 10 and permitted Christian women to seek divorce on the
ground of adultery alone. Parliament amended the Indian Divorce Act 1869 in 2001
by substituting Section 10 with a provision that made various grounds of divorce
(including adultery) available to both the husband and the wife, equally.111 It also
introduced Section 10A, which permitted Christian marriages to be dissolved by
mutual consent , for the first time .
121. In terms of Hindu customary law, certain communities permitted divorce
whereas others did not . The HMA extended the right of divorce to all Hindus when
it was enacted in 1955 . In 1976, Section 13B was introduced in the HMA, permitting
Hindus to dissolve their marriage by mutual consent , for the first time. In Shilpa
Sailesh v. Varun Sree nivasan ,112 this Court held that it has the authority to grant
divorce when there is a complete and irretrievable breakdown of marriage
110 1995 SCC OnLine Ker 288
111 The wife was permitted an additional ground of divorce, viz “the husband has, since the solemnization of the
marriage, been guilty of rape, sodomy or bestiality.” See Section 10(2), Indian Divorce Act 1869.
112 2023 SCC OnLine SC 544
108 notwithstanding the opposition of one of the parties to the marriage to its
dissolution.
122. Islamic customary law permitted divorce in certain situations and through
certain modes. One of the modes was talaq -e-biddat or triple talaq by which the
husband could instantly, irrevocably, and unilaterally divorce his wife. In Shayara
Bano v. Union of India ,113 this Court hel d that the practice of severing the marital
bond through the mode of talaq- e-biddat was unconstitutional.
VII. The implications of the discussion in this segment
123. Mahatma Jyotirao Phule, Ishwar Chandra Vidyasagar, Pandita Ramabai,
Tarabai Shinde, Raja Ram Mohun Roy and countless others voiced their
opposition (to varying degrees and to varying effects) to one or the other practice
discussed in this segment. Their views were met with fierce opposition on the
ground that the religious and cultural values of the subcontinent did not permit a
departure from tradition. In some cases, the opposing groups relied on scriptures
to justify their respective stances.114 When Dr. B R Ambedkar introduced the Hindu
Code Bill, many opposed the provision for divorce on the ground that the Hindu
religion did not envisage divorce because it was a sacrament .115 It is seen that
there are c ompeting understandings of the institution of marriage at every stage of
its evolution. Yet, the understanding which was grounded in justice and the rights
of the people has prevailed. Injustic e in the law in relation to the institution of
114 ‘Social Reform’ and the Women’s Quest in Janaki Nair (ed), Women and Law in Colonial India: A social history
115 See, for instance, Constituent Assembly of India (Legislative) Debates, Volume II, Speech by Pandit Lakshmi
Kanta Maitra on 1 March 1949; Constituent Assembly of India (Legislative) Debates , Volume VI, Speech by Pandit
Mukut Bihari Lal Bhargava on 12 December 1949
109 marriage ( in the form of demands for dowry, dowry death, or child sexual abuse)
or as incident al to the institution ( as in the case of sati or widow remarriage) is
slowly but surely in the process of being eradicated. While these practices were
once permitted and encouraged, they are currently not only frowned upon but also
criminalized.
124. This walk through history is not an attempt by this Court to take on the mantle
of historians. The discussion demonstrates that the institution of marriage has not
remained static or stagnant. To the contrary, it is change which characterizes the institution. All social in stitutions transmogrify with time and marriage is no
exception. From sati and widow remarriage to child marriage and inter -caste or
interfaith marriages, marriage has metamorphosed. The institution as we know it
today would perhaps be unrecognizable to our ancestors from two hundred years
ago. Despite vehement opposition to any departure from practice, the institution of marriage has changed. This is an incontrovertible truth. Here, it is also important
to take note of the fact that these changes were brought about largely by acts of
Parliament or the legislatures of the states. While the passage of many laws was
preceded by significant social activism, it was the legislature which ultimately
responded to the call for change. Even as Parliament (and in some cases, the
courts) expand the liberties of the people to conduct their lives in a manner they
see fit (in accordance with law), many sections of society remain opposed to these
changes. Regardless of such opposition, the institution of marriage has undergone
a sea change. It is therefore incorrect to characterise marriage as a static, stagnant
or unchanging institution.
110 c. The implications of this discussion for the right of queer persons to
marry
125. From the discussion in this segment of the judgment, it is evident that the
institution of marriage is built and re- built by societies, communities, and
individuals. A universal conception of marriage is not present nor is the conception
of marriage static over time. The only facet of marriage which is constant ac ross
religion, community, caste, and region is that the couple i s in a legally binding
relationship – one which recognizes an emotional bond of togetherness, loyalty
and commitment - that is recognised by the law. The law recognises the
commitment that the couple has for one another by regulat ing the institution of
marriage and confer ring certain rights and privileges on them .
126. In Shafin Jahan (supra), a three -Judge Bench of this Court held:
“84. … Our choices are respected because they are ours.
Social approval for intimate personal decisions is not the basis
for recognising them. Indeed, the Constitut ion protects
personal liberty from disapproving audiences.”
127. The consequence of the judgment of this Court in National Legal Services
Authority (supra) and Navtej Singh Johar (supra) is that the members of the
queer community are no longer second -class cit izens of our country. Their
individual and group rights are on par with any other citizen of this country. Their
gender identity or sexual orientation cannot be a ground on which they are
discriminated against.
128. Mr. Tushar Mehta, the learned Solicitor General, submitted during the
course of his arguments that two persons from the LGBTQ community have the
111 right and the liberty to celebrate their union and label the union with any term they
see fit, including ‘marriage.’ The Union of India does not , however, wish to accord
legal recognition to such ceremonies and unions. If the marriages of queer people were to be recognized by law enacted by Parliament , it would be the next step in
its progression.
iv. The significance of marriage as a socio- legal institution
129. One of us (DY Chandrachud, J.) in Navtej (supra) held that the members of
the LGBTQIA+ community have a right to navigate public spaces without the interference of the State. The claim of the petitioners in this case, however, is on a
slightly different footing. The petitioners seek the active involvement of the State in
their relationships through conferring recognition. Through marriage, the State confers legal recognition to a relationship between two heterosexual persons. By
doing so, it recognises that relationships in the form of marriage are not merely a
lifestyle but an important constituent unit for the sustenance of social life. The State
confers innumerable benefits, both tangible and intangible, to a family unit
constituted by marriage. The petitioners seek that the State grant legal recognition
to the relationship between non- heterosexual persons in the form of marriage
because they are otherwise excluded from the express and implied benefits of marriage. They claim that non- heterosexual unions have not been able to attain
social sanctity because their relationship is invisible in the eyes of the law.
130. Before we discuss the State’s interest in regulating the personal relationship
between two persons to understand the necessity of its interference in the private
112 sphere, it is important to discuss the manner in which the State regulates
marriages.
131. The State: firstly, prescribes conditions with respect to who can enter into a
valid marriage; secondly, regulates the marital relationship during its sustenance;
and thirdly, regulates the repercussions of the breakdown of a relationship of
marriage.
132. The State prescribes various conditions for the solemnization of a valid
marriage which inter alia includes the conditions of consent, a minimum age
requirement, and whether the parties are within the degrees of prohibited
relationship. The law regulates the conduct of the parties to a marriage in numerous ways. For example, the law penalises the husband and his family
members if they treat the wi fe cruelly, including demands for dowry.
116 Similarly,
the Protection of Women from Domestic Violence Act 2005117 penalises persons
for domestic violence in the course of a domestic relationship which has been
defined to include marriage.118 The grounds for divorce prescribed in various
marriage laws also regulate the conduct of parties because their actions during the sustenance of a marriage may be a ground for the legal dissolution of that marriage. The valid grounds for divorce include where one of the par ties has a
sexual relationship outside of marriage,
119 or has deserted their spouse,120 or treats
the spouse with cruelty.121 The State regulates the relationship between the parties
116 Section 498A of IPC
117 “DV Act”
118 Sections 2(f) and 3 of the DV Act,
119 Section 27(1)(a) of the SMA
120 Section 27(1)(b) of the SMA
121 Section 27(1)(d) of the SMA
113 after the divorce by prescribing the payment of maintenance. Under the SMA, the
wife can claim alimony or maintenance and under the HMA, both the husband and
the wife can claim maintenance. The above discussion elucidates that the State
plays a crucial role in regulating marriage. Marriage has attained both social and
legal signif icance because of the active involvement of the State at every stage of
the marital relationship – during entry into it, during its subsistence, and in its
aftermath.
133. Marriage was earlier a purely social institution unregulated by the State.
What prompted the State to regulate personal relationships? There are two prominent reasons. The first reason was to regulate the social order. The State
regulated social order by firstly, regulating the sexual conduct of persons through
marriage, and secondly, by prescribing a legal mechanism for the devolution of
property based on the legitimacy of the heir.
134. With respect to the first of the reasons, the State used marriage as a tool to
regulate sexual behaviour.
122 The State prescribed social rules through the vehicle
of law by devising marriage as an exclusive relationship. Engaging in sexual
conduct outside of marriage is a ground for divorce under personal marriage laws and the civil marriage law. It is also cruc ial to note that impotency and not sterility
is a ground for divorce.
123 Impotency is the inability of a man to engage in sexual
intercourse. On the other hand, sterility is the inability of a man or a woman to
procreate. By prescribing impotency as a ground for declaring a marriage void (and
not sterility), the State emphasised the centrality of sexual relations in a marriage
122 Laurence Drew, Sex, ‘Procreation and the State Interest in Marriage, (2002) Columbia Law Review, Vol. 102 (4)
123 Section 27(1)(ii) of the SMA
114 as opposed to procreation. In this way, the State governs the conduct of society by
regulating sexual conduct in a marital relations hip.
135. Another manner in which the State intended to regulate social order by
regulating marriage is by placing marriage at the centre of property devolutions.
Ownership and control over property was viewed as being important for the
establishment of a just social order. One of the reasons for the establishment of a
social contract for the creation of a State by which individuals gave up their right to live as unregulated free individuals in exchange of protection of their rights and freedom is for safeguardi ng of property rights.
136. There must be rules for the devolution of property to avoid conflicts. These
rules may vary in nature. Societies may establish rules for a common property
system, or private property system, or a mixture of both. These legal rules have
two primary components which concern how the title over the property is secured
and how the title further devolves in case of intestate succession. Legal rules for
the devolution of title are premised on marriage in modern societies.
137. Brian H Bix in the paper “State interest and Marriage” argues that there is
sufficient material to establish that the State regulates marriage to respond to the
special interests of specific social groups.
124 It has been argued that the propertied
classes wanted to reduce any uncertainty about succession, which may have
arisen because of a lack of clarity regarding the line of succession. It has also been
argued that noble families desired to prevent their children’s marriages with
124 Brian H Bix, State Interest and Marriage - The Theoretical perspective, (2003) 32 HOFSTRA L. REV. 93
115 partners of lower social status. Irrespective of whether the State regulated marriage
to further entrench the existing social order or to transform the existing social order
based on constitutional values, it is clear that property also plays a prominent role
in the regulation of marriage.
138. The second reason for the State to be involved in the regulation of personal
relationships was to remodel society , premised on the constitutional value of
equality. A constitutional order premised on equality, dignity, and autonomy would
be unworkable if personal relationships which are the building blocks of a just society are grounded on values that are antithetical to the Constitution. The
Constitution declares that there shall be no discrimination on the grounds of
religion, race, caste, and sex. How would it be a just society if on the one hand the
Constitution declares that there shall be no discrimination, and on the other hand,
inter-faith and inter -caste relationships bear the brunt of a brutal society through
ostracization and “honour” killings or caste -based murders? How just would society
really be if in spite of the constitutional guarantees of equality of women in public
posts and educational institutions, they suffer patriarchal attitudes in the private
sphere?
139. The State regulates marriage to create a space of equal living where neither
caste, religion, and sex prevent any person from forming bonds for eternity nor do they contribute to the creation of an unequal relationship. The State’s regulation of
marriage recognised that even though a mar ried couple is a ‘unit’ for the purposes
of laws, they still retain their individual identity and are entitled to constitutional guarantees. For example, one of the parties need not necessarily be at fault for the
116 couple to secure divorce. Our laws recogni se divorce by mutual consent. They
recognise that the parties to a marriage are in the best position to decide if they
should continue with the marital relationship. Divorce by mutual consent is
grounded on the principle of autonomy. The involvement of the State in the
regulation of marriage opened up the space for inter -caste marriages and inter -
faith marriages, and secured prominent constitutional rights.
140. The regulation by the State and its attempts to create a more equal personal
sphere also contribute towards factual equality where women are empowered to
defy patriarchal notions of gender roles in daily life. The impact of the State’s
involvement in creating a more just personal space by reforming the institution of
marriage on the basis of constitutional ideals can be seen when a wife chooses to
retain her surname after her marriage or where the partners equally contribute
towards raising their child.
141. The State recognised that a Constitution which upholds the values of
freedom, liberty, and equality cannot permit the sustenance of a feudal institution
undermining the rights of marginalised communities. Thus, it is important to view
the involvement of the State in regulating the institution of marriage in terms of its transformative potential in ensuring equality in the personal sphere and in family
life.
142. Having discussed why and how the State regulates the institution of
marriage, it is important that this Court recognise the effect of such regulation. Apart from the benefits of the State’s involvement which are recognised above (that
is, in creating a social order in consonance with the principles laid down in the
117 Constitution), there are other benefits. These benefits can be segregated into
tangible and intangible benefits.
143. The intangible benefits of marriage are guided by hidden law. Hidden law
comprises of norms and conventions which organize social expectations and
regulate everyday behaviour.125 The benefits which are conferred by a legal
institution must not be measured solely in terms of the benef its which are conferred
by the law. It must also include the benefits which are conferred by hidden law.
These are benefits which are not traceable to law but which are created by norms. One such benefit of marriage which is traceable to hidden law is the social validity
and recognition which marriage as an institution confers upon relationships.
144. It is pertinent to note that the State only regulates heterosexual marriages.
The law confers numerous rights and benefits which flow from a marriage but
ignores the existence of any other form of relationship. The invisibilization of
relationships which are not in the form of marriage on the one hand bestows sanctity and commitment to marriages and on the other hand strengthens the
perception that any other form of relationship is fleeting and non- committal.
145. The DV Act has come the closest to recognising the existence of
relationships in forms other than marriage. The Act defines “domestic relationship” as a relationship between two persons who live together in a s hared household,
when they are related by consanguinity, marriage, or ‘through a relationship in the nature of marriage. In Indra Sarma v. VKV Sarma
126, the issue before this Court
125 Jonathan Rauch, ‘Conventional Wisdom ’, (Reasons, February 2000)
118 was whether live- in relationships can be considered to be a relationship in the
nature of marriage. A two- Judge Bench of this Court observed that a relationship
in the nature of marriage is distinct from a marriage. It was further observed that
for a relationship to be considered to be in the nature of marriage, factors such as
the duration of the relationship, whether the couple live in a shared household, the
pooling of resources and financial arrangements such as long- term investment
plans which indicate the existence of a long standing relationship, and domestic
arrangements such as entrusting the responsibility especially on women to run the household and do household activities, the sexual relationship, procreation,
socialisation in public, and the intention and conduct of the parties must be
considered.
146. The observations of t his Court in Indra Sarma (supra) elucidate that a
relationship is in the nature of marriage only when an inference can be drawn from
the surrounding circumstances that it will be a long- lasting relationship. Thus, while
there is a positive presumption that marriages are long- lasting, there is also a
negative inference that all other relationships which are not in the form of marriage
are short -lived.
147. In addition, the observations of this Court in Indra Sarma (supra) indicate
that marriage has always been understood and continues to be understood in terms of the stereotyped traditional gender roles. The wife is entrusted with the
responsibility of taking care of household chores and the husband is expected to
be the breadwinner of the family. The public -private divide is stark. Women are
relegated to the private sphere where their contribution towards running the
119 household is diminished. An inherent feature of the institution of marriage is the
unequal heteronormative setting in which it operates. It is important for us to
observe that the State while recognising the relationship between two heterosexual
individuals in the form of marriage does not recognise or promote the gendered
division of labour in the home. The State by regulating marriage has sought to
redefine heterosexual relationships by emphasising on the autonomy of both parties.
148. The intangible benefits of marriage extend beyond the conferment of social
recognition to the relationship of the couple. It also confers benefits which cannot
be measured in tangible form to the children born of the marital relationship. The
law confers o n children who are born of wedlock with benefits in succession. In
addition, the law’s recognition of the concepts of legitimate and illegitimate children have social repercussions in that illegitimate children are shunned by the society.
These intangible benefits of marriage indicate that society regards marriage as the
primary and sole unit through which familial relationships can be forged. As
Marshall CJ observed in Goodridge v. Department of Public Health ,
127 in a very
real sense, there are three partne rs in a civil marriage: two willing partners and an
approving State.
149. There are numerous tangible benefits conferred by the State which flow from
marriage and touch upon every aspect of life. Tangible benefits conferred by
marriage can be classified into ( i) matrimonial and child care related benefits; (ii)
127 798 N.E.2d 941 (Mass. 20003)
120 property benefits; (iii) monetary benefits; (iv) evidentiary privilege; (v) civic benefits;
and (vi) miscellaneous benefits.
150. Matrimonial and child care related benefits include the provisions of
permanent alimony and maintenance,128 maintenance if a person with sufficient
means refuses to maintain his wife129, to adopt a child as a couple130, and to avail
rights related to surrogacy131. Property benefits would include securing a share in
case of intestate s uccession132. Legislation such as Section 16 of the HMA has
conferred legitimacy on children born from void or voidable marriages with a
consequential right to or in the property of the parents (and not of any other
person). Monetary or financial benefits w hich flow from marriage include the
provisions to be nominated for the payment of gratuity133, to receive funeral
expenditure for the deceased spouse, 134 for the payment of medical benefits to the
spouse of the insured person,135 and to claim provident fund as the dependent of
128 Section 25 of the Hindu Marriage Act 1955; Section 37 of Special Marriage Act 1954 stipulates that the court
can direct the husband to pay maintenance to his wife; Section 40 of the Parsi Marriage and Divorce Act 1936;
Section 37 of the Divorce Act 1869 where the District Court is conferred with the power to secure maintenance to
the wife from the husband.
129 Section 125 of CrPC
130 Section 57 of the Juvenile Justice (Care and Protection of Children) Act 2015 prescribes eligib ility criteria for
the adoption of children. The provision stipulates that if a couple wants to adopt, then the consent of both the spouses are required. However, the sub-section (5) of the provision states that any other criteria specified in the
adoption regulations frame Authority shall be followed. Clause 5(3) of the Adoption Regulations dated 23.9.2022
(G.S.R. 726(E)) notified by the Ministry of Women and Child Development in exercise of powers conferred under
Section 68(c ) read with Section 2(3) of the Juvenile Justice (Care and Protection of Children) Act 2014 prescribes
that a child shall be given in adoption only if they have been in a stable two year marital relationship.
131 Section 2(e) of the Assisted Reproductive Technology (Regulation) Act 2021 defines a commissioning couple
as an infertile married couple who approach an assisted reproductive technology clinic or bank for services; Section
4(c)(II) of the Surrogacy (Regulation) Act 2021 stipulates that the eligibility condition for an intendi ng couple to avail
the services of surrogacy is that the intending couple must be married and between the age of 23 to 50 years in
case of female and 26 to 55 in case of a male.
132 Hindu Succession Act 1956 and the Indian Succession Act 1925.
133 Section 55 of the Code of Social Security 2020 provides that each employee who has completed one year of
service shall nominate from his family for the payment of gratuity. Section 55(3) states that any nomination made
by the employee in favour of a person who is not a member of his family shall be void.
134 Section 32 of the Code of Social Security 2020 stipulates that the eldest surviving member of the family (which
has been defined to include spouse) of an insured person shall receive payment towards the expenditure on the
funeral.
135 Sections 32 and 39 of the Code of Social Security 2020
121 a deceased spouse.136 Additionally, the provisions of the Income Tax Act 1961
provide numerous tax benefits for payments made on behalf of the spouse. For
example, Section 80C of the Income Tax Act 1961 permits deduction of the
insurance premia paid for the spouse’s life insurance policy and Section 80D
permits deduction of expenses towards the premium of spouses health insurance.
151. Evidentiary privilege includes the privilege accorded to communications
during marriage under the Indian Evi dence Act 1872137. Civic benefits include the
provision to apply for citizenship or to be an overseas citizen of India by virtue of the spouse’s citizenship
138. Miscellaneous benefits include other benefits under
law which cannot be grouped under the above categories which inter alia includes the recognition of a spouse as a ‘near relative’ for the purpose of the
Transplantation of Human Organs and Tissues Act 1994
152. At this juncture, it is important to recall the submission made by the learned
Solicitor General that even today, as the law exists, there is no prohibition against two queer persons holding a marriage ceremony. However, they would not be
recognised as mar ried partners by State and non- State entities for the purposes of
the law. The non- recognition of non- heterosexual marriages denies the petitioners
the social and material benefits which flow from marriage which captures the true essence of marriage. Acces s to the institution of marriage is crucial to “individual
136 Section 2(c ) of the Provident Funds Act 1925 defines a dependent to include a wife or a husband. Section 3 of
the Act stipulates that the sum standing to the credit of any subscriber shall be paid to any dependent.
137 Section 122 of the Indian Evidence Act 1872 states that no person who is or has been married shall be compelled
to disclose any communication made during marriage.
138 Section 5 of the Citizenship Act 1955 states that citizenship can be acquired through naturalization by a person
who is married to a citizen of India and is ordinarily resident in India for seven years. Section 7A stipulates a foreign
origin person whose spouse is a Indian citizen or overseas citizen of India shall apply for OCI if their marriage is
registered and they have lived in India for a continuous period of two years.
139 Section 2(i) of the Act defines “near relative” to include a spouse.
122 self-definition, autonomy, and the pursuit of happiness”140 because of these
expressive and material benefits which flow from marriage.
v. The nature of fundamental rights: positive and negative postulates
153. Before we embark on an analysis of whether the Constitution recognises the
right to marry, it is imperative that we discuss how the courts recognise
unenumerated rights or derivative rights. The Ninth Amendment to the US
Constitution states that the “enumeration in the Constitution of certain rights shall
not be construed to deny or disparage others retained by the people”. Though the
Indian Constitution does not contain such a provision, it is implied that the rights enumerated in Part III are not exhaustive. The fundamental rights recognised in
Part III are identified in the level of abstraction- that is, equality, liberty, and
expression. The Constitution does not provide a detailed enumeration of the facets of each enumerated right. The Courts, while determining the scope of an
enumerated right, lay down its facets and conceptions. For example, Courts have
held that the true essence of the right to equality is not encompassed in formal
equality where all persons are treated alike irrespective of the unequal socio-
economic status but in substantive equality.
141 Similarly, this Court has in
numerous judgments held that the right to life and liberty recognised under Article
21 would be obscure if other crucial facets of liberty are not recognised. It is in this
140 Martha C. Nussbam, A right to marry? (2010) California Law Review Vol 98 (3)
141 State of Kerala v. NM Thomas, 1976 SCR (1) 906
123 vein that this Court recognised, inter alia, the right to livelihood,142 the right to
speedy trial,143 and the right to education.144
154. Fundamental rights are characterized as positive rights and negative rights.
In fact, some draw a distinction between fundamental rights (Part III) and the
Directive Principles o f State Policy (Part IV) by arguing that the former consists of
negative rights and the latter of positive rights. In constitutional theory, negative rights are understood to involve freedom from governmental action whereas,
positive rights place a duty on the State to provide an individual or a group with
benefits which they would not be able to access by themselves.
155. Indian jurisprudence on the scope of fundamental rights can be divided into
two thematical facets. In the first facet, the distinction between negative rights and
positive rights faded with the harmonious reading of fundamental rights and
Directive Principles of State Policy by the courts.
145 The Courts used the Directive
Principles to inform the scope of fundamental rights. In Unnikrishnan v. State of
Andhra Pradesh146, the issue before this Court was whether the Constitution
guarantees a fundamental right to education to its citizens. This Court held in the affirmative and traced the right to Article 21 and the Preamble of the Constitution. Jeevan Reddy, J. writing for the majority observed that education is of
transcendental importance in the life of an individual without which the objectives set forth in the Preamble cannot be achieved. It was further emphasised that the
Constitution expressl y refers to education in Articles 41, 45, and 46 of the
142 Olega Tellis v. Bombay Municipal Corporation, 1985 SCC (3) 545
143 Hussainara Khatoon v. Home Secretary, (1980) 1 SCC81
144 Unnikrishnan v. State of AP, (1993) 1 SCC 645
145 Also see Mohd. Hanif Qureshi v. State of AP, 1959 SCR 629
124 Constitution which indicates the importance conferred to it. However, this Court
limited the scope of the right to education in view of Article 45 which states that the
State shall endeavour to provide free and compulsory education for all children
until they complete the age of fourteen years. Thus, this Court held that the
Constitution guarantees a right to free education for all children until they complete
the age of fourteen years.
156. In the second facet, the Courts read fundamental rights to include both
negative and positive postulates independent of the Directive Principles of State
policy. YV Chandrachud, C.J. writing the opinion for the majority in Minerva Mills
v. Union of India ,147 observed that fundamental rights deal with both negative and
positive postulates. In Indibily Creative Private limited v. Government of West
Bengal148, one of us (DY Chandrachud, J. as he then was) observed that Article
19 imposes a negative restraint on the State to not interfere with the freedoms of
all citizens and a duty on the State to ensure that conditions for the free and
unrestrained exercise of the freedom are created. In Justice KS Puttaswamy (9J)
(supra), a nine- Judge Bench of this Court held that the Const itution guarantees the
right to privacy. This Court expressly held that the right to privacy includes both negative and positive postulates. The negative postulate consists of the right to be
left alone and the positive postulate places a duty on the State to adopt measures
for protecting and safeguarding individual privacy.
149 Plurality opinion authored by Justice DY Chandrachud (paragraph 158)
125 157. The second facet on the scope of fundamental rights is now cemented in
Indian constitutional jurisprudence. Fundamental rights consist of both negative
and positive postulates preventing the State from interfering with the rights of the
citizens and creating conditions for the exercise of such rights respectively. This
understanding of fundamental rights is unique to Indian constitutional
jurisprudence. Fundamental rights have been construed in this wide manner by
Indian Courts because of the constitutional conception of the role of the State.
Viewing fundamental rights purely as negative rights runs the risk of undermining the role of the State.
158. Fundamental rights are not merely a restraint on the power of the State but
provisions which promote and safeguard the interests of the citizens. They require
the State to restrain its exercise of power and create conducive conditions for the
exercise of rights. If such a positive obligation i s not read into the State’s power,
then the rights which are guaranteed by the Constitution would become a dead letter. This is because the question of whether the State is curtailing the rights of
citizens would only arise if the citizens have the capacit y and capability to exercise
such rights in the first place.
159. Thus, if the Constitution guarantees a fundamental right to marry then a
corresponding positive obligation is placed on the State to establish the institution
of marriage if the legal regime does not provide for it. This warrants us to inquire if
the institution of marriage is in itself so crucial that it must be elevated to the status
of a fundamental right. As elucidated in the previous section of this judgment,
marriage as an institution has attained social and legal significance because of its
126 expressive and material benefits. This Court while determining if the Constitution
guarantees the right to marry must account for these considerations as well.
vi. Approaches to identifying unenumerated rights
160. The courts identify unenumerated rights by tracing them either to specific
provisions of Part III of the Constitution or to the chief values which the Constitution espouses. The premise of this exercise undertaken by courts is that the rights
guaranteed in Part III of the Constitution can only be effectively secured if certain
other entitlements are safeguarded. That is, the rights guaranteed expressly by the Constitution would remain parchment rights, if conditions for the effective exercise
of them ar e not created. To put it differently, rights will only be secured if citizens
possess capabilities to exercise the right.
150 In fact, the positive and negative
postulations of fundamental rights arise from this broad understanding of the
purpose served by f undamental rights. In this method of deriving rights, the court
traces unenumerated rights to specific provisions of the Constitution such as liberty (Article 21) or freedom of expression (Article 19) or equality (Article 14).
161. In the second method used by courts to derive unenumerated rights, rights
are not traced to specific fundamental rights but to the values or the identity of the
Constitution. This method of deriving unenumerated rights attained prominence
after the judgment of this Court in RC Cooper v. Union of India
151 which held that
fundamental rights are not water -tight compartments and that the thread of
reasonableness contemplated in Article 14 runs through Article 21 aswell. The
150 Martha C Nussbaum, Capabilities as fundamental entitlements: Sen and Social Justice, (2003) Feminist
Economics 9 (203) 33
127 aspirational values of the Indian Cons titution reflected in the preamble is to secure
justice, liberty, equality, and fraternity to all its citizens. However, constitutional
identity is not readily borrowed from preambular values. Constitutional identity is
secured by a gradual process which i s characterized by a dialogue between the
institutions of governance (such as the legislature, the executive, the courts, and the statutory commissions) and the public over internal and external
dissonances.
152 There is external dissonance when there is an apparent conflict
between a Constitution’s aspirational ideals and the socio- political reality.153 It is
characterized by internal dissonance when there is a conflict between the provisions of the Constitution. The Indian jurisprudence on the equality code is an
apt example of how constitutional identity has evolved through dialogue between various stakeholders to advance the conception of factual equality. This Court has
been using both the above mentioned approaches to identify unenumerated rights.
For example, this Court in Justice KS Puttaswamy (9J) held that the Constitution
guarantees the right to privacy by using both the specific rights approach and the identity approach. This Court grounded the right to privacy in the concepts of
liberty,
154 freedom,155 dignity,156 and the idea of individual self -development which
runs through the provisions of the Constitution.157
152 Gary Jeffrey Jacobson, Rights and American Constitutional identity, (2011) Vol. 43 (4) 409
153 ibid
154 Opinion of Ju stice Chelameshwar
155 Opinion of Justice DY Chandrachud
156 Opinion of Justice Bobde
157 Opinions of Justice RF Nariman and Justice Sapre
128 vii. The scope of the State’s regulation of the ‘intimate zone’
162. The learned Solicitor General made the following two arguments: (i ) Intimate
relationships, whether between homosexual or a heterosexual couples cannot be
subject to State regulation because it falls in the ‘intimate zone of privacy’; (ii) The
State regulates heterosexual marriages only because there is public interest i n
sustaining the human population through procreation.
163. For this Court to determine if the State has a duty to confer recognition upon
all relationships, it must firstly delineate the contours of the State’s regulation of
intimate relationships vis -à-vis privacy concerns. The plurality opinion authored by
one of us (Justice D.Y. Chandrachud) in Justice KS Puttaswamy (9J) (supra), while discussing the scope of the right to privacy, refers to an article titled “A
typology of privacy”
158 which classifies privac y into nine categories.
164. In addition to listing various forms of privacy, the authors have also classified
the forms of privacy based on those which are necessary for the fulfilment of the
freedom to be let alone and the freedom to self -development. The intimate zone of
privacy subsumes spatial privacy (which corresponds to the freedom to let alone) and decisional privacy (which corresponds to the freedom of self -development).
The formation of human relationships falls within the intimate zone because
relationships are relegated to the sphere of the home or the private zone and they
involve intimate choices.
158 Bert-Jaap Koops et al., “A Typology of Privacy”, (2017) University of Pennsylvania Journal of International Law
(2017), Vol. 38(2) 566
129 165. The intimate zone is shielded from State regulation because relationships
operate in a ‘private space’ and decisions taken in a private space in exerci se of
an individual’s autonomy (such as the choice of partner, or procreation) are ‘private
activities.’ This Court in Justice KS Puttaswamy (9J) (supra) held that privacy is
intrinsic to the realization of constitutional values and entrenched fundamental
rights. The judgment emphasized the importance of being left alone and the
autonomy of individuals to take crucial decisions affecting their personhood, such
as procreation and abortion.159
166. At this juncture, it must be noted that the Indian Constitution does not
recognize family or partnerships as a unit for securing rights. For example, the Irish Constitution recognizes the family as a natural unit of society and a moral institution
possessing inalienable rights.
160 The Constitution by not recognizing the f amily as
a rights bearing unit has rejected the school of thought where rights of individuals in a family or partnership are subsumed within the larger unit of the family. The
Constitution does not promote a framework of rights where the rights of a family
are given precedence over individual rights of citizens constituting that family.
167. Relegating actions to the ‘private’ zone has certain shortcomings. The
disadvantage must be understood in consequentialist terms, that is, by identifying
the effect of clas sifying certain activities as ‘private.’ One of the prominent effects
of classifying actions as ‘private’ is that such actions are protected from regulation by the State.
159 Paragraphs 90 and 157 and conclusion (F) of Justice DY Chandrachud’s opinion; paragraph 46 of Justice RF
Nariman’s opinion; paragraph 78 of Justice SK Kaul opinion 8
160 Article 41 of the Irish Constitution stipulates that the State pledges to guard with special care the institution of
marriage on which the family is founded.
130 168. Depending on how relationships are organized and managed, they can be
“a beacon of freedom, or a prison.”161 While there are relationships which are
characterized by love, mutual -respect, and devotion to one another, certain
relationships are also characterized by the hierarchical power structure in which
they operate. Identities such as caste, religion, gender and sexuality more often
than not contribute towards the unequal power structure in the private sphere. To recall, in a segment above, we observed that the State’s interest in regulating
relationships in the form of marriage is to democratize the private space by
ensuring that actions in the intimate space are in consonance with constitutional
values. For the reasons in the preceding paragraph, the argument of the learned
Solicitor General that the State regulates relationships in the form of marriage
solely because they result in procreation is erroneous. The State’s interest in
democratizing personal relationships is not specific to the institution of marriage.
The State’s regulation of marriage is merely one of the many ways by whi ch it can
fulfill these State aims. However, it is open to the State to use other forms of regulation to fulfill the interests identified above. There is public interest in the
State’s regulation of all relationships because relationships involving two per sons
may be unequal by their very nature. Scholars have emphasized that the
democratization of personal relationships serves two purposes. First, it contributes
towards eliminating the inequality of the power structure in a relationship thereby
preventing exploitation and subjugation; and second, it contributes towards
161 Tammy R Pettinato, “Transforming Marriage: The Transformation of Intimacy and the Democratizing Potential
of Love” JL & Fam. Stud. 9, 101
131 creating a more independent and self -sufficient citizenry which would have the
ability to see alternative viewpoints.162
169. The withdrawal of the State from the domestic space leaves the
disadv antaged party unprotected since classifying certain actions as being private
has different connotations for those with and without power. In the case of personal
relationships which are characterized by inequality, the actions of the more
powerful person gains immunity from scrutiny and a degree of legitimacy.163 Thus,
all activities in the ‘private space’ dealing with intimate choices must not readily
and blindly be categorized to be beyond the scope of the State’s regulation. The
State must assess if its i nterest in democratizing the private space overrides the
interests of privacy in a given situation.
170. The State has identified specific areas in the private sphere where the
interest in democratizing that space overrides the interests of privacy. For exampl e,
the State regulates relationships which are in the nature of marriage through the
DV Act. The preamble to the DV Act provides that the statute was enacted to
protect the rights of women “who are victims of violence of any kind occurring within
a family. ” The Act regulates the conduct of persons in a domestic relationship which
has been defined as a relationship between two persons who live together in a
shared household where they are related by marriage, a relationship in the nature
of marriage, adoptio n, or consanguinity. By criminalizing actions of domestic
violence against women, the State recognizes that there is an unequal power
162 ibid
163 Frances Olsen, “Constitutional law: Feminist Critique of the public/private distinction” Vol. 10 (1993),
Constitutional Commentary, p. 319 (1990)
132 structure which operates in heterosexual relationships. The State also recognizes
that the party with lesser power and aut onomy may be subjected to violence and
suppression and consequently, seeks to democratize the space through regulation.
171. However, in certain other circumstances, the State and the Courts have
recognized that there is no State interest in regulating the personal space. For
example, this Court has recognized that Article 21 protects a woman’s reproductive choices which includes whether she wants to terminate her pregnancy.
164 The
Medical Termination of Pregnancy Act 1971 recognizes the decisi onal autonomy
of women over procreation, which is an intimate aspect of their lives. In very narrow circumstances, the State regulates intimate choices about child birth and
procreation. For example, the Pre -conception and Pre- natal Diagnostic
Techniques ( Prohibition of Sex Selection) Act 1994 regulates the intimate zone by
prohibiting sex -selection before and after conception. In this case, the State
recognizes that the interest in preventing female foeticide and infanticide overrides the privacy interests and decisional autonomy of individuals.
The argument that the State has an interest in regulating heterosexual marriages
only to sustain society through procreation is fallacious because the state does not
impose a compelled choice of procreation on marr ied heterosexual couples.
Moreover, heterosexual couples need not be married to procreate nor is marriage a criteria for procreation.
164 See Deepak Gulati v. State of Haryana, (2013) 7 SCC 675
133 viii. The right to marry
a. Have the courts recognised the right to marry ?
172. The petitioners submit that this Court has held that the Constitution
guarantees the right to marry in Shafin Jahan (supra) and Shakti Vahini (supra).
In Shafin Jahan (supra), Ashokan, the father of Akhila alias Hadiya moved a
habeas corpus petition before the High Court of Kerala with the apprehension that his daughter was likely to be transported out of the country. During the course of
the hearing, the High Court was informed that she had married the petitioner.
However, the High Court allowed the petition and directed that (i) Hadiya shall be
escorted from t he hostel in which she was residing to the house of the father; and
(ii) the marriage between Hadiya and Shafin Jahan was void. The High Court observed that twenty -four year old Hadiya was capable of being exploited and that
the Court is concerned with her welfare in exercising parens patriae jurisdiction.
On appeal, this Court set aside the judgment of the High Court. Dipak Misra, C.J.
writing for the majority observed that Hadiya was entitled to choose a partner of
her choice and curtailing the expression of choice would amount to clipping a
person’s identity. One of us (D.Y. Chandrachud, J. as he then was) authoring the concurring judgment observed that the High Court’s exercise of jurisdiction to
declare the marriage null and void amounted to judicial overreach. This Court
observed that the choice of a partner, whether within or outside of marriage lies in the exclusive domain of the individual, and that the State cannot dictate or limit the
freedom to choose a partner. In this context, this Court obser ved that the right to
134 marry a person of one’s choice is integral to Article 21 of the Constitution. The
relevant observations are extracted below:
“84. […] The absolute faith of an individual to choose a life
partner is not in the least affected by matters of faith. The
Constitution guarantees to each individual the right freely to
practise, profess and propogate religion. Choices of faith and
belief as indeed choices in matters of marriage lie within an areas where individual autonomy is supreme. The law
prescribes conditions for a valid marriage. It provides
remedies when relationships run aground. Neither the
State not the law can dictate a choice of partners or limit the free ability of every person to decide on these
matters.
86. The right to marry a person of one's choice is integral to
Article 21 of the Constitution. The Constitution guarantees the
right to life. This right cannot be taken away except through a
law which is substantively and procedurally fair, just and
reasonable. Intrinsic to the liberty which the Constitution
guarantees as a fundamental right is the ability of each
individual to take decisions on matters central to the pursuit of
happiness. Matters of belief and faith, including whether to
believe are at the core of constitutional liberty. […] Society has
no role to play in determining our choice of partners.
88.[…] Intimacies of marriage, including the choices which
individuals make on whether or not to marry and on whom to
marry, lie outside the control of the State. Courts as upholders
of constitutional freedoms must safeguard these freedoms.”
(emphasis supplied)
173. In Shakti Vahini (supra), proceedings under Article 32 of the Constitution
were instituted seeking directions (i) to State Governments and the Central
Government to initiate steps to combat “honour crimes” or caste- based or religion-
based murder and submit a national plan of action and a State plan of action to
curb such crimes; (ii) to direct State Governments to constitute special cells in each
district; and (iii) t o launch prosecutions in each case of “honour killing” or caste-
135 based or religion- based murder. This Court disposed of the writ petition by directing
preventive steps, remedial measures, and punitive measures to curb honour
killings. Writing for a three- Judge Bench, Dipak Misra, C.J. observed that the ability
of an individual to make choices is an inextricable part of dignity and “that when two adults choose to marry out of their own volition […] they have a right to do
so.”
174. In Justice KS Puttaswamy (9J) (supra), Justice Nariman (in his concurring
opinion) observed that the right to privacy extends beyond the right to be let alone to recognising the vital personal choices such as the right to abort a fetus, and the
right of same sex to marry. In Navtej (supra), this Court while decriminalising
homosexuality did not hold that the Constitution recognises a right to marry. Dipak Misra, C.J. writing for the majority held that an individual has a right to a union
which encompasses physical, mental, sexual or em otional companionship under
Article 21 of the Constitution.
175. In Shafin Jahan (supra) and Shakti Vahini (supra), the issue before this
Court was whether State or non- State actors could interfere with a person’s choice
of whom to marry. The law prescribes c ertain essential conditions for a valid
marriage. In both these cases, this Court dealt with situations where State or non-
State actors prevented a couple which was otherwise entitled to marry, from
marrying. In the case of Shafin Jahan (supra), the restri ction was sought to be
imposed because the partners belonged to different religions and in Shakti Vahini (supra), this Court dealt with the issue of restraints placed by the society on the
165 Paragraph 45 of the judgment.
136 exercise of a person’s right to marry a person of a difference cast e and religion. In
Shafin Jahan (supra) this Court held that religion and caste cannot be
impediments in the exercise of a person’s right to choose whom to marry. In Shafin
Jahan (supra) this Court held that no State or non- State entity can interfere with
their right to marry a person of their choice.
176. Neither the majority in Justice KS Puttaswamy (9J) (supra) nor the majority
in Navtej (supra) hold that the Constitution guarantees the right to marry.
Moreover, the opinion of Justice Nariman in Justice KS Puttawamy (9J) (supra)
only made a passing reference to the right to marry. It did not trace the right to
marry to any of the entrenched fundamental rights nor did it comment on the scope
of such a right. In Justice KS Puttaswamy (9J) , the issue before this Court was
whether the Constitution recognises a right to privacy. Thus, this case did not
address the issue of whether the Constitution recognises the right to marry. It now
falls upon this Court for the first time to decide if the Constitution recognises such a right.
b. There is no fundamental right to marry
177. The petitioners relied on the judgment of the US Supreme Court in
Obergefell (supra) in which the right to marry was recognised as a fundamental
right. In Obergefell (supra), the Supreme Court of the United States held that the
Fourteenth Amendment of the Constitution of the United States imposes a positive
obligation on the State to license a marriage between two people of the same sex.
In Michigan, Kentucky, Ohio, and Tennessee, marriage was defined as a union
between one man and one woman. The petitioners (who were same- sex couples)
137 claimed that their exclusion from the institution of marriage violated the Fourteenth
Amendment of the US Constitution.166 The petitioners filed suits in US district
courts in their home States. The district courts ruled in their favour. On appeal, the United States Court of Appeal consolidated the cases and reversed the judgment
of the District Court holding that the State has no constitutional obligation to license
same -sex marriages or to recognise same -sex marriages performed out of State.
178. The issue before the US Supreme Court was not whether the Constitution
recognises the right to marry but whether the Fourteenth Amendm ent requires a
State to license a marriage between two people of the same- sex. Various decisions
of the US Supreme Court had already recognised the right to marry.
167 Justice
Kennedy (writing for the majority) observed that the right to marry consists of the
following four components: (i) the right of choice; (ii) the protection of intimate
association by supporting the union of two persons; (iii) safeguards for children and
families, and (iv) cornerstone of social order because marriage is the basis for
governmental rights, benefits, and responsibilities.
179. The opinion of the majority held that the components of marriage are not
exclusive to heterosexual couples. Thus, the State by not recognising a same- sex
union (which is legal) and by not granting benefits which accrue from a marriage
was held to be treating same -sex couples unequally, violating the equal protection
clause.
166 Section 1 to the Fourteenth Amendment to the US Constitution states that no State shall deprive any person of
life, liberty, or property without due process of law and equal protection of the laws.
167 In Loving v. Virginia, 388 U.S 1, 12 (1967), the US Supreme Court invalidated bans on inter -racial unions holding
that marriage is one of the vital personal rights essential to the orderly pursuit of happiness by free men; In Turner
v. Safley, 482 U.S. 78, 95(1987) the US Supreme Court held that the right to marry was abridged by regulations
limiting the privilege of prison inmates to marry.
138 180. Earlier judgments of the US Courts had held that marriage is a civic right
because it is fundamental to existence and survival168, is part of the fundamental
right to privacy169, and essential to the orderly pursuit of happiness.170 It was also
held that without the right to marry, one is excluded from the full range of human
experience and is denied “full protection of the laws for one’s avowed commitment
to an intimate and lasting relationship.”171 The jurisprudence which has emanated
from the US Courts indicates that the right to marry is recognised as a fundamental right because of the benefits (both expressive and material) attached to it.
181. Entry 5 of the Concurrent List of the Seventh Schedule to the Constitution
grants both the State legislature and Parliament the power to enact laws with respect to marriage. The provision reads as follows:
“Marriage and divorce; infants and minors; adoption; wills,
intestacy and succession; joint family and partition; all matters
in respect of which parties in judicial proceedings were
immediately before the commencement of this Constitution
subject to their personal law.”
(emphasis supplied)
182. In pursuance of the power conferred by Articles 245 and 246 read with Entry
5 of the Concurrent List, Parliament has enacted laws creating and regulating the
socio -legal institution of marriage. The State legislatures have made amendments
to such laws with the assent of the President, since the subject of marriage is in
the Concurrent list. The petitioners seek that the Court recognise the right to marry
as a fundamental right. As explained above, this would mean that even if
168 Skinner v. Oklahoma, 316 U.S 535
169 Zablocki v. Redhail, 434 U.S 374
170 Loving v. Virginia, 388 US 1
171 Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass.2003)
139 Parliament and the State legislatur es have not created an institution of marriage in
exercise of their powers under Entry 5 of the Concurrent list, they would be
obligated to create an institution because of the positive postulate encompassed
in the right to marry. This argument cannot be accepted.
183. As explained in the previous section, the State through the instrument of law
characterises marriage with two constituent elements: the expressive component
and the material component. Marriage may not have attained the social and legal
significan ce it currently has if the State had not regulated it through law. Thus, while
marriage is not fundamental in itself, it may have attained significance because of
the benefits which are realised through regulation.
184. This Court in Justice KS Puttaswamy (9J) (supra) while holding that
privacy is a fundamental right was not guided by the content given to privacy by
the State. This Court was of the opinion that if the right to privacy is not secured,
the full purport of the rights entrenched in the Constitution could not be secured.
Similarly, this Court in Unnikrishnan (supra) held that the right to education is a
fundamental right. The right to education was derived from the provisions of the
Directive Principles of the State Policy and their centrality to development of an
individual. Entry 25 of the Concurrent list authorizes Parliament and State
legislatures to enact laws on “education.” The State in pursuance of this power
has enacted numerous legislations relating to education such as laws establishing and regulating universities and colleges. However, the right to education was held
to be a fundamental right, not because of any statute or law but because of its
centrality to the values that the Constitution espouses. The arguments of the
140 petitioners that the Constitution recognises a right to marry is hinged on the
meaning accorded to marriage by statutes, which cannot be accepted.
185. The Constitution does not expressly recognize a fundamental right to marry.
Yet it cannot be gainsaid that many of our constitutional values, including the right
to life and personal liberty may comprehend the values which a marital relationship
entails. They may at the very least entail respect for the choice of a person whether
and when to enter upon marriage and the right to choose a marital partner.
c. The challenge to the SMA
I. The scheme of the SMA
186. The SMA was enacted to provide a special form of marriage for couples
belonging to different religions and castes. Section 4 of the SMA prescribes conditions relating to the solemnization of special marriages. The relevant portion
of the provision is extracted below:
“4. Conditions relating to solemnization of special
marriages.―Notwithstanding anything contained in any other law for the time being in force relating to the solemnization of
marriages, a marriage between any two persons may be
solemnized under this Act, if at the time of the marriage the following conditions are fulfilled, namely:―
(a) neither party has a spouse living;
[(b) neither party ―
(i) is incapable of giving a valid consent to it in consequence of unsoundness of mind; or
(ii) though capable of giving a valid consent, has been suffering from mental disorder of such a kind or to such an
141 extent as to be unfit for marriage and the procreation of
children; or
(iii) has been subject to recurrent attacks of insanity
(c) the male has completed the age of twenty -one years and
the female the age of eighteen years ;
(d) the parties are not within the degrees of prohibited
relationship:
Provided that where a custom governing at least one of the
parties permits of a marriage between them, such marriage
may be solemnized, notwithstanding that they are within the
degrees of prohibited relationship;
(emphasis supplied)
187. Section 4(a) and (b) use the gender -neutral word ‘party.’ However, Section
4(c) stipulates that the male must have completed twenty -one y ears and the
female must have completed eighteen years. Section 4(d) stipulates that the
parties should not be within the degrees of prohibited relationship. Section 2(b)
defines “degrees of prohibited relationship: as follows:
“(b) “degrees of prohibited relationship” -a man and any of the
persons mentioned in Part I of the First Schedule and a
woman and any of the persons mentioned in Part II of the
said Schedule are within the degrees of prohibited
relationship.
(emphasis supplied)
188. Part I of the Fi rst Schedule consists only of women’s relationships with men,
such as mother and daughter. Part II of the First Schedule consists only of men’s
relationships with women, such as father and son. The conditions stipulated in
142 Section 4 when read with the defi nition of prohibited relationship in Section 2(b),
limit the application of the SMA to heterosexual unions.
189. Chapter IV of the enactment lays down the consequences of marriage under
the SMA. Section 19 stipulates that the marriage solemnized under the SMA of any
member of an undivided family who professes the Hindu, Buddhist, Sikh, or Jain
religions shall be deemed to effect their severance from such family. Section 20
provides that subject to the provisions of Section 19, any person whose marriage
is solem nized under this Act shall have the same rights and shall be subject to the
same disabilities in regard to the right of succession as a person to whom the Caste
Disabilities Removal Act 1850 applies. The Caste Disabilities Removal Act 1950
provides that any law or usage which inflicts the forfeiture of rights or property, or
which would affect the right of inheritance because of renouncing religion, having
been excluded from the communion of religion, or being deprived of caste shall
cease to be enforced by law. Thus, subject to Section 19 of the Act, a person’s right to inheritance shall be not forfeited because they married a person of another
religion or cast e.
190. Section 21 states that succession to the property of any person whose
marriage is solemnized under this Act shall be regulated by the provisions of the Indian Succession Act 1925. Section 21A provides a special provision in certain
cases. The provision states that Sections 19, 20 (to the extent that it creates a
disability), and 21 shall not apply when a marriage is solemnized between a person who professes the Hindu, Buddhist, Sikh, or Jain religion with a person who
professes the Hindu, Buddhist, Sikh or Jain religion. The rules of succession under
143 the ISA shall not apply where two persons who solemnize their marriage under the
SMA belong to the Hindu, Buddhist, Sikh, or Jain religion. Section 21 essentially
ruptured the cord between a Hindu, Buddhist, Sikh, or Jain and their personal laws
if they married under the provisions of the SMA. Section 21A was introduced in 1976 as a progressive provision. Section 21A links the SMA with the HSA if both
the parties belong to a religion to which the HSA applies. Section 21A was
introduced to remedy the disability brought in by Section 21.
191. Section 27 deals with divorce. Section 27(1A) grants the wife additional
grounds of divorce. Section 31 stipulates the Court to which a petition for divorce
must be made. Sub- Section (2) of the Section is a special provision available to
the wife for the presentation of a divorce petition. Section 36 stipulates that the husband may be directed to pay expenses of the proceedings and such sum based
on the income of the husband when the wife has no independent income, sufficient
to support herself and necessary for divorce proceedings. Section 37 stipulates that the court may order the husband to pay the wife permanent alimony and
maintenance.
192. The petitioners argue that Section 4 of the SMA is unconstitutional not
because it expressly excludes or bars the marriage between two persons of the same -sex but because it excludes the solemnization of marriage between non -
heterosexual persons by implication since it only governs a heterosexual union.
II. The decision of the South African Constitutional Court in Fourie
193. The petitioners have relied on Fourie (supra), a case which emanated from
South Africa, to argue that provisions of the SMA must be read in a gender -neutral
144 manner. In Fourie (supr a), the common law definition of marriage and Section
30(1) of the Marriage Act (Act 25 of 1961)172 were challenged. The common law
definition of marriage in South Africa is that it is a “union of one man with one
woman, to the exclusion, while its lasts, of all others.” The formula for marriage
prescribed by Section 30(1) of the Marriage Act is extracted below:
“Do you, A.B., declare that as far as you know there is no
lawful impediment to your proposed marriage with C.D. here
present, and that you call all here present to witness that you
take C.D. as your lawful wife (or husband)?’, and thereupon
the parties shall give each other the right hand and the
marriage officer concerned shall declare the marriage
solemnized in the following words: ‘I declare that A.B. and C.D. here present have been lawfully married.”
(emphasis supplied)
194. The petitioners in Fourie (supra) argued that the reference of “husband or
wife” in Section 30(1) excluded same- sex couples. The South African
Constitutional Court allowed the petition by holding that Section 30(1) was
unconstitutional because it excluded same- sex couples. The opinion of the majority
authored by Justice Albie Sachs suspended the declaration of invalidity for one year to cure defects in view of Section 172(1)(b) of the South African Constitution.
If the defect was not cured within the time frame stipulated, the word ‘spouse’ was
to be read in the place of “wife (or husband)”. Justice Kate O Regan who authored
the minority opinion disagreed with the majority on the question of the remedy. The
learned Judge observed that the scales of justice and equity necessitate immediate relief and not a suspended declaration of invalidity.
172 “South African Marriage Act”
145 195. The Court observed that Section 30(1) of the South African Marriage Act
was underinclusive because it excluded same- sex unions by silence and omission.
Such omission was as effective in law and practice as if effected by express
language. The Court held that it would be discriminatory if same- sex couples were
not given the benefits (both tangible and intangible) which were available to heterosexual couples through marriage. The State justified the exclusion of same-
sex couples from the institution of marriage because of the social nature of marriage and strong religious beliefs. The Court rejected this argument on the ground that the reasons which were used to justify the exclusion were grounded in
prejudice and that it was not a valid justification for the violation of fundamental rights.
196. On the question of relief, the Court made the following observations:
a. Parliament had expressly and impliedly recognised same- sex partnerships.
The Domestic Viol ence Act 116 of 1998 defined a domestic partnership as
a relationship between a complainant and a respondent who are of the
same or opposite sex and who live/lived together in a relationship in the
nature of marriage. The Estate Duty Act 45 of 1955 stipulated that the spouse in relation to a deceased person includes a person who at the time
of death of the deceased person was a partner of such person in a same-
sex or heterosexual union;
b. Section 172(1)(b) of the Constitution granted the Court the power to is sue
such order including suspending the declaration of invalidity for any period
146 and on any conditions, to allow the competent authority to correct the
defect;
c. There was extensive consultation with the public on the issue of same- sex
marriage. The South Af rican Law Reform Commission’s memorandum on
domestic partnership harmonised family law principles with the Bill of Rights which was preceded by extensive public consultation; and
d. The Court instead of reading in must grant the remedy of suspended declaration because reading in would be a temporary remedial measure which would be far less likely to achieve equality. Legislative action was
well-suited for this purpose.
197. Though facially the case mounted by the petitioners before us is similar to
the case mounted by the petitioners in Fourie (supra), the legal and the
constitutional regime in South Africa and India varies. First , it must be noticed that
unlike the SMA, there was only one provision in the South African Marriage Act
(that is, Section 30(1)) which m ade a reference to heterosexual relationships.
However, as indicated above, various provisions of the SMA (Sections 4, 27(1A), 31, 36, and 37) confine marriage to a union between heterosexual persons. Second, various enactments in South Africa already recognised same- sex unions
unlike the Indian legal landscape where no law even remotely recognises the union between a same -sex couple. Thus, the canvas of the challenge before the South
African Constitutional Court in Fourie (supra) and the legal and constit utional
regime in place varies widely from that in India.
147 III. The decision of the UK House of Lords in Ghaidan
198. Learned counsel for the petitioners argued that this Court ought to interpret
the SMA to make it ‘constitutionally compliant.’ They relied on the decision of the
House of Lords of the United Kingdom in Ghaidan (supra) and urged this Court to
adopt the principle of interpretation which had been adopted in that case.
199. In that case, the respondent was in a stable and monogamous homosexual
relationship with his partner who was a tenant in the house that the couple shared.
The respondent and his partner were living together when the latter died. The
appellant (being the landlord) claimed possession of the house. The respondent
resisted the claim on the ground that he ought to be consider ed a ‘statutory tenant’
in terms of UK’s Rent Act 1977.173 This enactment provided that a surviving spouse
of the original tenant shall be the statutory tenant if the surviving spouse was
residing in the house in question immediately before the death of the original
tenant. It also stipulated that a person who was living with the original tenant “ as
his or her wife or husband” shall be treated as the spouse of the original tenant. In
essence, the Rent Act protected the tenancy rights of a heterosexual couple when
the couple was in a relationship that was of a similar character as marriage. The
surviving partner in a homosexual relationship could have become entitled to an
‘assured tenancy’ which was less advantageous than a statutory tenancy.
200. The respondent contended that the difference in the treatment of
heterosexual couples and homosexual couples was based on their sexual
orientation alone, and lacked justification, infringing Article 14 (prohibition of
173 “Rent Act”
148 discrimination) read with Article 8 (right to respect for private and family life) of the
European Convention on Human Rights.174 He further argued that the court had a
duty under Section 3 of the UK’s Human Rights Act 1998175 to read and give effect
to the Rent Act in a way which was compliant with the ECHR. In other words, he
urged the court to read the Rent Act such that it granted the surviving partner in a
close and stable homosexual relationship the same rights as the surviving partner
in a heterosexual relationship of a similar nature – the right to succ eed the tenancy
as a statutory tenant. The court of first instance rejected the respondent’s
arguments. The first appellate court allowed the appeal, leading to proceedings
before the final appellate authority, the House of Lords (now, the Supreme Court
of the UK).
201. The House of Lords accepted the respondent’s arguments.176 It noted that
the rationale of the Rent Act was that the security of tenure in a house which a
couple had made their home ought not to depend upon which of them dies first. It
held that there was no legitimate state aim which justified the difference in
treatment of heterosexual and homosexual couples, and found that the Rent Act therefore violated the rights of the respondent under the ECHR. Having so found, it relied on Section 3 of the Human Rights Act to interpret the Rent Act to mean
that the survivor of a homosexual couple would have rights on par with the survivor
of a heterosexual relationship for the purposes of succession as a statutory tenant.
175 “Human Rights Act”
176 By a majority of 4-1.
149 202. Section 3 of the Human Rights Ac t reads as follows:
“3. Interpretation of legislation
(1) So far as it is possible to do so, primary legislation and
subordinate legislation must be read and given effect in a way which is compatible with the Convention rights.”
As noticed by the House of Lords in Ghaidan (supra):
a. This provision was one of the primary means by which rights under the
ECHR were brought into the law of the UK;
b. Section 3 permitted courts in the UK to depart from the unambiguous meaning of a statute, if required;
c. It also authorized courts in the UK to depart from legislative intent in interpreting the language used in a statute, if required;
d. It allowed courts to read in words to a statute which changed the meaning of that statute, to make it compliant with the ECHR as long as the new
meaning was compatible with the underlying thrust of that enactment; and
e. Section 3 did not authorize courts to make decisions for which they were
not equipped, such as when there were many ways of making a particular
provision compliant with the ECHR.
The House of Lords also noted that difficult problems could arise in some cases.
203. It is not open to this Court to adopt the interpretative principle laid down in
Section 3 of the Human Rights Act for a simple reason: the H ouse of Lords derived
the power to depart from legislative intent and read words into a statute such that
150 it was compliant with the ECHR from the Human Rights Act, a statute enacted by
the Parliament of UK. It did not rely on a common law principle or fashion a principle
of interpretation based on common law. The House of Lords itself noted that “ the
interpretative obligation decreed by section 3 is of an unusual and far -reaching
character .”177 In India, there is no legislation which permits this Court to depart from
legislative intent and read words into a legislation such that it is compliant with the Constitution.
178 As discussed in the previous segment of this judgment on the
power of judicial review, courts in India must be circumspect in relying on the law
in other jurisdictions, torn from the context in which those decisions have been
crafted. It is not permissible for this Court to exercise a power which the Parliament
of another country conferred on its courts, absent a similar conferment of power
under the Indian Constitution. This Court must exercise those powers which it has by virtue of the Constitution of India or any other Indian law. In any event, as the
House of Lords held, courts may not exercise this power to make decisions for
which they are ill equipped. This Court is not equipped to recognize the right of
queer persons to marry under the SMA for reasons discussed in subsequent segments.
IV. Institutional limitations with respect to the interpretation of SMA
204. It must be noted that this Court in the beginning of the hearing restricted the
breadth of the challenge to non -personal marriage law. However, on a careful
perusal of the provisions of the SMA, it is evident that Section 21A links the SMA
177 Opinion of Lord Nicholls of Birkenhead, Ghaidan (supra).
178 Principles of interpretation which are well accepted in India must guide this Court’s decision. For example, when
two constructions of a provision are possible, courts ought to prefer the construction which gives effect to the
provision rather than the one which renders it inoperative. M. Pentiah v. Veeramallappa Muddal, 1961 (2) SCR
295; Tinsukhia Electric Supply Co. Ltd. v. State of Assam, (1989) 3 SCC 709
151 to personal and non- personal laws of succession. In fact, such is the complexity of
the SMA that the petitioners themselves had to submit lengthy charts on
workability, which in effect reworked the structure of the SMA to include non-
heterosexual unions.
205. Dr. Abhishek Manu Singhvi, appearing for one of the petitioners submitted
that there are three plausible interpretations of Section 21A in its application to
marriages between two Hindus under the provisions of the SMA:
a. The Court may choose not to decide on the applicability of Section 21A to
non-heterosexual Hindu couples in the present litigation and leave the
question of succession open for future litigation;
b. The succession of Hindu non- heterosexual couples will be governed by the
HSA and that of other interfaith non- heterosexual couples will be governed
by the ISA (similar to interfaith heterosexual couples or heterosexual
couples of other religions). This requires a gender -neutral reading of the
HSA and the ISA. The words “widow” and “widower” in the ISA and “male Hindu”, “female Hindu”, “widow”, and “wi dower” in the HSA can be
interpreted in a gender neutral manner. This interpretation must only be
limited to issues related to marriage. To include transgender persons, the
Court may hold that the words “male” and “female” under Sections 8 and
15 of the HS A may be read as “persons”; or
c. Since by agreement of parties, religious and personal law related issues are beyond the scope of this litigation, it follows that provisions of secular
law that relate back to personal laws (like Section 21A) are excluded fro m
152 consideration. Since Section 21A was introduced as an exception to the
regime under Sections 19 to 21, non- consideration of the issue would
revert the law to the position before the introduction of Section 21A which is that ISA would apply to all marriages under the SMA.
206. In addition to the ‘reading in’ of the provisions of other statutes such as ISA
and HSA, the petitioners argue that the Court must also read into the following
provisions of the SMA:
a. The words "widow" and "widower" in Schedules II and III of SMA must be
read as "widow or widower" and "widower or widow"; and
b. Section 4(c) of SMA may be interpreted in the following way:
i. For same- sex couples, the provision may be read as prescribing
eighteen years as the minimum age for both parties in a lesbian relationship, and twenty -one years for both parties in a gay
relationship;
ii. For transgender persons, the minimum age requirement would
depend on whichever gender/sex they identify as. So, a trans -man
would be eligible to marry at twenty one years of age while a trans -
wom an would be eligible to marry at eighteen years; and
iii. For those who do not identify either as a man or a woman, the
following approach shall be adopted to ensure the inclusion of non-
binary and intersex individuals:
153 A. The silence of the SMA on the minimum age qualification for
persons other than ‘men’ and ‘women’ may be read as
imposing no restriction other than the restriction imposed by
other laws that stipulate the age at which persons are capable
of making decisions for themselves, which is eighteen years;
and
B. Alternatively, the Court may lay down guidelines as an interim
measure and until Parliament fills the legislative vacuum.
207. If the Court finds that a provision is contrary to Part III of the Constitution, it
shall declare that it is void,179 or read it down (by deleting phrases) or read words
in (by adding or substituting phrases) to save it from being declared void. If, in the
present batch of petitions, this Court holds that Section 4 is unconstitutional because it is underinclusive to the extent that it excludes, by implication, the
marriage between same- sex couples, the court could either strike down Section 4
of the SMA or follow the workability model submitted by the petitioners. If the Court
follows the first approach, the purpose of a progressive legislation such as the SMA
would be lost. The SMA was enacted to enable persons of different religions and
castes to marry. If the SMA is held void for excluding same- sex couples, it would
take India back to the pre- independence era were two persons of d ifferent religions
and caste were unable to celebrate love in the form of marriage. Such a judicial
verdict would not only have the effect of taking the nation back to the era when it
was clothed in social inequality and religious intolerance but would als o push the
179 Article 13 of the Constitution
154 courts to choose between eradicating one form of discrimination and prejudice at
the cost of permitting another.
208. If this Court takes the second approach and reads words into the provisions
of the SMA and provisions of other allied laws such as t he ISA and HSA, it would
in effect be entering into the realm of the legislature. The submissions of the petitioners indicate that this Court would be required to extensively read words into
numerous provisions of the SMA and other allied laws. The Court i s not equipped
to undertake an exercise of such wide amplitude because of its institutional limitations. This Court would in effect be redrafting the law(s) in the garb of reading
words into the provisions. It is trite law that judicial legislation is impermissible. We
are conscious that the court usually first determines if the law is unconstitutional,
and then proceeds to decide on the relief. However, in this case, an exercise to
determine whether the SMA is unconstitutional because of under -inclusivity would
be futile because of the limitations of this Court’s power to grant a remedy. Whether a change should be brought into the legislative regime of the SMA is for Parliament
to determine. Parliament has access to varied sources of information and
represents in itself a diversity of viewpoints in the polity. The Court in the exercise of the power of judicial review must be careful not to tread into the legislative
domain. It is clarified that this Court has not adjudicated upon the validity of any
laws oth er than the SMA, the FMA, the Adoption Regulations, and the CARA
Circular.
155 d. The challenge to the FMA
209. Some petitioners have challenged the constitutionality of the FMA and have
sought a declaration that it applies to any two persons who seek to get married,
regardless of their gender identity and sexual orientation. The FMA applies to two
categories of per sons – to parties who seek to solemnize their marriage under the
FMA in a foreign country180 and to those who seek to register their marriage under
the FMA when their marriage has been solemnized in a foreign country in accordance with the law of that count ry.
181 In both cases, at least one of the parties
to the marriage must be a citizen of India.182 Section 4 of the FMA specifies certain
conditions which must be fulfilled before the parties can avail of its provisions:
“4. Conditions relating to solemnization of foreign marriages.
— A marriage between parties one of whom at least is a
citizen of Ind ia may be solemnized under this Act by or before
a Marriage Officer in a foreign country, if, at the time of the marriage, the following conditions are fulfilled, namely: —
(a) neither party has a spouse living,
(b) neither party is an idiot or a lunatic,
(c) the bridegroom has completed the age of twenty -one years
and the bride the age of eighteen years at the time of the
marriage, and
(d) the parties are not within the degrees of prohibited
relationship:
Provided that where the personal law or a custom governing
at least one of the parties permits of a marriage between
them, such marriage may be solemnized, notwithstanding that
they are within the degrees of prohibited relationship.”
180 Chapter II, FMA
181 Chapter III, FMA
182 Section 4, FMA; Section 17(2), FMA
156 210. Clauses (c) and (d) contain requirements which prevent this Court from
interpreting the FMA as applying to persons regardless of their sexual orientation.
Clause (c) requires the bridegroom to be at least twenty -one years and the bride
to be at least eighteen years of age. If this Court were to interpret Section 4 as applying to same -sex relationships, the question of how clause (c) would apply to
such relationships would arise. Various approaches were proposed including reading the provision as requiring a minimum age of twenty -one for all men and
eighteen for all women, such that two men who sought to marry would both be
required to be twenty -one years and two women who sought to marry would both
have to be eighteen years. Another approach that was proposed was to interpret
the provision as requiring a common minimum age for all same -sex couples. This
Court is of the opinion that such an exercise would amount to judicial legislation. When there are various options open for a legislative change and policy
considerations abound, it is best left to Parliament to engage in democratic decision- making and settle upon a suitable course of action.
211. Clause (d) requires the parties not to be within the degrees of prohibited
relationship. Section 2(a) defines the phrase ‘degrees of prohibited relationship’ as having the same meaning as in the SMA. The reasons why the degrees of
prohibited relationship cannot be interpreted by this Court to include same- sex
relationships has been discussed in the preceding paragraphs. The same reasons
apply to Clause (d) of the FMA.
212. The FMA recognizes the right of an Indian citizen to marry outside India or
to a marry a person from a foreign country. In essence, it recognizes the right of a
157 citizen of India to choose a life partner who is not a citizen of India. It follows that
citizens of India may enter into an abiding union with a person of their choice,
including a person of the same sex as them, even if that person is not a citizen of
India. It is accordingly clarified that the right of a citizen of India to enter into an
abiding union with a foreign c itizen of the same sex is preserved.
ix. The right to enter into a union
“The need to love is as important a force in human society
as is the will to power. Power wants to destroy or consume or drive away the other, the one who is different, whose will is diff erent. Love wants the other to remain, always nearby,
but always itself, always other.”
a. The goal of self -development and what it means to be human
213. Over the years, through dialogue both inside and outside the courts, it has
been established that the negat ive and positive postulates of fundamental
freedoms and the Constitution as a whole inter alia secure conditions for self -
development at both an individual and a group level. This understanding can be
traced to numerous provisions of Part III of the Consti tution, the preambular values,
and the jurisprudence which has emanated from Courts. For example, this Court has held that the right to live under Article 21 secures more than the right of
physical existence. It includes, inter alia, the right to a quality life which has been
interpreted to include the right to live in an environment free from smoke and pollution,
184 the right to access good roads,185 and a suitable accommodation which
would enable them to grow in every aspect – mental, physical, and intellectual.186
183 Marg aret Trawick, Notes on Love in a Tamil Family (University of California Press 1992)
184 MC Mehta v. Union of India, (2019) 17 SCC 490
185 State of Himachal Pradesh v. Umed Ram Sharma, (1986) 2 SCC 68
186Shantistar Builders v. Narayan Khimalal Totame (1990) 1 SCC 520
158 Similarly, it has been established that a free exchange of ideas recognized under
Article 19 is an integral aspect of the right to self -development.187 The rights against
exploitation188 and against discrimination and untouchability189 secure the creation
of equal spaces in public and private spheres , which is essential for self -growth.
The right to quality education without discrimination190 also ensures that every
citizen secures basic education to develop themselves. The freedom to profess
and practice religion191 also enables individuals to evolve spiritually .
214. This understanding of the Constitution is substantiated on a reading of Part
IV of the Constitution. To illustrate, Article 38 states that the State shall strive to promote the welfare of the people, Article 42 stipulates that the State shall
endeavour to secure just and humane conditions of work, and Article 47 places a
duty on the State to raise the level of nutrition and the standard of living. The
Constitution, through both positive and negative postulations , inter alia capacitates
citizens in their quest to develop themselves . Such capacity -building enables them
to achieve their full potential in both the private and the public space, and to be
happy. The Indian Constitution ( unlike , say, the South African Constitution) does
not expressly provide that t he Constitution seeks to improve the quality of life and
free the potential of each person. However, such an understanding can be gleaned
from the provisions of Part III and Part IV of the Constitution. Thus, one of the
purposes of the rights framework is to enable the citizenry to attain the goal of self -
development .
187 D.C Saxena v. Hon’ble Chief Justice of India, (1996) 5 SCC 216
188 Articles 23 and 24 of the Constitution
189 Articles 15 and 16 of the Constitution
190 Article 21A of the Constitution
191 Articles 25 to 28 of the Constitution
159 215. Martha C. Nussbaum laid down a list of ten capabilities which are central
requirements to live a quality life.192 Two of the identified capabilities are crucial for
our discussion.193 The first is ‘emotions ’ which is characterized as follows:
“5. Emotions: Being able to have attachments to things and
people outside ourselves; to love those who love and care for
us, to grieve at their absence; in general, to love, to grieve, to experience longing, gratitude, and justified anger. Not having one’s emotional development blighted by fear and anxiety.
(Supporting this capability means supporting forms of human
association that can be shown to be crucial in their development)”
(emph asis supplied)
The second is ‘affiliation ’ which is characterized as follows:
“7. Affiliation: A. Being able to live with and toward others, to
recognize and show concern for other human beings, to
engage in various forms of social interaction; to be able to
imagine the situation of another. (Protecting this capability
means protecting institutions that constitute and nourish
such forms of affiliations, and also protecting the freedom
of assembly and political speech).”
(emphasis supplied)
216. The capabili ties of ‘ emotions ’ and ‘affiliations ’ identified by Nussbaum for
self-development and sustaining a quality life are crucial for two important reasons.
First, both capabilities focus on the human side of a person, that is, the ability and
necessity of a per son to emote and form relationships and associations. Second,
the distinction between the capabilities of ‘ emotions ’ and ‘affiliation ’ is that in the
former, the emphasis is upon the agency of the individual and the freedom they
192 Martha (n 150)
193 The other capabilities listed by Martha C. Nussbaum include ‘life’, ‘bodily health’, ‘bodily integrity’, ‘senses,
imagination and thought’, ‘practical reason’, ‘other species’, and ‘play’.
160 have to form bonds with oth er people while in the latter , the emphasis is upon
granting recognition to such associations.
217. Humans are unique in many respects. We live in complex societies, are able
to think, communicate, imagine, strategize, and do more. However, that which sets
us apart from other species does not by itself make us human. These qualities are
necessary elements of our humanity but taken alone, they paint an incomplete
picture. In addition to these qualities, our ability to feel love and affection for one
another makes us human. We may not be unique in our ability to feel the emotion
of love but it is certainly a fundamental feature of our humanity. We have an innate
need to see and to be seen – to have our identity, emotions, and needs fully
acknowledged, recognized, and accepted. The ability to feel emotions such as grief, happiness, anger, and affection and the need to share them with others
makes us who we are. As human beings, we seek companionship and most of us
value abiding relationships with other human beings i n different forms and
capacities. These relationships may take many forms – the natal family, cousins
and relatives, friends, romantic partnerships, mentors, or students. Of these, the
natal family as well as the family created with one’s life partner form the
fundamental groups of society.
194 The need and ability to be a part of a family forms
a core component of our humanity. These relationships which nourish the emotional and spiritual aspects of our humanity are important in and of themselves.
Further, t hey are as important to self -development as the intellectual (and
194 The Preamble of the United Nations Convention on the Rights of the Child recognizes the importance of the
family in the following terms: “…Convinced that the family, as the fundamental group of society and the natural
environment for the growth and well -being of all its members and particularly children, should be afforded the
necessary protection and assistance so that it can fully assume its responsibilities within the community…”
161 eventually, financial) nourishment we receive through education. Self -development
cannot be measured solely in terms of educational qualifications and financial
capabilities. Such a description is to forget what makes as human.
218. It is insufficient if persons have the ability and freedom to form relationships
unregulated by the State. For the full enjoyment of the such relationships , it is
necessary that the State accord recognition to such relationships . Thus, the right
to enter into a union includes the right to associate with a partner of one’s choice ,
according recognition to the association, and ensuring that there is no denial of
access to basic goods and services is crucial to achieve the goal of self -
development.
b. The rights under Article 19
I. The right to freedom of speech and expression and to form intimate
association s
219. Article 19(1)(a) of the Constitution recognizes the right to freedom of speech
and expression. Freedom postulates within its meaning, both, an absence of State
control as well as actions by the State which create the conditions for the ex ercise
of rights and freedoms . Article 19(1)(c) of the Constitution recognizes the freedom
to form associations or unions or co- operative societies. The freedom of speech
and expression is not limited to expressive words. It also includes other forms of
expression such as the manifestation of complex identities of persons through the
expression of their sexual identity, choice of partner, and the expression of sexual
desire to a consenting party . Earlier judgments of this Court have held that
expression of gender identity is a protected freedom under Article 19(1)( a). In
162 NALSA (supra), this Court held that the expression of gender identity is a form of
protected expression under Article 19(1)(a). In Navtej (supra), this Court held that
Section 377 of the IPC infringes upon the freedom of expression of queer persons ,
protected under Article 19(1)(a).
220. Courts have traditionally interpreted the right to form an association
guaranteed under Article 19(1)(c) to mean associations formed by workers or
employees for collective bargaining to attain equitable working conditions .
However, the entire gamut of the freedom protected under Article 19(1)(c) cannot
be restricted to this singular conception. The ambit of the freedom under Article
19(1)(c) is much wider. The provision does not merely protect the freedom to form an association to create spaces for political speech or for espousing the cause of
labour rights. While that is a very crucial component of the freedom protected under
Article 19(1)(c), the provision also protect s the freedom to engage in other forms
of association to realize all forms of expression protected under Article 19(1)(a).
221. In Roberts v. United States Jaycees,
195 the US Supreme Court read
‘freedom of association’ widely to include the freedom to form intimate
associations. The factual matrix before the Court was that regular membership to the respondent -corporation was restricted to men between the ages of fifteen to
thirty -five. Associate membership was offered to those to whom regular
membership was not available. Complaints were filed alleging that the exclusion of
women from full membership violated the Minnesota Human Rights Act which made it discriminatory to deny to any person the full and equal enjoyment of the
163 goods, services, facilities, privileges, advantages, and accommodations of a place
of public accommodation because of race, color, creed, religion, disability, national
origin or sex. The US Supreme Court had to decide if any interference with the
organization’s membership policy would violate the respondent’s freedom of
association guaranteed under the First Amendment. Justice Brennan, writing for
the majority , observed that the freedom of association constitutes two facets. First ,
the freedom to enter into intimate human relationships secure from undue state
interference (“the intrinsic element”); and second , the freedom to form associations
to engage in activities protected by the F irst Amendment such as speech,
assembly, and the exercise of religion (“the instrumental element”). The Court
observed that indi viduals have the freedom to form intimate associations because
individual liberty can be secured only when the State does not unjustifiably interfere with the formation and preservation of certain kinds of highly personal
relationships. The C onstitution pr otects such relationships because individuals
draw emotional enrichment from close ties such as those created by marriage,
children, and cohabitation, which contribute towards identity building and self -
development. Justice Brenan qualified the freedom by observing that only personal
relationships (which are characterized by their attributes such as relative
smallness, a high degree of selectivity in decisions to begin and maintain the affiliation, the seclusion from others in critical aspects of the relati onship) are
protected.
196 The right to form an intimate association has been expanded upon by the Supreme Court of US in Lawrence v.
Texas, 539 U.S 558 (2003) by which the sodomy laws were held unconstitutional .
164 222. Kenneth L. Karst, who developed the idea of the freedom of intimate
association197 argues that the Courts have traditionally not permitted the State to
interfere or regulate in certain kinds of personal relationships, thereby elevating it
to a distinct freedom. Intimate association is characterized by a sense of collectivity
which exists beyond two individuals. One of the prominent ideas embraced by the
freedom of intimate association is the opportunity it affords to enjoy the society of
the other person who is a part of the relationship and the ability to choose to form
and maintain such a relationship.198 The opportunity to enjoy the society of one’s
partner may be denied either directly or indirectly. It could be denied directly when
the law prohibits such an association. The operation of Section 377 of the IPC
criminalizing homosexual activity is a form of direct restriction on the freedom of
association.
223. On the other hand, the State could indirectly infringe upon the freedom when
it does not create sufficient space to exercise that freedom. A formal associational
status or recognition of the association is necessary for the free and unrestricted
exercise o f the freedom to form intimate associations. Needless to say, there may
be reasonable restrictions on this right. However, other than legally valid and binding restrictions, the right to intimate associations must be unrestricted. The
State by not endorsin g a form of relationship encourages certain preferences over
others .
199 In a previous segment of this judgment , we have discussed the tangible
and intangible benefits of recognizing relationships in the form of marriage. While
the tangible benefits of marri age are traceable to the content of law, the intangible
197 Kenneth L Karst, The freedom of intimate association, (1980) T he Yale Law Journal , Vol. 89 (4) 624-692
198 ibid
199 Evan Gerstmann, Same -sex marriage and the Constitution, (Cambridge University Press 2017)
165 benefits are secured merely because State recognises the relationship through the
instrument of law. Intangible benefits in the form of expressive advantages exist
irrespective of the content of the l aw. Even if the law does not grant any special
material benefits to a relationship, the relationship would still be considered to be
legitimate in the eyes of the society. The freedom to choose a partner and the
freedom to enjoy their society which are ess ential components of the right to enter
into a union (and the freedom of intimate association) would be rendered otiose if
the relationship were to be discriminated against. For the right to have real meaning, the State must recognise a bouquet of entitlem ents which flow from an
abiding relationship of this kind. A failure to recognise such entitlements would result in systemic discrimination against queer couples . Unlike heterosexual
couples who may choose to marry, queer couples are not conferred with the right
to marry by statute. To remedy this, during the course of the hearing, the Solicitor
General of India made a statement that a Committee chaired by the Cabinet
Secretary will be constituted to set out the rights which will be available to queer
coupl es in unions . The Committee shall set out the scope of the benefits which
accrue to such couples.
II. The right to settle in any part of India
224. Article 19(1)(e) of the Constitution stipulates that all citizens shall have the
right to reside and settle in any part of the territory of India. In exercise of this right, citizens may reside in any village, town, or city in any state or union territory
irrespective of the state in which they were born or are domiciled. Article 19(1)(e)
proscribes differentiation on the basis of the native place of a person. As with other
166 fundamental rights, it is subject to reasonable restrictions. In Maneka Gandhi v.
Union of India ,200 this Court observed that it was a historical fact that there were
rivalries between some states in the country. It was therefore not beyond the realm
of possibility that a particular state would restrain individuals domiciled in another
state from residing or settling in the first state. In view of this, the Court held that
the intention behind Article 19(1)(d) (the right to move freely throughout the territory
of India) and Article 19(1)(e) was to prevent the states from imposing such
restrictions. In thi s way, the provision was thought to emphasize the unity and
oneness of India.
225. Article 19(1)(e) uses the expressions “reside” and “settle.” The term “reside”
can mean either a temporary residence or a permanent residence but there is a
certain level of per manency attached to the word “settle” in India. One can reside
in a particular place in the course of their education or employment but to settle down in that place means to build one’s life there and reside their permanently.
In P. Ramanatha Aiyar’s Law Lexicon (1997 edition), it is stated:
“The word “settled” has no precise or determinate meaning.
In popular language, it intends going into a town or place to live and take up one’s abode. A person is said to be settled where he has his domicile or home. ”
Colloquially, people say that a person has “settled down” when they are well
established in their careers or when they have chosen a life partner or married
somebody.
201 The term “settle down” has previously been used by this Court in this sense. See, for instance, Pradeep Jain v.
Union of India, (1984) 3 SCC 654
167 226. Citizens of India have the right to settle in any part of the territory of India in
terms of Article 19(1)(e). They, like all other citizens, may exercise this right in two
ways:
a. First, they may build their lives in a place of their choosing (in accordance with
law) either by themselves or with their partner. They may reside in that place
permanently (subject to other reasonable restrictions including those intended
to protect the rights of tribal communities). This right is uniquely significant to
persecuted groups (such as queer persons, inter -caste couples, or interfaith
couples) who mi grate from their hometowns to other places in the country,
including cities;202 and
b. Second, they may “settle down” with another person by entering into a lasting
relationship with them. In fact, this mode of the exercising the right under
Article 19(1)(e) is encompassed by the first mode because to many people,
building a life includes choosing their life partner.
Hence, the right to enter into a union is also grounded in Article 19(1)(e).
c. Facets of the right to life and liberty under Article 21
I. The atypical family
227. One’s natal family usually consists of one’s immediate relatives. The people
who constitute one’s ‘immediate relatives’ vary from society to society. For
instance, many Indians grow up in a Hindu Undivided Family whic h is commonly
202 Purayil (n 96)
168 known as a ‘joint family’ and which is recognised by the law. The family is typically
thought of as comprising a mother and a father, to which a life partner is added
(usually in a heterosexual relationship). Later, children join this family, and so the
cycle continues. While this conception of a family dominates our collective understanding, it is not the only valid mode by which a family can be formed. Myriad
persons do not follow this blueprint for the creation of a family. They instead hav e
their own, atypical blueprint.
228. In Deepika Singh (supra), this Court rightly acknowledged the existence of
atypical families:
“26. The predominant understanding of the concept of a
“family” both in the law and in society is that it consists of a
single, unchanging unit with a mother and a father (who
remain constant over time) and their children. This
assumption ignores both, the many circumstances which may lead to a change in one's familial structure, and the fact that
many families do not conform to this expectation to begin with.
Familial relationships may take the form of domestic,
unmarried partnerships or queer relationships. A household
may be a single parent household for any number of reasons,
including the death of a spouse, separation, or di vorce.
Similarly, the guardians and caretakers (who traditionally occupy the roles of the “mother” and the “father”) of children
may change with remarriage, adoption, or fostering. These
manifestations of love and of families may not be typical but they ar e as real as their traditional counterparts. Such atypical
manifestations of the family unit are equally deserving not only of protection under law but also of the benefits available under social welfare legislation. The black letter of the law must not be relied upon to disadvantage families which are different
from traditional ones.”
229. Queer relationships may constitute one’s family. Persons in such
relationships are fulfilling their innate and human need to be a part of a family and
to create their family. This conception of a family may be atypical but its atypical
nature does not detract from the fact that it is a family. Further, queer persons are
169 often rejected by their natal families and have only their partner or their chosen
community to fall back on. In addition to the different forms of kinship recognized
in Deepika Singh (supra), the guru- chela bond of transgender persons (discussed
in the previous section of this judgment) may also be a familial bond. Unlike hijras who often have the option of joi ning the hijra community and forming the guru-
chela bond, transmen do not have traditions or customs which may lead to the
creation of non- biological familial bonds with other transmen as a group.
Regardless, they form close bonds with other transmen and m any consider these
bonds to be familial.
203 These atypical manifestations of the family unit equally
constitute the fundamental groups of society. The Constitution accounts for plural
identities and values. It protects the right of every person to be differ ent. Atypical
families, by their very nature, assert the right to be different. Difference cannot be discriminated against simply because it exists. Articles 19 and 21 protect the rights
of every citizen and not some citizens.
230. Some petitioners have suggested that the atypical family is a queer person’s
‘chosen family.’ Chosen families comprise people who are selected to be one’s kin,
with the exercise of one’s agency.
204 Some have argued that the entire spectrum
of queer relationships in India may not always be based on choice, with guru- chela
relationships often assigned rather than chosen.205 Hence, while some queer
relationships may accurately be described as the ‘chosen family,’ all of them are
the ‘atypical family.’
203 Purayil (n 96)
204 See generally, Kath Weston, Families We Choose: Lesbians, Gays, Kinship (Columbia University Press 1997)
205 Reddy (n 81)
170 II. The right to dignity, autonomy, and privacy
231. It is not only formal freedom which is significant but also substantive freedom
or the opportunity to achieve what one sets out to achieve and the conditions which
enable this. The freedom guaranteed under the Constitution is realised in
subst ance only when the conditions for their effective exercise are created. Formal
freedom is translated into substantive freedom through the formulation of schemes and policies. When citizens are prevented from exercising their rights, the courts
of the count ry create the conditions for their exercise by giving effect to the laws
enacted by the legislative wing or the schemes formulated by the executive wing.
In the process, courts interpret the Constitution and the rights and freedoms it
recognizes. This exer cise lies at the core of Article 21 of the Constitution, which
guarantees the right to life and personal liberty.
232. A few paragraphs ago, this Court discussed what it means to be human. The
question of what it means to be free – or to have liberty – is of e qual significance.
It is a question which has plagued philosophers, ethicists, and economists alike.
The answer may mean different things to different people and may change
depending on the circumstances in which the question is asked. Simply put, the ability to do what one wishes to do and be who one wishes to be (in accordance
with law) lies at the heart of freedom.
233. Article 21 is available to all persons including queer persons. Article 21
encompasses the rights to dignity, autonomy, and privacy. Each of these facets animates the others. It is not possible to speak of the right to enter into a union
without also speaking of the right to intimacy, which emanates from these
171 rights. These rights demand that each individual be free to determine the course
of their life, as long as their actions are not barred by law. Choosing a life partner
is an integral part of determining the course of one’s life. Most people consider this
decision to be one of the most important decisions of their lives – one which defines
their very identity. Life partners live together, spend a significant amount of time with one other, merge their respective families, create a family of their own, care
for each other in times of sickness, support one another and much more. Hence,
the ability to choose one’s partner and to build a life together goes to the root of
the right to life and liberty under Article 21. Undoubtedly, many persons choose not
to have a life partner – but this is by choice and not by a deprivation of their agency.
The law constrains the right to choose a partner in certain situations such as when they are within prohibited degrees of relationships or are in a consanguineous
relationship.
234. Principle 24 of the Yogyakarta Principles (on the application of internat ional
human rights law in relation to sexual orientation and gender identity)
206 states that
all people have the right to found a family:
“Everyone has the right to found a family, regardless of sexual
orientation or gender identity. Families exist in diverse forms.
No family may be subjected to discrimination on the basis of
the sexual orientation or gender identity of any of its members.”
While India is not a signatory to the Yogyakarta Principles, this Court has
recognized their relevance to the adjudic ation of cases concerning sexual
minorities.207 Depriving someone of the freedom to choose their life partner robs
206 “Yogyakarta Principles"
207 NALSA (supra); Navtej Singh Johar (supra)
172 them of their autonomy, which in turn is an affront to their dignity. Preventing
members of the LGBTQ community from entering into a union also has the result
of denying (in effect) the validity of their sexuality because their sexuality is the reason for such denial. This, too, would violate the right to autonomy which extends
to choosing a gender identity and sexual orientation. The act of ent ering into an
intimate relationship and the choices made in such relationships are also protected by the right to privacy. As held by this Court in Navtej (supra) and Justice KS
Puttaswamy (9J) (supra), the right to privacy is not merely the right to be lef t alone
but extends to decisional privacy or privacy of choice.
III. The right to health
235. The right to health is also a crucial component of the right to life and
liberty.
208 The health of a person includes both, their physical and their mental
wellbeing. Parliament enacted the Mental Healthcare Act 2017209 to regulate the
provision of mental healthcare services. An assessment of the mental health of a
person cannot be limited to considering whether they have a mental illness or
disease but must also include an assessment of whether their mental health is thriving. The Constitution of the World Health Organization declares that:
“Health is a state of complete physical, mental an d social well-
being and not merely the absence of disease or infirmity.”
Mental health is therefore a state of complete mental wellbeing and not merely the
absence of mental illnesses. Parliament is also cognizant of this fact as evident
208 Common Cause v. Union of India, (2018) 5 SCC 1; Union of India v. Moolchand Kharaiti Ram Trust, (2018) 8
209 “Mental Healthcare Act”
173 from the overall s cheme and provisions of the Mental Healthcare Act. Though this
statute is primarily concerned with mental illnesses and access to healthcare,
Chapter VI recognizes the value of complete mental wellbeing by providing for the
promotion of and awareness about mental health. A person’s mental well -being
can only be secured if they are allowed the freedom and liberty to make choices about their lives. If their choices are restrained, their overall mental well -being
would undoubtedly be degraded. Choices may be r estrained by expressly denying
them their freedom or by failing to create conditions for the exercise of such freedom.
236. The right of queer persons to access mental healthcare is recognized by
Section 18 which stipulates that persons have a right to access mental healthcare
without being discriminated against on the basis of their sex, gender, or sexual orientation. This is undoubtedly a progressive step in line with constitutional ideals.
The mental health of members of the LGBTQ community may suffer not only
because of the discrimination they may face at the hands of their families or society
in general but also because they are prevented from choosing their life partner and
entering into a meaningful, long- lasting relationship with them. The effect of the
right to life under Article 21 read with Section 18 of the Mental Healthcare Act is
that queer people have the right to complete mental health, without being
discriminated against because of their sex, gender, or sexual orientation. A natural consequence of this is that they have the right to enter into a lasting relationship
with their partner. They also have a right not to be subjected to inhumane and cruel practices or procedures.
174 d. The right to freedom of conscience under Article 25
237. Article 25(1) of the Constitution is as follows:
“25. Freedom of conscience and free profession, practice and
propagation of religion
(1) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitl ed to
freedom of conscience and the right freely to profess, practise
and propagate religion.”
Article 25(1) has four components – the first component makes the right available
to all persons. The second component indicates that all persons are equally
entitled to the rights it codifies. The third component deals with two distinct
concepts: the right to freedom of conscience and the right freely to profess, practice
and propagate religion. While the freedom of conscience subsumes within its fold
the right t o profess, practice and propagate religion, it is not restricted to this right
alone. The rights with respect to religion are one aspect of the freedom of
conscience. The fourth component makes the rights codified in Article 25 subject
to public order, mor ality, health, and the other provisions of Part III. The right under
Article 25 is an individual right because conscience inheres in an individual.210
238. The right under Article 25 is also available to members of the LGBTQ
community since it is available to al l persons. But what does this freedom entail,
beyond religious rights? Black’s Law Dictionary defines conscience in the following terms:
“Conscience. The moral sense; the faculty of judging the
moral qualities of actions, or of discriminating between right and wrong; particularly applied to one’s perception and
210 Indian Young Lawyers Assn. v. State of Kerala & Ors. (2019) 11 SCC 1
175 judgment of the moral qualities of his own conduct, but in a
wider sense, denoting similar application of the standards of
morality to the acts of others. The sense of right and wrong
inherent in ev ery person by virtue of his existence as a social
entity. …”211
(emphasis supplied)
239. All persons, including members of the queer community, have the right to
judge the moral quality of the actions in their own lives, and having judged their
moral quality, have the right to act on their judgment in a manner they see fit. This
attribute is of course not absolute and is capable of being regulated by law. In the segment of this judgment on the right to life and liberty, this Court noticed that the
meaning of liberty is – at its core – the ability to do what one wishes to do and be
who one wishes to be, in accordance with law. All persons may arrive at a decision regarding what they want to do and who they want to be by exercising their freedom
of conscience. They may apply their sense of right and wrong to their lives and live
as they desire, in accordance with law. Some of the decisions the moral quality of
which they will judge include the decision on who their life partner will be and the
manner in which they wi ll build their life together. Each individual is entitled to
decide this for themselves, in accordance with their conscience.
240. The right under Article 25 is subject to four exceptions – public order,
morality, health, and the other provisions of Part III. The respondents have not
demonstrated that public order will be in peril or that the health of the public at large or of individuals will be adversely impacted, if queer persons enter into a union with
their partners. As for morality, it is settled law that Article 25 speaks of constitutional
211 Black’s Law Dictionary (5th edn.; 1979)
176 morality and not societal morality. In Indian Young Lawyers Assn. v. State of
Kerala,212 a five -Judge Bench of this Court (of which one of us, DY Chandrachud,
J. was a part) held:
“Morality for the purposes of Articles 25 and 26 cannot have
an ephemeral existence. Popular notions about what is moral
and what is not are transient and fleeting. Popular notions about what is or is not moral may in fact be deeply offensive to individual dignity and human rights. Individual dignity
cannot be allowed to be subordinate to the morality of the mob. Nor can the intolerance of society operate as a marauding morality to control individual self -expression in its
manifest form. … The expression has been adopted in a constitutional tex t and it would be inappropriate to give it a
content which is momentary or impermanent. Then again, the
expression 'morality' cannot be equated with prevailing social
conceptions or those which may be subsumed within mainstream thinking in society at a giv en time. … The content
of morality is founded on the four precepts which emerge from
the Preamble. The first among them is the need to ensure
justice in its social, economic and political dimensions. The second is the postulate of individual liberty in mat ters of
thought, expression, belief, faith and worship. The third is equality of status and opportunity amongst all citizens. The fourth is the sense of fraternity amongst all citizens which assures the dignity of human life.”
Hence, the content of moralit y must be determined on the basis of the preambular
precepts of justice, liberty, equality, and fraternity. None of these principles are an
impediment to queer persons entering into a union. To the contrary, they bolster
the proposition that queer persons have the right to enter into such a relationship.
Finally, the other provisions in Part III (which may also restrict the exercise of the right under Article 25) do not act as a bar to the exercise of the right in the present
case. Similar to the preambular values, they give rise to the right to enter into a
union.
177 241. A union may emerge from an abiding, cohabitational relationship of two
persons – one in which each chooses the other to impart stability and permanence
to their relationship. Such a union encapsul ates a sustained companionship. The
freedom of all persons (including persons of the queer community) to form a union
was recognised by this Court in Navtej (supra):
“167. … There can be no doubt that an individual also has a
right to a union under Article 21 of the Constitution. When we
say union, we do not mean the union of marriage, though
marriage is a union. As a concept, union also means companionship in every sense of the word, be it physical,
mental, sexual or emotional. The LGBT community is seeking
realisation of its basic right to companionship, so long as such
a companionship is consensual, free from the vice of deceit,
force, coercion and does not result in violation of the
fundamental rights of others.”
Such a union has to be shielded against discrimination based on gender or sexual
orientation.
242. In K.S. Puttaswamy (Privacy- 9J.) v. Union of India ,213 one of us (Dr. DY
Chandrachud, J.) held that discrimination against an individual on the basis of sexual or ientation is offensive to their dignity and self -worth:
“144. … Discrete and insular minorities face grave dangers of
discrimination for the simple reason that their views, beliefs or
way of life does not accord with the “mainstream”. Yet in a democratic C onstitution founded on the Rule of Law, their
rights are as sacred as those conferred on other citizens to
protect their freedoms and liberties. … Discrimination
against an individual on the basis of sexual orientation is deeply offensive to the dignity an d self -worth of the
individual. Equality demands that the sexual orientation of each individual in society must be protected on an even platform. The right to privacy and the protection of
178 sexual orientation lie at the core of the fundamental rights
guaranteed by Articles 14, 15 and 21 of the Constitution.”
(emphasis supplied )
243. This Court recognized that equality demands that queer persons are not
discriminated against. An abiding cohabitational relationship which includes within
its fold a union of two indi viduals cannot be discriminated against on the basis of
sexual orientation. Material and expressive entitlements which flow from a union must be available to couples in queer unions. Any form of discrimination has a
disparate impact on queer couples who unlike heterosexual couples cannot marry
under the current legal regime.
244. As a consequence of the rights codified in Part III of the Constitution, this
Court holds that all persons have a right to enter into an abiding union with their
life partner. This ri ght, undoubtedly, extends to persons in queer relationships. At
this juncture, it is necessary to clarify the difference between relationships and
unions of the kind which this Court speaks of, and unions and marriages. Any
person may enter into a consensual romantic or sexual relationship with another
person. This may last for a few months or for years. Regardless of the period for
which the relationship continues, no legal consequences attach to it, except where
provided by law (such as in terms of the DV Act). However, when two persons
enter into a union with a person whom they consider to be their life partner, certain
legal consequences will follow. For instance, if one of them happens to die, their
partner will have the right to access the body of the deceased.
179 x. Restrictions on the right to enter into a union
a. The right to enter into a union cannot be restricted based on sexual
orientation
245. In Navtej (supra), the concurring opinion authored by one of us (Justice DY
Chandrachud) noted that Article 15 prohibits discrimination, direct or indirect, which
is founded on a stereotypical understanding of the role of sex. It was observed that
the usage of the word ‘sex’ in Article 15(1) encapsulates stereotypes based on
gender. The judgment expanded on this under standing of the provision by holding
that sexual orientation is also covered within the meaning of ‘sex’ in Article 15(1)
because (i) non- heterosexual relationships question the male- female binary and
gendered roles which are attached to them; and (ii) dis crimination based on sexual
orientation indirectly discriminates based on gender stereotypes which is
prohibited by Article 15. Thus, a law which, directly or indirectly, discriminates based on sexual orientation is constitutionally suspect. In Navtej (supra), Justice
Indu Malhotra observed that Article 15(1) prohibits discrimination based on sexual orientation because it is analogous to the other grounds on which discrimination is
prohibited. The learned Judge observed that the common thread which runs through the grounds mentioned in Article 15 is that they impact the personal
autonomy of an individual.
246. We find it necessary to supplement the observations of this Court in Navtej
(supra) on the impermissibility of discrimination based on sexual orientation. The
causal relationship between homophobia and gender stereotypes is not the only
constitutional approach to grounding the prohibition of discrimination based on
180 sexual orientation in Article 15. Subsuming the discrimination faced by queer
persons into the sex -gender debate runs the risk of being reductionist. Gender
theory only captures one part of the complex construction of sexual deviance. Over -emphasizing gender norms as a reason for the discrimination faced by the
queer community will be at the cost of reducing their identity.
247. At this juncture, it is important to address the argument of the learned
Solicitor General that Article 15 of the Constitution does not include sexual orientation because it is not an ‘ascriptive’ characteristic since there is a degree of ‘choice’ in identifying as a queer person. This submission is premised on the
erroneous understanding that the common thread which runs through the grounds
mentioned in Article 15 is that they are all ascriptive characteristics.
248. Article 15 of the Constitution states that no citizen shall be discriminated
against based on “ religion, race, sex, place of birth, or any of them .” Ascribed status
is described to be “ assigned to individuals without reference to their innate
differences or abilities ” and achieved status is described as “ acquiring special
qualities ” and “ open to individual achievement .”
214 Thus, characteristics attained
on birth are termed as ascribed status and characteristics or qualities achieved
after birth are termed as achieved status. Before proceeding further, a preliminary
point must be made. Status is not a biological phenomenon. It is a social
phenomenon.215 The status of a person is identified based on how a person is
214 Ralph Linton, The Study of Man: An introduction (1936)
215 Irving S. Falodare, A Clarification of “Ascribed Status” and “Achieved Status”, The Sociological Quarterly, Vol.
10, No. 1 (Winter, 1969), pp 53-61
181 perceived. It depends on how the society (conditioned by social norms) sees an
individual as a part of a group.
249. This Court has in many judgments held that caste is an ascribed status.216
The argument of Dr Abhishek Manu Singhvi that Articl e 15 prohibits discrimination
on the ground of sexual orientation because it is an ascribed characteristic, and
the argument of the learned Solicitor General that sexual orientation is not a
ascribed characteristic (and is thus, not protected under Article 15) fails to give
effect to the full purport of the anti -discrimination principle encompassed in Article
15. A core difference between ascribed and achieved status is that the former is considered to be irreversible (where a person is born with it) but the latter is
reversible.
217 The assumption that Article 15 only protects the status that a person
is born with and not an identity they choose runs the risk of viewing persons as
helpless individuals. It also misses the crucial point that a person who chooses an
identity can also be discriminated against. A few of the grounds stipulated in Article
15 may be reversed by the exercise of choice. For example, persons undergo sex -
reassignment surgeries to alter their body to align it with their gender. When a person wishes to choose a different label for their gender, they face other forms of
discrimination and stigma different from the discrimination that they faced earlier.
Merely because a person by exercise of choice changes their sex, it cannot be
argued that the protection provided under Article 15 is not available to them.
216 See Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125; Ashoka Kumar Thakur v. Union of India, (2008) 6
SCC 1; Indian Medical Assn. v. Union of India, (2011) 7 SCC 179; Indra Sawhney v. Union of India, 1992 Supp (3)
217 Ibid.
182 250. The Court must also be conscious of the fact that a person may face
discrimination both due to their chosen identity and imposed identity. For example,
even after a person changes their religion, it is possible that they face
discrimination due to their new religious identity and their old caste or religious
identity. This is not to say that all persons choose to change the characteristics that
they are born with. While a few people by exercising their choice (successfully and
unsuccessfully) alter what is assumed by the society to be their ascribed status, a
few others may not wish to change their trait.
251. The discussion above clearly elucidates that the distinction between
ascribed and achieved status is not as clear -cut as it may seem. The understanding
of Article 15(1) cannot be premised on the distinction between ascribed and
achieved status. Such an understanding does not truly capture the essence of the
anti-discriminatio n principle. The anti -discrimination principle incorporated in
Article 15 identifies grounds on the basis of which a person shall not be discriminated. These grounds are markers of identity. The reason for
constitutionally entrenching these five markers of identity (that is, religion, caste,
race, sex, and place of birth) is that individuals (and groups) have historically and
socially been discriminated against based on these markers of identities. These
identities must be read in their historical and social context instead of through the
narrow lens of ascription.
252. When Article 15 is read in the broader manner indicated above, the word
“sex” in Article 15 of the Constitution takes within its meaning “sexual orientation”
not only because of the causal relati onship between homophobia and sexism but
183 also because ‘sex’ is used as a marker of identity. The word ‘sex’ cannot be read
independent of the social and historical context. Thus, ‘sex’ in Article 15 includes
within its fold other markers of identity which are related to sex and gender such
as sexual orientation. Thus, a restriction on the right to enter into a union based on
sexual orientation would violate Article 15 of the Constitution.
b. Recognizing the right of queer persons to enter into a union will not lead
to social chaos
253. The Union of India submitted that if non- heterosexual couples are permitted
to enter into a union, then the State will also have to extend the right to incestuous,
polygamous, or polyandrous relationships. To answer this question, this Court has
to deal with the issue of whether the State has the power to place restrictions on
the right to enter into a union and if so, what is the extent of such restrictions.
254. The right to enter into a union like every other fundamental right can be
restricted by the State. It is now established that the Courts must use the four -
prong proportionality test to assess if the infringement or restriction of a right is justified.
218 The courts must use the integrated proportionality standard formulated
in Akshay N Patel v. Reserve Bank of India219 to test a violation of the right to
enter into a union because the right is traceable to more than one provision of Part
III. However, if the State restricts the right or has the effect of restricting the right
(both directly and indirectly) based on any of identities mentioned in Article 15,
such a restriction would be unconstitutional.
218 See Modern Dental Col lege & Research Centre v. State of Madhya Pradesh, (2016) 4 SCC 346; Puttaswamy
(9J) (supra)
219 Civil Appeal No. 6522 of 2021
184 255. We do not accept the argument of the Union of India that permitting non-
heterosexual unions would lead to allowing incestuous, polyandrous, and
polygamous unions for all communities (the personal laws of some religious and
trial communities currently permit polygamy or polyandry). The restriction on the
ground of sexual orientation will violate Article 15 of the Constitution. On t he other
hand, the restriction on incestuous, polygamous or polyandrous unions would be based on the number of partners and the relationships within the prohibited degree.
The Court in that case will determine if the State’s interest in restricting the right based on the number of partners and prohibited relationships is proportionate to
the injury caused due to the restriction of choice. In view of the discussion above,
a restriction based on a marker of identity protected by Article 15 cannot be
equated t o a restriction based on the exercise of choice. For this reason, we find
that the apprehension of the Union of India is unfounded when tested on constitutional principles.
xi. The right of transgender persons to marry
256. Some petitioners have sought a declarat ion that the right to marry a person
of their choice applies to transgender persons. The Union of India seems to have
a mixed response to this claim. On one hand, it asserts that marriage must only be
between ‘biological’ men and ‘biological’ women. On the other hand, the written
submissions of the learned Attorney General state that “ The issues relating to
transgender persons arising out of The Transgender Persons (Protection of Rights)
Act, 2019 stand on a different footing and can be addressed without reference to the Special Marriage Act. ” Before addressing the issue, it is necessary to briefly
185 advert to the difference between sex, gender, and sexual orientation, as well as to
note the development of the law in relation to transgender persons.
a. Sex, gender, sexual orientation
257. The term ‘sex’ refers to the reproductive organs and structures that people
are born with.220 Intersex persons are those whose sex characteristics do not fit
the typical notions of ‘male’ and ‘female.’221 Sex and gender are not the same. The
Yogyakarta Principles describe one’s gender identity as:
“each person’s deeply felt internal and individual experience
of gender, which may or may not correspond with the sex
assigned at birth, including the personal sense of the body
(which may i nvolve, if freely chosen, modification of bodily
appearance or function by medical, surgical or other means)
and other expressions of gender, including dress, speech and
mannerisms. ”222
The gender of a person may not correspond to the sex they were assigned at birth.
A transgender person is one whose gender identity does not conform with their
sex. Transgender people may choose to undergo hormonal therapy or surgery (commonly known as gender affirming surgery or sex reassignment surgery) to
alter their bodies to make them conform to their gender. People may be
transgendered regardless of whether they choose to or are able to undergo a
surgery. As noted in preceding segments of this judgment, the term ‘transgender’
does not fully capture the rich variation in gender identities in India. Historically and
socio -culturally, Indian persons
223 with a genderqueer identity go by different
220 “Sex.” Merriam -Webster.com Dictionary, Merriam -Webster <https://www.merriam -webster.com/dictionary/sex>
221 ‘Intersex people,’ Office of the United Nations High Commissioner for Human Rights
<https://www.ohchr.org/en/sexual -orientation-and -gender -identity/intersex -people>
222 Introduction to the Yogyakarta Principles, Yogyakarta Principles
223 As also persons in other South Asian countries
186 names including hijras, kothis, aravanis, jogappas, thiru nambis, nupi maanbas
and nupi maanbis. Persons who are known by these names may identify as male,
female, or the ‘third gender.’ Intersex persons are not the same as transgender
persons. They have atypical reproductive characteristics. Intersex people may
identify as male, female, or transgender.
258. Sexual orientation differs from both sex and gender. The Yogyakarta
Principles describe sexual orientation as :
“each person’s capacity for profound emotional, affectional
and sexual attraction to, and intimate and sexual relations
with, individuals of a different gender or the same gender or
more than one gender.”224
The sex of a person is determined by their reproductive organs and structure, their
gender identity depends on their internal experience of gender, and their sexual
orientation is defined by the gender of the people that they are attracted to. The
present batch of petitions seeks the recognition of the right of persons to marry
regardless of their gender identity or sexual orientation. While previous segments
of this judgment dealt with the rights of all persons regardless of gender identity or
sexual orientation, this segment deals exclusively with the rights of persons who
are transgender or intersex.
b. The judgment of this Court in NALSA and the Transgender Persons Act
259. The judgment of this Court in NALSA (supra) recognized the right of
transgender persons to be identified by the gender identity of their choice, as well as their right to full protection under the Constitution, on equal terms with any other
224 Ibid
187 citizen of the country. The government was enjoined to recognize what the Court
termed the ‘third gender.’ The Court also noticed the absence of a suitable
legislation dealing with the rights of the transgender community. It issued directions
to the Union and State Governments to take steps to ensure that the transgender
community was able to realize its ri ghts to the fullest extent. The judgment in
NALSA (supra) was affirmed by this Court in Justice KS Puttaswamy (supra) and
again, in Navtej (supra). The judgement in NALSA (supra) was critiqued for
generalizing the gender identities of hijras as belonging t o the third gender alone.225
The directions at paragraphs 135.1 and 135.2 of NALSA (supra) must be read as
recognizing the right of all transgender persons (including hijras and those who are
socio -culturally known by other names) to be recognized by a gender of their
choice.
260. In 2019, Parliament enacted the Transgender Persons Act to provide for the
rights of transgender persons and their welfare. This statute proscribes discrimination against transgender persons,
226 provides for a system by which their
ident ity may be recognized,227 prescribes that the appropriate government shall
take welfare measures,228 recognizes the right of residence229 and provides for the
obligations of various parties with respect to their right to education, social security,
and health.230 It also creates a National Council for Transgender Persons.231 A
challenge to the constitutional validity of the Transgender Persons Act is pending
225 H.R. Vasujith Ram, 'Combatting Exclusions through Law: Rights of Transgender People in India', in Zoya Hasan,
and others (eds), The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (Delhi, 2018;
online edn., OUP 2019)
226 Chapter II, Section 9
227 Chapter III
228 Chapter IV
229 Section 12
230 Chapter VI
231 Chapter VII
188 before a different Bench of this Court. We leave the challenge to the validity of the
statute to be decided in that or any other appropriate proceeding.
261. During the course of the hearings, the Solicitor General advanced the
argument that the Transgender Persons Act prohibits discrimination against any
member of the queer community and that consequently, the qu eer community in
India no longer faces any stigma due to their gender identity or sexual orientation. He argued that the Transgender Persons Act is a broad- based legislation which
includes all persons of the queer community within its ambit. This argument does
not hold any water. The legislation applies only to persons with a genderqueer or
transgender identity and not to persons whose sexual orientation is not
heterosexual. This is evident from the definition of a transgender person as:
“…a person whose ge nder does not match with the gender
assigned to that person at birth and includes trans -man or
trans -woman (whether or not such person has undergone Sex
Reassignment Surgery or hormone therapy or laser therapy
or such other therapy), person with intersex v ariations,
genderqueer and person having such socio- cultural identities
as kinner, hijra, aravani and jogta.”232
From the definition, it is clear that the enactment applies to persons whose gender
does not match with that assigned to them at birth, which includes:
a. Transgender men and women;
b. Intersex persons;
c. Other genderqueer persons; and
d. Persons with socio- cultural identities such as hijras.
232 Section 2(k), Transgender Persons Act
189 The word ‘genderqueer’ in Section 2(k) does not refer to sexual orientation but to
gender identity. As discussed in the preceding paragraphs, gender identity is not
the same as sexual orientation. The term ‘transgender’ is not commonly
understood as referring to persons with a sexual orientation other than
heterosexual, nor does the Transgender Persons Act use t he word ‘transgender’
to include persons of a different sexuality. The Union of India’s argument that the Transgender Persons Act applies to all queer persons including persons who are
homosexual, bisexual etc. cannot be accepted. This legislation is clear ly applicable
only to those people with a gender identity that does not match the one assigned
at birth.
262. It is incorrect to state that transgender persons do not face any stigma or
discrimination post -2020, when the Transgender Persons Act came into force.
Enacting a statute does not have the same effect as waving a magic wand. For instance, the prohibition against discrimination has not resulted in society
abstaining from discrimination overnight . The ground reality is that society
continues to discriminate against transgender persons in various ways. Consistent respect for the rights of transgender persons may someday ensure that they are treated as equals (as is their right) but that day is yet to arrive. Hence, the
contention of the Union of India that transgender people are no longer stigmatized
in view of the enactment of the Transgender Persons Act cannot be accepted.
Since the legislation does not apply to homosexual persons or persons of other
sexual orientations, there is no question of such persons being free from
discrimination or violence as a result of its enactment.
190 263. Pursuant to the decision in NALSA (supra), Parliament enacted the
Transgender Persons Act which aims to give substance to the rights recognized
by this Court in its judgment. However, no such statute was forthcoming pursuant
to the decision in Navtej (supra). Although the primary issue in Navtej (supra) was
whether Section 377 of the IPC was constitutional, the ruling of this Court made it amply clear that sexual orientation cannot be a valid ground for discrimination or
hostile treatment. The decision in Navtej (supra) was a clear indication of the fact
that the LBGTQ community is entitled to equal treatment before law. Parliament is yet to enact a law to this effect. This Court is of the opinion that there is an urgent
need for a law which inter alia prohibits discrimination on the basis of sexual orientation and gives full effect to the other civil and social rights of LGBTQ
persons. In the absence of such a law, members of the LG BTQ community will be
unable to exercise their rights and freedoms to the fullest extent and will have to approach the courts for their enforcement on a case- by-case basis. This is not a
desirable outcome. As in this case, courts are not always equipped to deal with all
issues which are brought before them. Even if the courts are institutionally
equipped to address the grievances in the case before them, no citizen should have to institute legal proceedings for the enforcement of their rights every time
they seek to exercise that right. This would be contrary to the very concept of the
guarantee of rights.
191 c. Transgender persons in heterosexual relationships can marry under
existing law
264. We are in agreement with the submission of the Union of India that the issue
of whether transgender persons can marry ought to be decided separately from
the issues arising under the SMA in relation to homosexual persons or those of a
queer sexual orientation. Parliament has recognized the rights of the transgender
community by enacting the Transgender Persons Act. This Court is therefore
bound to apply this statute while adjudicating the issue of whether transgender persons can marry under existing law.
I. The right against discrimination under t he Transgender Persons Act
265. The right of transgender persons to equality under the Constitution and the
right against discrimination was recognized by this Court in NALSA (supra). To be
equal means to be able to live without discrimination. Section 3 of the Transgender
Persons Act codifies the prohibition against discrimination in the following terms:
“3. Prohibition against discrimination. — No person or
establishment shall discriminate against a transgender person
on any of the following grounds, namely: —
(a) the denial, or discontinuation of, or unfair treatment in,
educational establishments and services thereof;
(b) the unfair treatment in, or in relation to, employment or
occupation;
(c) the denial of, or termination from, employment or occupation;
(d) the denial or discontinuation of, or unfair treatment in, healthcare services;
192 (e) the denial or discontinuation of, or unfair treatment with
regard to, access to, or provision or enjoyment or use of any
goods, accommodation, service, facility, benefi t, privilege or
opportunity dedicated to the use of the general public or
customarily available to the public;
(f) the denial or discontinuation of, or unfair treatment with
regard to the right of movement;
(g) the denial or discontinuation of, or unfair treatment with
regard to the right to reside, purchase, rent, or otherwise
occupy any property;
(h) the denial or discontinuation of, or unfair treatment in, the
opportunity to stand for or hold public or private office; and
(i) the denial of access to, removal from, or unfair treatment
in, Government or private establishment in whose care or
custody a transgender person may be.”
(emphasis supplied)
266. As evident from Clauses (a) to (i), this provision is a catch- all provision
which seeks to eliminate discr imination against the transgender community both in
public as well as private spaces. It is worded in exceptionally broad terms:
267. The prefatory portion of Section 3 states that “ no person or establishment ”
shall discriminate against a transgender person. ‘E stablishment’ is defined as any
body or authority established by or under a Central Act or a State Act or an authority
or body owned or controlled or aided by the Government or a local authority or a
Government company233 and includes a Department of the Government.234 An
establishment also means any company or body corporate or association or body of individuals, firm, cooperative or other society, association, trust, agency, or
233 As defined in Section 2 of the Companies Act, 2013.
234 Section 2(b)(i), Transgender Persons Act
193 institution.235 ‘Establishment’ therefore includes any public or private entity,
authority, or body, including any ‘body of individuals.’ Individuals are, of course,
covered by the word ‘person.’
268. Clauses (a) to (i) of Section 3 list the spheres in which transgender pers ons
cannot be discriminated against. They include the spheres of education,236
employment,237 healthcare,238 movement,239 property,240 public or private office,241
care and custody.242 It also bars any discrimination with respect to goods,
accommodation, service, facility, benefit, privilege, or opportunity which is
dedicated to the use of the public or customarily available to the public.243
269. The prefatory portion of Section 3 read with Section 2(b) delineates who the
prohibition against discrimination operates against. In other words, it defines the
actors who are prohibited from discriminating against transgender persons. The
term ‘establishment’ has been defined in the broadest possible terms to include all manner of undertakings or groups of people. Clauses (a) to (i) of Section 3 set forth
the content of the anti -discrimination principle. They describe the actions which
amount to discrimination as well as the sphere in which the discrimination
operates. The actions which amount to discrimination vary depending upon the
sphere they refer to and they include denial, discontinuation, unfair treatment,
termination, and removal. The spheres, too, are broadly defined and extend to
235 Section 2(b)(ii), Transgender Persons Act
236 Section 3(a), Transgender Persons Act
237 Section 3(b), 3(c), Transgender Persons Act
238 Section 3(d), Transgender Persons Act
239 Section 3(f), Transgender Persons Act
240 Section 3(g), Transgender Persons Act
241 Section 3(h), Transgender Persons Act
242 Section 3(i), Transgender Persons Act
243 Section 3(e), Transgender Persons Act
194 practically every aspect of life. In order to establish a violation of Section 3, an
aggrieved person would have to demonstrate:
a. That the person against whom they seek a remedy is either an establishment as defined in Section 2(b) or a person;
b. That they have been discriminated against in one of the spheres listed by Section 3; and
c. That the discriminatory action corresponds to that sphere (for example, a person alleging a violation of the right to movement must prove that there has been a denial, discontinuation of, or unfair treatment of that right
II. Remedies for the infringement of Section 3
270. While Section 18 of the Transgender Persons Act stipulates that certain
actions amount to offences which may attract a penalty between six months and two years as well as a fine, violations of Section 3 attract no such penalty. In fact,
the Transgender Persons Act does not expressly provide for a remedy for the
infringement of Section 3.
271. Section 8 enjoins the appropriate Government to take steps to secure “ full
and effective participation of transgender persons and their inclusion in society .”
Since cla uses (a) to (i) of Section 3 are with a view to ensure the full and effective
participation of transgender persons in all arenas of life, Section 8, properly
understood, tasks the appropriate Government with ensuring that Section 3 is
244 Section 3(f), Transgender Persons Act
195 complied with by all whom it governs. Rule 10(4) of the Transgender Persons
(Protection of Rights) Rules 2020245 provides that the appropriate Government
shall take adequate steps to prohibit discrimination in any Government or private
organisation, or private and public educat ional institution under their purview, and
ensure equitable access to social and public spaces, including burial grounds. Rule 11 of these rules requires the appropriate Government to take adequate steps to
prohibit discrimination in any Government or priv ate organisation or establishment
including in the areas of education, employment, healthcare, public transportation,
participation in public life, sports, leisure and recreation, and opportunity to hold
public or private office. Under Section 8 read with Rule 10(4) and Rule 11, the
appropriate Government has a duty not only to prevent discrimination against
transgender persons (by persons and public as well as private establishments) but
also to address it where it is found to take place.
272. Sections 10 the Transgender Persons Act inter alia requires establishments
to comply with the statute. This provision places a duty on establishments to
comply with Section 3 and ensure that they do not discriminate against transgender
persons. Section 11 requires establishments to set up a grievance redressal mechanism by designating a person as the complaint officer to deal with
complaints relating to the violation of the provisions of the statute. Section 11 is
one of the ways in which a person who alleges the violation of the Transgender
Persons Act can seek a remedy. However, Section 11 only goes as far as to
245 “Transgender Persons Rules”
196 provide for a mechanism by which the establishment in question can be
approached for a remedy.
273. As noticed previously, the prohibition against discrimination operates
against public as well as private bodies. If a public body or actor which falls within
the definition of ‘establishment’ in Section 2(b) of the Transgender Persons Act
infringes Section 3, it is open to the aggrieved person to invoke the extraordinary
jurisdiction of the High Courts und er Article 226 of the Constitution. The High
Courts are empowered to issue directions, order, or writs to any person or authority
for the enforcement of the rights codified by Part III and for any other purpose .
The body which satisfies the definition in S ection 2(b) must be a “person or
authority” under Article 226. The High Courts may exercise their jurisdiction against
a body which is performing a public duty as well.246 While the jurisdiction of this
Court under Article 32 is not as expansive as that of the High Courts under Article
226, this Court may rely on Section 3 to guide its interpretation of the law, to enforce
the rights recognized by Part III of the Constitution.
274. Aggrieved persons may also approach the High Court under Article 226 for
the issuance of a direction, order, or writ against the appropriate Government
directing it to fulfil the mandate of Section 8 of the Transgender Persons Act. As
discussed in the preceding paragraphs, Section 8 obligates the appropriate
Government to prevent and ad dress discrimination inter alia by private bodies. The
High Court may direct the appropriate Government to perform its duties vis -à-vis
private bodies. This is no doubt an imperfect remedy and there is a need for the
246 Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani,
(1989) 2 SCC 691; Praga Tools Corpn. v. C.A. Imanual, (1969) 1 SCC 585
197 Transgender Persons Act to provide for a remedy for its enforcement, especially
Section 3.
III. Harmonious interpretation of the laws governing marriage and the Transgender Persons Act
275. Section 3 of the Transgender Persons Act prohibits the state from
discriminating against transgender persons. Section 20 of the Transgender
Persons Act indicates that the statute is in addition to, and not in derogation from
any other law for the time being in force. Parliament was no doubt cognizant of the statutes governing marriage when it enacted the Transgender Persons Act and
Section 3(e) in particular .
276. The laws which govern marriage in the country specify conditions which the
bride and the bridegroom must satisfy for their marriage to be recognized. This is
true of personal laws
247 as well as the SMA.248 The structure of these enactments
also regulates marriage between a husband and a wife.249 They use the words
“bride” and “bridegroom,” “wife” and “hus band,” “male” and “female,” or “man” and
“woman.” These legislations regulate heterosexual marriages in India. Laws which are incidental to marriage such as the DV Act, the Dowry Prohibition Act 1961 or Section 498A of the IPC seek to address the hetero- patriarchal nature of the
relationship between a man and a woman.
247 See, for instance, Section 5, HMA; Section 60, Indian Christian Marriage Act 1872; Section 3, Parsi Marriage
and Divorce Act 1936
248 Section 4, SMA
249 See, for instance, Section 2, Dissolution of Muslim Marriages Act 1939
198 277. The gender of a person is not the same as their sexuality. A person is a
transgender person by virtue of their gender identity. A transgender person may
be heterosexual or homosexual or of any other sexuality. If a transgender person
is in a heterosexual relationship and wishes to marry their partner (and if each of
them meets the other requirements set out in the applicable law), such a marriage
would be recognized by the laws governing marri age. This is because one party
would be the bride or the wife in the marriage and the other party would be the bridegroom or the husband. The laws governing marriage are framed in the context of a heterosexual relationship. Since a transgender person can be in a
heterosexual relationship like a cis -male or cis -female, a union between a
transwoman and a transman, or a transwoman and a cisman, or a transman and
a ciswoman can be registered under Marriage laws. The transgender community
consists of inter alia transgender men and transgender women. A transgender man
has the right to marry a cisgender woman under the laws governing marriage in
the country, including personal laws. Similarly, a transgender woman has the right to marry a cisgender man. A transgender man and a transgender woman can also
marry. Intersex persons who identify as a man or a woman and seek to enter into
a heterosexual marriage would also have a right to marry. Any other interpretation
of the laws governing marriage would be contrary to Section 3 of the Transgender
Persons Act and Article 15 of the Constitution.
278. In Kanailal Sur v. Paramnidhi Sadhu Khan ,
250 this Court held that the first
and primary rule of construction was that the intention of the legislature must be
199 found in the words used by the legislature itself. The terms “bride” and
“bridegroom,” “wife” and “husband,” “male” and “female,” and “man” and “woman”
in the statutes which regulate marriage cannot be read as governing marriages
between cisgender men and cisgender women alone. Nothing in these statutes
indicates that their intended application is solely to cisgender men and cisgender women. The plain meaning of the gendered terms used in these statutes indicates
transgender persons in heterosexual relationships fall within thei r fold. The
contention of the Union of India that “biological” men and women alone fall within
the ambit of these statutes cannot be accepted. No law or tool of interpretation
supports the interpretation proposed by the Union of India. The provisions on the
prohibited degrees of relationship in the laws governing marriage continue to apply.
The judgment in NALSA (supra) also recognized the importance of the right of
transgender persons to marry. Moreover, State Governments have formulated and implemented sc hemes which encourage and support transgender persons vis -à-
vis marriage.
279. In Arunkumar v. Inspector General of Registration ,252 the first petitioner
was a man and the second petitioner was a woman who happened to be
transgender. They married each other at a temple in Tuticorin and sought to have
their marriage registered by the state, which refused. They then approached the
Madras High Court under its writ jurisdiction. The Court held that:
251 For instance, the Kerala State Government announced Rs. 30,000/ - by way of ‘marriage assistance’ to couples
where at least one person was a transgender person. Government of Kerala, Social Justice Department, ‘Marriage
assistance for legally married Transgender couples’ <http://sjd.kerala.gov.in/scheme-info.php?scheme_id=IDE1MnNWOHVxUiN2eQ==>
252 2019 SCC OnLine Mad 8779
200 a. The expression “bride” in the HMA cannot have a static and immutable
meaning and that statutes must be interpreted in light of the legal system
in its present form; and
b. The fundamental right of the petitioners under Article 25 was infringed.
The Court directed the concerned respondent to register the marriage solemnized
between the petitioners.
xii. The conditions for the exercise of the rights of LGBTQ persons
a. The right of queer persons under the M ental Healthcare Act
280. The first segment of this judgment detailed how the families or relatives of
queer persons compel them to undergo “conversion” therapies (to “convert” their sexual orientation from homosexual to heterosexual) or make them marry a pers on
of the opposite sex to “cure” their homosexuality or for other reasons. Other pseudo- medical treatments are similarly designed to “cure” queerness. Such
practices violate the right to health of queer persons as also their right to autonomy and dignity. In terms of Article 5 of the Universal Declaration of Human Rights and
Article 7 of the International Covenant on Civil and Political Rights, no one shall be
subjected to torture or to cruel, inhuman or degrading treatment or punishment. “Conversion” therapies and other “treatments” which are aimed at altering sexual
orientation amount to cruel, inhuman and degrading treatment of queer persons.
They have the effect of denying their full humanity. The mental well -being suffers
to no end because cruel techniques are used in these so- called treatments. The
treatment is by its very nature cruel. It is the duty of the state to ensure that these
201 inhumane practices do not continue. The deleterious effects of discrimination on
the mental health of queer persons was also noticed by this Court in Navtej (supra).
Other segments of this judgment discussed instances of queer persons and couples being driven to die by suicide as a result of the discrimination and violence
meted out to them. This phenomenon is undoubtedly r elated to the mental health
of queer persons and the state is equally under an obligation to prevent suicides because of one’s gender identity or sexual orientation. Section 29 of the Mental
Healthcare Act stipulates that:
“(1) The appropriate Government shall have a duty to plan,
design and implement programmes for the promotion of
mental health and prevention of mental illness in the country.
(2) Without prejudice to the generality of the provisions
contained in sub- section (1), the appropriate Governme nt
shall, in particular, plan, design and implement public health
programmes to reduce suicides and attempted suicides in the
country.”
The programmes for the promotion of mental health (envisaged by Section 29(1))
must include provisions for the mental health of queer persons. Programmes to
reduce suicides and attempted suicides (envisaged by Section 29(2)) must include
provisions which t ackle queer identity and oppression arising from that identity as
causes for suicidal tendencies or feelings. We direct the Union Government as well as the State Governments or governments of Union Territories (where they exist) to carry out the mandate of Section 29 in terms of the observations in this
paragraph and to include appropriate modules or provisions which address the unique concerns of the queer community.
202 281. In exercise of the rights to dignity, autonomy, privacy and health an
individual (regardl ess of their gender identity) may choose to enter into a union with
a person (who may be of the same sex as them). Once they enter into an
relationship as life partners, a couple has the right and the freedom to determine
the significance of that relations hip as well as its consequences. A denial of this
freedom would be a denial of the many facets of Article 21.
b. The right of LGBTQ persons to freedom from coercion from their families, the agencies of the state, and other persons
282. The right to enter into a union would be an illusion without the conditions
which permit the unrestricted exercise of that right. Various parts of this judgment have detailed the violence and discrimination meted out to members of the LGBTQ
community, either because of their gender i dentity or because of their sexual
orientation. One form of this violence is that society often attempts to prevent LGBTQ persons from being with their partner, in a short -term relationship, a long-
term relationship, a relationship where they choose to liv e together or any other
kind of union. This happens in different ways – the couple may be forcibly
separated from one another, their families may file complaints with the police which
lead to the registration of FIRs and the consequent harassment of one or both of
them, or they may be married off to third parties without their consent. The families of LGBTQ persons as well as the police are the primary actors in such violence.
283. The fundamental rights and freedoms codified by the Constitution demand
that the LGBTQ community be left alone so that its members can live their lives as
they see fit, in accordance with law. This Court has discussed these rights and
203 freedoms in detail in this judgment. It is the duty of the state machinery (acting
through any author ity including the police) to protect these rights instead of
participating in their violation. Unfortunately, the police often acts in concert with the parents of LGBTQ persons to prevent the latter from exercising their rights.
This Court finds this to be unacceptable.
284. In Mansur Rahman v. Superintendent of Police, Coimbatore District ,
the petitioner was a man who had married a woman who happened to be
transgender. He claimed that his parents and some persons who belonged to a political outfit were harassing and threatening him and approached the Madras
High Court seeking police protection. The Court allowed the petition and directed
the police to ensure that no harm befalls the petitioner and his wife.
285. In Latha v. Commissioner of Police ,
254 the Madras High Court dismissed
a writ petition for the issuance of a habeas corpus filed by the petitioner for the
production of her sibling, who happened to be a transgender person. The Court
found that the sibling had attained the age of majority and had voluntar ily joined
other transgender persons.
286. Sushma v. Commissioner of Police255 concerned a lesbian couple whose
families opposed their relationship. Both their families filed complaints with the
police that they were missing and an FIR was registered. The polic e visited the
couple and interrogated them. The couple then filed a writ petition before the Madras High Court seeking a direction to the police not to harass them as well as
253 2018 SCC OnLine Mad 3250
254 2021 SCC OnLine Mad 7495
255 WP 7248 of 2021, Madras High Court
204 for protection from any form of threat or danger to their safety and security from
their families. The Court directed the parties to undergo counselling (and the judge
personally underwent counselling to understand queerness). Counsel informed the
Court that the FIR would be closed and the parents agreed to let their daughters
live the ir lives as they wished to. The Court also issued directions to ensure the
protection of LGBTQ couples.
287. We affirm the approach adopted in these cases, which protects the
fundamental rights of LGBTQ persons.
xiii. The right of queer persons to adopt children
a. Challenge to the Adoption Regulations
288. The JJ Act was enacted to consolidate and amend the law catering to the
basic needs of children. Chapter VIII (Sections 56 to 73) deals with the provisions
relating to adoption. Section 2(49) of the JJ Act defines “pros pective adoptive
parents” to mean a person or persons eligible to adopt a child according to the provisions of Section 57. Section 57 prescribes the eligibility criteria for prospective
adoptive parents:
“57. Eligibility of prospective adoptive parents. —
(1) The prospective adoptive parents shall be physically fit,
financially sound, mentally alert and highly motivated to adopt
a child for providing a good upbringing to him.
(2) In case of a couple, the consent of both the spouses for
the adoption shall be required.
(3) A single or divorced person can also adopt, subject to
fulfilment of the criteria and in accordance with the provisions of adoption regulations framed by the Authority.
205 (4) A single male is not eligible to adopt a girl child.
(5) Any other criteria that may be specified in the adoption
regulations framed by the Authority.”
(emphasis supplied)
289. Section 57(1) prescribes general conditions to do with the physical, mental,
and financial well -being of the prospective parents as well as their motivations.
Sub-Section (2) states that the consent of both the parties is required if a couple is
adopting a child. Sub -Sections (3) and (4) of Section 57 state that single and
divorced persons are not precluded from adopting. The only restriction is that a
single male cannot adopt a girl child.
290. The Ministry of Women and Child Development notified the Regulati ons
framed by the Central Adoption Resource Authority256 in exercise of the powers
conferred under Section 68(c) read with Section 2(3) of the JJ Act. Regulation 5 of
the Adoption Regulations prescribes the eligibility criteria for prospective adoptive
parents. The relevant portion of the provision is extracted below for reference:
“5. Eligibility criteria for prospective adoptive parents.―
(1)The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, they shall not have any life threatening medical condition and they should
not have been convicted in criminal act of any nature or
accused in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their
marital status and whether or not they have biological son or
daughter, can adopt a child subject to the following, namely:―
206 (a) the consent of both the spouses for the adoption shall be
required, in case of a married couple;
(b) a single female can adopt a child of any gender;
(c) a single male shall not be eligible to adopt a girl child.
(3) No child shall be given in adoption to a couple unless they
have at least two years of stable marital relationship except in
the cases of relative or step- parent adoption.”
(emph asis supplied)
291. Clause (1) of Regulation 5 states that prospective adoptive parents must be
physically, mentally, emotionally, and financially stable. In addition, they must also
not have any life -threatening medical condition or should not have been convic ted
in a criminal act or should not have been accused in a case concerning a violation of child rights. The general conditions in clause (1) are aimed at securing the best
interest of the child. The conditions focus on physical, emotional, and financial
stability. Clause (2) stipulates that any person irrespective of their marital status
and irrespective of whether they already have a biological child can adopt. To this
extent, the provision is expansive. However, clause 2(a) states that: (a) in case of
a married couple, the consent of both the spouses is required; and (b) though a
single female can adopt a child of any gender, a single male shall not be eligible to adopt a girl child. Clause (3) prescribes a further restriction on the conditions to be
met b efore someone can adopt. The provision states that a child shall be given in
adoption to a couple only if they have at least two years of a stable marital
relationship (except in cases of relative or step- parent adoption).
292. Though Regulation 5(2)(a) taken alone does not preclude unmarried
couples from being prospective adoptive parents, a combined reading of
207 Regulations 5(2)(a) and 5(3) elucidates that: (a) only married couples can be
prospective adoptive parents; and (b) such couples must be in “at least t wo years
of stable marital relationship”. A reading of the Adoption Regulations indicates that
while a person can in their individual capacity be a prospective adoptive parent,
they cannot adopt a child together with their partner if they are not married.
293. The Adoption Regul ations are framed in exercise of the power conferred
under the JJ Act. Section 57(5) of the JJ Act grants the Authority (which means
CARA in terms of Section 2(3) of the JJ Act) the power to specify any other criteria. Set out below is a table comparing t he criteria to be prospective adoptive parents
prescribed under the JJ Act and the Adoption Regulations:
JJ Act Adoption Regulations
The prospective adoptive parents
must be physically fit, financially
sound, mentally alert and highly
motivated to provide a good
upbringing. In addition to the criteria prescribed under
the JJ Act, the prospective parents should
not have been convicted of a criminal act and should not have a life- threatening
medical condition.
Couples can adopt. The consent of
both spouses is required in case a
couple chooses to adopt. Only married couples can adopt. A
married couple should have been in two
years of s table marital relationship to be
eligible to adopt.
A single male is not eligible to adopt
a girl child. A single male is not eligible to adopt a girl
child but a single female is eligible to
adopt a child of any gender.
294. The petitioners submitted that the Adoption Regulations are ultra vires the
provisions of the JJ Act because they bar unmarried couples from adopting. It was
208 also submitted that the distinction between married and unmarried persons for the
purpose of adoption is violative of Article 14 of the Constitution.
295. It is settled law that delegated legislation must be consistent with the parent
act and must not exceed the powers granted under the parent Act (JJ Act).257 The
rule making authority must exercise the power for the purpose for which it is
granted. The provisions of the delegated legislation will be ultra vires if they are
repugnant to the parent Act or exceed the authority which is granted by the parent Act. Section 57(5) delegates to CARA the power to prescribe any other criteria in addition to the criteria prescribed by the provision. However, in view of the line of
cases on subordinate law -making, this power cannot be read expansively. CARA’s
power to prescribe additional criteria is limited by the express provisions and legislativ e policy of the JJ Act.
296. The Adoption Regulations place two restrictions on a couple who wish to
adopt: first, the couple must be married, and second, the couple must have been
in a stable marital relationship. We will now determine if the prescription of t hese
two additional conditions is violative of the provisions of the JJ Act and the
Constitution.
I. Regulation 5(3) of the Adoption Regulations exceeds the scope of
the JJ Act
297. Section 3 of the JJ Act prescribes the general principles to be followed in
the administration of the Act. The provision, inter alia, includes the principle of best
257 See J K Industries Limited v. Union of India, (2007) 13 SCC 673; Indian Express Newspapers (Bombay) P Ltd.
V. Union of India, (1985) 1 SCC 641
209 interest, which stipulates that all the decisions regarding the child shall be based
on the best interest of the child which will help the child develop their full potent ial.
298. The provisions of the JJ Act promote the best interest of the child and ensure
their development.258 In fact, the eligibility criteria prescribed in Section 57 are an
extension of that principle. The legislative intent behind prescribing the conditions of physical and mental fitness is to ensure that the parents are able to prioritise the
well-being of t he child. Similarly, the condition requiring the consent of both
spouses ensures that the child is able to receive the attention and care of both
partners. The intent is not to give a child for adoption to a couple where one of them is unwilling to take up the responsibility of being a parent. Similarly, the
criterion prohibiting a single male from adopting a girl child is in the State’s interest of preventing child sexual abuse. It can be garnered that the State has prescribed
the criteria in Section 57 keeping in mind the welfare of the child.
299. Section 57(2) does not stipulate that only married couples can adopt. It
states that “in case of a couple” the consent of both the spouses must be secured.
This is a clear indicator that adoption by a married couple is not a statutory
requirement. Section 57(2) provides that the consent of both the parties must be received if the prospective adoptive parents are in a married relationship. The
usage of the phrase spouse in Section 57(2) does not mean that it excludes
unmarried couples from adopting.
258 See Gaurav Jain v. Union of India, (1997) 8 SCC 114; Kar an v. State of M.P., (2023) 5 SCC 504; Barun Chandra
Thakur v. Bholu, 2022 SCC OnLine SC 870; Shilpa Mittal v. State (NCT of Delhi), (2020) 2 SCC 787
210 300. However, Regulation 5(3) of the Adoption Regulations bars unmarried
partners from being prospective adoptive parents. These Regulations only permit
persons to adopt in an individual capacity and not jointly as an unmarried couple.
Regulation 5(2) states that every person irrespective of whether they are married
or unmarried will be able to be prospective adoptive parents. The subsequent
criteria in clause (a) (that is, the requirement for the consent of both spouses if they
are married) does not exclude an unmarried couple from adopting. It only states
that if the couple is married, then the consent of both the parties shall be secured.
However, Regulation 5(3) in express term s excludes unmarried couples from
adopting by prescribing the condition that the couple must have been in two years of a ‘stable marital relationship.’ As observed in the previous paragraph, the JJ
Act does not preclude unmarried couples from adopting. Though Section 57 of the JJ Act grants CARA the power to prescribe additional criteria, the criteria must not
exceed the scope of the legislative policy. Neither the general principles guiding
the JJ Act nor Section 57 in particular preclude unmarried couples from adopting
a child. In fact, all the other criteria ensure the child’s best interests. The Union of
India has not proved that precluding unmarried couples from adopting a child (even though the same people are eligible to adopt in their individual capacity) is in the
child’s best interests. Thus, CARA has exceeded its authority by prescribing an
additional condition by way of Regulation 5(3), which is contrary to tenor of the JJ
Act and Section 57 in particular.
301. Further, the usage of the phrase ‘stable’ in Regulation 5(3) is vague. It is
unclear if the provision creates a legal fiction that all married relationships which
have lasted two years automatically qualify as a stable relationship or if there are
211 specific characteristics in addition to those pr escribed in Regulation 5(1) (that is,
physical, mental, and emotional wellbeing) which would aid in the characterization
of a married relationship as a stable one. Hence, Regulation 5(3) exceeds the
scope of the JJ Act.
II. Regulation 5(3) of the Adoption Reg ulations violates Article 14 of
the Constitution
302. Regulation 5(3) of the Adoption Regulations has classified couples into
married and unmarried couples for the purpose of adoption. The intent of CARA to identify a stable household for adoption is discerni ble from Regulation 5(3).
However, CARA has proceeded under the assumption that only married couples
would be able to provide a stable household for the child. Such an assumption is
not backed by data. Although married couples may provide a stable environment,
it is not true that all couples who are married will automatically be able to provide
a stable home. Similarly, unmarried relationships cannot be characterized as
fleeting relationships which are unstable by their very nature. Marriage is not
necessa rily the bedrock on which families and households are built. While this is
the traditional understanding of a family, we have already elucidated above that
this social understanding of a family unit cannot be used to deny the right of other
couples who are in domestic partnerships or live- in relationships to found a family.
303. It is now a settled position of law that classification per se is not
discriminatory and violative of Article 14. Article 14 only forbids class legislation
212 and not reasonable classification. A classification is reasonable, when the following
test is satisfied:259
a. The classification must be based on an intelligible differentia which distinguishes the persons or things that are grouped, from others left out of
the group; and
b. The different ia must have a rational nexus to the object sought to be achieved
by the statute.
304. The Adoption Regulations use marriage as a yardstick to classify couples.
There is an intelligible differentia in using marriage as an indicator to classify couples in the s ense that married couples can easily be distinguished from
unmarried couples. However, the differentia does not have a rational nexus with the object sought to be achieved by the CARA Regulations which is to ensure that
the best interest of the child is pr otected. Placing a child in a stable family is
undoubtedly in pursuance of a child’s interest. However, the respondents have not placed any data on record to support their claim that only married relationships can
provide stability. It is true that separat ing from a married partner is a cumbersome
process when compared to separating from a partner with whom a person is in a
live-in relationship. This is because separation from a married partner is regulated
by the law while live -in relationships are unregul ated by law (other than for the
limited purpose of domestic violence). For instance, the law deters a person from
securing a divorce immediately by prescribing conditions such as a six -month
259 See Anwar Ali Sarkar v. State of West Bengal, 1952 SCR 284
213 waiting period after a petition for divorce by mutual consent is filed.260 Merely
because a marriage is regulated by the law, it cannot be assumed that marriage
alone or that every marriage accords stability to a relationship. Similarly, it can also
not be inferred that couples who are not in a married relationships are not ‘serious’
about the relationship. The stability of the household depends on various factors
such as the effort and involvement of the partners in establishing and running a
household, creating a safe space at home, creating a healthy work -life balance,
and a household where mental, physical, and emotional violence is not inflicted on
one another. There is no single form of a stable household. There is no material
on record to prove the claim that only a married heterosexual couple would be able to provi de stability to the child. In fact, this Court has already recognized the
pluralistic values of our Constitution which guarantee a right to different forms of association.
305. The Union of India is required to submit cogent material to support its claim
that only married partners are able to provide a stable household. However, it has
not done so. The Union of India has submitted four studies titled “Child Attention-Deficit Hyperactivity Disorder (ADHD) in same sex parents families in the United States: Preval ence and Comorbidities,”
261 “High School graduation rates amongst
children of same sex households,”262 “Children in planned lesbian families:
260 Section 13(B) (2) of the Hindu Marriage Act 1955; A Constitution bench of this Court in Shilpa Sailesh v. Varun
Sreenivasan260 held that this Court in exercise of its powers under Article 142 can dissolve a marriage on its
irretrievable breakdown dispensing of the six month cooling period prescribed by law in certain circumstances.
261 D Paul Sullins, Child Attention -Deficit Hyperactivity Disorder (ADHD) in same- sex parent families in the United
States: Prevalence and Comorbidities, British Journal of Medicine & Medical Research 6(10):987-998, 2015
262 Douglas W.Allen, High School graduation rates among children of same sex households, Rev Econ Household
214 stigmatization, psychological adjustment and protective factors,”263 and “Children
in three contexts: Family, Educati on and Social Development.”264 The studies
submitted by Ms. Aishwarya Bhati, learned ASG conclude that non- heterosexual
couples cannot effectively take up the role of parents. The studies neither indicate
that only married (and not unmarried) couples can be in a stable relationship nor
that only married couples have the ability to effectively parent children. Thus, the Union of India has not submitted any cogent material to substantiate the claim that
unmarried couples cannot be in a stable relationship. The Union of India has not
been able to demonstrate that a single parent who adopts a child will provide a
more stable environment for a child who is adopted than an unmarried couple.
For all these reasons, Regulations 5(2)(a) and 5(3) of the Adoption Regul ations
are violative of Article 14 of the Constitution.
306. Further, in terms of Section 58(2) of the JJ Act, the Specialised Adoption
Agency is required to prepare a home study report of the prospective adoptive
parents. It is only when the prospective adopt ive parents are found eligible after
the home study report that a child is referred to them for adoption. Section 58(5) provides that the progress and wellbeing of the child shall be ascertained after the adoption. The procedure for adoption provides for t he assessment of a couple and
their capacity and ability to care for a child. Any areas of concern relating to a couple’s capability as a parent would be discernible in the home study. This is true
263 Henry M.W Bos & Frank Van Balen, Children in planned lesbian families: Stigmatisation, psy chological
adjustment and protective factors, Culture, Health and Sexuality: An International Journal for Research,
Intervention and Care, 10:3, 221-236.
264 Solirios Sarantakos, Children in three contexts: Family, education, and social development, Children Australia
Volume 21, No. 3, 1996
215 of both heterosexual couples as well as queer couples. The home study must
consider the couple’s capability without reference to their sexual orientation.
III. Regulation 5(3) of the Adoption Regulations violates Article 15 of
the Constitution
307. Ms. Aishwarya Bhati referred to the judgment of this Court in Shabnam
Hashmi v. Union of India265 to argue that the fundamental right to adopt is not
recognised under the Constitution and thus, the exclusion of queer persons from the scheme for adoption is not violative of Part III of the Constitution. In Shabnam Hashmi (supra) , a petition was filed under Article 32 of the Constitution seeking a
declaration that the Constitution guarantees the right to adopt, and in the alternative, requesting the court to law down guidelines enabling adoption by
persons irrespective of religion, caste, and creed. This Court disposed of the
petition by observing that the adjudication of the question of whether adoption must
be elevated to the status of a fundamental right must await the “dissipation of
conflicting thought processes”:
“16. […] While it is correct that the dimensions and
perspectives of the meaning and content of the fundamental
rights are in a process of constant evolution as is bound to
happen in a vibrant democracy where the mind is always free,
elevation of the right to adopt or to be adopted to the status of
a fundamental right, in our considered view, will have to await
a dissipation of the conflicting thought processes in this
sphere of practices and belief prevailing in the country. The
legislature which is better equipped to comprehend the mental
preparedness of the entire citizenry to think unitedly on the
issue has expressed its view, for the present, by the
enactment of the JJ Act 2000 and the same must receive due
respect. … All these impel us to take the view that the present
is not an appropriate time and stage where the right to adopt
216 and the right to be adopted can be raised to the status of a
fundamental right and/or to understand such a right to be
encompassed by Article 21 of the Constitution.”
308. The observations of this Court in Shabnam Hashmi (supra) that it is not the
appropriate time to recognise a right to adopt and to be adopted does not affect
the case of the petitioners. The petitioners’ challenge to Regulation 5(3) of Adoption Regulations is mount ed on the ground that is discriminates against the
queer community. The challenge is not on the ground that it violates the right to adopt nor is it the petitioners case that they have a fundamental right to adopt. The
crux of the petitioners case is that Regulation 5(3) discriminates against the queer
community because it disproportionately affects them.
309. Regulation 5(3), though facially neutral, indirectly discriminates against
atypical unions (such the relationship between non- heterosexual partners) which
have not been recognised by the State. Queer marriages have not been
recognized by the state and queer persons in atypical unions cannot yet enter into
a marriage which is recognized by the state. Though the additional criteria
prescribed by the Adoption Regulations would also affect a heterosexual person’s
eligibility to adopt a child, it would disproportionately affect non- heterosexual
couples.
266 This is because the State has not conferred legal recognition to the
unions between queer persons, in the for m of marriage. Consequently, an
unmarried heterosexual couple who wishes to adopt a child has the option of marrying to meet the eligibility criteria for adoption. However, this option is not available to queer couples. When Regulation 5(3) is understood i n light of this
266 See Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261
217 position, a queer person who is in a relationship can only adopt in an individual
capacity . This exclusion has the effect of reinforcing the disadvantage already
faced by the queer community.
310. The National Commission for Protection of Child Rights (‘NCPCR’) has
submitted that excluding queer persons from adopting children is backed by cogent
reasons. As stated above, Ms. Aishwarya Bhati submitted four studies to support
the claim that permitting non- heterosexual couples to adopt is not in the best
interest of the child. The paper titled “Child Attention- Deficit Hyperactivity Disorder
(ADHD) in same -sex parent families in the United States: Prevalence and
Comorbidities,”267 examines a sample of 1,95,240 children including 512 children
with same -sex parents. The paper concluded that children with same- sex parents
in the United States were twice as likely to suffer from ADHD than children with
opposite- sex parents. The paper titled “High School graduation rates among
children of same- sex households”268 uses the 2006 Canada census to study high
school graduation probabilities of children of parents belonging to the queer
community. The paper concluded that children living with parents belonging to the
queer community perform more poorly in school when compared to children living with married heterosexual parents. The paper titled “Children in planned lesbian
families: stigmatisation, psychological adjustment and protective factors”
conducted a study to assess the extent to which children between eight and twelve
267 D Paul Sullins, Child Attention -Deficit Hyperactivity Disorder (ADHD) in same- sex parent families in the United
States: Prevalence and Comorbidities, British Journal of Medicine & Medical Research 6(10):987-998, 2015
268 Douglas W.Allen, High School graduation rates among children of same sex households, Rev Econ Household
269Henry M.W Bos & Frank Van Balen, Children in planned lesbian families: Stigmatisation, psychological
adjustment and protective factors, Culture, Health and Sexuality: A n International Journal for Research,
Intervention and Care, 10:3, 221-236.
218 years in planned lesbian families in the Netherlands experience stigmatization. For
the purpose of this assessment, data was collected from questionnaires filled out
by mothers and by children. It was concluded that higher levels of stigmatiz ation
were associated with such children. Boys were found to be more hyperactive and girls were found to suffer from a lower self -esteem. The paper titled “Children in
three contexts: Family, education, and social development”
270 collected a sample
of 174 primary school children living with married heterosexual couples, cohabiting
heterosexual couples, and homosexual couples to explore the relationship between family environment and the behaviour of primary school children. The
study concluded that the children of married couples are more likely to do well at
school, in academic and social terms, than children of cohabiting heterosexual and
homosexual couples. However, the author cautions that there may be additional
factors such as biases which the teachers may have held while assessing the
children, based on their cultural beliefs.
311. On the other hand, Dr. Menaka Guruswamy appearing for the intervenor,
Delhi Commission for Protection of Child Rights argued that there is no evidence
or empirical data to show t hat non- heterosexual couples are unfit to be parents or
that the psychosocial development of children brought up by same- sex couples will
be compromised. The learned counsel relied on the paper titled “Lesbian and Gay Parenting” by the American Psychologic al Association
271 in which it was concluded
that the home environment provided by non -heterosexual couples is not different
from that provided by heterosexual parents. In another study titled “Same- sex
270 Solirios Sarantakos, Children in three contexts: Family, education, and social development, Children Australia
Volume 21, No. 3, 1996
271 American Psychological Association, ‘Lesbi an and Gay Parenting’
219 parenting in Brazil and Portugal: An integrative review ”,272 the authors found that
the adoption of children by one of the individuals in a non- heterosexual partnership
because of the delay in the recognition of same- sex marriage became a weakness
to such families on the issues of health, education, and other r esponsibilities. In
another paper titled, “Academic achievement of children in same and different sex
parented families: A population- level analysis of linked administrative data from the
Netherlands”,273 it was concluded that the children raised by same- sex couples
performed at least as well as children of heterosexual parents in socio- political
environments characterised by high levels of legislative or public support, and that
the children living in same- sex parented families experience no educational
disadvantage relative to children living in heterosexual parented families. The
learned counsel also relied on a study which was conducted based on the data
derived from Netherlands where same- sex marriages were formalised in 2011.274
The study found that the academic results of children indicated that children raised by non- heterosexual parents outperformed children raised by heterosexual parents
by 0.139 standard deviations, and that they are 4.8 percentage points more likely to graduate. The studies which have been submitted by the counsel on either sides support their respective arguments. The studies submitted by Ms Bhati support the
argument that even if Regulation 5(3) discriminates against the queer community,
it is justified because the interest of the child would suffer if they are parented by
272 Biasutti, CM; Nascimento CRR, Gato J, Bortolozzo ML, Same- sex parenting in Brazil and Portugal: An
integrative review . Research, Society and Development , [S. l.], v. 11, n. 16,
273 Kabátek J, Perales F. Academic Achievement of Childr en in Same- and Different -Sex-Parented Families: A
Population-Level Analysis of Linked Administrative Data From the Netherlands. Demography. 2021 Apr
274 Deni Mazrekaj, Kristof De Witte, Sofie Cabus, School outcomes of children raised by same-sex parents:
Evidence from administrative Panel Data, American Sociological Review Volume 85 Issue 5
220 queer partners. On the other hand, the studies submitted by Dr. Menaka
Guruswamy support the argument that the interest of the child parented by persons
belonging to the queer community does not suffer, and if it does it is not because
persons with queer identity are ‘bad’ parents but because the State by not
recognising queer relationships treats them as second- class citizens.
312. The burden which is required to be discharged by the State for an Article 14
violation and an Article 15 violation vary. While Article 14 prohibits unreasonable
classification , Article 15 prohibits discrimination based on identity. The
interpretation of Article 15 has evolved over the years to incorporate a more substantial effects -based approach towards the anti -discrimination principle.
The test is whether the law discriminates against persons in effect, based on the
identities covered in Article 15. While the Court is undertaking an exercise to
determine if Article 14 is violated, the S tate is required to submit cogent evidence
to support its claim that the classification holds a nexus with the object sought to be achieved. On the other hand, there is no justification for discrimination based
on identities which are protected under Artic le 15. State interests (even if
established which in this case it has not been) cannot be used to justify discrimination once the Court holds that the provision in effect discriminates based
on identity. Of course, while the Court is assessing if the provi sion under challenge
discriminates in effect based on identity , it must also evaluate whether the provision
in question is a protective provision meant to achieve the guarantee of substantive
equality.
275 See Navtej (supra)
221 313. For example, it cannot be argued that the Transgender Persons Act is
violative of Article 15 because it provides special provisions to safeguard the
interest of the transgender community in exclusion of cis -gender persons. A
classification based on the identities protected by Article 15 does not automatically
lead to discrimination. This Court in State of Kerala v. NM Thomas276 held that
protective provisions (such as for reservation) were not an exception to the anti -
discrimination law but are in furtheranc e of the principle of equality (of which anti -
discrimination is a facet). The Court examines if the law is discriminatory not based
on whether there is a classification based on the identity but whether there is
discrimination based on the identity. While doing so it determines if it is a
protective provision. However, once it is established that the law discriminates
based on protected identities, it cannot be justified based on state interest. Thus,
once it is proved that the law discriminates based on sexual orientation as in this
case (because it disproportionately affects queer persons), no amount of evidence
or material submitted by the State that such discrimination is based on state’s
interest can be used as a justification.
314. We are of the opinion that if the children of persons from the queer
community suffer it is because of the lack of recognition (at a legal and social plane)
to same- sex unions. In fact, one of the studies submitted by Ms. Aishwarya Bhati
highlights this aspect.277 The stigmatization (if any) faced by the children parented
by persons of the queer community is because of the inherent biases that the
277 Solirios Sarantakos, C hildren in three contexts: Family, education, and social development, Children Australia
Volume 21, No. 3, 1996
222 society holds against the queer community, and in this context, biases about their
fitness to be parents. Thus, it is in the interest of children that the State endeavours
to take steps to sensitise the society about queer relationships.
315. In fact, the Indian Psychiatric Society which consists of 7000 mental health
professionals in India released a statement stating that children brought up by non-heterosexual parents may face stigmatization and that it is important that the civic
society is adequately sensitized:
“The Indian Psychiatric Society is very cognizant that a child
adopted into a same gendered family may face challenges,
stigma and/or discrimination along the way. It is imperative
that, once legalized, such parents of the LGBTQA spectrum
bring up the children in a gender neutral, unbiased
environment. It is also of utmost importance, that the family,
community, school and society in general are sensitized to
protect and promote the development of such a child, and prevent stigma and discrimination at any cost.”
316. The law cannot make an assumption about good and bad parenting based
on the sexuality of individuals. Such an assumption perpetuates a stereotype
based on sexuality (that only heterosexuals are good parents and all other parents are bad parents) which is prohibited by Article 15 of the Constitution. This
assumption is not different from the assumption that individuals of a certain class
or caste or religion are ‘better’ parents. In view of the above observations, the
Adoption Regulation is violative of Arti cle 15 for discriminating against the queer
community.
317. In view of the observations above, Regulation 5(3) is ultra vires the parent
Act for exceeding the scope of delegation and for violating Articles 14 and 15 of
223 the Constitution. It is settled that court s have the power to read down a provision
to save it from being declared ultra vires.278 Regulation 5(3) is read down to exclude
the word “marital”. It is clarified that the reference to a ‘couple’ in Regulation 5
includes both married and unmarried couples including queer couples . In bringing
the regulations in conformity with this judgment, CARA is at liberty to ensure that the conditions which it prescribes for a valid adoption subserve the best interest
and welfare of the child. The welfare of the child is of paramount importance.
Hence, the authorities would be at liberty to ensure that the familial circumstances provide a safe, stable, and conducive environment to protect the material well -
being and emotional sustenance of the child. Moreover , CARA may insist on
conditions which would ensure that the interest of the child would be protected
even if the relationship of the adoptive parents were to come to an end in the future.
Those indicators must not discriminate against any couple based on sexual
orientation. The criteria prescribed must be in tune with constitutional values. The
principle in Regulation 5(2)(a) that the consent of spouses in a marriage must be
obtained if they wish to adopt a child together is equally applicable to unmarried or
queer couples who seek to jointly adopt a child.
318. The forms in Schedules II (child study report), III (medical examination report
and classification of special needs of a child), VI (online registration form) and VII
(home study report) use the phrases “male appl icant” and “female applicant”. We
have already concluded above that both married and unmarried couples can adopt under Regulation 5 of the Adoption Regulations. After the judgments of this Court
278 Gita Hariharan v. Reserve Bank of India, (1999) 2 SCC 228; State Bank of Travancore v. Mohammed Khan
(1981) 4 SCC 82; Indra Das v. State of A ssam, (2011) 3 SCC 380
224 Navtej (supra) and NALSA (supra) recognising non- binary identity and their
freedom to choose a partner irrespective of the sexual identity, reference to a
‘couple’ cannot be restricted to heterosexual relationships. It will include all forms
of queer relationships. The phrases “male applicant” and “f emale applicant (in case
of applicant couples)” in Schedules II, III, VI and VII of the Adoption Regulations limit reference to only heterosexual couples and have the effect of precluding
persons in queer relationships from adopting, violating the anti -discrimination
principle in Article 15(1). Thus, the phrases “male applicant” and “female applicant
(in case of applicant couples)” in Schedules II, III, VI and VII of the Adoption
Regulations are substituted with the phrases “prospective adoptive parent 1” and
“prospective adoptive parent 2 (in case of applicant couples).”
b. Challenge to the CARA Circular
319. In 2022, CARA issued an Office Memorandum stipulating that a single
prospective adoptive parent in a live- in relationship will be ineligible to adopt a
child. The Office Memorandum further provides that this decision is taken in line
with Regulation 5(3) of the Adoption Regulations which stipulates that a child can only be placed with a stable family and that a single applicant in a live- in
relationship cannot be considered to be a part of a stable family. The relevant
portion of the Office Memorandum is extracted below:
“It has been noticed from Home study Reports (HSRs) that
some single PAPs registered with CARA for the adoption
process are in relationship w ith their live -in partner.
2. The cases of single PAPs engaged in live- in relationship
have been discussed in the Steering Committee of Central
Adoption Resource Authority (CARA) during its 31st Meeting
held on 18th April, 2022. It has been decided to go with the
225 earlier decision of 14th Steering Committee Meeting held on
10th May, 2018 that the cases of single PAP in a live- in
relationship with a partner will not be considered eligible
to adopt a child and their registration from concerned agencies/author ities will not be considered for approval.
3. The decision has been taken in line with Regulation 5(3) of
the Adoption regulations 2017. The authority would like the
children to be placed only with the stable family and single applicant in a live -in relat ionship cannot be considered
as stable family.”
(emphasis supplied)
320. CARA in its 31st meeting held on 18 April 2022 in terms of the decision taken
in the Steering Committee Meeting held on 10 May 2018 resolved that an
application rec eived by a prospective adoptive parent who is in a live- in relationship
may not be considered on the basis of Regulation 5(3) of the Adoption Regulations. The resolution is extracted below:
“14. Reference is drawn to Steering Committee Meeting, held
on 10th May 2019 wherein the Steering Committee had not
approved adoption to prospective adoptive parents staying in
Live-in relationship. However, NOC section has received
three cases of children reserved from Special Need portal and
on examination of the HSR it has been observed that the
parents have been in live- in relationship.
15. In this regard the NOC committee had not approved inter -
country cases of the children on the basis of Reg. 5(3) which states that no child shall be given in adoption to a couple
unless they have atleast two years of stable marital
relationship. Since the matter involves cases of special needs children, the issue may be kindly be discussed in the Steering Committee.
Decision: It was decided to go with the earlier decision of the
Steering committee and the same rule should be applicable as that of the domestic PAPs. Any application received from
live in PAPs may not be considered on the basis of Reg. 5(3)
of the Adoption Regulations.”
226 321. The CARA Circular pres cribes a condition in addition to the conditions
prescribed in the Adoption Regulations. While the Adoption Regulations exclude
unmarried couples from jointly adopting a child, the CARA Circular restricts the
ability of a person who is in a live- in relatio nship to adopt in their individual
capacity. The CARA Circular stipulates that the decision is in pursuance of Regulation 5(3) of the Adoption Regulations which requires couples to be in a
‘stable’ relationship.
322. Regulation 5(1) of the Adoption Regulations prescribes a general criteria (in
the form of a guiding principle) for prospective adoptive parents which is that they must be physically, mentally, and emotionally fit, they must not be convicted of a
criminal a ct, and they must not have a life- threatening disease. These criteria are
equally applicable to couples and persons who wish to adopt in their individual capacity. All the other subsequent provisions in Regulation 5 are specific to couples
(that is, the re quirement of a stable relationship and the consent of both parties)
and individuals (that is, that a male cannot adopt a girl child). Hence, the additional criterion prescribed by the CARA circular for a person to adopt in an individual
capacity must be tr aceable to the principles in Regulations 5(1) and 5(2)(c). The
condition imposed by CARA circular is neither traceable to the principles in
Regulations 5(1) and 5(2)(c) nor is it traceable to any of the provisions of the JJ
Act. The CARA Circular has exceeded the scope of the Adoption Guidelines and
the JJ Act.
323. According to the Adoption Regulations, unmarried couples cannot jointly
adopt a child. Though the additional criteria prescribed by the CARA Circular would
227 also affect a heterosexual person’s eligibility to adopt a child, it would
disproportionately affect279 non-heterosexual couples since the State has not
conferred legal recognition in the form of marriage to the union between non -
heterosexual persons . When the CARA Circular is read in light of this legal position,
a person of the queer community would be forced to choose between their wish to be an adoptive parent and their desire to enter into a partnership with a person
they feel love and affinity with. This exclusion has the effect of reinforcing the
disadvantage already faced by the queer community. For these reasons and the
reasons recorded in Sec tion D (xiii)(a)(III), the CARA Circular is violative of
Article 15 of the Constitution.
E. Response to the opinion of Justice Ravindra Bhat
324. In the opinion authored by him, my learned brother, Justice Ravindra Bhat
states that unenumerated rights are recognised by Courts in response to State
action “that threaten the freedom or right directly or indirectly.” With due respect,
such a narrow understanding of fundamental rights turns back the clock on the rich jurisprudence that the Indian courts have developed on Part III of the Constitution.
This Court has held in numerous cases held that the rights of persons are infringed
not merely by overt actions but also by inaction on the part of the State. Some of
these precedents are referred to below.
279 See Lt. Col. Nitisha v. Union of India, 2021 SCC OnLine SC 261
228 325. In NALSA (supra), this Court held that the State by rendering the
transgender community invisible and failing to recognize their gender identity
deprived them of social and cultural rights. This Court recognised the duty of the
State to enable the exercise of rights by the transgender community and issued a
slew of directions to enforce this duty. Justice AK Sikri in his opinion issued the following declarations and directions:
“129. We, therefore, declare:
1. Hijras, Eunuchs, apart from binary gender, be treated as “thir d
gender” for the purpose of safeguarding their rights under Part
III of our Constitution and the laws made by the Parliament
and the State Legislature.
2. Transgender persons’ right to decide their selfidentified
gender is also upheld and the Centre and Stat e Governments
are directed to grant legal recognition of their gender identity such as male, female or as third gender.
3. We direct the Centre and the State Governments to take steps
to treat them as socially and educationally backward classes
of citizens a nd extend all kinds of reservation in cases of
admission in educational institutions and for public appointments.
4. Centre and State Governments are directed to operate separate HIV Sero- surveillance Centres since Hijras/
Transgenders face several sexual health issues.
5. Centre and State Governments should seriously address the problems being faced by Hijras/Transgenders such as fear, shame, gender dysphoria, social pressure, depression, suicidal tendencies, social stigma, etc. and any insistence for
SRS for declaring one’s gender is immoral and illegal.
6. Centre and State Governments should take proper measures
to provide medical care to TGs in the hospitals and also
provide them separate public toilets and other facilities.
7. Centre and State Governments should also take steps for
framing various social welfare schemes for their betterment.
229 8. Centre and State Governments should take steps to create
public awareness so that TGs will feel that they are also part
and parcel of the social life and be not treated as
untouchables.
9. Centre and the State Governments should also take measures to regain their respect and place in the society
which once they enjoyed in our cultural and social life.”
326. In Union of India v. Association of Democratic Reforms280, proceedings
under A rticle 136 were initiated against the judgment of the High Court of Delhi
which recognised the rights of citizens to receive information regarding criminal
activities of a candidate to the legislative assembly. The High Court directed the
Election Commission to inter alia secure information on whether the candidate is
accused of any offence and the assets possessed by a candidate. A three- Judge
Bench of this Court dismissed the appeal and held that it is imperative that the
electorate possesses sufficient i nformation to enable them to exercise their right to
vote. The observations are extracted below:
“34. From the afore quoted paragraph, it can be deduced that
the members of a democratic society should be sufficiently
informed so that they may influence intelligently the decisions
which may affect themselves and this would include their
decision of casting votes in favour of a particular candidate. If
there is a disclosure by a candidate as sought for then it would
strengthen the voters in taking appropriate decision of casting
their votes.
45. Finally, in our view this Court would have ample power to
direct the Commission to fill the void, in the absence of
suitable legislation covering the field and the voters are
required to be well informed and educated about contesting
candidates so that they can elect a proper candidate by their
own assessment. It is the duty of the executive to fill the
vacuum by executive orders because its field is coterminous
with that of the legislature, and where there is inaction by the
executive, for whatever reason, the judiciary must step in, in
exercise of its constitutional obligations to provide a solution
230 till such time the legislature acts to perform its role by enacting
proper legislation to cover the field. T he adverse impact of
lack of probity in public life leading to a high degree of
corruption is manifold. Therefore, if the candidate is directed
to declare his/her spouse's and dependants' assets —
immovable, movable and valuable articles — it would have its
own effect.”
327. While the precedents on the subject are not multiplied in the text of the
judgment, some of the judgments on this point are footnoted.281 In view of the
discussion above, the observation of Justice Bhat that an overt action of the State
is necessary for the court to direct the State to create enabling conditions has no
jurisprudential basis. Neither the provisions of the Constitution nor the earlier
decisions of this Court create such a distinction. In fact, as I have discussed in
detail, Article 32 of the Constitution states that the Supreme Court shall have the
power to issue directions for the enforcement of rights conferred by Part III w ithout
making any distinction between action and inaction by the State.
328. I also disagree with the observations of Bhat J that in the absence of a legal
regime , the power of this Court to issue directions to enable the facilitation of rights
is limited. In Sheela Barse v. Union of India282, the petitioner, a social activist
brought to the attention of this court that the State of West Bengal jailed persons
with mental disabilities who are not suspected, accused, charged of, or convicted
for, committing any offence but only for the reason that they are mentally ill. The
decision to jail them was made based on an instant assessment of their mental
health. This Court held that the admission of such mentally ill persons to jails was
281 In the context of the right to speedy trial, see SC Advocates -on-Record Association v. Union of India, (1993) 4
SCC 441 (paragraph 505-507) and State of Punjab v. Ajaib Singh, (1995) 2 SCC 486 (paragraph 6); in the context
of the right to environment, see MC Mehta v. Union of India, (2004) 6 SCC 588 (paragraphs 40 and 42); in the context of the right to freedom from noise pollution, see Noise Polluti on (I), in re (2005) 5 SCC 727; in the context
of the right to legal aid, see State of Maharashtra v. Manubhai Pragji Vashi, (1995) 5 SCC 730
231 illegal and unconstitutional. This Court also directed that hospitals shall be
immediately upgraded, psychiatric services shall be set up in all teaching and
district hospitals, including filling posts for psychiatrists, and integrating mental
health care with the primary health care system. In PUCL v. Union of India283, the
petitioner submitted that the right to livelihood implies that the State has a duty to provide food to people. In a series of orders, this Court identified government
schemes which constituted legal entitlements of the right to food and outlined the
manner of implementing these schemes.
329. My learned brother relies on the example of Article 19(1)(d) to buttress his
point. He states that in the absence of a law which casts a duty on the State to provide transportation t hrough roads, a citizen cannot approach the court and seek
the construction of a road to enforce the right to move freely. The opinion of my learned brother fails to have noted the judgment of a three -Judge Bench of this
Court in State of Himachal Pradesh v. Umed Ram Sharma
284. In this case, a
letter petition was written to the High Court claiming that the construction of a road
which would benefit the residents of the village and in particular, the members of
the Dalit community was stopped by the State. The High Court directed the Superintending Engineer of the Public Works Department to complete the
construction of the road. This Court dismissed the appeal against the judgment of
the High Court observing that the Constitution places a duty on the State to provide
roads for residents of hilly areas because access to roads is encompassed in their
right to secure a quality life. This Court recognised that the right under Article 21 of
283 WP (Civil) No. 196/2001
232 the Constitution is violated if the State does not build roads for effective
communication and transportation. Thus, even in the absence of a law which
requires the State to build roads, such a duty was imposed on the State on an
interpretation of Part III of the Constitution. Moreover, in the precent case, the
petitioners are dem anding equal access to something which does exist (i.e., the
entitlements which flow from the right to form an abiding cohabitational union). In fact, my learned brother himself recognizes this when he holds that the actions of
the state have the effect of discriminating against queer couples. The example
under Article 19(1)(a) is unconvincing for similar reasons .
330. Bhat, J. holds that: (i) the legal dimension of marriage in USA is different
from the legal dimension of marriage in India; (ii) the legality of a marriage in USA
is solely dependent on a validly obtained license; (iii) in India, the legal status of a marriage stems from personal law and customs; and (iv) the terms of marriage are
set, to a large extent, independently of the state. While there is no doubt that
marriage predates the state and the existence of what we now consider ‘law’, I am unable to agree with the conclusion of my learned brother that the status of a
marriage in India stems only from personal law and customs and that the terms of marriage are largely set independently of the state, for two reasons: First, the legal
status of a married couple stems from statute. Once the state began regulating
marriage, the validity (and consequently, the ‘status’) of marriage is traceable to
law. W hile law may provide that a marriage is valid if it was performed in
accordance with custom, it is beyond cavil that the only reason that a custom is relevant (for the purposes of law) is because of law itself. Therefore, it is law
(through statutes) that accords significance to personal law and customs and it is
233 statutes that may (and often do) deviate from personal law and customs. Second,
the number of legislations which govern marriage as well as the detailed framework
which they set out makes it immedi ately evident that the terms of marriage are not
set independently of the state, but by the state itself. From divorce to custody to maintenance to domestic violence and offences, almost every aspect of marriage
is regulated by the state. I have discussed the manner in which marriage has
evolved ( through state regulation ) in detail in Section D(iii)(b) of my judgment.
Thus, marriage as an institution cannot anymore be viewed as solely traceable to
customs and traditions after the State’s interference to regulate the institution. The
State’s reformation of the institution has slowly but evidently changed the nature of
the institution itself. Under the Constitution, the state is empowered to reform social
institutions including marriage in line with constituti onal values.
331. Contrary to what is stated in the judgment of Bhat, J., the directions in my
judgment do not require the state to create social or legal status, or a social
institution. The directions are with a view to recognizing the choice that a person
makes for themselves when they choose another to be their partner for life. The
directions seek to make that choice a meaningful one. Nowhere do they create an institution of any kind. Rather, they give effect to the fundamental rights in Part III
of the C onstitution. This is the mandate of this Court under Article 32 – “The
Supreme Court shall have power to issue directions or orders or writs … for the enforcement of any of the rights conferred by this Part.” No response is forthcoming
to my detailed expos ition of the scope of the powers of this Court under Article 32
in Section D(i) of my judgment. In fact, Bhat, J. himself recognizes that courts often enable and oblige the state to take measures. My learned brother also arrives at
234 the conclusion that the state is indirectly discriminating against the queer
community but fails to exercise the power vested in this Court by Article 32 to
alleviate this discrimination in any way. This Court is not through judicial diktat
creating a legal regime exclusively for persons of the queer community but merely
recognising the duty of the State to recognise the entitlements flowing from
exercising the right to choose a life partner.
332. Bhat, J. states that no one has contended that two queer persons have the
right of a sust ained partnership which is traceable to Articles 19(1)(a), (c), (d) and
the right to conscience under Article 25. This is not true, as demonstrated by the
segment of this judgment on the submissions made by the petitioners.285
333. Bhat, J. has held that:
a. The classification in a legislation is to be discerned by gathering the
object sought to be achieved by the enactment. The object of the SMA
was to enable inter -faith heterosexual marriage. The classification is
therefore between same- faith heterosexual couples and inter -faith
heterosexual couples. It does not discriminate against queer persons;
and
b. The test for discrimination is not the object of the statute but its effect
and impact. The effect of the state regulating marriage only for
heterosexual couples is that it “adversely impacts” them, “results in their
285 Illustratively, see the submissions of (i) Dr Abhishek Manu Singhvi (at paragraph 21(d) of this judgment); (ii) Mr.
Raju Ramachandran (at paragraph 22(a) of this judgment); (iii) Mr KV Vishwanathan (at paragraph 23(f) of this
judgment); (iv) Mr. Anand Gro ver (at paragraph 25(e) of this judgment); (v) Dr. Menaka Guruswamy (at paragraph
27(d) of this judgment); (vi) Ms. Anitha Shenoy (at paragraph 31(a) of this judgment).
235 exclusion,” “results in denial of entitlements / benefits,” and that “this
injustice and inequity results in discrimination.” The state must address
“this deprivation” and take “remedial action.”
My le arned brother contradicts himself when he holds that the SMA is not
discriminatory by relying on its object , on the one hand, and that the state has
indirectly discriminated against the queer community because it is the effect and
not the object which is relevant , on the other. My learned brother discusses in
detail the deprivation, exclusion, and discrimination faced by the queer community.
In effect, he: (i) recognizes that they have a right not to be discriminated against;
and (ii) holds that the actions of the state have the effect of discriminating against
them. However, he does not take the step which logically follows from such a ruling which is to pass directions to obviate such discrimination and ensure the realization
of the rights of the queer com munity. I cannot bring myself to agree with this
approach. The realization of a right is effectuated when there is a remedy available
to enforce it.
The principle of ubi jus ibi remedium (that is, an infringement of a right
has a remedy) which has been applied in the context of civil law for centuries cannot be ignored in the constitutional context. Absent the grant of remedies, the formulation of doctrines is no more than judicial platitude.
334. Bhat, J highlights that the central question which arises for the consideration
of this Court is whether the absence of law or a regulatory framework, or the failure
of the State to enact law, amounts to discrimination that is protected under Article
15. He states that “ there is no known jurisprudence or case law (yet) pointing to
the absence of law being considered as discrimination as understood under Article
236 15.” Here, I would like to sound a note of caution (which, though obvious, bears
repetition) – the manner in an issue is framed impacts the analysis of the issue. In
fact, Bhat, J’s reasoning deviates from the jurisprudence that this Court has developed on the interpretation of Article 15. Bhat, J’s reasoning assesses the
‘objective’ of a law instead of its ‘effect. This is best understood with the help of an
example. Suppose the state were to enact a law which enabled only citizens of a
particular caste to avail the services of a particular government hospital but which
did not expressly prohibit members of other castes from availing its services. This law contains various conditions which must be satisfied before services of the
hospital can be availed (such as a list of diseases which it treats or how advanced a particular disease is). This law can be understood as being an “enabling law” or
a law which “regulates ” or it can be understood (in its true sense) as a law which
has the effect of excluding certain groups on the basis of prohibited markers of identity. This remains true not only of a hospital but of any service or scheme or
institution that one can imagine. Hence, what is framed as the “absence of a law”
or an “enabling law” can have the same restrictive effect as a law which expressly
bars or prohibits certain actions or excludes certain groups.
335. I disagree with the observations of my learned brother that the State has a
positive obligation under Article 21 but such an obligation cannot be read into other fundamental rights other than Article 21. I reiterate the observations made in
Section D(ix)(a).
336. Bhat, J. distinguishes the judgments in Vishaka (supra), Common Cause
(supra) and NALSA (supra) from the present case by holding that in each of these
237 cases, directions were passed because the “inadequacies … were acute and
intolerable” and faced by “entire groups.” However, he does not explain why the
inadequacies faced by the queer community in this case are mild or tolerable.
There is neither a test nor standard known to law by which discrimination, or the
violation of a fundamental right, must reach a level of intolerability for this Court to
exercise its ju risdiction. Regardless of the severity of the violation, it is the duty of
this Court to protect the exercise of the right in question. Further , in this case too,
the rights of an “entire group” (being the queer community) are at issue.
337. The opinion of Bhat , J. highlights that the reading of the Adoption
Regulations to permit unmarried couples to adopt would have ‘disastrous outcomes’ because the law, as it stands today, does not guarantee the protection
of the child of unmarried parents adopting jointly. A reading of the numerous laws
relating to the rights of children qua parents indicates that the law does not create
any distinction between children of married and unmarried couples so long as they
are validly adopted. Section 12 of the Hindu Adoptions and Maintenance Act 1956
states that an adopted child shall be deemed to be the child of their adopted
parents for all purposes from the date of adoption. Similarly, Section 63 of the JJ Act also creates a deeming fiction. The provision states that a child in respect of
whom an adoption order is issued shall become the child of the adoptive parents and the adoptive parents shall become the parents of the child as if the child had
been born to the adoptive parents, including for the purposes of intestacy.
238 338. In view of the deeming fiction created by Section 12 of the Hindu Adoptions
and Maintenance Act 1956 and Section 63 of the JJ Act, an adopted child is a
legitimate child of the adopting couple. The manner of determination of legitimacy
prescribed by Section 112 of the Indian Evidence Act 1872286 shall not apply in
view of the deeming fiction created by Section 12 of the Hindu Adoptions and
Maintenance Act 1956 and Section 63 of the JJ Act. Thus, all the benefits which
are available under the law to a legitimate child (who has been validly adopted) of
a married couple will equally be available to the legitimate child of an unmarried couple. For example, Section 20 of the Hindu Adoptions and Maintenance Act 1956
which provides that a Hindu is to maintain their children does not make any distinction between a legitimate child of a mar ried and an unmarried couple.
Similarly, succession law in India does not differentiate between the child of a married and an unmarried couple if the child has been adopted by following the
due process of law. Further, the breakdown of the relationship of an unmarried
couple will not lead to a change in applicable law because the child will continue to
be a legitimate child even after the breakdown of the relationship. It is therefore
unclear what the ‘disastrous outcomes’ referred to, are. My learned brother has also failed to address whether Regulation 5(3) is discriminatory for distinguishing
between married and unmarried couples for the purpose of adoption and for the
disproportionate impact that it has on the members of the queer community while
simulta neously holding that “the State cannot, on any account, make regulations
that are facially or indirectly discriminatory on the ground of sexual orientation.”
286 The provision confers legitimacy on a child born during the continuance of a valid marriage or within two eighty
days since the dissolution of marriage.
239 F. Directions to obviate discrimination
339. Counsel for the petitioners and some counsel for the respondents advanced
extensive submissions on the various forms of violence and discrimination that
society and the state machinery inflict upon the queer community, and especially
queer couples. This has been discussed in detail in the prefatory part of the
judgment. Counsel sought directions to obviate such violence and discrimination.
a. The Union Government, State Governments, and Governments of Union Territories are directed to:
i. Ensure that the queer community is not discriminated against because
of their gender identity or sexual orientation;
ii. Ensure that there is no discrimination in access to goods and services to the queer community, which are available to the public;
iii. Take steps to sensitise the public about queer identity, including that it is natural and not a mental disorder;
iv. Establish hotline numbers that the queer community can contact when they face harassment and violence in any form;
v. Establish and publicise the availability of ‘safe houses’ or Garima Grehs
in all districts to provide shelter to membe rs of the queer community who
are facing violence or discrimination;
240 vi. Ensure that “treatments” offered by doctors or other persons, which aim
to change gender identity or sexual orientation are ceased with
immediate effect;
vii. Ensure that inter -sex children are not forced to undergo operations with
regard only to their sex, especially at an age at which they are unable to
fully comprehend and consent to such operations;
viii. Recognize the self -identified gender of all persons including transgender
persons, hijras, and others with sociocultural identities in India, as male, female, or third gender. No person shall be forced to undergo hormonal
therapy or sterilisation or any other medical procedure either as a
condition or prerequisite to grant legal recognition to t heir gender identity
or otherwise;
b. The appropriate Government under the Mental Healthcare Act must formulate
modules covering the mental health of queer persons in their programmes
under Section 29(1). Programmes to reduce suicides and attempted suicides
(envisaged by Section 29(2)) must include provisions which tackle queer
identity;
c. The following directions are issued to the police machinery:
i. There shall be no harassment of queer couples by summoning them to
the police station or visiting their places of residence solely to interrogate
them about their gender identity or sexual orientation;
241 ii. They shall not force queer persons to return to their natal families if they
do not wish to return to them;
iii. When a police complaint is filed by queer persons alleging that their family is restraining their freedom of movement, they shall on verifying
the genuineness of the complaint ensure that their freedom is not
curtailed;
iv. When a police complaint is filed apprehending violence from the family for the reason that the complainant is queer or is in a queer relationship, they shall on verifying the genuineness of the complaint ensure due
protection; and
v. Before registering an FIR against a queer couple or one of the parties in a queer relationship (where the FIR is sought to be registered in relation
to their relationship), they shall conduct a preliminary investigation in
terms of Lalita Kumari v. Government of U.P
287, to ensure that the
complaint discloses a cognizable offence. The police must first
determine if the person is an adult. If the person is an adult and is in a
consensual relationship with another person of the same or different gender or has left their natal home of their own volition, the police shall
close the complaint after recording a statement to that effect.
242 G. Conclusions and orders of enforcement
340. In view of the discussion above, the following are our conclusions:
a. This Court is vested with the authority to hear this case. Under Article
32, this Court has the power to issue directions, orders, or writs for the
enforcement of the rights in Part III;
b. Queerness is a natural phenomenon known to India since ancient times .
It is not urban or elite;
c. There is no universal conception of the institution of marriage, nor is it
static. Under Articles 245 and 246 of the Constitution read with Entry 5
of List III to the Seventh Schedule, it lies within the domain of Parliament and the state legislatures to enact laws recognizing and regulating queer
marriage;
d. Marriage has attained significance as a legal institution largely because of regulation by the state. By recognizing a relationship in the form of
marriage, the state grants material benefits exclusive to marriage;
e. The State has an interest in regulating the ‘intimate zone’ to democratize personal relationships;
f. The issue of whether the Constitution recognizes the right to marry did
not arise before this Court in Justice KS P uttaswamy (9J) (supra),
Shafin Jahan (supra), and Shakti Vahini (supra);
243 g. The Constitution does not expressly recognize a fundamental right to
marry . An institution cannot be elevated to the realm of a fundamental
right based on the content accorded to it by law. However, s everal facets
of the marital relationship are reflections of constitutional values
including the right to human dignity and the right to life and personal
liberty;
h. This Court cannot either strike down the constitutional validity of SMA or read words into the SMA because of its institutional limitations. This Court cannot read words into the provisions of the SMA and provisions
of other allied laws such as the ISA and the HSA because that would
amount to judicial legislation. The Court in the exercise of the power of
judicial review must steer clear of matters, particularly those impinging
on policy, which fall in the legislative domain;
i. The freedom of all persons including queer couples to enter into a union
is protected by Part III of the C onstitution. The failure of the state to
recognise the bouquet of entitlements which flow from a union would
result in a disparate impact on queer couples who cannot marry under the current legal regime. The state has an obligation to recognize such
unions and grant them benefit under law ;
j. In Article 15(1), the word ‘sex’ must be read to include ‘sexual orientation’ not only because of the causal relationship between
homophobia and sexism but also because the word ‘sex’ is used as a
244 marker of identity which cannot be read independent of the social and
historical context;
k. The right to enter into a union cannot be restricted based on sexual
orientation. Such a restriction will be violative of Article 15. Thus, this
freedom is available to all persons regardless of gender identity or
sexual orientation;
l. The decisions in Navtej (supra) and Justice KS Puttaswamy (9J)
(supra) recognize the right of queer couples to exercise the choice to
enter into a union. This relationship is protected from external threat.
Discrimination on the basis of sexual orientation will violate Article 15;
m. Transgender persons in heterosexual relations hips have the right to
marry under existing law including personal laws which regulate
marriage;
n. Intersex persons who identify as either male or female have the right to marry under existing law including personal laws which regulate
marriage;
o. The state must enable the LGBTQ community to exercise its rights under
the Constitution. Queer persons have the right to freedom from coercion
from their natal families, agencies of the state including the police, and
other persons;
p. Unmarried couples (including queer couples) can jointly adopt a child.
Regulation 5(3) of the Adoption Regulations is ultra vires the JJ Act,
245 Articles 14, and 15. Regulation 5(3) is read down to exclude the word
“marital”. The reference to a ‘couple’ in Regulation 5 includes both
married and unmarried couples as well as queer couples. The principle
in Regulation 5(2)(a) that the consent of spouses in a marriage must be
obtained if they wish to adopt a child together is equally applicable to
unmarried couples who seek to jointly adopt a child. However, while
framing regulations, the state may impose conditions which will subserve
the best interest and welfare of the child in terms of the exposition in the judgment ;
q. The CARA Circular disproportionately impacts the queer community and
is violat ive of Article 15 ;
r. The Union Government, State Governments, and Governments of Union Territories shall not discriminate against the freedom of queer persons
to enter into union with benefits under law; and
s. We record the assurance of the Solicitor General t hat the Union
Government will constitute a Committee chaired by the Cabinet
Secretary for the purpose of defining and elucidating the scope of the entitlements of queer couples who are in unions . The Committee shall
include experts with domain knowledge and experience in dealing with the social, psychological, and emotional needs of persons belonging to
the queer community as well as members of the queer community. The
Committee shall before finalizing its decisions conduct wide stakeholder
consultation am ongst persons belonging to the queer community,
246 including persons belonging to marginalized groups and with the
governments of the States and Union Territories.
The Committee shall in terms of the exposition in this judgment consider the
following:
i. Enabl ing partners in a queer relationship (i) to be treated as a part of the
same family for the purposes of a ration card; and (ii) to have the facility
of a joint bank account with the option to name the partner as a nominee,
in case of death;
ii. In terms of the decision in Common Cause v. Union of India288, as
modified by Common Cause v. Union of India289, medical practitioners
have a duty to consult family or next of kin or next friend, in the event
patients who are terminally ill have not executed an Advance Directive.
Parties in a union may be considered ‘family’ for this purpose;
iii. Jail visitation rights a nd the right to access the body of the deceased
partner and arrange the last rites; and
289 2023 SCC OnLine SC 99
247 iv. Legal consequences such as succession rights, maintenance, financial
benefits such as under the Income Tax Act 1961, rights flowing from
employment such as gratuity and family pension and insurance.
The report of the Committee chaired by the Cabinet Secretary shall be implemented at the administrative level by the Union Government and the
governments of the States and Union Territories.
341. The petitions in these proceedings are disposed of in terms of this judgment.
342. Pending applications (if any) are disposed of.
[Dr Dhananjaya Y Chandrachud]
New Delhi;
October 17, 2023
Versus
with:
1. This case presents a new path and a new journey in providing legal
recogn ition to non-heterosexual relationship s.
2. I have had the benefit of the exhaustive and erudite judgment of the
Hon’ble Chief Justice Dr. D.Y. Chandrachud ; which enumerates the prevalence
of these relationships in his tory, the Constitutional recognition of the right to
form unions (in other words ‘civil unions’) , and the necessity of laying down
guidelines to protect non -heterosexual unions. In a way, this is a step forward
from the decriminalisation of private consens ual sexual activities by the
LGBTQ + community in Navtej Singh Johar & Ors. vs. Union of India,
Through Secretary, Ministry of Law & Justice .1
3. The judgment penned down by the Hon’ble Chief Justice considers all
aspects of the challenge. However, the subje ct matter itself persuades me to pen
down a few words while broadly agreeing with his judgment.
Historical prevalence of non -heterosexual unions
4. In their submissions , the Respondents raised doubts about the social
acceptability of non -heterosexual relat ionships. Before we address the same, it
is no longer res integra that the duty of a constitutional Court is to uphold the
rights enshrined in the Constitution and to not be swayed by majoritarian
tendencies or popular perceptions. This Court has always be en guided by
constitutional morality and not by social morality.2
5. A pluralistic social fabric has been an integral part of Indian culture and
the cornerstone of our constitutional democracy.3 Non-heterosexual unions are
well-known to ancient Indian civil isation as attested by various texts, practices,
and depictions of art. These markers of discourse reflect that such unions are an
inevitable presence across human experience. Hindu deities were multi -
dimensional and multi -faceted and could appear in diffe rent forms. One of the
earliest illustration s is from the Rig Veda itself. Agni , one of the most important
deities, has been repeatedly described as the “child of two births ” (dvijanman ),
“child of two mothers ” (dvimatri ), and occasionally, “ child of three mothers ”
(the three worlds ).4
6. In Somdatta’s Kathasaritsagara , same -sex love is justified in the context
of rebirth. Somaprabha falls in love with Princess Kalingasena and claims that
she loved her in her previous birth as well.5 Hindu mythology is reple te with
several such examples. We need not be detained in an effort to capture each of
2 Navtej (Supra) .
3 Maqbool Fida Husain v. Rajkumar Pandey, 2008 Cri LJ 4107.
4 Ruth Vanita and Saleem Kidwai, Same -sex l ove in India: Readings from Literature & History (Palgrave, 2001),
p. 15.
5 Ruth Vanita and Saleem Kidwai (Supra ), p. 68.
them. The significant aspect is that same -sex unions were recognised in
antiquity, not simply as unions that facilitate sexual activity, but as
relationships that foster love, emotional support , and mutual care.6
7. Even in the Sufi tradition, devotion is often constructed around the idea
of love as expressed through music and poetry . In several instances, the human
relationship with the divine was expressed by mystics through the metaphor of
same -sex love .7 Love across gender s is also reflected in the Rekhti tradition of
Lucknow. This tradition is centred around the practice of male poets writing in
a female voice and is characterised by its homoeroticism. Significantly, th e
depictio ns of same -sex relationship s are charged with affects such as love,
friendship , and companionship.8
8. Marriage as an institution developed historically and served various
social functions. It was only later in its long history that it came to be legally
recognized and codified.9 However, t hese laws regulated only one type of
socio -historical union, i.e., the heterosexual union .
9. It would thus be misconceived to claim that non -heterosexual unions are
only a facet of the modern social milieu. The objective of penning down th is
section is to provide perspective on the existence of non -heterosexual unions ,
despite continued efforts towards their erasure by the heteronormative majority.
6 Devdutt Pattnaik, The Man who was a Woman & Other Queer Tales (Routledge, 2002).
7 Ruth Vanita and Saleem Kidwai (supra ), p. 115.
8 Manjari Shrivastava, Lesbianism in Nineteenth Century Erotic Urdu Poetry “Rekhti”, Proceedings of the Indian
History Congress, 68, 965.
9 Stephanie Coontz, Marriage, a History: How Love Conquered Marriage (Penguin, 2005), p. 3 -5.
10. Non-heterosexual unions are entitled to protection under our
Constitutional schema. In Maqbool Fida Husain , I had observed: “Our
Constitution by way of Article 19(1) which provides for freedom of thought and
expression underpins a free and harmonious society. It helps to cultivate the
virtue of tolerance. It is said t hat the freedom of speech is the matrix, the
indispensable condition of nearly every other form of freedom. It is the
wellspring of civilization and without it liberty of thought would shrivel .”10
The necessity of recognizing civil unions
11. The judgment of the Hon’ble Chief Justice notes that the right to form
unions is a feature of Articles 19 and 21 of the Constitution. Th erefore, the
principle of equality enumerated under Articles 14 and 15 demands that this
right be available to all, regardless of sex ual orientation and gender. Having
recognized this right, this Court has taken on board the statement of the
Learned Solicitor General to constitute a Committee to set out the scope of
benefits available to such unions. I agree with the Hon’ble Chief Justi ce.
12. The Petitioners’ submissions demand that the Special Marriage Act,
187211 be tested on the touchstone of Part III of the Constitution, i.e., whether
they are discriminatory on the basis of sex and thus violative of Articles 14 and
15 of the Constituti on. It is now settled law that Article 14 contemplates a two -
prong ed test: (i) whether the classification made by the SMA is based on
10 Maqbool Fida Husain (sup ra).
11 Hereinafter referred to as “the SMA”.
intelligible differentia; and (ii) whether the classification has a reasonable
nexus to the objective sought to be achieve d by the State.12 The first prong, i.e.,
intelligible differentia implies that the differentia should be clear and not vague.
Section 4 of the SMA is clear in so far as it contemplates a marriage between a
male who has completed the age of twenty -one years and a female at the age
of eighteen years. In defining the degrees of prohibited relationships, Section
2(b) of the SMA exclusively applies to a relationship between a man and a
woman. Thus, by explicitly referring to marriage in heterosexual relationships ,
the SMA by implication creates two distinct and intelligible classes – i.e.,
heterosexual partners who are eligible to marry and non -heterosexual partners
who are ineligible.
13. Under the second prong, the Court examines whether the classification is
in pursuit of a State objective. The SMA’s Statement of Objects and Reasons
assists us in determining the objective. It is reproduced hereunder:
“Statement of Objects and Reasons . —This Bill revises and seeks to
replace the Special Marriage Act of 1872 so as to provide a special form
of marriage which can be taken advantage of by any person in India and
by all Indian nationals in foreign countries irrespective of the faith which
either party to the marriage may profess . The parties may observe any
ceremonies for the solemnisation of their marriage, but certain
formalities are prescribed before the marriage can be registered by the
Marriage Officers. For the benefit of Indian citizens abroad, the Bill
provides for the appointment of Diplomatic and Consular Offi cers as
Marriage Officers for solemnising and registering marriages between
citizens, of India in a foreign country.
12 D.S. Nakara v. Union of India, 1983 (2) SCR 165.
2. Provision is also sought to be made for permitting persons who are
already married under other forms of marriage to register their
marr iages under this Act and thereby avail themselves of these
provisions.
3. The bill is drafted generally on the lines of the existing Special
Marriage Act of 1872 and the notes on clauses attached hereto explain
some of the changes made in the Bill in grea ter detail. ” (Emphasis
supplied).
14. From the above , we see that the SMA postulates a ‘special form of
marriage’ available to any person in India irrespective of faith . Therefore, the
SMA provides a secular framework for solemnization and registration of
marriage. Here, I respectfully disagree with my brother Justice Ravindra Bhat,
that the sole intention of the SMA was to enable marriage of heterosexual
couples exclusively. To my mind , the stated objective of the SMA was not to
regulate marriages on the basi s of sexual orientation. This cannot be so as it
would amount to conflating the differentia with the object of the statute.
Although substantive provisions of the SMA confer benefit s only on
heterosexual relationships, this does not automatically reflect the object of the
statute . For as we are all aware, we often act in ways that do not necessarily
correspond to our intent. Therefore, we cannot look at singular provisions to
determine substantive intent of the statute . Doing so would be missing the
wood fo r the trees.
15. If the intent of the SMA is to facilitate inter -faith marriages, then there
would be no rational nexus with the classification it makes , i.e., excluding non -
heterosexual relationships.
16. In any event, regulating only heterosexual marriages wo uld not be a
legitimate State objective. It is settled law that the Court can also examine the
normative legitimacy and importance of the State objective,13 more so in a case
such as this where sex (and thereby sexual orientation) is an ex-facie protected
category under Article 15(1) of the Constitution. An objective to exclude non -
heterosexual relationships would be unconstitutional, especially after this Court
in Navtej has elaborately proscribed discrimination on the basis of sexual
orientation.14 Therefor e, the SMA is violative of Article 14.
17. However, I recognize that there are multifarious interpretive difficulties
in reading down the SMA to include marriages between non -heterosexual
relationships. These have been enumerated in significant detail in the opinions
of both the Hon’ble Chief Justice and Hon’ble Justice Bhat . I also agree that the
entitlements devolving from marriage are spread out across a proverbial
‘spider’s web’ of legislations and regulations. As rightly pointed out by the
Learned Solicit or General, tinkering with the scope of marriage under the SMA
can have a cascading effect across these disparate laws.
13 Deepak Sibal v. Punjab University, (1989) 2 SCC 145.
14 (supra).
18. In fact, the presence of this web of statutes shows that discrimination
under the SMA is but one example of a larger, more deeper form of social
discrimination against non -heterosexual people that is pervasive and structural
in nature. Ordinarily, such an intensive form of discrimination should require
keener and more intensive judicial scrutiny. However, due to limited
institutional cap acity, this Court does not possess an adequate form of remedy
to address such a violation . As pointed out in the judgment of Hon’ble the
Chief Justice, substantially reading into the statute is beyond the powers of
judicial review and would be under the le gislative domain. It would also not be
prudent to suspend or strike down the SMA, given that it is a beneficial
legislation and is regularly and routinely used by heterosexual partners desirous
of getting married. For this reason, this particular methodolo gy of recognizing
the right of non-heterosexual partners to enter into a civil union , as opposed to
striking down provisions of the SMA, ought to be considered as necessarily
exceptional in nature . It should not restrict the Courts while assessing such
deep-seated forms of discrimination in the future.
19. Non-heterosexual unions and heterosexual unions/marriages ought to be
considered as two sides of the same coin , both in terms of recognition and
consequential benefits. The only deficiency at present is the absence of a
suitable regulatory framework for such unions. This Court in Navtej noted that:
“history owes an apology to the members of this community and their families,
for the delay in providing redressal for the ignominy and ostracism that they
have su ffered through the centuries.” I believe that this moment presents an
opportunity of reckoning with this historical injustice and casts a collective
duty upon all constitutional institutions to take affirmative steps to remedy the
discrimination.
20. Thus, the next step in due course, would be to create an edifice of
governance that would give meaningful realization to the right to enter into a
union , whether termed as marriage or a union .
Charting a course: Interpreting statutes using Constitutional princ iples
21. As noted above, the benefits pertaining to marriage are spread out across
several incidental legislations and regulations. These statutes presently do not
explicitly extend to civil unions. However, now that we have recognized the
right to enter into civil unions; such statutes must be read in a manner to give
effect to this right, together with the principle of equality and non -
discrimination under Articles 14 and 15. In other words, statutory interpretation
must be in consonance with constitutional principles that are enumerated by
this Court . Needless to say, this should not detract from the Committee’s task
of ironing out the nitty -gritties of the entitlements of civil unions.
22. This exercise is necessary to foster greater coherence within the legal
system as a whole, both inter se statutes and between statutes and the
Constitution. Reading statutes in this manner will facilitate ‘inter -
connectedness’ by allowing constitutional values to link statutes within the
larger legal system. Constitutional va lues emanate from a living document and
thus are constantly evolving. Applying constitutional values to interpret statutes
helps update statutes over time to reflect changes since the statute’s enactment.
Ordinarily, constitutional principles come in conta ct with statutes when the
validity of such statutes is being tested. However, constitutional values should
play a more consistent role, which can be through the everyday task of
statutory interpretation.15
23. This interpretive technique has gained currency across jurisdictions. In
the famous Lüth case, the Federal Constitutional Court of Germany recognized
that the constitutional right of freedom of expression as enumerated under the
German Basic Law also ‘radiates’ into the statutory law of defamation. The
Court noted that:
“But far from being a value -free system the Constitution erects an
objective system of values in its section on basic rights, and thus
expresses and reinforces the validity of the basic rights. This system of
values, centring on the freed om of the human being to develop in society,
must apply as a constitutional axiom throughout the whole legal system:
it must direct and inform legislation, administration, and judicial
decision .”16
24. We may note that the Constitution of South Africa has an e xplicit
provision which directs that the interpretation of statutory law shall be in ‘due
regard to the spirit, purport and objects’ of the chapter on fundamental rights.17
15 William N. Eskridge, Public Values in Statutory Interpretation , 137(4) UPenn Law Rev. 1007, 1009.
16 BVerfGE 7, 198 (Lüth -decision ).
17 Section 35(3) of the Constitution of the Republic of South Africa.
The Constitutional Court of South Africa in Du Plessis v. De Klerk succinctly
observ ed the objective and scope of this provision:
“The common law is not to be trapped within the limitations of its past. It
needs not to be interpreted in conditions of social and constitutional
ossification. It needs to be revisited and revitalized with t he spirit of the
constitutional values defined in Chapter 3 of the Constitution and with
full regard to the purport and objects of that Chapter .”18
25. Although no such provision exists in the Indian Constitution, our Courts
are no stranger to interpreting sta tutory laws through fundamental rights.
In Central Inland Water Transport Corpn. v Brojo Nath Ganguly , the Supreme
Court was concerned with the interpretation of ‘public policy ’ under Section 23
of the Indian Contract Act, 1872.19 In this context, this Cour t observed:
“It is thus clear that the principles governing public policy must be and
are capable, on proper occasion, of expansion or modification. Practices
which were considered perfectly normal at one time have today become
obnoxious and oppressive to public conscience. If there is no head of
public policy which covers a case, then the court must in consonance
with public conscience and in keeping with public good and public
interest declare such practice to be opposed to public policy. Above all,
in deciding any case which may not be covered by authority our courts
have before them the beacon light of the Preamble to the Constitution.
Lacking precedent, the court can always be guided by that light and the
principles underlying the Fundamental Rights an d the Directive
Principles enshrined in our Constitution .”
26. This technique of reading in Constitutional values should be used
harmoniously with other canons of statutory interpretation. In this context,
legislations that confer benefits on the basis of mar riage should be construed to
include civil unions as well, where applicable.
The need for an anti -discrimination law
27. I am wholeheartedly in agreement with t he opinion of the Hon’ble Chief
Justice that there is a need for a separate anti -discrimination law which inter
alia prohibits discrimination on the basis of sexual orientation. Presently, there
are several laws that have an anti -discrimination aspect to them. However, they
are fragmented and may fail to capture the multitudinous forms of
discriminatio n. Another compelling reason for a law that places a horizontal
duty of anti -discrimination is provided by the spirit of Article 15, which
prohibits discrimination by both the State and private actors. Presently,
although the Court assumes its role as the ‘sentinel on the qui vive ’, the only
method to enforce this Constitutional right under Article 15 would be through
its writ jurisdiction. There are significant challenges for marginalized
communities to access this remedy. Therefore, the proliferation of r emedies
through an anti -discrimination statute can be a fitting solution. Such legislation
would also be in furtherance of the positive duty of the State to secure social
order and to promote justice and social welfare under Article 38 of the
Constitution.
28. My suggestions for an anti -discrimination law are as follows. First, such
a law should recognize discrimination in an intersectional manner. That is to
say, in assessing any instance of discrimination, the Court cannot confine itself
to a singular fo rm of discrimination. Instead, discrimination must be looked at
as a confluence of factors – as identities and individual instances of oppression
that ‘intersect’ and create a distinct form of disadvantage .20 Discrimination
laws can only be effective if the y address the types of inequality that have
developed in the given society. This principle has already been recognized by
this Court in Navtej .21 Second, the duties under an anti-discrimination law can
be proportionately distributed between different actors depending on factors
such as the nature of functions discharged, their control over access to basic
resources , and the impact on their negative liberty.22 Third, an anti -
discrimination statute must also enumerate methods to redress existing
discrimination and bridge the advantage gap . This could be through policies
that distribute benefits to disadvantaged groups .23
Equal rights to equal love
29. The principle of equality mandates that non -heterosexual unions are not
excluded from the mainstream socio -politica l framework. However, the next
step would be to examine the framework itself , which cannot be said to be
20 Shreya Atrey, Intersectional discrimination (Oxford University Press, 2019), p. 41.
21 (supra).
22 Tarunabh Khaitan, A Theory of Discrimination Law (Oxford University Press, 2015), p. 212-213.
23 Khaitan (supra), p. 39.
neutral . On the contrary, it is inherently value -laden. One particularly
pernicious value is patriarchy, which manifests in various oppressive ways.
Gendered stereotypes and sex -based violence are lived realities of many . This
is something both society and law recogni ze.
30. I believe that the legal recognition of non -heterosexual unions can
challenge culturally ordained gender roles even in heterosexual r elationships.
For a long period of time, marriage has been viewed in gendered terms. That is
to say, one’s status as husband or wife determines their duties and obligations
towards each other, their family, and society . Marriage enforces and reinforces
the linkage of gender with power by husband/wife categories, which are
synonymous with social power imbalances between men and women.24 This is
notwithstanding the fact that there has been progressive awareness of these
issues. Non-heterosexual unions can make an important contribution towards
dismantling th is imbalance while emphasizing alternative norms. As Eskridge
puts it : “In a man -man marriage where tasks are divided up along traditional
lines, a man will be doing the accustomed female role of keeping hou se. It is
this symbolism that represents the deeper challenge to traditional gender roles.
The symbolism can be expressed in the argot of normalization. Once female -
female and male -male couples can marry, the wife -housekeeper/husband -
breadwinner model for the family would immediately become less normal, and
perhaps even abnormal over time. The wife as someone who derives
24 Nan. D. Hunter, ‘ Marriage, Law and Gender: A Feminist Inquir y’ in Sex Wars: Sexual Dissent and Political
Culture (Lisa Duggan and Nan. D. Hunte r eds, Routledge, 2006) p. 109 – 110.
independent satisfaction from her job outside the home would immediately
become a little bit more normal .”25
31. In a non -heterosexual union, duties and obligations are not primarily
dictated by culturally ordained gender norms. In other words, b oth partners are
not limited by extant gender norms to shape their relationship, including the
division of labour . For instance, studies have found that partners in non -
heterosexual relationships share unpaid labour more equally than those in
heterosexual relationships.26 This is not to suggest that other imbalances of
power do not exist within non -heterosexual union s. Nevertheless, non-
heterosexual unions are not limited by the legally and socially sanctioned
gendered power dynamic that can be present in heterosexual unions.27
32. Legal recognition aids social acceptance, which in turn increases queer
participation in public spaces. Through the medium of lega l recognition, queer
persons will have a greater opportunity to be ‘seen’ and ‘heard’ in ways not
previously possible. Queer expression will help facilitate an expansive social
dialogue, cutting across communities and generations. This dialogue will help
us reimagine all our relationships in a manner that emphasizes values such as
mutual respect, companionship, and empathy.
25 William Eskridge, Equality Practice: Civil Unions and the Future of Gay Rights, (Routledge, 2002) p. 322 .
26 Abbie E. Goldberg et al, The Division of Labor in Lesbian, Gay, and Heterosexual New Adoptive Parents,
74(4 ) Journal of Marriage and Family, p. 812; Charlotte J. Patterson et al, Division of Labor Among Lesbian and
Heterosexual Parenting Couples: Correlates of Specialized Versus Shared Patterns, 11 Journal of Adult
Development, p. 179.
27 Rosemary Auchmuty, Whe n Equality is not Equity: Homosexual Inclusion in Undue Influence Law, 11
Feminist Legal Studies, 163, 183.
Conclusion
33. Is this the end where we have arrived ? The answer must be an emphatic
‘no’. Legal recognition of non -heterosexual unions r epresents a step forward
towards marriage equality. At the same time, marriage is not an end in itself.
Our Constitution contemplates a holistic understanding of equality , which
applies to all spheres of life. The practice of equality necessitates acceptan ce
and protection of individual choices. The capacity of non -heterosexual couples
for love, commitment and responsibility is no less worthy of regard than
heterosexual couples. Let us preserve this autonomy, so long as it does not
infringe on the rights of others. After all, “it’s my life.”28
[Sanjay Kishan Kaul]
New Delhi.
October 17, 2023.
28 ‘Its my life’, a song by Bon Jovi.
“It's my life
It's now or never
But I ain't gonna live forever
I just want to live while I'm alive ”.
Table of Contents
II. State interest in regulating social practices, through legislation ................................ ..9
A. The trinity - autonomous choice, dignity and non -discrimination ................................ ...... 17
B. Rights flowing from previous decisions of this court relating to the queer community ....... 24
IV. Positive obligations in furtherance of fundamental rights ................................ ......... 31
A. Challenge to the SMA on the ground of impermissible classification ................................ . 40
VII. Transgender persons in heterosexual persons can marry under existing law .............. 62
A. Not a case of delegated legislation being ultra vires the parent Act ................................ ... 64
B. Not a case for reading down or other interpretive construction ................................ ........ 67
C. Discriminatory impact of adoption regulations on queer persons ................................ ..... 68
1. At the centre of the dispute, lies the definition and the content of two
willing individuals’ right to marry. On the one hand the petitioners assert that
marriage is an evolving social institution, capable of embracing the union of two
willing non -heterosexual, queer or LGBTQ+ (used interchangeably) individuals
and necessitating state recognition; on the other, the respondents assert that the
institution of marriage rests on certain constant and unchanging prem ises, the
most prominent of which is that it is a heterosexual union. The task of this Court
lies in determining how the Constitution speaks on the issue.
2. Having had the benefit of reading the draft and revised opinions circulated
by the learned Chief Justice, Dr. Chandrachud, we find it necessary to pen our
reasoning and conclusions in this separate judgment. The learned Chief Justice
has recorded in detail the submissions made by counsel, and claims made; they
consequently do not require reiteration. Similarly, the sections addressing the
Union Government’s preliminary objections – i.e., the discussion on the court’s
authority to hear the case [ Section D(i)], and that queerness is a natural
phenomenon that is neither urban or elite [ Section D(ii)], are parts we have no
hesitation in agreeing with. However, we do not agree with the conclusions
arrived at by the learned Chief Justice and the directions issued. We do agree with
certain premises and conclusions that he has recorded – they are: (a) that there
exists no fundamental right to marry under the Constitution; (b) that the Special
Marriage Act, 1956 (hereafter “SMA”), is neither unconstitutional nor can it b e
interpreted in such a manner so as to enable marriage between queer persons; and
that (c) transgender persons in heterosexual relationships, have the right to
solemnize marriage under e xisting legal frameworks. We have briefly highlighted
our main points of agreement, and reasoned in more detail those aspects with
which, respectfully, we cannot persuade ourselves to concur . We had the benefit
of perusing the concurring opinion of Narasimha, J. We endorse those
observations and conclusions fully; t he reasoning and conclusions shall be read
as supplementing that of the present judgment.
3. The common ground on which the batch of petitions claim relief is that
LGBTQ+ persons are entitled to solemnize and register their marriage – in other
words, they claim a right to legal recognition of their unions within the marriage
fold. The petitioners rely on fundamental rights to equality and non -
discrimination, of dignity and autonomy and of expression and association, and
specifically, most petitioners focus on Section 4(c) of the SMA as well as the first
and second schedules thereof, to state th at particular references to “husband” or
“wife” in its provisions are to be read “down”, and a neutral expression needs to
substituted, instead. A few petitioners also claims that Section 4(c) and 17 of the
Foreign Marriage Act, 1969 (hereafter “FMA”) need to be similarly read down.
Some of the prayers also relate to the right of such couples to adopt under existing
laws in India. Some of the prayers specifically challenged Chapter II of the SMA –
relating to notice and objections procedure prescribed . However, during the
course of hearing, the court indicated that this was not a question of law that
necessitated a 5 judge -bench ruling, and hence this issue was to be left for
consideration by a numerically smaller bench.
I. Nature of marriage as a social institution
4. Marriage, as a social institution predate s all rights, forms of political
thought and laws. The institution of family has no known origin in the sense that,
there has been no stage of human existence, in which family was absent leading
to another time in which it emerged. Marriage, however, has been regarded - for
the longest time, as a relationship of man to woman which is recognized by
custom, and thereafter law; it involves certain rights and duties in the case of both
persons entering the union. It i s considered to be one of the most important
relationships , as it is not solely the individuals’ happiness and well -being but that
of others too, that is affected by their conduct in it. It has long been regarded as
the reason for society’s continuance on the one hand, and its building block on
the other. What is marriage and the conceptualisation of its role in society, has
undergone change over the time; it has engaged the attention of philosophers,
from Plato to Heg el, Kant and John Stuart Mill and of re ligious leaders, like St.
Augustine.
5. Different traditions view marriage as sacraments, and indissoluble unions
(Hindus and Catholic Christians); Islam regards marriage as both contractual and
sacred; Parsis regard it as both a sacrament and contractual. Most – if not all,
place importance on procreation, creation of family, co -habitation, shared values
as the important markers; at the same time, these traditions also recognize - in
varying degrees, importance of companionship, spiritual union, friendship and
togetherness of the spouses, in every way.
6. The respondents are right, in one sense in underlining that all conceptions
of what constitutes marriage, all traditions and societies, have by and large,
historically understood marriage as between heterosexual couples. The contexts
of culture, social understanding of what constitutes marriage, in every social order
are undoubtedly very important. At the same time, for the purpose of determining
the claims in these peti tions, it is also necessary to mark the progression of what
were deemed constitutive and essential constituents, and essential boundaries
within which marriages were accepted.
7. Marriages have not always been dictated by voluntary choice. In medieval
European societies, when a girl was physically able to consummate marriage, she
was eligible for matrimony. Among the nobility and landed gentry, the principal
consideration for marri age was exchange of property - in the form of dowry. Thus,
it was not uncommon that among the “upper classes” marriages were loveless and
unhappy. The sole reason for marriage was touted to be procreation, which the
church dictated; thus, consummation of marriage and physical sexual relations
were considered the most important features of every marriage, since this meant
the establishment of family. Among Hindus, b arriers of other kinds, such as ban
on sagotra and sapinda marriages, and impermissibility of non -endogamous
marriages, was widely prevalent, for the longest time. Although amongst
Muslims, marriage is both sacramental and contractual, and requires exercise of
free will, nevertheless, it is premised on the agreement of mehar , or the amount
the gr oom would offer, for the bride. Muslim are permitted to marry others of the
same faith, or from the “People of the Book” (known as Kitabiyas ), such as Jews,
Sabians and Christians. No marriage with polytheists is permitted. Similarly,
widow re -marriage amongst Hindus was prohibited. Likewise, injunctions
against inter -caste marriages were widely prevalent. Child marriages were widely
prevalent too. Inter -religious marriages were impossible. In the USA, various
laws had, in the past, prohibited interracial m arriages. Arranged marriages were
very common throughout the world until the 18th century.
8. It is, therefore , evident that for long periods, in many societies, the choice
of a matrimonial partner was not free; it was bounded by social constraints. Much
of the time, marriage was seen as an institution meant for procreation, and sexual
union of the spouses. In most societies marriage had cast “roles” for the spouses;
they were fairly inflexible, with men controlling most decisions, and women
placed in subordinate positions, with little or no voice, and, for the longest time,
no legal authority, autonomy or agency. For millennia, custom , tradition , and law
subordinated wives to husbands. Notions of equality of partners or their roles,
were uncommon, if not totally unheard of. All these underwent radical change.
9. The greater part of history shows that choice of a spouse, based on love or
choice played almost no role at all. Enlightenment, and Western thinkers of the
eighteenth century established that pursuit of happiness was important to life.
They advocated marrying for love, instead of status, or wealth or other
considerations. The Industrial Revolution gave impetus to this thought. Marriages
were s olemnized and celebrated with increasing frequency, in Western cultures,
based on choice, voluntary consent, and without parental approval. This
movement increased tremendously - as women's -rights m ovement expanded and
gained impetus in the nineteenth and twentieth centuries, wives started being
regarded as their husbands' equals, not their property. Couples were also enabled
to choose whether to have, and if so, how many children to have. If they we re
unhappy with each other, they could divorce - a choice exercised by a large
number of couples. Marriage became primarily a personal contract between two
equals seeking love, stability, and happiness. Therefore, although social mores
prevailed in relatio n to marriage, traditions and legal regimes were not static; the
changes that society underwent or the forces that brought change, also carried
winds that breathed new content, new contexts and new values , into the institution
of marriage.
10. Law’s progress stresses upon individual’s rights for equality. The form of
marriage, or the legally prescribed procedures assume a secondary role - they are
matters of belief and practice. They cannot be regarded as the essential content of
marriage. Tying thali is necessary in South India among many Hindu
communities; and in some parts the exchange of rings, garlands and some rituals
is necessary in North India. Many Hindu marriage customs and traditions insist
on the saptapadi ; amongst Muslims, the nikah ceremony, witnessed by invitees,
and other customary rituals and practices, is generally followed; Christian
customs emphasize on solemnization by the couples taking marriage vows. The
rich diversity of this country and its pluralism is reflected in customary practices
surrounding marriage solemnization, all – if not most of which involve the
couple, the members of their family, and the larger community. Ritual istic
celebration of marriage is considered by some as essential, while many in other
sections may deem that the factum of marriage sufficient. For relationships that
did not have customary practice dating b ack in history, the State enacted law –
much like the petitioners, seek.
11. Therefore, legislations governing inter-caste and inter faith marriages , and
adoption , are two important social relations relating to the family, through which
secularism finds its base for an egalitarian social order under the Constitution.
The enactment of laws to facilitate this aspect is testimony of the right of
individuals to personal choice and autonomy. For instance, enactment of the
Hindu Marria ge (Removal of Disabilities ) Act, 1946 enabled persons from the
same gotra or pravara to marry. Likewise, the bar to Hindu widows’ remarriage,
was removed by enacting the Hindu Widows Remarriage Act, 1856. Inter -caste
and inter -faith marriages became a possibility under the SMA after 1954.
12. The ‘legal’ dimension of marriage, in the US – the jurisprudence of which
the petitioners relied on, is markedly different from the nature of marriage in
India, and its evolution. This contextual difference, is of great relevance, when
considering a constitutional question of this kind. Marriage in countries like the
US, was earlier a sacramental institution that flowed from the Church and its
divine authority . However, in modern times, it flows from the State; which created
a ‘license regime’ for marriage. The result is that marriages may be perform ed
and celebrated with religious traditions or rituals, that have great meaning
personally for the individuals – but the legality of the marriage, is solely
dependent on a validly obtained license. This regime has since been extended to
queer couples as well in the US. The law relating to marriage in India, however,
has had a different trajectory. A deeply religious affair, it gained its legitimacy and
legal status from personal law and customs, that govern this aspect of life – for
members belonging to all faiths. The matrimonial laws that have been enacted –
were a result of the codification project (in the 19th and 20th century) , which
expressly recognise these social practices , while continuing to offer space to
unwritten customary practices as well (barring aspects like marriageable age, etc.
which are regulated by law). As mentioned, the SMA is the only avenue for a
form of secular/non -religious ‘civ il marriage’ – which too still ties into personal
law for succession, and other aspects. The Indian context, is elaborated in the
following Part II.
II. State interest in regulating social practice s, through legislation
13. Before undertaking a study on whether there is a fundamental right to
marry, and an obligation on the State to create such an avenue, it is necessary to
traverse the brief history of state intervention in social practices including in
relation to marriage . These laws were enacted in relation to different subject
areas. However, a pattern certainly emerges , on the limited scope of interference.
14. The social practices resulting in stigma and exclusion of large sections of
society, impelled the Constitution framers to frame specific provisions like Article
15(1) and (2), Articles 17, 23 and 24 , which was left to the Parliament to flesh out
through specific legislation. This resulted in statutes such as the Protection of
Civil Rights Act, 1955, Scheduled Castes and the Scheduled Tribes (Prevention
of Atrocities) Act, 1989, Bonded Labour System (Abolition) Act, 1976, Immoral
Traffic (Prevention) Act , 1956, the Prohibition of Employment as Manual
Scavengers and their Rehabilitation Act, 2013, and their respective amendments.
The laws removing barriers which prevented large sections of society from
entering into temples and places of public worship, is another example.
15. In a somewhat similar vein, legislative activity, as aimed at bringing about
gender parity through prohibiting prevailing practices that further inequality and
sometimes even criminalizing certain customs, resulted in legislations such as the
Equal Remuneration Act, 1976 (which guaranteed equal pay for equal work
regardless of the sex of the worker), the Dowry Prohibition Act, 1961 as amended
subsequently, introduction of provisions in criminal law which gave teeth to such
provisions [Sections 498A and 304B of the I ndian Penal Code, 1860 (“IPC”) , and
Section 113A and 113B of the Evidence Act , 1872 which enabled courts to raise
presumptions in the trial of such offences ].
16. Other practices aimed at realization of social goals and furthering the
mandate of Article 15(3) in respect of children such as the right to free universal
education under Article 21A of the Constitution, and the Right to Free Education
Act, 2009 ; The Child Labour (Prohibition and Regulation) Act, 1986; Protection
of Children from Sexual Offences Act , 2012, the Juvenile Justice (Care and
Protection ) Act 2016 (hereafter, “JJ Act”) , etc. In all these, the Parliament or the
concerned legislatures donned th e role of reformer s, and furthered the express
provisions of the Constitution, enjoining State action, in furtherance of Articles
15(2), 15(3), 17, 23 and 24.
17. Marriage has historically been a union solemnized as per customs, or
personal law tracing its origin to religious texts. Legislative activity, in the
personal law field, so far has been largely, though not wholly, to codify prevailing
customs and traditions, and regulating them, only where needed. The instances
that stand out, are the enactment of the Indian Succession Act , 1925 , Hindu
Women’s Right to Property Act , 1937 , Hindu Marriage Act, 1955, the Hindu
Adoptions and Maintenance Act , 1956 , the Hindu Succession Act, 1956, the
Hindu Minority and Guardianship Act , 1956, the Indian Divorce Act, 1869 (as
amended in 2001) , the Muslim Personal Law (Shariat) Applic ation Act , 1937 ;
and the Anand Marriage Act, 1909 (as amended). These laws mostly codified
traditions and customs, which existed, and to an extent, regulated marriages and
succession laws. These laws also sought to introduce reforms: for the first time,
monogamy was enacted as a norm applicable to all Hindus; likewise, the option
of divorce was enacted, together with grounds on which or other remedies (like
judicial separation ) could be sought. Further, the minimum age of marriage was
also enacted, through provisions in various personal laws, and enforced through
the Prohibition of Child Marriage Act, 2006 (which repealed the pre -existing
Child Marriage Restraint Act, 1929) – this law applies to all sections of societies.
18. Existing conditions of women, especially in respect of issues such as
maintenance, were considered inadequate even before the Constitution was
brought into force. The earliest reform introduced was through the Bengal Sati
Regulation, 18291 (by the colonial rulers). This was later followed by the Hindu
Widow Remarriage Act, 1856 which enabled re-marriage of Hindu widows.
These enactments pre -date the Constitution, and can be seen as reforms, meant to
outlaw abhorrent practices viewed as evil, and needing prohibition, to protect
women’s lives; in the case of widow remarriage, it was to enable child and young
widows an opportunity to lead lives. Given the diversity of Hindu traditions and
the differing approaches in various schools of law, which prevailed in different
parts of the country, it was considered necessary to enact the Hindu Women ’s
Right to Property Act, 1 9372 (later with the enactment of the Hindu Succession
Act, 1956, some rights were expanded through its provisions3). For a long time,
daughters were treated unequally in regard to succession to the estate of their
deceased father; this changed with the enactment of the Hindu Succession
Amendment Act, 2005, and the substitution of Section 6, daughters (who were
hithert o excluded from succession to any coparcenary properties) became entitled
1 Regulation XVII, A. D. 1829 of the Bengal Code
2 With the introduction of the Hindu Women's Right to Property Act, 1937, the widow of the deceased husband
now had a right to her husband's property after his death. Unlike previously, where the property was divided
among the surviving coparceners by the doctrine of survivorship, now it was the widow who had the sole right to
such property. However, she only had limited rights (popularly called "limited estate") over such property, which
remained with her till her death.
3 After the coming of the Hindu Succession Act, 1956, any property held by a Hindu female, whether before or
after the commencement of that Act and which does not fall under the exception of 14(2), is held by her in an
unrestricted and absolute manner . The word "possessed" as incorporated in section 14 was further held by various
judgements of this court to include any kind of remote possession, be it constructive, physical, or even a right to
possess. The result of the incorporation of this section le d to a situation whereby all the limited rights given to a
female Hindu under the 1937 Act became absolute by virtue of section 14(1) of the Hindu Succession Act.
to claim the share that a son was entitled to, in the case of death of a coparcener
in relation to ancestral property.
19. The right to maintenance ( pendente lite , as well as alimony) was given
statutory force under the Hindu Marriage Act 1955 as well as the Hindu
Maintenance and Guardianship Act 1956 , for Hindus. All married women and
children of their marriage, regardless of their religious or social backgrounds,
were enabled to claim maintenance, by virtue of Section 488 of the Criminal
Procedure Code, 1898. This provision was re -enacted, and progre ssively
amended through section 125 of the Code of Criminal Procedure, 19 73. This
court, in its five -judge decision in Mohd. Ahmad Khan v. Shah Bano Begum
(hereafter, “Shah Bano”)4 upheld the right of Muslim women, including divorced
Muslim women to claim maintenance. However, soon after that decision,
Parliament enacted the Muslim Women (Protection of Rights on Divorce) Act,
1986, which diluted the ruling in Shah Bano (supra) and restricted the right of
Muslim divorcées to alimony from their former husbands for only 90 days after
the divorce (the period of iddat in Islamic law). The restriction imposed was
however interpreted narrowly, and this court through a Constitution Bench, in
Danial Latifi v . Union of India5 held that “nowhere has Parliament provided that
reasonable and fair provision and maintenance is limited only for the iddat period
and not beyond it. It would extend to the whole life of the divorced wife unless she
gets married for a second time ”.
20. The Age of Consent Act in 1891, raised the age of marriage from 10 to 12
years. The Child Marriage Restraint Act of 1929 addressed this by prescribing the
minimum age of marriage for females to 14 years and for boys to 18 years. The
Child Marriage Restrain t Act of 1929 (also known as the Sarda Act) , was enacted
as a result of prolonged pressure from social reform organisations and concerned
people who fought against the negative repercussions of child marriage. The age
5 2001 Suppl. (3) SCR 419
limitations were later raised to 18 and 21 years old, under the Prohibition of Child
Marriage Act, 2006. The practise of marrying off children young, which prevailed
before these enactments, was thus , interdicted by legislation.
21. Similarly, even while exercising personal choice in marriage, these choices
are regulated by law – prohibition of marriage of persons related by blood
(consanguineous marriages)6. Other restrictions such as the requirement to be of
“sound mind” to give valid consent or not to be “unfit for marriage and the
procreation of children” .7 If a spouse is “incurably of unsound mind” or on the
ground of unsoundness , the other spouse can secure divorce8. Bigamy among
Hindus was abolished by enactment of the HMA, in 1955. Reform has been the
underlying theme, impelling the state to intervene. The legislative trajectory, and
indeed some of the debates that preceded enactment of measures like monogamy
and divorce, showed a division of opinion. The first President, Rajendra Pr asad,
expressed strong sentiments against adopting such “foreign” concepts which were
opposed to Hindu society. There were other voices, most prominently, women in
public life, who supported the need to empower women.
22. It can thus, be seen that two kinds of legislations have regulated marriage:
the first, like SMA, HMA, the Hindu Disabilities Removal Act, and the Hindu
Widows Remarriage Act, removed barriers, and enabled exercise of meaningful
choice , specifically to women . The second kind of legislation are those which
enacted restrictive regulations, essentially to further an orderly society and /or
protect women: prohibit bigamy; define minimum age for marriage; child
6 Defined as “prohibited degrees” under Section 3 (g) of the Hindu Marriage Act, 1955 - which is not confined to
a bar against marriages related by blood, but also through non -biological ties, such as widow of brother, son’s
widow; mother in law, etc; Section 3 (1) (a) of the Parsi Marriage and Divorce Act, 1936; Section 19, Indian
Divorce Act, 1869; Section 88, Indian Christian Marriages Act, 1872. Among Muslims, the concept of
consanguinity is known as qurabat , i.e. blood relationships such as marrying one’s relatives like mother,
grandmother, sister, aunt, niece, etc. Other grounds (affinity or mushaarat ) are also prohibited relationships, i.e.
marriage with mother in law, daughter in law, step grandmother; step granddaughter, fosterage when a child under
the age of two years has been fed by a woman other than his mother, or when the woman becomes his foster
mother, a man cannot marry his foster mother or her daughter, i.e. foster s ister.
7 Section 5 (i) (ii) (iii), HMA [Hindu Marriage Act, 1955]
8 Section 13 HMA; Section 32 (b) and (bb) Parsi Marriage Act, 1936; Section 10 (1) (iii) Indian Divorce Act,
1869; under Section 2 (v) of the Dissolution of Muslim Marriages Act, 1939
marriage restraint; marriage of individuals within prohibited degrees of
relationships, etc. Whereas some restrictions, in a sense codified and recognized
existing customs – such as by enacting prohibited degrees of relationships, rule
against insanity, rules enabl ing declaration of nullity or divorce on ground of
impotence, etc ., - others were meant to further interests of women and children
and also enable exercise of choice.
23. Such reforming and codification, however, did not cover the entire field.
For instance, in the field of succession and inheritance, the Hindu Succession Act,
1956 only enacts certain broad features, leaving untouched the rights of various
communities and sections of Hindus, to work out their right s in succession to joint
family, Hindu Undivided Family and coparcenary property - and this unwritten,
uncodified law, (in many cases based on customs and local traditions) is enforced
not only in regard to inheritance, but also in the field of taxation. Likewise, the
law accommodates and accords primacy to cus tom [e.g., Section 2 (d) which
states that persons other than Hindus - including Jews, Muslims and Christians
who may be following Hindu customs, would continue to do so9; Section 7 which
spells out the ceremonies of Hindu marriage, also states that they shall be based
on “customary rites and ceremonies of either party thereto ”; and s imilarly,
customary divorce amongst Hindu s is accorded primacy, by Section 29 (2)10].
Neither the Hindu Marriage Act, nor the Hindu Succession Act, apply to members
of the Scheduled Tribe communities; the Hindu Adoptions and Maintenance Act,
applies to them in a nuanced manner.11 The Hindu Minority and Guardianship
9 Section 2 which says that the Act does not apply to “(c) to any other person domiciled in the territories to which
this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person
would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any
of the matters dealt with herein if this Act had not been passed.”
10 “29… (2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred
by any special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the
commencement of this Act.”
11 Section 2 (2), Hindu Marriage Act, and Hindu Succession Act, are identically worded, and state that:
“(2) Notwithstanding anything contained in sub -section (1), nothing contained in this Act shall apply to the
members of any Scheduled tribe within the meaning of clause (25) of article 366 of the Constitution unless the
Central Government, by notification i n the Official Gazette, otherwise directs.”
The Hindu Adoptions and Maintenance Act, 1956 is worded differently, and covers, inter alia,
Act, 1956, on the other hand, has a provision similar to the one under the Hindu
Minority and Maintenance Act as well as one which excludes members of the
scheduled tribe communities12. In the latest three judge bench decision of this
court, in Revanasiddappa v . Mallikarjuna13, this court clarified that with the
enactment of Section 16 of the HMA, the legitimacy conferred upon children born
of void or voidable marriages would be that they are “entitled only to a share in
their parent’ s property but cannot claim it of their own right as a consequence of
which they cannot seek partition during the life -time of their parents ”. The court
also held that they cannot claim any rights other than what was expressly provided
for. Thus , uncodified law and custom was upheld.
24. Legislative action initiated at different points in time thus were reformatory
or meant to effectuate certain fundamental rights . Practices and customs which
had resulted in the degradation or diminution of individuals, seen as inconsistent
and abhorrent to democratic society, were sought to be eliminated by these laws.
When codification attempts resulted in residual discrimination , the courts stepped
in to eliminate and enforce the fundamental rights [ Independent Thought v. Union
of India & Anr., (hereafter, “Independent Thought”)14; Shayara Bano v. Union of
India & Anr.15, etc. ].
25. The only legislations which come to one’s mind which in fact created social
status or facilitated the status of individuals in private fields are the Special
Marriage Act, 1954 , the Protection of Women from Domestic Violence Act, 2005
(“DV Act”) , and Section 41 of the Juvenile Justice (Care and Protection of
Children) Act (which enables adoption amongst members of all faiths and
“(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and
who is brought up as a member of the tribe, community, group or family to which such parent belongs or
belonged;”
12 Section 3 (2) states that “(2) Notwithstanding anything contained in sub -section (1) nothing contained in this
Act shall apply to the members of any scheduled Tribe within the meaning of clause (25) of article 366 of the
Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.”
13 2023 INSC 783 ; ; 2023 SCC OnLine SC 1087
communities). The latter, i.e., the provision enabling ad option was preceded by
certain guidelines which facilitated inter -country adoptions. These guidelines,
initially pioneered in the judgment of this court in Laxmi Kant Pandey v. UOI16 -
were accepted. Executive instructions filled in the vacuum to some extent
assimilating the guidelines of the court but at the same time the limitation in law
that prevented adoption of children from different faiths and backgrounds,
persisted. These limitations were finally overridden through the enactment of the
Juvenile Justic e Act, 2016. The Protection of Women from Domestic Violence
Act, 2005 which was for the purpose of more effective protection of the rights of
women guaranteed under the Constitution who are victims of violence of any kind
occurring within the family. For the first time, a legal status was given to
unmarried couples, which enabled women, subjected to domestic violence, to the
right to residence (quite apart from remedies through its provisions). The culture
of the Constitution, thus, has impelled the removal of barriers which hitherto
existed. Traditional barriers – such as those based on social practice, and
stereotypes such as gender roles, have, through express constitutional provisions
like Articles 14, 15 and 16 which shaped legislation (and where t his fell short,
through judicial intervention), been overcome and in some cases eliminated.
26. The role of the legislature has been to act as codifier, and in many instances,
not enact or codify existing customs or practices, and, wherever necessary,
intervene, and in furtherance of Article 14 and 15(3) enact laws. Parliament, has
intervened and fac ilitated creation of social status (marriage) through SMA, and
enabled the creation of the institution of adoption, which was available amongst
only certain communities. These, and other legislative interventions, are a result
of state interest in reforms or furthering the interests of given communities or
persons. For these reasons, we do not particularly subscribe to the characterisation
of ‘democratizing intimate zones’ as discussed in the learned chief justice’s draft
16 [1985] Supp. (3) SCR 71
opinion. These outcomes were driven by enacted law ; furthermore, there was
state interest, which impelled regulation of such relationships, as for instance, in
ensuring that the minimum age for marriage of girls. Likewise, there is state
interest in regulating what kind of relationships, i.e. prohibited degrees of
relationship, should be enacted as disqualifications to marriage . Marital
“offences” such as desertion, or “cruelty” [not confined to physical violence or
cruelty] are also grounds afforded to spo uses, to seek matrimonial remedies. The
absence of such legislation would have meant that children of any age, would
continue to have been married off, much to the peril of the girl child’s health and
life; likewise, the codification and enactment of prohi bited degrees of
relationships, were meant to further certain public health interests .
III. Tracing the r ights enjoyed by queer persons
A. The trinity - autonomous choice, dignity and non -discrimination
i. Importance of personal choice under the Constitution
27. The journey of our constitutional progression, and our understanding of the
personal liberties, especially right to life (Article 21) and equality (Article 14) has
peeled and laid bare, so to say, multiple layers of prejudice, insensitivity and
indifference o f the social order or other collectives, in regard to a person’s
freedom to exercise her volition, and free will, in several matters. For instance, a
woman’s choice and bodily autonomy in regard to exercise of her reproductive
rights has been acknowledged as a fundamental right –- integral to the right to life,
in Suchita Srivastava & Ors. v. Chandigarh Administration17 reiterated in Devika
Biswas v . Union of India18; X v . Principal Secretary, Health and Family Welfare
Department (hereafter, “X v. Principal Secretary”)19; Independent Thought
(supra) and other decisions.
17 2009 (1 3) SCR 98 9. This court held that “ a woman's right to make reproductive choices ” is “ a dimension of
'personal liberty' as understood under Article 21 ”.
28. A person’s autonomy to choose a spouse or life partner, has been declared
as integral to one’s fundamental right to live: in Asha Ranjan v . State of Bihar20,
this choice of a “partner in life” was held to be “a legitimate constitutional right”
that is “ founded on individual choice” and the court decried the concept of "class
honou r" or "group thinkin g" which acted as barriers from the exercise of free
choice . Similarly, In re [Gang -Rape Ordered by Village Kangaroo Court in
W.B.,21 echoed the same idea and said that the state is “duty -bound” to protect
the fundamental rights “and an inherent aspect of Article 21 of the Constitution
would be the freedom of choice in marriage.” Shafin Jahan v. Asokan K.M &
Ors., ( hereafter, “Shafin Jahan”)22, brought home that expressing choice is in
“accord with the law” and is “acceptance of individual identity.”23
29. The nine -judge decision in K.S. Puttaswamy v . Union of India (hereafter,
“K.S. Puttaswamy”)24 through Dr. Chandrachud J writing for himself and five
other judges, in several places, explored the various nuances of the right to
privacy, and observed that “personal choices governing a way of life are intrinsic
to privacy”.
30. The choice of a woman to seek employment, was upheld in Anuj Garg v.
Hotel Association of India25 where gender and age barriers were held
unconstitutional; the choice of an individual patient has been held to exercising
his (or her) legal right to euthanasia (or to his relations in certain circumstances,
particularly when the patient is unconscious or incapacitated to take a decision),
in Common Cause (A Regd. Society) v. Union of India (UOI) & Ors (hereafter,
“Common Cause”)26. Traditional barriers to temple entry based on gender was
23 Choice was also the central theme, in Gian Devi v . Superintendent, Nari Niketan (1976) 3 SCC 234, Soni Gerry
v. Gerry Douglas (2018) 2 SCC 197 and Nanda Kumar v . State of Kerala (2018) 16 SCC 602
the subject matter of this court’s ruling in Indian Young Lawyers Association &
Ors. v . the State of Kerala & Ors.27).
ii. Dignity as a dimension of equality and all our liberties
31. The promise of the Preamble to the Constitution is of 'fraternity’ “assuring
power, conflicts, and oppression, denial of participation. Quite naturally, these
occupied centre -stage in our struggle for Swaraj. We did not strive merely for
freedom from the shackles of a foreign power; our founders realized that
millennia old practices of marginalization, oppression and exclusion produced
humiliation, resulting in dehumanization of the human “ self”. The relation of self
to other self, the dominant or powerful self to the oppressed self, ventures on the
concept of equality. It thus tries to eliminate untouchability, sex and caste -based
discrimination, and ensure dignity.
32. Dignity is understood to mean the intrinsic worth of a person or the inherent
value of a human being which entitles one to respect. The crucial aspect of
substantive dignity lies in the state’s role in providing basic conditions of life
which enable indivi duals to fully realise the potential of intrinsic dignity by
living, what is called, a ‘dignified life’.
33. In the Indian context the idea of equality and dignity is to reach its
constitutional commitment to be a republic, based on democracy. In Francis
Coralie Mullin v . Administrator, Union Territory of Delhi28, this court said that
the “right to life includes the right to live with human dignity”. Prem Shankar
Shukla v. Delhi Admn29 voiced the same idea, i.e. that the Preamble set the
“humane tone and temper of the Founding Document and highlights justice,
equality and the dignity of the individual.” The court went on to hold that Article
21 “is the sanctuary of human values, prescribes fair procedure and forbids
barbarities, punitive or procedural ”.
34. This court, in Jeeja Ghosh v. Union of India30, spoke about human dignity
as a “core value” and that the “ right to life is given a purposeful meaning by this
Court to include right to live with dignity”. The court quoted from Aharon Barak31
that human dignity has a “central normative role” and that as a constitutional
value it is “the factor that unites the human rights into one whole. It ensures the
normative unity of human rights” expressed in different ways i.e., normatively as
a basis for constitutional rights; an interpretive principle for determining the
scope of constitutional rights and that dignity has “an important role in
determining the proportionality of a statute limiting a constitutional right.” In
Kesavananda Bharati v . State of Kerala (hereafter, “Kesavananda Bharti”)32 too
the value of dignity was underlined: “the basic dignity of man does not depend
upon the codification of the fundamental rights nor is such codification a
prerequisite for a dignified way of living ”. This view has been adopted in several
other decisions. It would be to borrow the words of Justice K.K. Mathew “an idle
parade of familiar learning to review the multitudinous cases”33 underpinning
this aspect.
35. This court in K.S. Puttaswamy (supra) too, recognized the value of
dignity34. The judgment of this court in National Legal Services Authority v.
Union of India & Ors., (hereafter, “NALSA”)35 is significant; it underlines how
dignity can be said to form the basis of enjoyment of fundamental freedoms.
31 Aharon Barak "Human Dignity - The Constitutional Value and the Constitutional Right" Cambridge University
Press (2015)
32 1973 Supp SCR 1
33 State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 (3) SCR 760
34 This formulation was followed in X v. The Principal Secretary (supra) . In Navtej Johar (supra) , Dipak Misra,
J, said that “[t]his is the essence of dignity and we say, without any inhibition, that it is our constitutional duty to
allow the individual to behave and conduct himself/herself as he/she desires and allow him/her to express
himself/herself, of course, with the conse nt of the other. That is the right to choose without fear. It has to be
ingrained as a necessary prerequisite that consent is the real fulcrum of any sexual relationship.”.
36. The constitutional emphasis on dignity is not without a reason. Ambedkar,
and several of our constitution framers, meticulously sought to carve out of the
remnants of a socially repressive, hierarchical, and unequal society a modern
constitution, reflecting the aspirations of a confident people, in a vibrant
democracy. The society which our constitution created was to emerge out of
darkness of caste and other forms of social prejudice and oppression, into the light
of the rule of law, social justice, an d egalitarianism. To Ambedkar and other
constitution makers, political freedom (swaraj) meant precisely the freedom to
make the self, to make choices with dignity, to break from historical suffering and
humiliation. The drafting history of the equality code (Articles 14, 15, 16, 17 and
18) bear poignant testimony to this aspect.
37. Dignity has both an internal and external aspect. In its internal context,
dignity and privacy are intrinsically twined. In its external context, dignity is
multidimensional: it is a right to be treated as a fellow human, with all attributes
of a human per sonality, which is, the right and expectation to be accorded due
respect, treated with dignity and equal worth. Denial of these, has a
disproportionate impact on the individual: they are diminished in their own eyes,
and the rest of the world, resultin g in a loss of one’s self worth and moral worth .
This is the vision of equality, social justice, welfare and dignity which our
Constitution articulates.
iii. Equality, non -discrimination and non -exclusion
38. The equality code - Articles 14, 15, 16, and 17 (and Articles 23 and 24), so
referred to in various previous decisions of this Court - for instance as the
constitution’s “identity” in M. Nagaraj v . Union of India (hereafter, “M.
Nagaraj”)36 is not a “wooden” equality before law and equal protection of law. It
contains specific injunctions prohibiting the state from discriminating on
36 2006 Supp (7) SCR 336
specifically forbidden grounds [such as caste, race, sex, place of birth, religion,
or any of them, in Article 15; and caste, sex, religion, place of residence, descent,
place of birth, or any of them, in Article 16]. The rooting of such explicit issues -
commanding th e state against discriminating on such specific heads, is therefore,
as much a part of the equality code, as the principle of equality indorsed in Article
14. The inclusion of Article 17 enjoins the state to forbear caste discrimination,
overt ly, or through classification, and looms large as a part of the equality code
and indeed the entire framework of the Constitution. The protected attribute of
‘sex’ has been held to include ‘sexual orientation’ and ‘gender expression’ by this
court in NALSA (supra) and Navtej Johar & Ors. v. Union of India (hereafter,
“Navtej Johar”)37.
39. The rationale for enacting proscribed grounds under Article 15 or 16 (or
both) is the awareness of Constitution makers that courts could use these markers -
or pointers of distinction, to determine if reasonable classification were
permissible. Hence, absent the prohibi ted ground of sex, gender could have been
a plausible basis for an intelligible differentia. To prevent such classifications
specific proscribed grounds were enacted as injunctions against State action. The
provisions, and the equality code, are consequent ly not only about the declaratory
sweep of equality: but also about the total prohibition against exclusion from
participation in specified, enumerated activities, through entrenched provisions.
A closer look at Article 15, especially Article 15(2), would further show that
likewise most of the proscribed grounds in Article 15(1) were engrafted to ensure
that access to public resources - in some cases not even maintained by the state,
but available to the public generally, could not be barred. This provision was
made to right a historical wrong, i.e., denial of access to the most deprived
sections of society of the most basic resources, such as water, food, etc. The aim
of the Constitution was to act as the ultimate leveller, ensuring that equality in
practice, and substance, became the constitutional culture of this great nation.
Together with the affirmative action provisions - Articles 15(3) & (4), 16(4) &
16(5) was intended to guarantee that not mere facial discrimination was forbidden
but that exis ting inequalities were ultimately eradicated. Flowing from these, this
court has, time and again, emphasized that non -discrimination is essential for
enjoyment of all rights and freedoms of citizens of our country, to realize their
worth and potential.38
40. In the context of the present debate, in NALSA (supra), this court took note
of the Yogyakarta Principles and principle on right to equality and non -
discrimination enshrined therein which reads as :
“2. The rights to equality and non-discrimination - Everyone is entitled to
enjoy all human rights without discrimination on the basis of sexual
orientation or gender identity. Everyone is entitled to equality before the law
and the equal protection of the law without any such discrimination whether
or not the enjoyment of another human right is also affected. The law shall
prohibit any such discrimination and guarantee to all persons equal and
effective protection against any such discrimination. ”
In this backdrop, the declaration of law, in Navtej Johar (supra) has provided
impetus, so far as LGBTQ + persons are concerned. Consensual queer
relationships are not criminalized; their right to live their lives, and exercise
choice of sexual partners has been recognised. They are no longer to be treated as
“sub-par humans” by law. Yet, that ipso facto, the petitioners allege, is not
sufficient, because the fact that they are allowed to be by themselves, “let alone”
in the privacy of where they live, is not adequate. Discrimination and prejudice
faced by the queer community has been acknowledged, and discuss ed at length
by this court in NALSA (supra) and Navtej Johar (supra) . The draft opinion of the
Chief Justice, also highlights these aspects, so is only briefly touched upon in the
following section, for the sake of completeness.
38 The principle of non -discrimination was explained in Rajive Raturi v. Union of India & Ors 2017 [12] SCR 827
as existing to “ensure that all persons can equally enjoy and exercise all their rights and freedoms. Discrimination
occurs due to arbitrary denial of opportunities for equal participation”.
B. Rights flowing from previous decisions of this court relating to the queer
community
41. The Constitution assures dignity; also, various fundamental rights
guarantee a panoply of rights (to equality, non -discrimination on enumerated
grounds, to freedom of speech, expression, of association, of right to travel freely,
of right to reside, of the right to trade, commerce and business, to personal liberty,
freedom to profess one’s religion, all being important ones). Various rights not
expressly stated or enumerated, have been declared as facets of the right to life -
of livelihood , access to h ealthcare, right to shelter, right to a clean environment,
etc.
42. Sexual relation between persons of the same sex was outlawed, by virtue
of Section 377 of the IPC. It characterized such acts as “unnatural sex”, enacted
an offence, and prescribed sentence. This provision was read down by a Division
Bench ruling of the Delhi High Court in Naz Foundation v . State (NCT of Delhi)
(hereafter, “Naz Foundation”)39, which de -criminalized consensual sex between
persons of the same sex. However, Naz Foundation (supra) was over turned , and
its holding disapproved by this Court in Suresh Kumar Kushal v . Naz
Foundation40 that became the final word for a time so to say, resulting in the
criminalization of physical intimacy between same sex consenting adults.
Implicit in this was the chilling effect on the exercise of other freedoms by such
couples particularly in exhibitin g even bare, decent expressions of affection –
which was a position that prevailed till the later five -judge bench decision in
Navtej Johar (supra) .
43. NALSA (supra) was a significant ruling regarding the rights of transgender
persons. It was held that “discrimination on the ground of sexual orientation or
gender identity, therefore, impairs equality before law and equal protection of law
and violates Article 14 of the Constitution of India”.41 This c ourt, for the first
time, recognized what now is obvious but was not perceived to be till then, i.e. ,
that the transgender persons have the same rights and have to be treated as full
citizens, entitled to their self -expression of gender identity. In other words, every
human being’s right to assert what their gender is, not limited by what has been
ascribe d to them based on their sex at the time of birth. The court unequivocally
declared that the right of transgender persons to non -discrimination is equally
contained and resonates in the same manner as it does with other citizens. The
court also acknowledge d the right to self -determination of one's gender as
intrinsic to Article 21 of the Constitution. The court further declared that
necessarily, to realize such persons’ fundamental right to live with dignity under
Article 21, extends to the right of equal access to all facilities to achieve full
potential as human beings , such as education, social assimilation, access to public
spaces and employment opportunities. The court also expressly alluded to their
rights under Articles 15 and 16 of the Constitution o f India. The court was
cognizant of the acutest form of discrimination of such persons, resulting in their
degradation. This declaration of the entitlement of the transgender persons
sensitize d the society to take measures for addressing their concerns , eventually
paving the way for the enactment of the Transgender Persons (Protection of
Rights) Act, 2019 which aims to entrench the principle of non -discrimination and
entitles transgender persons to a range of statutory rights, which they can enforce.
44. The court’s intervention in the oft cited decisions on behalf of the
petitioners has been to protect the citizens or those approaching the courts against
threats of violence or creation of barriers in the exercise of free choice [Shakti
Vahini v. Union of India (hereafter, “Shakti V ahini”)42, Lata Singh v. State of U.P
(hereafter, “Lata Singh”) , Shafin Jahan (supra) , Laxmibai Chand aragi. v. State
41 Ibid.
of Karnataka43 respectively ]. These decisions were based on the state’s duty to
protect citizens and enable the exercise of their individual choice , in the face of
external threats. Other decisions, such as Joseph Shine v. Union of India44, Navtej
Johar (supra) and Independent Thought (supra) were instances where specific
provisions that criminalized or made exceptions to criminal behaviour, were
struck down or read down in the enforcement of the fundamental rights, i.e.
Articles 14, 15(3) and 21. Along the way, K.S. Puttuswamy (supra) articulated the
broadest right to privacy which embraces within its fold the right to exercise ones
choice of a life partner and to lead their life free from external barriers.
C. Is there a fundamental right to marry?
45. This court has recognized that marriage is a social institution.45 As
elaborated in Part I , marriage existed and exists, historically and chronologically
in all of the senses - because people married before the rise of the state as a
concept. Therefore, marriage as an institution is prior to the state , i.e., it precedes
it. The status is still, not one that is conferred by the state (unlike the license
regime in the US) . This implies that the marriage structure exists , regardless of
the state, which the latter can utilise or accommodate, but cannot be abolish ed as
a concept . Under this view terms of marriage are set, to a large extent ,
independently of the state . Its source is external to the state . That source defines
the boundaries of marriage . This implies that state power to regulate marriage
does not sit easy with the idea of marriage as a fundamental right. In attempting
to analyse the claim to a fundamental right to marry , there are primarily two
45 Sivasankaran v. Santhimeenal [2021 ] 6 SCR 169: “The norms of a marriage and the varying degrees of
legitimacy it may acquire are dictated by factors such as marriage and divorce laws, prevailing social norms,
and religious dictates. Functionally, marriages are seen as a site for the propagation of socia l and cultural capital
as they help in identifying kinship ties, regulating sexual behaviour, and consolidating property and social
prestige.” Likewise, in Indra Sarma v. V.K.V. Sarma [(2013) 14 SCR 1019 ] this court said that “The institutions
of marriage and the family are important social institutions.” The same decision also recognized the centrality of
tradition, and custom, while emphasizing that “Marriages in India take place either following the personal Law
of the Religion to which a party is belonged or following the provisions of the Special Marriage Act. ”
competing claims about the nature of marriage : one being that the state should
exercise more control over marriage to support and protect “traditional purposes
and perception s” and the other, that each individual should have the right to
define marriage for themselves and state involvement in marriage should be
minimal .
46. If indeed there is a right to marry unless it is elevated to a right akin to
Article s 17, 23, and 24, [which apply to both state and nonstate agencies and
actors ], it cannot be operat ionalized. These provisions, most emphatically create
positive obligations; likewise Articles 15 (3), 15 (4) – and 15 (6), as well as
Articles 16 (4), 16 (6) highlight state interest in creating conditions to further the
goal of non -discrimination. Yet, the previous decisions of this court have
carefully held such provisions to enable the state, and in a sense oblige it to take
measures; but ruled out court mandated pol icies and laws.46 In our considered
opinion, this is not however, one such case where the court can make a departure
from such rule, and require the state to create social or legal status.
47. What is being asked for by the petitioners is state intervention in enabling
marriage between queer or non-heterosexual couples. Civil marriage or
recognition of any such relationship, with such status , cannot exist in the absence
of statute . The demand , hence , is that of a right of access to a publicly created
and administered institution . There is a paradox here or a contradiction, which
runs to the root of the issue and weighs on this court’s mind, heavily - in that the
creation of the institution, here depends on state action, which is sought to be
compelled through the agency of this court .
48. Most of the precedents cited contain discussions on how the institution of
marriage involve s issues of basic importance . Many decisions, including
Obergefell v. Hodges (hereafter, “Obergefell”)47, recall tradition, to underline
that marriage is of utmost significance, and that it underlines the importance of
46 Andhra Pradesh Public Service Commission v . Baloji Badhvanath 2009 (5) SCR 668
commitment of two individuals towards each other and that it is a foundational
relationship of society . Traditions of marriage per se may not support the basis of
recognition of marital relationship between non -heterosexual couples . Many
decisions by the US courts, have underlined the rational e for declaring the right
to marry a fundamental right as being essential to the orderly pursuit of Happiness
(as it appears in their Declaration of Independence) by free persons. This str and
of reasoning is apparent from Loving48 to Obergefell (supra) .
49. This with respect is not sound - at least as applied to state licensing of
marriage (as in the US) , which is what civil marriage is . The fundamental
importance of marriage remain s that it is based on personal preference and
confers social status . Importance of something to an individual does not per se
justify considering it a fundamental right, even if that preference enjoys popular
acceptance or support. Some may consider education to be fundamentally
important in that they consider nothing less than a postgraduate degree is
fundamental ; there may be a large section of the people, who consider that access
to internet is a fundamental right, and yet others, who may wish that access to
essential medication is a fundamental right. All these cannot be enforceable
right s, which the courts can compel the sta te or governance institutions to
provide. These cannot result in demand for creation of a social institution, and in
turn creation of status, through a statute. This result - i.e. recognition, can be
achieved only by enacted law .
50. All decisions relied on by the petitioners – K.S. Puttaswamy (supra) ,
Navtej Johar (supra) , Shakti Vahini (supra) and Deepika Singh v. Central
Administrative Tribunal49, contain broad observations with respect to individuals’
choice of their partner as also a reference as to non -conventional relationships .
Some broad observations are undoubtedly to be found in these judgments they
cannot be referenced to hold that a right to marry automatically flows in the
48 Loving v. Virginia , 388 US 1 (1967)
manner from the provisions of Part III which the petitioner asserts. There cannot ,
for the above reasons, be a per se assertion that there exists an unqualified right
to marry which requires treatment as a fundamental freedom; we agree on this
conclusion arrived at by the learned Chief Justice , and his analysis of Shakti
Vahini (supra) , Shafin Jahan (supra) , Navtej Johar (supra) , K.S. Puttaswamy
(supra) , and NALSA (supra) that the constitution does not expressly recognize a
right to marry .
D. Right to ‘union’, or abiding relationship
51. The conclusion arrived at by the learned Chief Justice is that while there is
no express fundamental right to marry, there is a right or freedom to enter int o a
union [ spelt out in Navtej Johar (supra) , K.S. Puttaswamy (supra) , NALSA
(supra) , Shakti Vahini (supra) , Shafin Jahan (supra) , etc.] and that having regard
to our constitutional values, which entail respect to the choice of a person whether
or when to enter into marriage and the right to choose a marital part ner. The
learned Chief Justice also traces this right to enter into an abiding cohabitational
relationship to express provisions of Article 19(1)(a), (c), and (e), Article 21, and
Article 25.
52. While we agree, that there is a right - which we will characterise as a ‘right
to relationship’ to avoid confusion – we squarely recognise it to fall within Article
2150, as already recognised in the afore -cited cases. The right to relationship here,
includes the right to choose a partner, cohabit and enjoy physical intimacy with
them , to live the way they wish to , and other rights that flow from the right to
50 See Navtej Johar (supra) . Some of the opinions, notably of Chief Justice Dipak Misra (with whom Justice
Khanwilkar concurred) highlighted the need to protect choice of one’s partner, in case of non -heterosexual
persons. Citing previous decisions of this court, including Shakti Vahini (supra) and Shafin Jahan (supra) , Justice
Dipak Mishra (Chief Justice, as he then was), concluded that:
“167. The above authorities capture the essence of the right to privacy. There can be no doubt that
an individual also has a right to a union under Article 21 of the Constitution. When we say union,
we do not mean the union of marriage, though marriage is a union. As a concept, union also
means companionship in every sense of t he word, be it physical, mental, sexual or emotional . The
LGBT community is seeking realisation of its basic right to companionship, so long as such a
companionship is consensual, free from the vice of deceit, force, coercion and does not result in
violation of the fundamental rights of others.” (emphasis supplied)
privacy , autonomy and dignity . They are, like all citizens, entitled to live freely,
and express this choice, undisturbed in society . Whenever their right to enjoyment
of such relationship is under threat of violence, the state is bound to extend
necessary protection. This is a natural consequence of this court’s judgments in
Navtej Johar (supra) , K.S. Puttuswamy (supra) , Shafin Jahan (supra) and Shakti
Vahini (supra) .
53. The learned Chief Justice in a detailed discussion of the ‘goal of self -
development’, rights under Article 19 (including the right to freedom of speech
and expression, and to form ‘intimate’ associations, to settle in any part of India),
Article 21 , and Article 25 , arrives at the conclusion that the right to union (or right
to enter into an abiding cohabitational relationship ) can be traced to these express
provisions, which in turn enrich this right. Thereafter, having traced this right to
union, it is propounded that the ‘positive’ postulate of fundamental rights (as
explained in an earlier section of the draft opinion), neces sitates or places a
positive obligation on the State to accord recognition to such relationships/ unions.
This, in our considered opinion, is not necessary. Further, o ur point of
disagreement is deepened by the discussion in Part D(v) and (vi) in the learne d
Chief Justice’s draft opinion, prior to the section on ‘ the right to enter into a
union ’- which lays down a theory on the ‘positive postulates ’ of fundamental
rights and the consequential obligation on the State. For the reasoning elaborated
in Part IV of our opinion, we cannot agree to this characterisation of the
entitlement , or any corresponding state obligation to create a status through
statute .
54. If it is agreed that marriage is a social institution with which the State is
unconcerned except the limited state interest in regulating some aspects of it, does
it follow that any section of the society (leaving aside the issue of rights of non -
heterosexual couples) – which wishes for creation of a like social institution, or
even an entry into a zone which is not popular or otherwise does not fall within
the institution of marriage – can seek relief of its creation by court intervention?
IV. Positive obligations in furtherance of fundamental rights
55. The conception of fundamental rights – in terms of their negative, and
positive content – is a formulation that requires no citation. However, the extent
to which this positive obligation may reach to, is where our reasoning arrives at
the metaphorical fork in the road. Every fundamental right, is not enjoyed by an
individual, to the same degree of absoluteness – for instance: Article 19 has a
clear stipulation of reasonable restrictions for each freedom; Article 15 and 16
have a clear negative injunction on the State against discrimination, within which
substantive equality is baked in and requiring the State to step in or facilitate;
Article 25, is subject to other fundamental rights and freedoms under Part III, etc.
There are restrictions, to the content of these rights. A discussion of Article 21
elucidates this point. However, even while tracing these numerous
‘unenumerated’ rights – the right to a clean environment, right to shelter, etc. –
the courts have been (necessarily so) circumspect in how these can be enforced.
Often, these rights have come to be enumerated in response to State action that
threatened the freedom , or right directly or indirectly, thus compelling the litigant
to invoke the jurisdiction of this court, to remind the State of the negative
injunction that impedes its interference, and must guides its actions. Does this,
however, mean that a litigant could knock on the doors of this cour t, seeking to
enforce each of these unenumerated rights? A simple example would offer some
clarity – consider a poet who wishes to share their work, with the public at large.
Now provided that there is no direct restriction, or those in the nature of havin g a
chilling effect, the State’s role in enabling or facilitating this freedom enjoyed by
the poet, is limited. This court cannot direct that the State must create a platform
for this purpose; this would be a stretch, in the absence of any overt or inert threat.
56. In the draft circulated by the Chief Justice, the reasoning that there is no
fundamental right to marry and thereafter , nevertheless, to proceed to delineate
the facets or features which unions other than marriage, are deprived of ; merits a
closer look. The summation of various rights which such a couple is said to be
deprived of, is used to delineate the contours of the right to enter into a union , and
justify a positive obligation . There cannot be any doubt that the individuals have
the choice of their life partners and the right to live the lives they wish to ,
undisturbed. This is the essence of what the jurisprudence of this Court has been
so far, i.e. , an explanation of the right to life and the other rights enumerated or
discovered by in terpretive process – privacy, choice, dignity etc .
57. Repeatedly, decisions of this court have emphasized on the non -
discriminatory and positive content of certain fundamental rights (Articles 14, 15,
16, 17, 23 and 24). In fact , the court has underlined the obligations of the state to
create conditions conducive to the exercise of the right to equality (i.e.,
substantive equality) , and to realize fraternity [Refer: decisions in N.M. Thomas51
and Indra Sawhney52 which expanded the understanding of substantive equality,
though without making enabling provisions enforceable by court]. This court has
also in some decisions, accepted the argument that given the nature of
fundamental rights, and its evolving content, in many circumstances, it might be
necessary for the state to intervene and protect the fundamental right concerned
thus creating an atmosphere conducive for the enjoyment of such right. Lata
Singh (supra) dealt with honour killings of couples involved in inter -caste, inter -
religious marriages; in Arumugam Servai v. State of Tamil Nadu53, where the
issue was virulent caste slurs and violence, which were crimes, the court required
administrative and police officials “to take strong measures to prevent such
atrocious acts ”. In Shakti Vahini (supra) , which dealt with threats by khap
panchayats , this court held that the state “is duty -bound to protect the
fundamental rights of its citizens; and an inherent aspect of Article 21 of the
Constitution would be the freedom of choice in marriage ”. The court issued
51 State of Kerela v. N.M Thomas , (1976) 2 SCC 310
52 Indra Sawhney v . Union of India , (1992) Supp (3) SCC 217
directions requiring the state to take punitive and remedial measures, and that
the state has a positive obligation to protect the life and liberty of persons.
58. In several decisions it has been recognised that the reason for entrenching
Part III Rights - as for instance, in M. Nagaraj (supra) was to “withdraw certain
subjects from the area of political controversy to place them beyond the reach of
majorities and officials and to establish them as legal principles to be applied by
the courts….. Fundamental right is a limitation on the power of the State ”.
Rustom Cavasjee Cooper v . Union of India (hereafter, “ R.C. Cooper ”)54 is salient,
for the observations it made about the common thread that runs through Part III
rights, which again, sets out distinct enforceable rights:
“it is necessary to bear in mind the enunciation of the guarantee of
fundamental rights which has taken different forms. In some cases it is an
express declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 & 32;
in others to ensure protection of individual rights they take specific forms of
restrictions on State action --legislative or executive --Articles 14 , 15, 16, 20,
21, 22(1), 27 and 28; in some others, it takes the form of a positive declaration
and simultaneously enunciates the restriction thereon: Articles 19(1) and
19(2) to (6); in some cases, it arises as an implication from the delimitation
of the authority of the State, e.g., Articles 31(1) and 31(2); in still others, it
takes the form of a general prohibition against the State as well as others:
Articles 17, 23 & 24. The enunciation of rights either express or by
implication does not follow a unif orm pattern. But one thread runs through
them: they seek to protect the rights of the individual or groups of individuals
against infringement of those rights within specific limits. Part III of the
Constitution weaves a pattern of guarantees on the textur e of basic human
rights. The guarantees delimit the protection of those rights in their allotted
fields: they do not attempt to enunciate distinct rights. ”
59. The right to freedom of speech, is distinct, because it - unlike others in
Article 19, is preceded by the word “freedom” of speech and expression whereas
the others are rights . Whilst this judgment does not call for elaboration on this
distinction, yet the common element, in respect of all the rights spelt out in Article
19 is the assertion of the right, which is a curb or restraint, on state action, whose
limits can only be through laws, made by the state, to promote some state concern,
such as sovereignty and integrity of the state, etc . reasonably restricting speech
in the interests of inter alia, “public order, decency or morality”. The same pattern
is followed in relation to freedom to associate by Article 19( 4). In relation to the
right under Article 19(1)(g) a broader state interest, inter alia, i.e., “in the
interests of the general public”. These expressions are common grounds on
which reasonable restrictions can be enacted, validly by law. Kharak Singh v.
State of UP55, Bijoe Emmanuel v . State of Kerala56, and Union of India (UOI) v.
Naveen Jindal & Ors.57 are all authorit ies for the proposition that regulating the
exercise of rights guaranteed under Article 19(1)(a) to (e) and (g) - through
reasonable restrictions, can be only through a law .
60. The judgment of the learned Chief Justice, propounded a theory of a unified
thread of rights, entitlements flowing from it, and how lack of recognition, results
in deprivation of specified rights under Articles 19 and 25 (in addition to Article
21). To the extent, that assertion of sexual or gender identity, in exercise of free
speech, association, through express manifestations in whatever form (whether
through speech, art, participation in processions, etc .), are concerned, one cannot
join issue. Equally, if one has by some state process , measure or conduct been
barred from expressing one’s choice, publicly, the reasonableness of that
prohibition or order, can be tested on grounds enumerated in Article 19(2), if such
barriers are through a valid law, or orders, traceable to law.
61. However, when the law is silent, and leaves the parties to express choice,
Article 19(1)(a) does not oblige the state to enact a law, or frame a regulation,
which enables the facilitation of that expression. All judgments, from Sakal
Papers58, to Bennet Coleman59 and Express Newspapers60, etc. were based on the
effect of laws or policies, based on statutory provisions. Equally, in the absence
of a legal framework enabling citizens to form a particular kind of association (as
58 Sakal Papers (P) Ltd v. Union of India 1962 (3) SCR 842
59 Bennet Coleman v. Union of India 1973 (2) SCR 757
60 Express Newspapers (P) Ltd. V. Union of India, (1959) 1 SCR 12
for instance recognition of a limited liability partnership, which was not
recognized any legal status till recently)61 the court could not have validly created
a regime enabling recognition or regulating such associations. Similarly, in the
absence of any enacted law which obliges meaningful facilitation of transport
such as roads, it is hard to visualize that a citizen can approach the Court and seek
the construction of a road to enforce the right to travel [Article 19(1)(d) ], or seek
court’s intervention to create a network of roads or other modes of transportation .
Likewise in the absence of a basic housing scheme again the court if approached
for enforcement of Article 19(1)(e), would not call upon the State to create one
either by framing a general legislative policy or through law. Furthermore, this
Court has a lso recognized that, there can even be reasonable restrictions, in the
acquisition and enjoyment of certain types of properties in many States. Given
the nature of rights under Articles 19 and 21 the enjoyment of which are limited
to the extent reasonable laws within the bounds of the specified provisions, enact
in the legitimate jurisdiction of this court, it would be difficult to translate the
positive obligations (or postulates) as articulated in the learned chief justice’s
opinion .
62. History or traditions may not be the only methods to trace constitutional
values which can arguably be the result of an evolving society . Yet the court
cannot stray too far from the express provisions and the manner in which they are
cast. In the case of free speech and expression, right to association and the other
rights spelt out in Article 19 and the rights spelt out in Article 25, th e core content
of these are hard fought freedoms and rights primarily directed against state
action and its tendency to curb them. To the question whether it is possible to
locate a n entitlement to lead to positive obligation and to facilitate the exercise of
free speech, generally by mandating a horizontally applicable parliamentary law
or legal regime, the answer would be a self -evident negative.
61 The Limited Liability Partnership Act, 2008
63. There is no difficulty about the right of two consenting persons to decide
to live together, to co -habit with each other, and create their unique idea of a
home, unconstrained by what others may say. That is the natural sequitur to K.S.
Puttaswamy (supra) and Navtej Johar (supra) . Conduct hitherto criminalised, is
now permissible. The liberative effect of Section 377 being read down is that two
individuals, regardless of their sexual orientation are enabled to live together,
with dignity, and also protected from any kind of violence, for living and existing
together. Therefore, the right to be left alone, the right to exercise choice, the
right to dignity, and to live one’s life, with the person of one’s choice, is an
intrinsic and essential feature of Article 21 of the Constitution.
64. The idea that one right can lead to other rights, emanating from it, has been
conclusively rejected by this court by seven judges, in All India Bank Employees
Association v . National Industrial Tribunal62. That decision was quoted with
approval in Maneka Gandhi v. Union of India (UOI) & Ors. , (hereafter, “ Maneka
Gandhi ”)63:
“This theory has been firmly rejected in the All India Bank Employees
Association's case and we cannot countenance any attempt to revive it, as that
would completely upset the scheme of Article 19(1) and to quote the words of
Rajagopala Ayyanger, J., speaking on behalf of the Court in All India Bank
Empl oyees Association's case "by a series of ever expending concentric
circles in the shape of rights concomitant to concomitant rights and so on,
lead to an almost grostesque result". So also, for the same reasons, the right
to go abroad cannot be treated as part of the right to carry on trade, business,
profession or calling guaranteed under Article 19(1)(g). The right to go
abroad is clearly not a guaranteed right under any clause of Article 19(1)”
65. As the two 7 -judge bench decisions have affirmed whilst there is no dispute
that there is an interconnectedness of various fundamental rights, their
manifestations in different forms especially under Article 19 and the distinct
grounds on which they can be c ircumscribed, sets each freedom and right apart.
While the right to free speech and expression may be exercised in conjunction
with the right to association and even the right to assemble and move,
nevertheless the extent of the assertion of these rights, collectively, would depend
on the circumstances of the case and the nature of the curbs imposed (by law).
Thus , for instance, the right to protest in the form of a procession is subjected to
the laws reasonably restricting movement in the larger interests of the public. It
is questionable whether the imposition of valid restrictions and curbs in such
circumstances can be successfu lly impugned only on the ground that their right
to free speech and assembly are violated. In the case of both, if the restriction is
valid for one fundamental right, it is equally valid for the others on an application
of the test laid down in Maneka Gandhi (supra) . Rather it is the test of
reasonableness and the proximity to the disturbance of public order, when such
restriction is imposed, that becomes the focal point of debate. Therefore, in the
abstract every right enumerated in Article 19, and other Article 25, can be
exercised freely without hindrance by all. However, it is the assertion of the right,
in the face of some threat by state action or despite state protection, which
becomes the subject of court scrutiny. The extent of right to free speech is subject
to reasonable restrictions, to further inter alia, “public order” or “decency” and
“morality”. The right to association is hedged by reasonable restrictions inter
alia, in furtherance of “public order or morality”. The right to travel and settle
in any part of the country, is subject to reasonable restrictions in the “interests of
the general public” or “for the interests of any scheduled tribe” . Likewise, the
freedom of conscience is both internal, and external. As long as an individual
exercises it, from within, and in privacy, there can be ordinarily no inroads into
it; its external manifestation, may call for scrutiny, at given points in time.
66. The right to freedom of conscience is also subject to other provisions of
Part III, and any measure, in the interests of public order or morality. It is thus,
open to all to exhibit and propagate their beliefs and ideas through overt “for the
edification of others”, regardless if the propagation is made by a person in his
individual capacity or on behalf of any church or institution ….exhibition of such
“belief, is, as stated above, subject to State regulation imposed to secure order,
public health and morals…”64 This broad understanding and enunciation of the
freedom of conscience has remained unchanged. The state on occasions has
intervened to promote social welfare and reforms; this court has intervened when
state action was based on a practise found inconsiste nt with the right to equality
and dignity.
67. We do not therefore, agree with the learned Chief Justice who has
underlined that the positive postulate of various rights, leads to the conclusion
that all persons (including two consenting adult queer persons) have a n
entitlement to enter into a union, or an abiding cohabitational relationship which
the state is under an obligation to recognize, “to give real meaning” to the right.
There is no recorded instance nor was one pointed out where the court was asked
to facilitate the creation of a social institution like in the present case.
68. There are observations from the judgment of the (then Justice Chandrachud
and) now Chief Justice ) Justice D.Y . Chandrachud, in Navtej Johar (supra) , of
how social institutions must be arranged:
“Social institutions must be arranged in such a manner that individuals have the
freedom to enter into relationships untrammelled by binary of sex and gender and
receive the requisite institutional recognition to perfect their relationships. The law
provide s the legitimacy for social institutions. In a democratic framework governed
by the Rule of law, the law must be consistent with the constitutional values of
liberty, dignity and autonomy. ”
These observations underscored the need to respect and give worth to the choice
of queer couples. The observations were in the context of criminalization of
consensual sexual conduct between queer couples. The observations, however,
have tended to point to the direction that there should be some social ordering of
institutions, which not merely accommodate such choice, but facilitate its
meaningful exercise beyond the confines of their right to privacy and to live
together. While the decision’s decriminalising impact is undoubted, and not
64 Ratilal Panachand Gandhi v . State of Bombay 1954 (1) SCR 1055
contested, yet the broader observations obliging social institutions to
accommodate and facilitate exercise of choice fully were not necessary. In one
sense, they travelled beyond the scope of the court’s remit and have to be viewed
as obiter dicta . That the State should or ought to order such social institutions, is
different from a direction issued by this court, which they must carry out; the
latter is what we take exception to, and place our reservations against.
69. Therefore, even if we were to, for argument sake, recognise a n entitlement
under the Constitution to enter into an abiding cohabitational relationship or
union – in our opinion, it cannot follow to a claim for an institutio n. There are
almost intractable difficulties in creating, through judicial diktat, a civil right to
marry or a civil union, no less, of the kind that is sought by the petitioners in these
proceedings. “Ordering a social institution” or re -arranging existing social
structures, by creating an entirely new kind of parallel framework for non -
heterosexual couples, would require conception of an entirely different code, and
a new universe of rights and obligations. This would entail fashion ing a regime
of state registration, of marriage between non -heterosexua l couples; the
conditions for a valid matrimonial relationship amongst them, spelling out
eligibility conditions, such as minimum age, relationships which fall within
“prohibited degrees”; grounds for divorce, right to maintenance, alimony, etc .
70. As a result, with due respect, we are unable to agree with the conclusions
of the learned Chief Justice, with respect to tracing the right to enter into or form
unions from the right to freedom of speech and expression [Article 19(1)(a)], the
right to form associations [Article 19 (1)(c)], along with Article 21 and any
corresponding positive obligation. It is reiterated that all queer persons have the
right to relationship and choice of partner, co -habit and live together, as an
integral part of choice, which is linked to their privacy and dignity. Any further
discussion on the rights which consenting partners may exercise, is unnecessary.
No one has contested that two queer partners have the rights enumerated under
Article 19 (1)(a); (c), and (d), or even the right to conscience under Article 25.
The elaboration of these rights, to say that exercise of choice to such relationships
renders these rights meaningful, and that the state is obliged to “recognise a
bouquet of entitlements which flow from such an abiding relationship of this
kind” is not called for. We therefore, respectfully disagree with that part of the
learned Chief Justice’s reasoning, which forms the basis for some of the final
conclusions and directions recorded in his draft judgment.
V. Inapplicability of the Special Marriage Act
A. Challenge to the SMA on the ground of impermissible classification
71. The petitioners complained that provisions of the SMA, inasmuch as they
excluded, or do not provide for marriage of non -heterosexual couples, is
discriminatory, because the classification made in its various provisions are
heteronormative, thus discriminating against non -heterosexual couples. This
exclusion , is the basis of their challenge.
72. Hostile classification, which results in exclusion from benefits of a statute
or policy, is based on the understanding that where “equals are treated
differently, without any reasonable basis ” as held in D.S. Nakara v . Union of
India65:
“The classification must be founded on an intelligible differentia which
distinguishes persons or things that are grouped together from those that are
left out of the group and that differentia must have a rational nexus to the
object sought to be achieved by the statute in question. There ought to be
causal connection between the basis of classification and the object of the
statute. An executive action could be sustained only if the twin tests of
reasonable classification and the rational principle co -related to the object
sought to be achieved are satisfied.”
73. What is an “intelligible differentia ” on which the classification is to be
drawn distinguishing objects or persons, or conditions, for the purpose of
legislative or executive policy? The premise of classification is to discriminate.
The theory of permissible classification rests, therefore, on the basis for
differentiation, and its relation to the object of the measure or the law.
Permissible c lassification, therefore, should result in valid differentiation; but it
crosses the line when it has a discriminatory effect, of excluding persons, objects
or things which otherwise form part of the included group . Kedar Nath
Bajoria v. State of West Bengal66 explained that Article 14 cannot mean that
“all laws must be general in character and universal in application and that
the State is no longer to have the power of distinguishing and classifying
persons or things for the purposes of legislation. To put it simply, all that is
required in class or sp ecial legislation is that the legislative classification
must not be arbitrary but should be based on an intelligible principle having
a reasonable relation to the object which the legislature seeks to attain.”
74. After a fairly detailed examination of previous precedents, recently, in
Chandan Banerjee v. Krishna Prasad Ghosh67, this court explained the principles
applicable to determine whether classification by any law or policy can be upheld:
“27. The principles which emerge from the above line of precedents can be
summarised as follows:
(i) Classification between persons must not produce artificial inequalities.
The classification must be founded on a reasonable basis and must bear
nexus to the object and purpose sought to be achieved to pass the muster of
Articles 14 and 16;
(ii) Judicial review in matters of classification is limited to a determination of
whether the classification is reasonable and bears a nexus to the object
sought to be achieved. Courts cannot indulge in a mathematical evaluation
of the basis of classification or replace the wisdom of the legislature or its
delegate with their own; [..]”
This court, in Transport & Dock Workers Union v. Mumbai Port Trust68
explained how differential treatment may not always result in discrimination and
“it violates Article 14 only when there is no conceivable reasonable basis for the
differentiation.”
75. The differentiation or classification has to be based on the object or end
sought to be achieved: a facet highlighted in Union of India v. M.V . Valliappan69,
where the court held that if there is a differentiation, having rational nexus with
the “object sought to be achieved by particular provision, then such
differentiation is not discriminatory and does not violate the principles of Article
14 of the Constitution”. In fact, earlier, this court in State of J&K v. Triloki Nath
Khosa70 ruled that “the object to be achieved” ought not to be “ a mere pretence
for an indiscriminate imposition of inequalities and the classification ” should
not be “characterized as arbitrary or absurd”.
76. The discussion on equality and the limits of permissive classification were
conveniently summarized by the seven -judge bench in In Re the Special Courts
Bill, 1978 (hereafter, “Re Special Court’ s Bill”)71. Some of the propositions were
stated as follows:
“[..] (2).The State, in the exercise of its governmental power, has of necessity to
make laws operating differently on different groups or classes of persons
within its territory to attain particular ends in giving effect to its policies, and
it must possess for that purpose large powers of distingu ishing and classifying
persons or things to be subjected to such laws.
(3). The constitutional command to the State to afford equal protection of its laws
sets a goal not attainable by the invention and application of a precise
formula. Therefore, classification need not be constituted by an exact or
scientific exclusion or i nclusion of persons or things. The courts should not
insist on delusive exactness or apply doctrinaire tests for determining the
validity of classification in any given case. Classification is justified if it is
not palpably arbitrary.
(4). The principle underlying the guarantee of Article 14 is not that the same rules
of law should be applicable to all persons within the Indian territory or that
the same remedies should be made available to them irrespective of
differences of circumstan ces. It only means that all persons similarly
circumstanced shall be treated alike both in privileges conferred and
liabilities imposed. Equal laws would have to be applied to all in the same
situation, and there should be no discrimination between one per son and
another if as regards the subject -matter of the legislation their position is
substantially the same.
(6) The law can make and set apart the classes according to the needs and
exigencies of the society and as suggested by experience. It can recognise
even degree of evil, but the classification should never be arbitrary, artificial
or evasive.
(7) The classification must not be arbitrary but must be rational, that is to say, it
must not only be based on some qualities or characteristics which are to be
found in all the persons grouped together and not in others who are left out
but those qualiti es or characteristics must have a reasonable relation to the
object of the legislation. In order to pass the test, two conditions must be
fulfilled, namely, (1) that the classification must be founded on an intelligible
differentia which distinguishes thos e that are grouped together from others
and (2) that that differentia must have a rational relation to the object sought
to be achieved by the Act.
(8) The differentia which is the basis of the classification and the object of the Act
are distinct things and what is necessary is that there must be a nexus between
them. In short, while Article 14 forbids class discrimination by conferring
privileges or imposing liabilities upon person arbitrarily selected out of a
large number of other persons similarly situated in relation to the privileges
sought to be conferred or the liabilities proposed to be imposed, it does not
forbid classification for the purpo se of legislation, provided such
classification is not arbitrary in the sense abovementioned.
(11) Classification necessarily implies the making of a distinction or
discrimination between persons classified and those who are not members of
that class. It is the essence of a classification that upon the class are cast
duties and burdens different fr om those resting upon the general
public. Indeed, the very idea of classification is that of inequality, so that it
goes without saying that the mere fact of inequality in no manner determines
the matter of constitutionality.”
The differentiation, therefore, is to be discerned from gathering of the object
sought to be achieved by the enactment.
77. For a moment, if it is assumed (as the petitioners argue) that the
classification is suspect, because non -heterosexual couples are not provided the
facility of marriage, yet such “under classification” is not per se discriminatory.
This aspect was highlighted by this court in Ambica Mills72:
“Since the classification does not include all who are similarly situated with respect
to the purpose of the law, the classification might appear, at first blush, to be
unreasonable. But the Court has recognised the very real difficulties under which
legis latures operate — difficulties arising out of both the nature of the legislative
process and of the society which legislation attempts perennially to re -shape — and
it has refused to strike down indiscriminately all legislation embodying classificatory
inequality here under consideration”
78. In an earlier decision, this court upheld the tax imposed upon joint families,
in Kerala, based on Marumakkattayam law. The law imposed expenditure tax
72 State Of Gujarat And Another v. Shri Ambica Mills Ltd 1974 (3) SCR 760
upon those professing the Marumakkattayam unit and defined it in such a manner
that it omitted to include Mapillas (non -Hindus) who also followed that system.
This court held that such under inclusion did not attract the vice of discrimination,
in N. Venugopala Ravi Varma Rajah v. Union of India73 and observed :
“the mere fact that the law could have been extended to another class of
persons who have certain characteristics similar to a section of the Hindus
but have not been so included is not a ground for striking down the law.”
79. The question of some categories being left out, when a new legislation is
introduced, was the subject matter of the decision in Ajoy Kumar Banerjee & Ors.
v. Union of India & Ors .74 where it was held that:
“[…] Article 14 does not prevent legislature from introducing a reform i.e. by
applying the legislation to some institutions or objects or areas only
according to the exigency of the situation and further classification of
selection can be sustained on historic al reasons or reasons of administrative
exigency or piecemeal method of introducing reforms. The law need not apply
to all the persons in the sense of having a universal application to all persons.
A law can be sustained if it deals equally with the p eople of well -defined class -
employees of insurance companies as such and such a law is not open to the
charge of denial of equal protection on the ground that it had no application
to other persons.”
These judgments have underlined that exclusion or under inclusion, per se,
cannot be characterised as discriminatory, unless the excluded category of
persons, things or matters, which are the subject matter of the law (or policy)
belong to the same class (the included class).
80. The statement of objects and reasons of the SMA read as follows:
“Statement of Objects and Reasons :
1. This Bill revises and seeks to replace the Special Marriage Act of 1872 so
as to provide a special form of marriage which can be taken advantage of by
any person in India and all Indian nationals in foreign countries irrespective
of the faith which eith er party to the marriage may profess. The parties may
observe any ceremonies for the solemnisation of their marriage, but certain
formalities are prescribed before the marriage can be registered by the
marriage officers. For the benefit of Indian citizens abroad, the Bill provides
for the appointment of Diplomatic and Consular Officers as Marriage
Officers for solemnising and registering marriages between citizens of India
in a foreign country.
Provision is also sought to be made for permitting persons who are already
married under other forms of marriage to register their marriages under this
Act and thereby avail themselves of these provisions. The Bill is drafted
generally on the lines of the existing Special Marriage Act of 1872 and the
notes on clauses attached thereto explain some of the changes made in the
Bill in greater detail.”
81. The Statement of Objects and Reasons of SMA clearly suggests that the
sole reason for the enactment of the Act was to replace the earlier colonial era law
and provide for certain new provisions; it does not refer to any specific object
sought to be achieve d or the reasons that necessitated the enactment of the new
Act other than that it was meant to facilitate marriage between persons professing
different faiths.
82. If one looks at the enacted provisions, especially Sections 19 -21 and 21A,
Sections 24, 25, 27, 31, 37 and 38, of SMA, there can be no doubt that the sole
intention was to enable marriage (as it was understood then, i.e., for heterosexual
couples ) of persons professing or belonging to different faiths, an option hitherto
available, subject to various limitations. There was no idea to exclude non -
heterosexual couples, because at that time, even consensual physical intimacy of
such persons, was outlawed by Section 377 IPC. So, while the Act sought to
provide an avenue for those marriages that did not enjoy support in society, or did
not have the benefit of custom to solemnise, it would be quite a stretch to say that
this inc luded same sex marriages. There fore, the challenge to the constitutionality
of the statute, must fail. It is settled by decisions of the court that as long as an
objective is clearly discernible, it cannot be attacked merely because it does not
make a better classification. The need for a law or a legal regime that provides or
facilitates matrimony of queer couples is similar, to the need to facilitate inter -
faith marriages which is what drove the Parliament to enact the SMA.
83. The next question urged is that the passage of time, has rendered the
exclusion of queer couples, the benefit of SMA, discriminatory. This line of
argument, is based on this court’s reasoning that with passage of time, a
classification which was once valid , could become irrelevant, and insupportable,
thus discriminatory. The first of such decisions was Motor and General Traders
v. State of AP75 wherein a provision of the state rent control legislation (which
exempted premises constructed after 26.08.195776) was under challenge. The idea
was to provide impetus to construction of houses; however, the long passage of
time resulted in two classes of tenants, i.e., those residing in older premises, who
were covered by the law, and those who lived in premises con structed later. This
court held that the continued operation of such exemption, rendered it
unconstitutional:
“There being no justification for the continuance of the benefit to a class of
persons without any rational basis whatsoever, the evil effects flowing from
the impugned exemption have caused more harm to the society than one could
anticipate. What was justifiable during a short period has turned out to be a
case of hostile discrimination by lapse of nearly a quarter of century. The
second answer to the above contention is that mere lapse of time does no t lend
constitutionality to a provision which is otherwise bad.”
84. Almost identically, in Rattan Arya v. State of T.N.77 the validity of Section
30(ii) of the Tamil Nadu Buildings (Lease and Rent) Control Act, 1960 was under
challenge, this court held that the provision which exempted tenants of
“residential buildings” paying monthly rent of more than Rs 400 from the
protec tion of the said Rent Control Act, whereas no such restriction was imposed
in respect of tenants of “non -residential buildings” under the said Act. This court
upheld the challenge, and held that
“a provision which was perfectly valid at the commencement of the Act could
be challenged later on the ground of unconstitutionality and struck down on
that basis. What was once a perfectly valid legislation, may in course of time,
become discriminatory an d liable to challenge on the ground of its being
violative of Article 14.”
The judgment cited by the petitioners, that is Satyawati Sharma v . Union of
India78 too dealt with rent legislation which differentiated between non -
76 Section 32, clause (b) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1954
residential and residential buildings, in respect of the remedy of eviction, on
ground of bona fide requirement .
85. In all the judgments cited by petitioners, the court was able to discern or
find that a classification, made at an earlier point in time, had lost its relevance,
and operated in a discriminatory manner. In some circumstances, rather than
declaring the entire law void, this court “read down” the relevant provision to the
extent the statute could be so read. In the present case, the petitioner’s arguments
with respect to “reading down” provisions of the SMA are insubstantial. The
original rationale for SM A was to facilitate inter -faith marriages. That reason is
as valid today as it was at the time of birthing that law. It cannot be condemned
on the ground of irrelevance, due to passage of time. It would be useful to recall
principle (9)79 of the opinion in Re Special Court’ s Bill (supra). The classification
was primarily not between heterosexual and non -heterosexual couples, but
heterosexual couples of differing faiths. All its provisions are geared to and
provide for a framework to govern the solemnisation, or registration, of the
marital relationship, which replicates the status that different personal laws
bestow . Since there was no one law, which could apply for couples professing
differing religions, the SMA created the governing norms - such as p rocedure,
minimum age, prohibited degree of relationship and forbidden relationships for
the male and female spouses respectively (through different sched ules); the
grounds of divorce, etc. The relevance of SMA has gained more ground, because
of increasing awareness and increasing exercise of choice by intending spouses
belonging to different faiths. It cannot be said, by any stretch of the imagination
that the exclusion of non -heterosexual couples from the fold of SMA has resulted
in its ceasing to have any rationale, and thus becoming discriminatory in
79 “(9) If the legislative policy is clear and definite and as an effective method of carrying out that policy a
discretion is vested by the statute upon a body of administrators or officers to make selective application of the
law to certain classes or grou ps of persons, the statute itself cannot be condemned as a piece of discriminatory
legislation.”
operation. Without a finding of that kind, it would not be open to the court to
invoke the doctrine of “reading down”.
86. We, therefore, agree with the reasoning elaborated by the Chief Justice, Dr.
Chandrachud, J that the challenge to the SMA fails.
B. Interpretation of provisions of SMA
87. The provisions of SMA are incapable of being “reading down”, or
interpreted by “reading up” in the manner suggested by the petitioners. We have
supplemented the Chief Justice’s conclusions, with further reasoning briefly
below.
88. The petitioners’ efforts have been aimed at persuading this court to
interpret the provisions of SMA in a manner, that accommodates non -
heterosexual couples and facilitates this marriage. Their arguments were centred
around reading its specific provisions – [Section 2 (b) read with Part I (for a male)
and Part II (for a female) (degrees of prohibited relationships), Section 4 (c),
Section 12, 15, 22, 23, 27(1); 27(1A) (special ground of divorce for wife),
31(1)(iiia) and (2) (special provision for juris diction in case of proceeding for the
wife), 36 and 37 (alimony for the wife), 44 (bigamy)] – which present a dominant
underlying heteronormative content. They argue that this court should adopt a
purposive construction of the provisions of SMA, and interpret it in light of this
court’s previous decisions in Dhar ani Sugars and Chemicals Ltd v. Union of
India (hereafter, “Dharani Sugars”)80 and X v. Principal Secretary (supra) .
89. In Dhar ani Sugars , the challenge was against a new policy introduced by
the Reserve Bank of India (RBI). The petitioners contented that there was no
authorization under the RBI Act to frame the impugned policy. Although the court
acknowledged that new facts can influence the interpretation of existing law, it
ultimately upheld the policy based on existing provisions that empowered the RBI
to issue such policies. A careful examination of this judgment would reveal that
even though discussion on the interpretation that “unless a contrary intention
appears, an interpretation should be given to the words used to take in new facts
and situations, if the words are capable of comprehending them” indeed
occurred81; but, the court also noticed that “this doctrine does not however mean
that one can construe the language of an old statute to mean something
conceptually different from what the contemporary evidence shows that
Parliament must have intended”82.
90. This court, in X v. Principal Secretary (supra) while reading down the
exclusion of unmarried women from the benefit of the Medial Termination of
Pregnancy Act, 1971 (MTP Act), also relied on Dharani Sugars (supra) to invoke
the principle that a statute “always speaks”. Noting that the Act, and more so its
amendment, was to enable women to terminate unwanted pregnancies, the
reasons for which could be manifold, the court held that such exclusion was
arbitrary and discriminatory. Further, the court relie d on Badshah v. Sou. Urmila
Badshah Godse83 which held that “change in law precedes societal change and
is even intended to stimulate it” and that “just as change in social reality is the
law of life, responsiveness to change in social reality is the life of the law” .
Similarly, in All Kerala Online Lottery Dealers Association v. State of Kerala &
Ors.,84 this court referred to decision of court in State v . SJ Choudhary85 wherein
it was observed that “in its application on any date, the language of the Act,
81 This court indeed cited a number of decisions of the House of Lords, or the UK Court of Appeals: Royal College
of Nursing of the United Kingdom v. Department of Health and Social Security, 1981 (1) All ER 545 [HL] ; Comdel
Commodities Ltd. v. Siporex Trade S.A., 1990 (2) All ER 552 [HL]; McCartan Turkington Breen (A Firm) v. Times
Newspapers Ltd., [2000] 4 All ER 913; R v Ireland, R v Burstow 1997 (4) All ER 225; Birmingham City Council
v. Oakley [2001] 1 All ER 385 [HL] .
82 In this context, the court took note of Goodes v East Sussex County Council (2000 [3] All ER 603 ) and
Southwark London Borough Council v. Mills (1999 [4] All ER 449 ).
though necessarily embedded in its own time, is nevertheless to be construed in
accordance with the need to treat it as current law.”86
91. Furthermore, the petitioners relied on the interpretation of this court, in
Githa Hariharan v . Union of India87, wherein the court construed the word 'after'
in Section 6(a) of the Hindu Minority and Guardianship Act, 1956 as meaning "in
the absence of - be it temporary or otherwise or total apathy of the father towards
the child or even inability of the father by reason of ailment or otherwise” - thus,
saving it from the vice of discrimination. Reliance was also placed on Association
of Old Settlers of Sikkim & Ors. v. Union of India88 where an exemption
provision89 discriminated against Sikkimese women who may have had their
names registered in the Register of Sikkim subjects, married non -Sikkimese on
or after 1st April, 2008, and excluded them from the benefit. This court held such
discrimination to be violative of equality under Article 14 of the Constitution of
India. In Independent Thought (supra) , this court invalidated as discriminatory a
provision90 which permitted sex between a man, and a young woman married to
him, above the age of 15 years. The resultant classification was that sex with any
woman below 18 years, irrespective of consent was defined as rape.91
86 The court had cited State (Through CBI/New Delhi) v. S.J. Choudhary (1996) 2 SCC 428; SIL Import, USA v.
Exim Aides Silk Exporter [1999] 2 SCR 958 and BR Enterprises v. State of U.P . [1999] 2 SCR 1111
89 [Section 10(26AAA) of the I.T. Act, 1961]
90 [Exception 2 to Section 375, IPC, 1860]
91 The reasoning of the court was that “a girl can legally consent to have sex only after she attains the age of 18
years. She can legally enter into marriage only after attaining the age of 18 years. When a girl gets married below
the age of 18 years, the persons who contract such a marriage o r abet in contracting such child marriage, commit
a criminal offence and are liable for punishment under the PCMA. In view of this position there is no rationale
for fixing the age at 15 years. This age has no nexus with the object sought to be achieved vi z., maintaining the
sanctity of marriage because by law such a marriage is not legal. It may be true that this marriage is voidable
and not void ab initio (except in the State of Karnataka) but the fact remains that if the girl has got married before
the a ge of 18 years, she has right to get her marriage annulled. Irrespective of the fact that the right of the girl
child to get her marriage annulled, it is indisputable that a criminal offence has been committed and other than
the girl child, all other perso ns including her husband, and those persons who were involved in getting her married
are guilty of having committed a criminal act. In my opinion, when the State on the one hand, has, by legislation,
laid down that abetting child marriage is a criminal off ence, it cannot, on the other hand defend this classification
of girls below 18 years on the ground of sanctity of marriage because such classification has no nexus with the
object sought to be achieved. Therefore, also Exception 2 in so far as it relates to girls below 18 years is
discriminatory and violative of Article 14 of the Constitution.
92. The principle of purposive interpretation was relied upon by the petitioners
to urge that a gender neutral interpretation or use of words which include non -
heterosexual couples should be resorted to. This court, in S.R. Chaudhuri v. State
of Punjab & Ors92 remarked that
“The words used may be general in terms but, their full import and true
meaning, has to be appreciated considering the true context in which the
same are used and the purpose which they seek to achieve.”
93. Ahron Barrack93 in his treatise94 stated as follows:
“Purposive interpretation is based on three components: language, purpose,
and discretion. Language shapes the range of semantic possibilities within
which the interpreter acts as a linguist. Once the interpreter defines the
range, he or she chooses the legal meaning of the text from among the
(express or implied) semantic possibilit ies. The semantic component thus sets
the limits of interpretation by restricting the interpreter to a legal meaning
that the text can bear in its (public or private) language.”
94. This court has also held that there can be occasions when words may be
read in a particular manner, if it is sure that the draftsman would have wished it
to be so, given the nature of the expressions, and, at the same time, indicated the
limits for that princi ple, while quoting from the treatise Principles of Statutory
Interpretation by G.P. Singh95, in Ebix Singapore Private Limited and Ors. v.
Committee of Creditors of Educomp Solutions Ltd & Ors.96:
“A departure from the Rule of literal construction may be legitimate so as to
avoid any part of the statute becoming meaningless. Words may also be read
to give effect to the intention of the Legislature which is apparent from the
Act read as a whole. Appli cation of the mischief Rule or purposive
construction may also enable reading of words by implication when there is
no doubt about the purpose which the Parliament intended to achieve. But
before any words are read to repair an omission in the Act, it sho uld be
possible to state with certainty that these or similar words would have been
93 the former President of the Israeli Supreme Court
94 Aharan Barak -Purposive Interpretation in Law (quoted in Shailesh Dhairyawan v. Mohan Balkrishna Lulla
95 Lexis Nexis, First Edition (2015)
inserted by the draftsman and approved by Parliament had their attention
been drawn to the omission before the Bill passed into law.”
Other decisions too have endorsed this line of reasoning .97
95. The objects of a statute, acquire primacy while interpreting its provisions,
if the need so arises. Therefore, in interpretation of any statute or provision, this
court, long ago, in Workmen of Dimakuchi Estate v. Management of Dimakuchi
Tea Estate98 underlined that where there are doubts about the meaning of a
provision , they “are to be understood in the sense in which they best harmonise
with the subject of the enactment” and that popular meanings, or strict
grammatical import, may yield to “the subject or the occasion on which they are
used, and the object to be attained”. This object -based interpretation was adopted
in several decisions.99
96. This court emphasised in Reserve Bank of India v. Peerless General
Finance and Investment Co. Ltd. & Ors.100 that:
“Interpretation must depend on the text and the context. They are the bases
of interpretation. One may well say if the text is the texture, context is what
gives the colour. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation match the
contextual.”
97 In M. Nizamuden v. Chemplast Sanmar Ltd & Ors ((2010) 4 SCC 240) , it was observed: “Purposive
construction has often been employed to avoid a lacuna and to suppress the mischief and advance the remedy. It
is again a settled rule that if the language used is capable of bearing more than one construction and if
construction is employed that results in absurdity or anomaly, such construction has to be rejected and preference
should be given to such a construction that brings it into harmony with its purpose and avoids absurdity or
anomaly as it may always be presumed that while employing a particular language in the provision abs urdity or
anomaly was never intended.” Girodhar G. Yadalam v. Commissioner of Wealth Tax & Ors [2015] 15 SCR 543;
K.H. Nazar v. Mathew K. Jacob , (2020) 14 SCC 126, which states that in interpreting a statute “the problem or
mischief that the statute was designed to remedy should first be identified and then a construction that suppresses
the problem and advances the remedy should be adopted.” Again, in New India Assurance Co. Ltd. v. Nusli
Neville Wadia [2007] 13 SCR 598, this court explained purposive interpretation to mean one which enables “a
superior court to interpret a statute in a reasonable manner, the court must place itself in the chair of a reasonable
legislator/author. So done, the rules of purposive construction have to be resorted to which would require the
construction of the Act in such a manner so as to see that the object of the Act is fulfilled”.
99 To name some, in Bipinchandra Parshottamdas Patel v . State of Gujarat [2003 (4) SCC 642 ], a provision
enabling the suspension of an elected official of a municipality, under detention during trial, was held to include
detention during investigation, having regard to the object, or the mischief sought to be addressed by the law.”
97. In Bank of India v. Vijay Transport & Ors.101, the court dealt with the plea
that a literal interpretation is not always the only interpretation of a provision in
a statute and that the court has to look at the setting in which the words are used
and the circumstances in which the law came to be pass ed to decide whether there
is something implicit behind the words used which control the literal meaning of
such words.102
98. The five -judge decision of this court in Central Bank of India v . Ravindra103
held:
“ […] Ordinarily, a word or expression used at several places in one
enactment should be assigned the same meaning so as to avoid "a head -on
clash" between two meanings assigned to the same word or expression
occurring at two places in the same enactment. It sho uld not be lightly
assumed that "Parliament had given with one hand what it took away with
the other" (see Principles of Statutory Interpretation, Justice G.P . Singh, 7th
Edn. 1999, p. 113). That construction is to be rejected which will introduce
uncertai nty, friction or confusion into the working of the system (ibid, p. 119).
While embarking upon interpretation of words and expressions used in a
statute it is possible to find a situation when the same word or expression may
have somewhat different meaning at different places depending on the subject
or context. This is however an exception which can be resorted to only in the
event of repugnancy in the subject or context being spelled out. It has been
the consistent view of the Supreme Court that when the legislature used same
word or expression in different parts of the same section or statute, there is a
presumption that the word is used in the same sense throughout (ibid, p. 263).
More correct statement of the rule is, as held by the House of Lords in Fa rrell
v. Alexander All ER at p. 736b, "where the draftsman uses the same word or
phrase in similar contexts, he must be presumed to intend it in each place to
bear the same meaning". The court having accepted invitation to embark
upon interpretative expedi tion shall identify on its radar the contextual use of
the word or expression and then determine its direction avoiding collision
with icebergs of inconsistency and repugnancy.”
99. The objects that a statute seeks to achieve, are to thus be gleaned not merely
from a few expressions, in the statement of objects and reasons (for the statute)
102 Relied on R.L. Arora v. State of Uttar Pradesh { (1964) 6 SCR 784} “It may be that in interpreting the words
of the provision of a statute, the setting in which such words are placed may be taken into consideration, but that
does not mean that even though the words which are to be interpreted convey a clear meaning, stil l a different
interpretation or meaning should be given to them because of the setting. In other words, while the setting of the
words may sometimes be necessary for the interpretation of the words of the statute, but that has not been ruled
by this Court to be the only and the surest method of interpretation.”
103 (2001) Supp (4) SCR 323
but also from the enacted provisions. The provisions and the objects of the SMA
(as discussed in the earlier section on discrimination) clearly point to the
circumstance that Parliament intended only one kind of couples, i.e., heterosexual
couples belonging to different faiths, to be given the facility of a civil marriage.
100. The petitioners’ argued that the purpose of the SMA was to provide a
framework for civil marriages not based on personal law includes same -sex
marriages. Yet, structurally, Section 4 (conditions relating to solemnization of
special marriages), contemplates marriages between a man and a woman . To read
SMA in any other manner would be contrary to established principles of statutory
interpretation as discussed in preceding paragraphs. It is also not permissible for
the court to 'read up’ and substitute the wor ds “any two persons” to refer to a
marriage between non -heterosexual couples.
101. Gender neutral interpretation, much like many seemingly progressive
aspirations, may not really be equitable at times and can result in women being
exposed to unintended vulnerability, especially when genuine attempts are made
to achieve a balance, in a so cial order that traditionally was tipped in favour of
cis-heterosexual men. The purpose of terms like ‘wife ’, ‘husband,’
‘man,’ and ‘woman’ in marriage laws (and other laws on sexual violence and
harassment as well) is to protect a socially marginalised demographic of
individuals. For instance, women facing violence by their partner have a right to
seek recourse under the Domestic Violence Act , which assures - and is meant to
assure that they (the victims) are safeguarded and provided relief against such
injustice. In fact, provisions in SMA, for alimony, and maintenance (Section 36
and 37) confer rights to women; likewise certain grounds of div orce (conviction
of husband for bigamy, rape) entitle the wife additional grounds (Section 27) to
seek divorce. Other provisions such as: Section 2 (b) read with Part I (for a male)
and Part II (for a female) enact separate degrees of prohibited relationships;
Section 4 (c), uses the terms “husband” and “wife”; Section 12, 15, 22, 23, 27(1) ,
Section 31(1) (iiia) and (2) (special provision for jurisdiction in case of
proceeding for the wife), Sections 36 and 37 provide for maintenance and
alimony for the wife), Section 44 (Punishment of bigamy). The general pattern of
these provisions – including the specific provisions, enabling or entitling women,
certain benefits and the effect of Sections 19, 20, 21 and 21A of SMA is that even
if for arguments’ sake, it were accepted that Section 4 of SMA could be read in
gender neutral terms, the interplay of other provisions - which could apply to such
non-heterosexual couples in s uch cases, would lead to anomalous results,
rendering the SMA unworkable.
102. Furthermore, if provisions of SMA are to be construed as gender neutral
(such as persons or spouses, in substitution of wife and husband ) as the petitioners
propose, it would be possible for a cis -woman’s husband to file a case or create a
narrative to manipulate the situation. Gender neutral interpretation of existing
laws, therefore, would complicate an already exhausting path to justice f or
women and leave room for the perpetrator to victimise them. A law is not merely
meant to look good on paper; but is an effective tool to remedy a perceived
injustice, addressed after due evaluation about its necessity. A law which was
consciously create d and fought for, by women cannot, therefore, by an
interpretive sleight be diluted.
103. In fact, it would do well to remind ourselves what this court had stated, in
Delhi Transport Corporation v . DTC Mazdoor Congress (hereafter, “Delhi
Transport Corporation”)104:
“when the provision is cast in a definite and unambiguous language and its
intention is clear, it is not permissible either to mend or bend it even if such
recasting is in accord with good reason and conscience. In such
circumstances, it is not possible for the court to remake the statute. Its only
duty is to strike it down and leave it to the legislature if it so desires, to amend
it.”
Similarly, in Cellular Operators Association of India v. Telecom Regulatory
Authority of India105, the court applied the rule of Delhi Transport Corporation
104 (1990) Supp. 1 SCR 142
(supra) and held that the construction suggested would lead the court “to add
something to the provision which does not exist, which would be nothing short of
the court itself legislating” and therefore, impermissible.106
104. Lastly , there is no known rule by which a word or group of words, in one
provision, can have two different meanings. The effect of the petitioner’s
argument would be to say that generally, provisions of SMA should be read in a
gender neutral manner (spouse for wife and husband; persons instead of the male
and female, etc). Whilst it could in theory be possible to read such provisions in
the manner suggested, their impact on specific provisio ns such as the separate
lists for wives and husbands for purposes of age, determining prohibited degrees
of relationships, and remedies such as divorce and maintenance, leads to
unworkable results. Most importantly, the court, in its anxiety to grant relie f,
would be ignoring provisions that deal with and refer to personal laws of
succession that are, Sections 19, 20, 21 and 21A. This court cannot look at a text
containing words with two optional meanings in the same provision.
105. Likewise, with regard to the FMA, the petitioners’ sought that certain
conditions and provisions be read in gender neutral terms , to enable same -sex
marriage . FMA too, is a secular legislation wherein Section 4107 states that a
marriage between “parties” may be solemnized under this Act, provided that at
least one of the two parties is a citizen of India. However, “ bride” and
“bridegroom” are used in Section 4 (relating to the age of the parties at time of
solemnization ), the Third and Fourth Schedule (which prescribe the declarations
by both parties and certification of marriage ). In our view, t he conditions for such
106 Likewise, B.R. Kapur v . State of Tamil Nadu 2001 (3) Suppl. SCR 191 - a Constitution Bench ruling of this
court, also held that interpretations which read in words, were impermissible.
107 4. Conditions relating to solemnization of foreign marriages. ―A marriage between parties one of whom at
least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country,
if, at the time of the marriage, the following conditions are fulfilled, namely: -
(a) neither party has a spouse living;
(b) neither party is an idiot or a lunatic;
(c) the bridegroom has completed the age of twenty -one years and the bride the age of eighteen years;
(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a marriage between them, such
marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship.
marriages, under Section 4(1)(c) of FMA specifically require the parties to be a
‘bride’ and a ‘bridegroom’, i.e., it is gendered in nature . Furthermore, the terms
“husband” and “wife” are used in Section 13 and 18 in relation to the
solemnisation of marriage and provisions where matrimonial reliefs (as under the
SMA) are available under the FM A. The Petitioners ’ prayer therefore, that this
Court read the references to “husband ” or “wife” or “spouse” with “or spouse” in
the same manner as discussed in relat ion to the SMA above, is unsustainable .
106. As far as the petitioners’ reliance on Ghaidan108; Fourie109; and precedents
from other foreign jurisdictions are concerned, we agree with the reasoning given
by Chief Justice that our courts should exercise caution when relying on the law
in other jurisdictions. We should be mindful of distinct contextual framework
within which those decisions have been given.
107. As discussed earlier, the words of the statutes have to be read, taking into
account the fabric of concepts, rights, obligations and remedies which it creates.
Removing or decontextualizing provisions, from their setting and “purposively”
construing some of them cannot be resorted to, even in the case of SMA as well
VI. Discriminatory impact on queer couples
108. I do not wish to revisit the history of how this court evolved the test of
considering the effect or impact of laws on Fundamental Rights; it would be
appropriate to say that the object -based test favored and applied in A.K.
Gopalan110 was discarded decisively by the 11 judge Bench in R.C. Cooper
(supra). The true test was spelt out in the following manner:
“it is not the object of the authority making the law impairing the right of a citizen, nor
the form of action that determines the protection he can claim; it is the effect of the law
and of the action upon the right which attract the jurisdiction of the C ourt to grant relief.
If this be the true view, and we think it is, in determining the impact of State action upon
108 Ghaidan v Godin – Mendoza, (2004) UKHL 30.
109 Minister of Home Affairs v. Fourie & Anr, [(CCT 60/04) [2005] ZACC 19; 2006 ( 1) SA 524 (CC)]
110 AK Gopalan v. State of Madras, (1950) 1 SCR 88
constitutional guarantees which are fundamental, it follows that the extent of protection
against impairment of a fundamental right is determined not by the object of the
Legislature nor by the form of the action, but by its direct operation upon the indiv idual's
rights.”
This line of reasoning was applied and commended in Maneka Gandhi (supra) ; it
is now an intrinsic part of the constitutional lore.
109. In recent times, this court has applied, in relation to claims of
discrimination, the test of indirect discrimination. This dimension was explained
in Lt. Col Nitisha v . Union of India111:
“First, the doctrine of indirect discrimination is founded on the compelling insight that
discrimination can often be a function, not of conscious design or malicious intent, but
unconscious/implicit biases or an inability to recognize how existing
structu res/institutions, and ways of doing things, have the consequence of freezing an
unjust status quo. In order to achieve substantive equality prescribed under the
Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited.
In Navtej Johar (supra) too, earlier, the concurring judgment of the present Chief
Justice, had relied on the directive of European Parliament which defines indirect
discriminatory impact as:
"where an apparently neutral provision, criterion or practice would put
persons of one sex at a particular disadvantage compared with persons of the
other sex, unless that provision, criterion or practice is objectively justified
by a legitimate aim, and the mea ns of achieving that aim are appropriate and
necessary."
Interestingly, an earlier decision of this court, had relied on the concept and
application of indirect discrimination test in Om Kumar and Ors v . Union of
India112 - in the context of discussing the principle of proportionality:
"If indirect discrimination were established, the Government would have to
show 'very weighty reasons' by way of objective justification, bearing in mind
that derogations from fundamental rights must be construed strictly and in
accordance with the princip le of proportionality"
112 2000 Supp (4) SCR693
Later judgments ( S.K. Nausad Rahaman & Ors. v. Union of India (UOI) &
Ors113and Ravinder Kumar Dhariwal v . Union of India114) also applied the
indirect discrimination test to judge the validity of the measure in question.
110. The common feature of the “effect of the law and of the action upon the
right” in R.C. Cooper (supra) and the decisions which applied the indirect
discrimination lens, is that the objects (of the legislation or the policy involved)
are irrelevant. It is their impact, or the effect, on the individual, which is the focus
of the court’s inquiry. In one sense, the development of the indirect discrimination
test, is a culmination, or fruition of the methods which this court adopted, in
judging the discriminatory impact of any law or measure, on an individual.
111. This court in the previous sections of this judgment, has discussed and
concluded how the claim for reading a fundamental right to marry, into the
Constitution, cannot be granted. However, the court cannot be oblivious of the
various intersections which th e existing law and regulations impact to queer
couples.
112. The constitution exists, and speaks for all, not the many or some. The felt
indignities of persons belonging to the LGBTQIA+ community need no proof, of
the forensic kind; it does have to meet a quantifiable threshold, this court has
outlined them in Navtej Johar (supra) . The refusal to acknowledge choice, by
society, is because it is statedly based on long tradition (dating back to the times
when the constitution did not exist). In such cases, the issue is does the state’s
silence come in the way of this court recognizin g whether the petitioners have
been denied the right to choose their partner?
113. It is important to recognize, that while the state ipso facto may have no role
in the choice of two free willed individuals to marry, its characterizing marriage
for various collateral and intersectional purposes, as a permanent and binding
legal relationship, recognized as such between heterosexual couples only (and no
others) impacts queer couples adversely . The intention of the state, in framing the
regulations or laws, is to confer on benefits to families, or individuals, who are
married . This has the result of adversely impacting to exclude queer couples. By
recognizing heterosexual couples’ unions and cohabitation as marriages in
various laws and regulations such as: in employment (nominations in pension,
provident fund, gratuity, life and personal accident insurance policies); for credit
(partic ularly joint loans to both spouses, based on their total earning capacity);
for purposes of receiving compensation in the event of fatal accidents, to name
some such instances, and not providing for non -heterosexual couples such
recognition, results in their exclusion .
114. The individual earned benefits (by each partner or both collectively) , which
would be available to family members (such as employee state insurance benefits,
in the event of injury of the earning partner, provident fund, compensation,
medical benefits, insurance benefits, in the event of death of such earning partner)
are e xamples of what the injured or deceased partner by dint of her or his work,
becomes entitled to, or the members of her family become entitled to. The denial
of these benefits and ina bility of the earning partner in a queer relationship,
therefore has a n adverse discriminatory impact. The state may not intend the
discrimination, or exclusion in the conferment of such benefits or social welfare
measures. Yet, the framework of such policies or regulations, expressed in favour
of those in matrimonial relationships, results in denial of entitlements/benefits,
despite the professional abilities and contributions which such individuals might
to society .
115. The objective of many of these laws or schemes is to confer or provide
entitlements based on individual earning and contribution. For example,
provident fund is payable due to the employee’s personal contribution and their
status as an employee, directly f lowing from the functions discharged. Similarly,
the objective of entitlement of benefits under the Employee State Insurance Act,
and other such insurance related schemes or welfare measures (such as the
Workman’s Compensation Act), flow from the individual status, work, and effort
of the concerned employee. Major part of these benefits, or all of them, flow in
the event of certain e ventualities such as fatal accident, or death. The design of
these statutes and schemes, is to enable both the concerned subscriber or
employee (in the event of infirmity or termination of employment) to receive
them, or in an unforeseen event such as deat h, for his dependents to receive them.
The restrictive way in which ‘dependent’ or ‘nominee(s)’ are defined (‘spouse’,
or members of the family in a heteronormative manner) exclude their enjoyment
to the intended beneficiary.
116. This deprivation has to be addressed. That these can be magnified, can be
illustrated by a few examples. For instance, a queer couple might live together as
spouses (without legal recognition) - even for two decades. If one of them passes
away in a motor ve hicle accident, the surviving partner would not only be unable
to get any share of the deceased partner’s estate , but also any portion of the
compensation. In case the union was not with approval of their respective
families, who might have ostracised or broken relationship with them, the result
would be injustice, because the surviving spouse, who shared life and cared for
the de ceased partner, especially during hard times, would be completely excluded
from enjoying any benefits - all of which would go to the family members of the
deceased (who may have even boycotted them). The same result would occur, in
the event of death of on e partner; family pension and death benefits would be
denied to the queer partner. This injustice and inequity results in discrimination,
unless remedial action is taken by the state and central governments.
117. It is relevant to record a note of caution at this juncture. While the right to
marry or have a legally recognised marriage is only statutory, the right to cohabit
and live in a relationship in the privacy of one’s home is fundamental, and enjoyed
by all. This is not to say that the latter, is unqualified or without restriction. Rather,
that the latter, is a right afforded to all, irrespective of the State's recognition of
the relationship or status, as in the case of ‘married’ couples. The discriminatory
impact recognised in the above paragraphs, however, is to highlight the effect of
a legislative vacuum – specifically on long term queer couples, who do not have
the avenue of marriage, to entitle them to earned benefits. Could this same logic
then be extended to heterosexual couples that choose to not get married, despite
having the avenue? With respect, this would require further consideration by the
State, and was an aspe ct that was neither argued, nor were we called upon to
decide, in the present petitions. Therefore, it is pointed out that State must remain
cognizant of such an unwitting consequence of creating two parallel frameworks,
for live -in or domestic partnership s, and marriages, and the confusion or
anomalies this may cause to gendered legal frameworks (as they stand today) –
while trying to remedy or mitigate the discrimination faced by queer couples.
118. Addressing all these aspects and concerns means considering a range of
policy choices, involving multiplicity of legislative architecture governing the
regulations, guided by diverse interests and concerns - many of them possibly
coalescing. On 03.05.2023, during the course of hearing, the learned Solicitor
General, upon instructions, had expressed the Union’s position that a High -
powered committee headed by the Union Cabinet Secretary would be formed to
undertake a comprehensive examination to conside r such impacts, and make
necessary recommendations in that regard.
VII. Transgender persons in heterosexual persons can marry under existing
law
119. We are in agreement with the Part (xi) of the learned Chief Justice’s opinion
which contains the discussion on the right of transgender persons to marry. We are
also in agreement with the discussion relating to gender identity [ i.e., sex and
gender are not the same, and that there are different people whose gender does not
match with that assigned at birth, including transgender men and women, intersex
persons, other queer gendered persons, and persons with socio -cultural identities
such as hijras] as well as the right against discrimination under the Transgender
Persons Act 2019. Similarly, discussion on the provisions of the Transgender
Persons Act, 2019 and enumeration of various provisions, remedies it provides,
and harmonious con struction of its provisions with other enactments, do not need
any separate comment. Consequently, we agree with the conclusion [( G(m)] that
transgender persons in heterosexual relations have the right to marry under existing
laws, including in personal la ws regulating marriage. The court’s affirmation, of
the HC judgment in Arun Kumar v. Inspector General of Registration115 is based
upon a correct analysis.
VIII. Issue of joint adoption by queer couples
120. Some of the petitioners have challenged Regulation 5(3) of the 2020
CARA Regulations. By Section 57(2) of the Juvenile Justice (Care and Protection
of Children) Act, 2015 (hereafter ‘JJ Act’) , consent of both the spouses for adoption
is necessary (“shall be required”). By Section 57(5), the authority116 is enabled to
frame any other criteria. CARA notified regulations in furtherance of Section 57(3)
which inter alia mandates as a prerequisite that the prospective adopting couple
should have been in a stable marital relationship for at least 2 years117. The
petitioners argued that these regulations relating to adoption were ultra vires the
parent enactment – the JJ Act, and arbitrary for classifying couples on the basis of
marital status, for the purpose of joint adoption. We have perused the reasoning
and conclusion by the learned Chief Justice on this aspect, and are unable to concur.
115 (2019) Online SCC Madras 8779
116 CARA (Central Adoption Resource Agency) formed under Section 68
117 5. Eligibility criteria for prospective adoptive parents.―
(1)The prospective adoptive parents shall be physically, mentally, emotionally and financially capable, they shall
not have any life threatening medical condition and they should not have been convicted in criminal act of any
nature or accused in any case of child rights violation.
(2) Any prospective adoptive parent, irrespective of their marital status and whether or not they have biological
son or daughter, can adopt a child subject to the following, namely:― (a) the consent of both the spouses for the
adoption shall be required, in case of a married couple; (b) a single female can adopt a child of any gender; (c) a
single male shall not be eligible to adopt a girl child.
(3) No child shall be given in adoption to a couple unless they have at least two years of stable marital relationship
except in the cases of relative or step -parent adoption.
121. The interpretation placed on Section 57(2) of the JJ Act by the learned
Chief Justice, is that it contemplates (joint) adoption by both married and
unmarried couples, but the condition requiring both spouses to consent applies
only to married couples. Ther efore, while the JJ Act is wider in its scope, the
CARA Regulation 5(3) [in furtherance of Section 57(5) which delegates power
to prescribe any other criteria] stipulating a ‘stable marital relationship’ exceeds
the power granted by the parent Act, an d is ultra vires the express provisions and
legislative policy of the JJ Act. Our disagreement with this characterization is laid
out in Part A below . Thereafter, the learned Chief Justice has read down offending
part ‘marital’ from Regulation 5(3), and held that the requirement of ‘consent’
embodied in Regulation 5(2)(a) would be equally applicable on both married and
unmarried couples. We are of the firm opinion that the exercise of reading down
itself, is unsustainable [See part B below] and hence, this consequence though
favourable, cannot apply. Our reasoning in relation to the aspect of adoption by
queer couples, and the indirect discrimination faced, is elaborated in Part C.
A. Not a case of delegated legislation being ultra vires the parent Act
122. With respect, we disagree with the interpretation of Section 57(2) of the JJ
Act itself . A reading of the provision as a whole, makes it amply clear that it
intends joint adoption only to married couples. While the word “couple” is not
preceded by ‘married’, the use of “spouse” later in the sentence, rules out any
other interpretation. The p rinciple of noscitur a sociis (meaning of a word should
be known from its accompanying or associating words) is squarely applicable; a
provision is to be seen as a whole, wherein words are to be read in the context of
accompanying or associating words. In K. Bhagirathi G. Shenoy and Ors. v. K.P .
Ballakuraya & Anr.118, it was observed :
"It is not a sound principle in interpretation of statutes to lay emphasis on one
word disjuncted from its preceding and succeeding words. A word in a
statutory provision is to be read in collocation with its companion words. The
pristine principle based on the maxim noscitur a sociis (meaning of a word
should be known from its accompanying or associating words) has much
relevance in understanding the im port of words in a statutory provision.”
Furthermore, such an interpretation – of construing a part of one provision as
operating to one set of people, and not others, is simply not known to law.
123. To read Section 57(2) as enabl ing both married and unmarried couples to
adopt, but that the statutory provision contemplates a restriction or requirement
of ‘consent’ only on the former kind of couple is not based on any known principle
of interpretation . There is a strong legislative purpose in the requirement of
obtaining consent of the spouse, which is rooted in the best interest of the child;
for their welfare, and security. The parent Act, and delegated legislation, both are
clear that a prospective adoptive parent can be a single person (whether
unmarried, widower, etc.) and on them , there exists no restriction other than on a
single male being barred from adopting a girl child. The restriction of ‘consent’
of partner, applies only in the case of a couple. This is because the child will enter
into a family unit – consisting of two pa rents, as a result of the adoption and will
in reality, enjoy the home that is made of both partners. Acceptance, therefore, of
the other partner, is imperative; it would not be in the best interest of the child if
one of the partners was unwilling to take on the responsibility. The only other
legislative model is Section 7 and 8 of the Hindu Adoption and Maintenance Act,
1956 which mandates consent of both spouses (which much like other personal
laws, uses the gendered language of “wife” and “husband”).
124. Therefore, given that we differ on the starting point itself – that section
57(2) of the JJ Act permits joint adoption by both married and unmarried couples
(as held by the learned Chief Justice) – we are of the considered opinion that is
not a case of delegated legislation being ultra vires the parent Act.
125. The legislative choice, of limiting joint adoption only to married couples
needs to be understood in the broader context of the JJ Act, and its purpose –
which is the best interest of the child are paramount . Legal benefits and
entitlements, flow either from/in relation to the individual adopting (when a
single person adopts), or the married couple adopting as a unit. In the case of
bereavement, of such single parent, custody of the child may be taken by a relative
in the former, whereas continued by the surviving spouse, in the latter. But
consider, that in the case of a married couple – there is a breakdown of marriage,
or simply abandonment/neglect of one partner and the child, by the other. There
are protections in the law, as they stand today , that enable such deserted, or
neglected spouse, to receive as a matter of statutory right – maintenance, and
access to other protections. Undoubtedly, the DV Act offers this protection even
to those in an unmarried live -in relationship, but consider a situation that does not
involve domestic violence, and is plain and simple a case of neglect, or worse,
desertion. It is ar guable that both partners, are equally responsible for the child
after the factum of adoption; however – it begs the q uestion, how can one enforce
the protection that is due to this child?
126. The JJ Act merely enables adoption, but for all other consequences (i.e.,
relating to the rights of a child qua their parents, and in turn obligations of a parent
towards the said child) reference has to be made to prevailing law (law relating
to marriage and divorce, maintenance, succession, guardianship, custody, etc.).
When a single person adopts as an individua l, their capabilities are assessed as
per Section 57(1) [and Regulation 5(1)], and the responsibility of that child – falls
squarely on this individual. If that person enters into a relationship , whether it
later succeeds, or fails, is immaterial – the responsibility of the child remains
squarely on the individual (until they are married, and the partner legally adopts
the child). When a couple adopts, they are jointly assessed, and in law, the
responsibility falls on both parents . If one parent was to abandon the relationship,
and the other parent is unable to maintain themselves or the child by themselves –
recourse lies in other statutory provisions which enable remedy to be sought. To
read the law in the manner adopted by the learned Chief Justice, with all due
respect, would have disastrous outcomes, because the ecosystem of law as it
exists, would be unable to guarantee protection to the said child in the case of
breakdown of an unmarried couple, adopting jointly. This, therefore, would not
be in the best interest of the child.
B. Not a case for reading down or other interpretive construction
127. Counsel relied on the case of X v. Principal Secretary (supra) where this
court read down ‘married woman’ to just ‘woman’ for the purpose of
interpretating the MTPA Act, to argue that a similar interpretation be adopted for
the law relating to adoption. In our considered opinion, that case was on a
different footing altogether – it related to an individual woman’s right to choice
and privacy, affecting her bodily autonomy. Given the fundamental right that each
childbearing individual has, and the objec tive of the Act, the classification on the
basis of marital status, was wholly arbitrary. The JJ Act and its regulations are on
a different footing. Here, the object of the Act and guiding principle, is the best
interest of the child (and not to enable ado ption for all).
128. It is agreeable that all marriages may not provide a stable home, and that a
couple tied together in marriage are not a ‘morally superior choice’, or per se
make better parents. Undoubtedly, what children require is a safe space, love,
care, and commitment – which is also possible by an individual by themselves,
or a couple – married or unmarried. There is no formula for a guaranteed stable
household. Principa lly, these are all conclusions we do not differ with . As a
society, and in the law, we have com e a long way from the limited conception of
a nuclear family with gendered roles, and privileging this conception of family
over other ‘atypical’ families. However, the fact that Parliament has made the
legislative choice of including only ‘married’ couple s for joint adoption (i.e.,
where two parents are legally responsible), arises from the reality of all other laws
wherein protections and entitlements, flow from the institution of marriage. To
read down ‘marital’ status as proposed , may have deleterious impacts, that only
the legislature and executive, could remedy – making this, much like the
discussion on interpretation of SMA , an outcome that cannot be achieved by the
judicial pen. Having said this, however, there is a discriminatory impact on queer
couples, perhaps most visible through this example of adoption and its regulation,
that requires urgent state intervention (elabo rated in Part C).
129. Furthermore, the previous analysis of SMA has led this Court to conclude
that its provisions cannot be modified through any process of interpretation and
that the expression “spouse” means husband and wife or a male and female as the
case may be, on an ove rall reading of its various provisions. By Section 2(64) of
the JJ Act, expressions not defined in that Act have the same meanings as defined
in other enactments. The SMA is one example. Likewise, the other enacted laws
with respect to adoption is the Hindu Adoption and Maintenance Act. That
contains the expression “wife and husband”. In these circumstances, we are of
the opinion that the manner in which Section 57(2) is cast, necessitating the
existence of both spouse and their consent for adoption of a child. In such a
relationship, Regulation 5(3) cannot be read down in the manner suggested by the
learned Chief Justice.
130. Therefore, in our opinion, whilst the argument of the petitioners is merited
on some counts, at the same time, the reading down of the provision as sought for
would result in the anomalous outcome that heterosexual couples who live
together, but choose not to marry , may adopt a child together and would now be
indirect beneficiaries, without the legal protection that other statutes offer –
making it unworkable (much like the discussion on SMA in Part V).
C. Discriminatory impact of adoption regulations on queer persons
131. Section 57(2) of that Act spells out the eligibility conditions of prospective
adoptive parents. The petitioner’s argument was that the expression “marital”
results in discrimination inasmuch as single parent can adopt – the only
prohibition being that a single man cannot adopt a girl child. Further, if a single
man and/or a single woman choose to adopt separately as an individual, and live
together, the resultant de facto parents would still have a choice of marrying each
other – for the child in question to be legally the child of both parents. Or put
differently, if a heterosexual couple wants to adopt a child jointly, they have the
option of entering into a marriage, thereby making them eligible for joint
adoption. However, in t he absence of legal recognition of a queer couple union,
they are left to adopt as individuals and the resultant de facto family would have
no avenue for legal recognition . This iniquitous result too is an aspect which
needs to be addressed as the impact here is not only on the queer couple (who
have no avenue to seek legal recognition of their union) but also upon the children
adopted by them (who have no say in the matter).
132. Furthermore, given the social reality that queer couples are having to adopt
in law as individuals, but are residing together and for all purposes raising these
children together – means that the State arguably has an even more urgent need
to enable the full gamut of rights to such children, qua both parents. For instance,
in an unforeseen circumstance of death of the partner who adopted the child as an
individual, the child in question may well become the ward of such deceased’s
relatives, who might ( or might not) even be known to the child, whereas the
surviving partner who has been a parent to the child for all purposes, is left a
stranger in the law . Therefore, this is yet another consequence of the non -
recognition of queer unions, that the State has to address and eliminate, by
appropriate mitigating measures .
133. This is not to say that unmarried couples – whether queer or heterosexual –
are not capable or suitable, to be adoptive parents. However, once the law permits,
as it has done – adoption by both single individuals, the likelihood of their joining
and co -habiting cannot be ruled out. In such event, de facto family unit can and
do come about. The underlying assumption in the law as it exists, that such
unmarried heterosexual or queer couples should not adopt needs to be closely
examined. Similarly, the need of such couples to have and raise a family in every
sense of the term, has to be accommodated within the framework of the law ,
subject to the best interests of the child . The existing state of affairs which permits
single individuals to adopt, and later to live as a couple in due exercise of their
choice, in effect deprives the children of such relationships various legal and
social benefits, which are otherwise available to children of a married couple. In
other words, given t he objective of Section 57 and other allied provisions of the
JJ Act, which is beneficial for children, the State as parens patriae needs to
explore every possibility and not rule out any policy or legislative choice to
ensure that the maximum welfare and benefits reach the largest number of
children in need of safe and secure homes with a promise for their fullest
development. This aspect i s extremely important given that a large number of
children remain neglected, or orphaned.
134. It goes without saying that the welfare and the benefit of the children is
paramount in every case, and the State has the duty to act as parens patriae . That
our country has countless children who are orphaned or neglected, and in need of
loving homes, is not lost on us – and is certainly a concern that the State is most
acutely aware of. In these circumstances, it would be in the general interest of all
children that such impact is removed at the earliest instance, after undertaking in -
depth study and analysis of the various permutations and combinations that would
arise in opening adoption more widely, without hampering the child’s rights. In
its exercise of reframing the regulations or laws, it is reiterated that the State
cannot, on any account, mak e regulations that are facially or indirectly
discriminatory on the ground of sexual orientation. It would be entirely wrong , if
the observations herein, are construed as saying that the State should hamper or
interfere in queer persons who have in the pas t, or are seeking to adopt as
individuals . These observations are to be construed to enable the state to consider
all options, and implications, with the object of promoting the best welfare of
children, especially whether joint adoption can be facilitated to such willing
couples, even while ensuring that the legal web of statutory protections and
entitlements guaranteed to children, are operationalised for these children as well.
135. These observations are not meant to impede all possibilities and make all
necessary policy and legislative changes, enabling children’s welfare. In other
words, the possibility of queer couples adopting children, should be given equal
concern and considera tion having regard to the larger interest of the largest
number of children and their development.
IX. Moulding relief
136. The breadth and amplitude of this court’s jurisdiction is incontestable. The
constitution framers created this as a fundamental right in most emphatic terms.
This jurisdiction enables the court to create and fashion remedies suited for the
occasion, oftent imes unconstrained by previous decisions. Yet the breadth of this
power is restrained by the awareness that it is in essence judicial . The court may
feel the wisdom of a measure or norm that is lacking; nevertheless, its role is not
to venture into functions which the constitution has authorised other departments
and organs to discharge.
137. Social acceptance is an important aspect of the matrimonial relationship,
but that is not the only reality; even in the exercise of choice by the parties to a
marriage, there may be no acceptance at all, by members of their respective
families; others too may shun them. Yet, their relationship has the benefit of the
cover of the law, since the law would recognize their relationship, and afford
protection, and extend benefits available to married persons. This however eludes
those living in non -heterose xual unions, who have no such recognition in all those
intersections with laws and regulations that protect individual and personal
entitlements that are earned, welfare based, or compensatory . The impact ,
therefore, is discriminatory.
138. Does the existence of such discriminatory impacts, in these intersections
with the state, and arising out of a variety of regulations and laws, impel this court
to fashion a remedy, such as a declaration, which enjoin legislative activity, or
instruct the executive to act in a specified manner, i.e., achieving non -
heterosexual couple marriage ? This aspect cannot be viewed in isolation, but in
the context of our constitution’s entrenchment of separation of powers, which
according to Kesavananda Bharati (supra) , Indira Gandhi119 and other judgments
constitutes an essential feature of the Constitution. It is one thing for this court,
to commend to the state, to eliminate the discriminatory impact of the
intersections with laws and publicly administered policies and institutions, up on
non-heterosexual couples, and entirely another, to indirectly hold that through a
conflation of positive obligations cast on the State, that such individuals’ right to
choice to cohabit and form abiding relationships, extends to the right (or some
entitlement) to a legally recognised union that must be actualized by State
policy/legislation .
139. The petitioners relied on three judgments specifically, to argue that this
court could issue directions, to fill the legal lacunae: Common Cause (supra) ,
Vishaka & Ors v. State of Rajasthan (hereafter, “Vishaka”)120 and NALSA (supra) .
We have briefly summarized why these were in a context different from the case
before us.
140. In Common Cause (supra) , the court elaborated on the theme of liberty
under Article 21 of the Constitution and the façade of dignity inherent in it. The
Court relied on Port of Bombay v. Dilipkumar Raghavendranath Nadkarni121,
Maneka Gandhi (supra) , and State of A.P . v. Challa Ramkrishna Reddy122. The
court also relied on K.S. Puttaswamy (supra) , NALSA (supra) and Shabnam v.
Union of India123 to underline the intrinsic value of dignity and further stated that
life is not confined to the integrity of physical body. Having said that, the Court
119 Indira Nehru Gandhi v . Raj Narain , (1975) Supp. SCC 1
120 1997 Supp 3 SCR 404
formulated the right under Article 21 to include the right to die with dignity , of a
dying or terminally ill person and approved the application of only passive
euthanasia. The Court further went on to approve the idea of individual autonomy
and self -determination , underlining the context expanded and built upon the
directions which had been granted in the earlier judgment in Aruna Ramchandra
Shanbaug v . Union of India (hereafter, “Aruna Shanbaug”)124. The Court was
also influenced by the recommendations of the 241st Law Commission Report
which had suggested incorporation of additional guidelines in addition to an
elaboration of what had been spelt out in Aruna Shanbaug (supra) . The Court
rejected the argument that the previous ruling in Gian Kaur v. State of Punjab125
did not rule that passive euthanasia can only be given effect to through legislation
and further that the Court could only issue guidelines.
141. The approach of Common Cause (supra) as can be seen from the varied
opinions of the Judges forming the Bench was one of seeing the workability and
the need to elaborate guidelines formulated in Aruna Shanbaug (supra) . The
Court had no occasion, really speaking, but to consider whether the directions
given could not have been given. Furthermore, there were reports in the form of
Law Commission recommendations which formed additional basis for the
Court’s discretion and the final guidelines. An importan t aspect is that all
judgments in Common Cause (supra) located the right to passive euthanasia
premising upon the right to human dignity, autonomy and liberty under Article
142. Vishaka (supra) was an instance where in every sense of the term, there
was all round cooperation as is evident from the position taken by the Union of
India which had expressly indicated that guidelines ought to be formulated by the
Court. The trigger for these guideline s was the resolve that gender equality
(manifested in Articles 14 and 15 of the Constitution as well as the right to
124 Aruna Ramchandra Shanbaug v . Union of India , (2011) 4 SCR 1057.
dignity ) and the right to pursue one’s profession and employment [Article
19(1)(g)] needed some express recognition to ensure protection from sexual
harassment in the workplace and to work with dignity , is a basic human right
which needed to be addressed in the context of women at workplace. The Court
took note of international conventions and instruments and also held that
guidelines had to be formulated for enforcement of Fundamental Rights till a
suitable law is made. The Court ex pressly indicated what k ind of behaviour was
sexual harassment (para 2 of the guidelines) and further that regulations had to be
formulated for prohibited sexual harassment and providing for appropriate
penalties at workplace. Other directions were that if the conduct amounted to an
offence, the employer had to initiate appropriate action according to law and also
ensure that the victims had to be given the option of transfer of their perpetrator
or their own transfer. Furthermore, disciplinary action in terms of the rules was
directed with a further requirement that necessary amendments were to be carried
out. The Court then went on to request the State to consider adopting suitable
measures indicating legislation to ensure that the guidelines in the order were
employed by the Gov ernment.
143. Central to the idea of issuing directions or guidelines in Vishaka (supra)
was the felt need to address a living concern - that of providing redressal against
socially repressible conduct suffered by women in the course of employment . The
Court stepped in, so to say, to regulate this behaviour in public places , which
though not criminalized or outlawed (other than in the limited context of Section
354 IPC) actually tended to wards criminal behaviour . The Court articulated the
constitutional vision for bringing about gender parity and to that end, elimination
of practices which tended to lower the dignity and worth of women through
unacceptable behaviour. Guided by Article 15(3), the court stepped in, while
limiting itself to regulate work places essential in the public field (State or State
agencies). The Union of India was actively involved and in fact had given
suggestions, at the time of formulation of these guidelines. At the same time, the
court realized its limitation and declared that such guidelines shall continue till
appropriate laws are made. Existing service rules were in fact amended to
accommodate these concerned, to the extent of incorporating the forums through
which such grievanc e could be articulated. This later culminated in the Sexual
Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act,
2013 which applies not merely to public but all establishments .
144. In NALSA (supra) , the Court again was confronted with an acute concern
wherein the personhood of transgender persons itself , was not recognized. The
court held that the intrinsic worth of every individual and the value of individuals
to fully realise their rights, was a premise embedded in the Constitution. The
Court sought to address hostile discriminatory practices, which included violence
that transgender persons were subjected to routinely. Given all these
circumstances, the Court located the right of those identifying t hemselves as
transgender persons squarely under Article 21 of the Constitution. Any
discriminatory practice against such persons, would violate their Article 15 right
under the Constitution. The directions given by the Court were that such persons
should be treated as third gender , where appropriate, and granted legal protection
to their self -identified gender identity . Further, that the State and Central
Government should seriously address problems faced by them by provid ing
measures for medical care and f acilities in hospitals , permitting them access to
social welfare schemes for their betterment and take other measures . The court
also constituted an expert committee to make an in-depth study of problems faced
by transgender persons.
145. In the present case, however, the approach adopted in the above three cases
would not be suitable. The court would have to fashion a parallel legal regime,
comprising of defined entitlements and obligations. Furthermore, such
framework containing obligatio ns would cast responsibilities upon private
citizens and not merely the State. The learned Chief Justice’s conclusions also do
not point towards directions of the kind contemplated in Vishaka (supra) .
However, the outlining of a bouquet of rights and indication that there is a
separate constitutional right to union enjoyed by queer couples, with the
concomitant obligation on the State to accord recognition to such union, is what
we take exception to.
X. Conclusion and directions
146. Marriage, in the ultimate context, is not defined merely by the elements,
which delineate some of its attributes, and the differing importance to them,
depending on times, such as permanence of a sexual partner; procreation and
raising of children, stabili ty to family, and recognition in the wider society. Some,
or most of these elements may be absent in many relationships: there may be no
procreative possibility due to choice, or otherwise; some marriages may have no
wider context, such as absence of the larger family circle, due to several reasons,
including alienation or estrangement; there may be no matrimonial home, in some
marriage, because of constraints including spouses being located in different
places; some marriages may be (by choice or otherwise) bereft of physical or
sexual content. Yet, these marriages might be as successful, as fulfilling and
complete as any other. The reason, in this author’s opinion, is that at its core,
marriage has signifie d companionship, friendship, care and spiritual
understanding a oneness , which transcends all other contents, and contexts. Thus ,
“home” is not a physical structure; it is rather the space where the two individuals
exist, caring, breathing and thinking, living for each other. This is how
traditionally it has been understood.
147. This feeling need not be unique to marriage; and in fact has come to be
enjoyed by many without the cover of it (for e.g., those who are simply in
committed cohabitational relationships) . While many others, may only be able to
experience such a feeling and way of life , if it were to have the legitimacy in
society, akin to marriage. That law has the potential to play such a legitimising
role, cannot be overstated. The feeling of exclusion that comes with this status
quo, is undoubtedly one which furthers the feeling of exclusion on a daily basis,
in society for members of the queer community . However, having concluded that
there exists no fundamental right to marry, or a right to claim a status for the
relationship , through the medium of a law (or legal regime ) and acknowledged
the limitations on this court in moulding relief, this court must exercise restraint ;
it cannot enjoin a duty or obligation on the State to create a framework for civil
union or registered partnership , or marriage , or abiding co -habitational
relationship . Yet, it would be appropriate to note that everyone enjoys the right to
choice, dignity, non -discrimination, and privacy. In a responsive and
representative democracy which our country prides itself in being, such right to
exercise choices should be given some status and shape. Of course, w hat that
should be cannot be dictated by courts. At th e same time, p rolonged inactivity by
legislatures and governments can result in injustices. Therefore, action in this
regard, would go a long way in alleviating this feeling of exclusion that
undoubtedly persists in the minds and experiences, of this community.
148. The resultant adverse impact suffered by the petitioners in relation to
earned benefits [as elaborated in Part VI], solely because of the State’ s choice to
not recognise their (social) union or relationship , is one which results in their
discrimination. This discriminatory impact – cannot be ignored , by the State ; the
State has a legitimate interest necessitating action. The form of action – whether
it will be by enacting a new umbrella legislation, amendments to existing statutes,
rules, and regulations that as of now, disentitle a same -sex partner from benefits
accruing to a ‘spouse’ (or ‘family’ as defined in the heteronormative sense), etc. –
are policy decisions left to the realm of the legislature and executive. However,
the recognition that their non -inclusion in a legal framework which entitles them,
and is a prerequisite eligibility criteri a for myriad earned and accrued benefits,
privileges, and opportunities has harsh and unjust discriminatory consequences ,
amounting to discrimination violating their fundamental right under Article 15 –
is this court’s obligation, falling within its remit . The State has to take suitable
remedial action to mitigate the discriminatory impact experienced by the
members of the queer community, in whatever form it deems fit after undertaking
due and necessary consultation from all parties, especially all state governments
and union territories, since their regulations and schemes too would have to be
similarly examined and addressed .
149. This court hereby summarizes its conclusions and directions as follows:
i. There is no unqualified right to marr iage except th at recognised by statute
including space left by custom .
ii. An entitlement to legal recognition of the right to union – akin to marriage
or civil union, or conferring legal status upon the parties to the relationship
can be only through enacted law. A sequitur of this is that the court cannot
enjoin or direct the creation of such regulatory framework resulting in legal
status.
iii. The finding in (i) and (ii) should not be read as to preclude queer persons
from celebrating their commitment to each other, or relationship, in
whichever way they wish, within the social realm .
iv. Previous judgments of this court have established that queer and LGBTQ+
couples too have the right to union or relationship (under Article 21) – “be
it mental, emotional or sexual” flowing from the right to privacy, right to
choice , and autonomy . This, however, does not extend to a right to claim
entitlement to any legal status for the said union or relationship .
v. The challenge to the SMA on the ground of under classification is not made
out. Further, the petitioner’s prayer to read various provisions in a ‘gender
neutral’ manner so as to enable same -sex marriage, is unsustainable.
vi. Equality and non -discrimination are basic foundational right s. The indirect
discriminatory impacts in relation to earned or compensatory benefits, or
social welfare entitlements for which marital status is a relevant eligibility
factor, for queer couples who in their exercise of choice form relationships ,
have to be suitably redressed and removed by the State. These measures
need to be taken with expedition because inaction will result in injustice
and unfairness with regard to the enjoyment of such benefits, available to
all citizens who are entitled and covered by such laws, regulations or
scheme s (for instance, those relating to employment benefits: provident
fund, gratuity, family pension, employee state insurance; medical
insurance; material entitlements unconnected with matrimonial matters,
but resulting in adverse impact upon queer couples ). As held earlier, this
court c annot within the judicial framework engage in this complex task;
the State has to study the impact of these policies, an d entitlements.
vii. Consistent with the statement made before this Court during the course of
proceedings on 03.05.2023, the Union shall set up a high -powered
committee chaired by the Union Cabinet Secretary, to undertake a
comprehensive examination of all relevant factors, e specially including
those outlined above. In the conduct of such exercise, the concerned
representatives of all stakeholders, and views of all States and Union
Territories shall be taken into account.
viii. The discussion on discriminatory impacts is in the context of the effects of
the existing regimes on queer couples. While a heterosexual couple’s right
to live together is not contested, the logic of the discriminatory impact
[mentioned in conclusion (vi) above] faced by queer couples cohabiting
together, would definitionally, however, not apply to them.
ix. Transgender persons in heterosexual relationships have the freedom and
entitlement to marry under the existing statutory provisions.
x. Regulation 5(3) of the CARA Regulations cannot be held void on the
grounds urged. At the same time, this court is of the considered opinion
that CARA and the Central Government should appropriately consider the
realities of de facto families, where single individuals are permitted to
adopt and thereafter start living in a non -matrimonial relationship. In an
unforeseen eventuality, the adopted child in question, could face exclusion
from the benefits otherwise available to adopted children of married
couples. This aspect needs further consideration , for which the court is not
the appropriate forum .
xi. Furthermore, the State shall ensure - consistent with the previous judgment
of this Court in K.S. Puttaswamy (supra) , Navtej Johar (supra) , Shakti
Vahini (supra) and Shafin Jahan (supra) - that the choice exercised by queer
and LGBTQ couples to cohabit is not interfered with and they do no face
any threat of violence or coercion . All necessary steps and measures in this
regard shall be taken. The respondents shall take suitable steps to ensure
that queer couples and transgender persons are not subjected to any
involuntary medical or surgical treatment.
xii. The above directions in relation to transgender persons are to be read as
part of and not in any manner whittling down the directions in NALSA
(supra) so far as they apply to transgender persons.
xiii. This court is alive to the feelings of being left out, experienced by the queer
community; however, addressing their concerns would require a
comprehensive study of its implications involving a multidisciplinary
approach and polycentric resolution, for which the court is not an
appropriate forum to provide suitable remedies.
XI. Postscript
150. We have the benefit of the final draft by the learned Chief Justice, which
contains Section E ‘responses to the opinion of the majority’ as well. Similarly,
we have the benefit of perusing the separate opinion of Sanjay Kishan Kaul, J.
While it would not be necessary to deal pointedly with the responses of my
learned brothers, certain broad aspect s are addressed in the following paragraphs,
to clear the air or dispel any misunderstanding.
151. The learned Chief Justice in his response seeks to highlight that the Court
has in the past exercised its powers under Article 32 in respect of enforcement of
various fundamental rights and cited certain precedents. A close look at each of
them would reveal that in almost all cases, the Court enforced facets of personal
liberty, or an aspect that was the subject of legislation. The allusion to cases
dealing with subjects, particularly, incarceration of persons with mental
disabilities ( Sheela Barse126), the right to speedy trial ( State of Punjab v. Ajaib
Singh127), legal aid ( Manubhai Pragji Vashi128 etc. are directly concerned with
personal liberty. The reference to cases dealing with clean environment, is also a
facet of Article 21. In fact, there are enacted laws in the field of environment
protection. The allusion to the directions in PUCL v. UOI129 is pertinent; in that
judgment, the Court in fact issued a series of directions to the State,
operationalizing existing government schemes, and issuing consequential
directions, to mitigate large -scale loss of grains, by directing that they be
distributed /channelized by the State, into the PDS system. The other decision,
State of H.P . v. Umed Ram Sharma130 was a case where the High Court had
directed speedy implementation and construction of a road which had been
sanctioned by the State but had been left incomplete. It was held that direction
was not to supervise the action but only to the apprise state of the inaction to bring
about a sense of urgency. The court also observed importantly that it is primarily
within the domain of the executive to determine the urgency and manner of
priorities of the need of any law. This court by its judgment even observed t hat
there was nothing wrong in such directions, since a sanction for the road had been
obtained but there was tardy implementation of the same.
152. That certain fundamental rights have positive content, or obligation, is not
disputed – in fact, in paragraph 57 this has been elaborated; exception was instead
taken to the approach suggested by the learned Chief Justice, of tracing the right
126 1993 Supp (1) SCR 561
128 1995 Supp (2) SCR 733
to union from a conjoint reading of multiple Articles (clauses of Article 19, 25
and 21), as necessitating the creation of a legal status to the relationship (a result
of the obligation to “accord recognition”) and enunciation of a bouquet of
entitlements flowing from this [see paragraph 336(i)]. With respect, such a
direction is in the nature of creating a legal status. Further, the discussion on the
absence of law, and limited extent of positive rights under Article 19 and 25 in
our opinion, was in fact t o insist that rather than ordering liberties and
enumerating every possible right or the way in which it is to be enjoyed, the
content of fundamental rights are that they take up all the space, until restricted –
which can be tested on the ground of its reasonableness, as per the limitations in
Part III. This in no manner takes away from the previous jurisprudence of this
Court where positive obligation under Article 21 has been expounded to locate
several obligati ons upon the State.
153. This Court’s observations with respect to the learned Chief Justice’s
reasoning centered around the enunciation of the bouquet of rights emanating
from various provisions other than Article 21 [Article 19 and 25], and locating an
obligation, has to be seen in the backdrop of the unanimous view of this Court,
that the fundamental right to marry is not found within the Constitution.
Therefore, it is our considered opinion that to create an overarching obligation
upon the State to facilitate through polic ies the fuller enjoyment of rights under
Article 19 and 25, is not rooted in any past decision, or jurisprudence. That queer
couples have the right to exercise their choice, cohabit and live without
disturbance – is incontestable. In the same vein, that th ey are owed protection
against any threat or coercion to their life, is a positive obligation that binds the
State – this is a natural corollary of their right under Article 21.
154. Consider in this context, also the nature of the relief sought, and the
positive obligation fashioned. While there are innumerable judgments on the
positive content of rights under Article 21, there are also countless judgments that
insist upon the separation of powers, when it comes to matters o f policy, and the
courts not being the appropriate forum for the adjudication of the same. The
polycentric nature of the issue, is compelling.
155. Next, on the charge levelled that our conclusion on the challenge to the
SMA ( Part V of this judgment) and subsequently finding on the disparate or
discriminatory impact faced by the queer community (Part VI) being
contradictory – a small comment is called for. The section discussing the
provisions of the SMA and the challenge to its vali dity, was based entirely upon
whether it violated the Constitution on the ground of impermissible classification
(under Article 14) – for which, the object of the Act (i.e., to facilitate marriage
between inter -faith couples, wherein at the time ‘marriage’ or even a ‘couple’ only
denoted heterosexual couples in light of same sex relations being criminalized),
and its provisions, are relevant factors. Classification, involves differentiation;
further, this court has discussed how ‘under classification’ per s e does not warrant
invalidation. In contrast, in the latter segment on discriminatory impact (Part VI),
the issue that this court was considering, was not reasonable classification but the
impact upon queer couples through neutral laws or regulations that they encounter
in their everyday lives; the purpose of which, or even their substantive provisions,
have nothing to do with matrimony. Its rather to confer other benefits – many of
which are earned or accrued on account of individual skill and attainment. Yet the
framing of some benefits or their intended beneficiary – wherever articulated in
terms of entitlement to families or spouses, tends to exclude from its ambit, queer
couples and their lived realities. When such queer couples are entitled to benefits
wherever they fulfil other eligibility criteria; it is the disparate impact of these
neutral laws in disbursal of entitlements or benefits, which is seen through the
effect/impact lens. Therefore, the discussion on the constitutionality of the SMA
is markedly different from the section on discriminatory impact in certain points
for queer persons, as they have no avenue for marriage like heterosexual persons.
In the latter, the impact of various laws were pointed as a starting point for the
State to take re medial action.
156. What is apparent, however, from our judicial differences and the manner
in which we have articulated them – is that a certain question, of fair significance,
arises: whether the absence of law or a regulatory framework, or the failure of the
State to enact law, amounts to discrimination that is protected131 against under
Article 15? With respect, this was perhaps neither argued, nor answered by us;
our opinion is limited to testing the provisions of the SMA for violation of
fundamental rights and noticing that there are various cracks through which the
queer community slip through, in other neutral laws, policies and frameworks,
due to the manner in which they privilege marital/spousal status (access to which,
is not enabled/possible under existing law). Article 15(1) now, can be understood
as permitting a cl assification for the purpose of fashioning policies. Can the
state’s omission to create a classification, and further, its absence of a policy for
a distinct group, which in the court’s opinion deserves favourable treatment,
amount to violation of Article 15? There is no known jurisprudence or case law
(yet) pointing to the absence of law being considered as discrimination as
understood under Article 15.
157. The learned Chief Justice has dealt with in some detail on that section of
our judgment, on adoption [Part VIII]. The underlying premise of his comments
seek to highlight that the existing legal framework affords protection in the event
of an unforeseen ev entuality like abandonment, or sudden death of one partner. It
is incontestable that Section 63 of the JJ Act, provides legal status to the child, in
relation to their adoptive parent(s). However, that per se, is not adequate to
address all concerns r elating to the child. There would be difficulties faced by
children, in claiming entitlements such as maintenance, in the absence of a
general law. The example given by the learned Chief Justice illustrates this:
benefit under the Hindu Adoption and Maintenance Act (which is available only
131 Sexual orientation has been recognised under ‘sex’ in Article 15 by this court in Navtej Johar (supra) and does
not merit elaboration, further than to say that any law or policy which directly, or indirectly, discriminates against
a queer individual on the basis of their sexual orientation would fall foul of the Constitution, unless the law is a
permissible classification.
to Hindus, but accommodates both genders, unlike other laws ). A suggestion of
Section 125 of the Criminal Procedure Code would give rise to the same set of
difficulties as the earlier discussion on SMA. In other words, to obviate the
gendered language, an interpretive exercise of the kind ruled out for the
interpretation of SMA, would be necessary. It is for these reasons, that we
highlighted the need for the State to consider all aspects [para 133 -135]. This
court would reiterate that there is no basis for interpreting the term ‘couple’ under
Section 57(2) of the JJ Act as including both married and unmarried couples,
given the use of the word ‘spouse’ in the very same provision. It is pertinent to
highlight that Section 2(61) of the JJ Act prescribes that expressions not defined,
would have the same meaning as in other enactments.
158. As far as the learned Chief Justice’s comment with respect to this court not
reading down ‘marital’ or striking down Regulation 5(3), the earlier discussion in
Part VIII clarified that there was a conscious legislative policy while highlighting
the interpr etation of the term ‘spouse’. At the same time the court recognised the
disparate, and even discriminatory impact, on children of individuals, who
formed de facto families (with their unmarried partner). In our opinion, striking
down the term ‘marital ’ under Regulation 5(3) – would likely have unintended
consequences, which cannot be comprehended by the court as it involves policy
considerations. This is the reason for desisting from invalidating the provision but
having left it to the State to take me asures to remedy these impacts.
159. Lastly, a small note of caution is expressed in relation to a few conclusions
of our learned brother Kaul, J. There can hardly be any dispute of the positive
outcomes or the need for a broadly applicable non -discriminatory law (as
elaborated by Kaul, J). H owever, the wisdom or unwisdom of such a law, the
elements that go into its making are matters that are not before this Court to
comment on. Nor can we anticipate what would be its content. We are of the
opinion that it is not possible to hold that a positive obligation to enact such a law
exists. We, therefore, expressly place our disagreement with the reasoning of
Kaul, J on this aspect.
160. The known canons of interpretation require the courts to take any statute
and interpret its provisions keeping in mind their contextual setting. Likewise, the
meaning of words have to be understood in the totality of provisions of the statute.
Thus, wherev er a word is used, the overall context of its location plays a role;
sometimes, its meaning changes wherever the context is different. We have hence
held that the expressions in the SMA [“wife” and “husband” or “male” and
“female”] cannot, have a unif orm meaning, because there is an intended gendered
binary [e.g., male and female] in the specific enacting provisions. As far as inter
se statutes are concerned, the inexpedience of a singular, gender neutral meaning
is not a possible outcome, as explained previously. Therefore, it is our considered
view, that there is no known interpretive tool enabling an exercise inter se and in
between statutes, as held by Kaul, J.
161. Undoubtedly, constitutional values endure; they are not immutable. To the
extent it is possible, the statutes may be interpreted in tune with such evolving
values. Yet, statutes are neither ephemeral, nor their terms transient, and are meant
to confer righ ts, duties, and obligations – and sometimes impose burdens and
sanctions. This means that their contents have to be clear and capable of easy
interpretation. The text of the statute therefore must be given meaning – any
interpretive exercise must ther efore begin with the text of the enacted law.
162. The gaps and inadequacies outlined earlier by this judgment result in wide -
reaching impacts and concern crucial aspects of everyday life. Therefore, the
respondents and all institutions should take note of the lived realities of persons
across the range of gender identities and suitably prioritize their needs of social
acceptance. There is also need for a move towards greater acceptance of personal
choices and preferences, and an equal marking of our differences in all their
varied hues.
163. In various countries that have since legislated on same -sex marriage, the
precursor to this regime was often the civil union route. Known by many names,
the concept of civil union enjoys varying rights and entitlements in different
jurisdictions. This was a legal relationship for unmarried, yet committed couples,
who cohabited together and sought certain rights, and the protection of law. The
rights that flowed were not identical in scope or extent of rights arising from
marriage, but was still an ave nue to provide certain limited, but enforceable
rights. In the US, for instance this was rolled out by many state governments,
when same -sex marriage was not legalized by the federal government. What
began as an option for same sex couples, to attain finan cial and legal partnership
(tax benefits, property rights, child adoption in some jurisdictions, inheritance,
etc.) now remains on the statute books for some states, with which couples who
do not want to enter the societal pressures or institution of marri age, are able to
protect their rights. However, many advocates for LGBTQ rights have strongly
opposed civil unions in other jurisdictions, as offering a ‘second class’ status, in
the absence of the marriage route. Other alternatives available in some of th ese
countries – the suitability of which have also been subject to criticism of varying
degrees, but includes – domestic partnerships, cohabitation agreements, common
law marriages, etc.
164. This court would be sorely mistaken if we presume what the queer
community – in all its diversity, seeks and lay it out in a formulaic framework.
Many may welcome civil unions as a pragmatic first step, while some may find
it to be yet another inequitable solution to the feeling of exclusion that persists in
society against this community, and one which simply repackages the
stigmatization felt. Many may desire marriage as understood in the ‘traditional’
sense to escape their societal realities – a for m of financial and social
emancipation from opposing natal families, or diametrically opposite – to
assimilate and gain more social acceptance in their natal families. Yet, others may,
as a result of their experience reject altogether the institution of ma rriage and all
the social obligation and associations that come with it, but still want legal
protection of their rights. Certainly, what the former group may want, does not
hamper or hinder the latter, in any manner – for it is a choice that they seek. That
the state should facilitate this choice for those who wish to exercise it, is an
outcome that the community may agree upon. Yet, the modalities of how it should
play out, what it will entail, etc. are facets that the State – here the l egislature, and
executive – needs to exercise its power in furtherance of. Now whether this will
happen through proactive action of the State itself, or as a result of sustained
public mobilization – is a reality that will play out on India’s democratic stage,
and something only time can t ell.
165. The State may choose from a number of policy outcomes; they may make
all marriage and family related laws gender neutral, or they may create a separate
SMA -like statute in gender neutral terms to give the queer community an avenue
for marriage, they may pa ss an Act creating civil unions, or a domestic partnership
legislation, among many other alternatives. Another consequence may be that
rather than the Union Government, the State legislatures132 takes action and
enacts law or frameworks, in the absence of a central law. What is certain
however, is that in questions of such polycentric nature – whether social, or
political – the court must exercise restraint and defer to the wisdom of the other
branches of the State, which can undertake wide scale public consultation,
consensus building and reflect the will of the people, and be in their best interest.
If as a result of this, a law is enacted that undermines or violates the
constitutionally protected rights of an individual, or a group – no matter how
miniscule, their right to seek redressal from this Court is guaranteed under Article
166. That the petitioners seek, what many of us may deem to be the normal, or
accepted next step in life upon attaining a certain age, and perhaps take for
132 Entry 5, List III of the Constitution of India.
granted, is not lost on us. Their desire, for social acceptability, in the manner that
has been historically known – through the social recognition that marriage
affords – and the lack of which causes them feeling of exclusion and hurt, is one
that as indiv iduals, especially those donning the robes of justice, we can certainly
have deep empathy with. However, we are deeply conscious, that no matter how
much we empathize with the outcome sought, the means to arriving at such a
destination, must also be legall y sound, and keep intact, the grand architecture of
our Constitutional scheme. For if we throw caution to the wind, we stand the risk
of paving the way (wherein each brick may feel justified) to untold consequences
that we could not have contemplated. While moulding relief, as a court we must
be cognizant that despite being empowered to see the capabilities of the law in its
grand and majestic formulation, we must not be led agr ound because we are
blinded, by its glow.
167. The petitions are disposed of in the above terms. Pending applications (if
any) are disposed of.
Writ Petition (Civil) No. 1011 of 2022
Supriyo @ Supriya Chakraborty & Anr. ….Petitioner (s)
Versus
Union of India ….Respondent(s)
Writ Petition (Civil) No. 1020 of 2022
Writ Petition (Civil) No. 1105 of 2022
Writ Petition (Civil) No. 1141 of 2022
Writ Petition (Civil) No. 1142 of 2022
Writ Petition (Civil) No. 1150 of 2022
Writ Petition (Civil) No. 93 of 2023
Writ Petition (Civil) No. 159 of 2023
Writ Petition (Civil) No. 129 of 2023
Writ Petition (Civil) No. 260 of 2023
Transferred Case (Civil) No. 05 of 2023
Transferred Case (Civil) No. 06 of 2023
Writ Petition (Civil) No. 319 of 2023
Transferred Case (Civil) No. 07 of 2023
Transferred Case (Civil) No. 08 of 2023
Transferred Case (Civil) No. 10 of 2023
Transferred Case (Civil) No. 09 of 2023
Transferred Case (Civil) No. 11 of 2023
Transferred Case (Civil) No. 12 of 2023
Transferred Case (Civil) No. 13 of 2023
Writ Petition (Civil) No. 478 of 2023
1. I am conscious of the ordeals that arise from a multiplicity of judicial opinions in
cases involving constitutional questions. Yet, I consider it worthwhile to pen the
present opinion, given the significant nature of questions involved. Polyvocality
in the exercise of the adjudicatory function may not necessarily be viewed with
discomfort ; if complemented by judicial discipline, it is truly reflective of the
diversity of judicial thought .
2. The constitutional question s for which we seek answers in the present set of
petitions are two-fold: (a) the status of the right to marry for LGBTQ+ couples
and (b) depending upon the answer to the first, the remedy that must ensue.
With respect to the first, the petitioners assert that not only do they have the
right to marry under the Constit ution, but also that through an interpretative
3 process such a right must be read into the existing legislative framework
governing marriages. The respondents, oppose both the foundations upon
which the petitioners seek to establish their right, and at the same time they
remind us of the judicial limitations on the issuance of positive directions for
enforcement of such a right.
3. I had the privilege of traversing through the opinions of the learned Chief
Justice, Justice Sanjay Kishan Kaul and Justice Ravind ra Bhat. I am afraid I
am unable to agree with the opinions of the Chief Justice and Justice Kaul. I
am in complete agreement with the reasoning given and conclusions arrived at
by Justice Bhat. I will supplement his findings with some of my own reasons.
Since the broad arguments and submissions have been succinctly captured in
the opinion of the learned Chief Justice, I find no reason to separately enlist
them here.
4. At the outset, I will set out my conclusions, which are also in complete
consonance with th at of Justice Bhat in his opinion.
a. The question of marriage equality of same sex/LGBTQ+ couples
did not arise for consideration in any of the previous decisions of
this Court, including the decision in Navtej Singh Johar & Ors. v.
Union of India1 and NALS A v. Union of India2. Consequently,
there cannot be a binding precedent on this count. The reasons
for arriving at this conclusion are articulated in the opinion of
Justice Bhat.
b. The right s of LGBTQ+ persons, that have been hitherto
recognized by this Court , are the right to gender identity, sexual
4 orientation, the right to choose a partner, cohabit and enjoy
physical & mental intimacy. In the exercise of th ese rights, they
have full freedom from physical threat and from coercive action,
and the State is bound to afford them full protection of the law in
case th ese rights are in peril.
c. There is no unqualified right to marriage guaranteed by the
Constitution, that qualifies it as a fundamental freedom. With
respect to this, I agree with the opinion of Justice Bhat , but will
supplement it with some additional reasons.
d. The right to marriage is a statutory right, and to the extent it is
demonstrable, a right flowing from a legally enforceable
customary practice. In the exercise of such a right , statutory or
customary, the State is bound to exten d the protection of law to
individuals, so that they can exercise their choices without fear
and coercion. This, in my opinion, is the real import of the
decisions in Shafin Jahan v. Asokan K.M .3 and Shakti Vahini v.
Union of India4.
e. The constitutional challenge to the Special Marriage Act, 1954
and the Foreign Marriage Act,1969 must fail, for the reasons
indicated in the opinion of Justice Bhat.
f. Similarly, Justice Bhat also rightly finds the semantic
impossibilities of gender -neutral constructions of the Special
Marriage Act, 1954 and the Foreign Marriage Act,1969. On both
(e) and (f), the opinion of Justice Bhat is exhaustive as to the
reasons, and they need not be supplemented.
g. I find that a right to a civil union or an abiding cohabitational
relationship conferring a legally enforceable status cannot be
situated within Part III of the Constitution of India. On this count
too, I agree with the conclusions of Justice Bhat, and sup plement
them with my own reasons.
5 h. I agree with the reasoning and the conclusion of Justice Bhat with
respect to the constitutionality of Regulation 5(3) of the CARA
Regulations, 2020 .
Marriage as Social Institution and the Status of the Right to Marry
5. There cannot be any quarrel, in my opinion, that marriage is a social institution,
and that in our country, it is conditioned by culture, religion, customs and
usages. It is a sacrament in some communities, a contract in some other. State
regulation in the form of codification, has often reflected the customary and
religious moorings of the institution of marriage. An exercise to identify the
purpose of marriage or to find its ‘true’ character, is a pursuit that is as diverse
and mystic as the purpose of human existence; and therefore, is not suited for
judicial navigation. But that does not render the institution meaningless or
abstract for those who in their own way understand and practice it.
6. In India, the multiverse of marriage as a social instituti on, is not legally regulated
by a singular gravitational field. Until the colonial exercise of codification of
regulations governing marriage and family commenced, the rules governing
marriage and family, were largely customary, often rooted in religious p ractice.
This exercise of codification, not always accurate and many a times
exclusionary, was the product of the colonial desire to mould and reimagine our
social institutions. However, what is undeniable is that, impelled by our own
social reformers, the colonial codification exercise produced some reformatory
legislative instruments, ushering in some much -needed changes to undo
systemic inequalities. The constitutional project that we committed ourselves to
in the year 1950, sought to recraft some of our social institutions and within the
6 first half decade of the adoption of the Constitution, our indigenous codification
and reformation of personal laws regulating marriage and family was underway.
7. Even when our own constitutional State attempted codification and reform, it
left room for customary practices to co -exist, sometimes providing legislative
heft to such customary practices. Section 5(iv)5, section 5(v)6, section 77, and
section 29(2)8 of the Hindu Marriage Act, 1955 are illustrative in this regard.
Similarly, the Special Marriage Act, 1954 in provisos to sections 4(d)9 and
section 15 (e)10 saves customary practices, without which the marriage would
have been otherwise null and void. Same is the case with the proviso to section
5 “5. Conditions for a Hindu marriage . – A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
(iv) the parties are not within the degrees of prohibited relationship unless the custom or usage governing each of
them permits of a marriage between the two.”
6 “5. Conditions for a Hindu marriage . – A marriage may be solemnized between any two Hindus, if the following
conditions are fulfilled, namely:
(v) the parties are not sapindas of each other, unless the custom or usage governing each of them
permits of a marriage between the two.”
7 “7. Ceremonies for a Hindu marriage .—
(1) A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either
party thereto.
(2) Where such rites and ceremonies include the Saptapadi (that is, the taking of seven steps by the
bridegroom and the bride jointly before the sacred fire), the marriage becomes complete and binding when
the seventh step is taken.”
8 29. Savings .—
(2) Nothing contained in this Act shall be deemed to affect any right recognised by custom or conferred by any
special enactment to obtain the dissolution of a Hindu marriage, whether solemnized before or after the
commencement of this Act. ”
9 “4. Conditions relating to solemnization of special marriages .―Notwithstanding anything contained in any
other law for the time being in force relating to the solemnization of marriages, a marriage between any two persons
may be solemnized under this Act, if at the time of the marriage the following conditions are ful filled, namely:―
(d) the parties are not within the degrees of prohibited relationship:
Provided that where a custom governing at least one of the parties permits of a marriage between
them, such marriage may be solemnized, notwithstanding that they are w ithin the degrees of
prohibited relationship; ”
10 15. Registration of marriages celebrated in other forms .―Any marriage celebrated, whether before or after
the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872),
or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act
extends if the following conditions are fulfilled, namely:―
(e) the parties are not within the degrees of prohibited relationshi p:
Provided that in the case of a marriage celebrated before the commencement of this Act, this
condition shall be subject to any law, custom or usage having the force of law governing each of
them which permits of a marriage between the two”
7 4(d) of the Foreign Marriage Act, 196911. Legislative accommodation of
customary practices is also reflected in section 5 of the Anand Marriage Act,
8. The legal regulation of the institution of marr iage, as it exists today, involves
regulation of the solemnisation or ceremony of marriage, the choice of the
partner, the number of partners, the qualifying age of marriage despite having
attained majority, conduct within the marriage and conditions for e xit from the
marriage.
9. As to ceremonies and solemnisation, section 2 of the Anand Marriage Act,
190913, section 3(b) of the Parsi Marriage and Divorce Act, 193614, section 10,
11 & 25 of the Indian Christian Marriage Act, 187215 and section 7 of the Hindu
11 “4. Condi tions relating to solemnization of foreign marriages .—A marriage between parties one of whom at
least is a citizen of India may be solemnized under this Act by or before a Marriage Officer in a foreign country, if,
at the time of the marriage, the followin g conditions are fulfilled, namely: —
(d) the parties are not within the degrees of prohibited relationship:
Provided that where the personal law or a custom governing at least one of the parties permits of a marriage
between them, such marriage may be sole mnized, notwithstanding that they are within the degrees of
prohibited relationship. ”
12 5. Non -validation of marriages within prohibited degrees .—Nothing in this Act shall be deemed to validate
any marriage between persons who are related to each other in any degree of consanguinity or affinity which would,
according to the customary law of the Sikhs, render a marriage between them illegal. ”
13 2. Validity of Anand marriages .—All marriages which may be or may have been duly solemnized according to
the Sikh marriage ceremony called Anand commonly known as Anand Karaj shall be, and shall be deemed to have
been with effect from the date Of the solemnization or each respectively, good and valid in law. ”
14 3. Requisites to validity of Parsi marriages .— (1) No marriage shall be valid if —
(b) such marriage is not solemnized according to the Parsi form of ceremony called “Ashirvad” by a priest in the
presence of two Parsi witnesses other than such priest; ”
15 Section 10 of the Act reads :
“10. Time for solemnizing marriage .—Every marriage under this Act shall be solemnized between
the hours of six in the morning and seven in the evening: ”
Section 11 reads :
“11. Place for solemnizing marriage .—No Clergyman of the Church of England shall solemnize a
marria ge in any place other than a church where worship is generally held according to the forms of
the Church of England, unless there is no such church within five miles distance by the shortest road
from such place, or unless he has received a special license authorizing him to do so under the hand
and seal of the Anglican Bishop of the Diocese or his Commissary. ”
Section 25 reads:
“25. Solemnization of marriage .—After the issue of the certificate by the Minister, marriage may
be solemnized between the persons therein described according to such form or ceremony as the
Minister thinks fit to adopt:
Provided that the marriage be solemnized in the presence of at least two witnesses besides the
Minister. ”
8 Marriage Act, 1955 explicitly recognize the central role that religious
ceremonies play in solemnisation of marriages. The Muslim Personal Law
(Shariat) Application Act, 193716 clearly saves the application of personal law to
marriages, including the natu re of the ceremony. Viewed in this perspective, the
diverse religious practice s involved in solemnizing marriages are undeniable.
10. The choice of the partner is not absolute and is subject to two -dimensional
regulations: (i) minimum age of partners and (ii) the exclusions as to prohibited
degrees. There is a differential minimum age prescription for male and female
partners in most leg islations. Thus males, who have otherwise attained the age
of majority, cannot marry under these enactments, even though they exercise
many other statutory and constitutional right s when they attain the age of
eighteen.
11. The concept of prohibited degrees o f relationship, is statutorily engraved in
section 5 of the Anand Marriage Act, 1909, section 3( a) of the Parsi Marriage
and Divorce Act, 193617, section 5(iv) and (v) of the Hindu Marriage Act, 1955
and sections 4(d) & section 15(e) of the Special Marriag e Act, 1954. Persons
who have attained the requisite age of marriage under these enactments, have
their choice and consenting capacities restricted, to this extent.
16 Section 2 of the Muslim Personal Law (Shariat) Applicati on Act, 1937 reads :
“2. Application of Personal Law to Muslims .—Notwithstanding any custom or usage to the contrary, in all
questions (save questions relating to agricultural land) regarding intestate succession, special property of females,
including personal properly inherited or obtained under contract or gift or any other provision of Personal Law.
marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat, maintenance, dower,
guardianship, gifts, trusts and t rust properties, and wakfs (other than charities and charitable institutions and
charitable and religious endowments) the rule of decision in cases where the parties are Muslims shall be the
Muslim Personal Law (Shariat).”
17 3. Requisites to validity of Pa rsi marriages .- [(1)] No marriage shall be valid if -
(a) the contracting parties are related to each other in any of the degrees of consanguinity or affinity set forth in
Schedule I; or
9 12. In my considered opinion, the institutional space of marriage is conditioned and
occupied s ynchronously by legislative interventions, customary practises, and
religious beliefs. The extant legislative accommodation of customary and
religious practices is not gratuitous and is to some extent conditioned by the
right to religion and the right to c ulture, constitutionally sanctified in Articles 25
and Article 29 of the Constitution of India. This synchronously occupied
institutional space of marriage, is a product of our social and constitutional
realities, and therefore, in my opinion, comparative judicial perspectives offer
little assistance. Given this nature of marriage as an institution, the right to
choose a spouse and the right of a consenting couple to be recognized within
the institution of marriage, cannot but be said to be restricted.
13. The learned Chief Justice has opined that marriage may not attain the social
and legal significance it currently has if the State ha d not recognised and
regulated it through law. It is f urther opined that marriage has attained
significance because of the benefits which are realised through it. In this
context, it is necessary to recount that until the post constitutional codification
of laws relating to marriage and divorce, there was no significa nt State
interven tion on customary laws relating to marriage. Even today, much of the
Mohamm edan law of marriage is governed by religious texts and customs and
there is hardly any State intervention. The Sixth Schedule areas under the
Constitution are largely governed by customary law s of marriage. That the State
has chosen to regulate the institutional space of marriage and even if such
regulation occupie s the space in toto, by itself does not imply that marriage
attained significance due to State recognition.
10 14. I must hasten to add that the aforesaid recollection of legislative illustrations
was with a view to demonstrate the cultural relativism involved in the idea of
marriage. No singular right can inform unimpeded entry to and unregulated exit
from the institut ion of marriage; for that would disassociate the institution of
marriage from its social context. The claim of the right to marry, de -hors the
existing statutory framework, is nothing but a claim to create a legally and
socially enforceable status. It is not a claim against criminalisation of sexual
conduct, which was the issue in Navtej (supra) . It is nothing but a prayer of
mandamus to create the necessary legislative and policy space for recognition
of relationships as marriages in the eyes of law. The prayer to recognize such
a right is not one that expects the State to desist from pursuing an act, but one
which will place positive obligations upon the State to erect new laws, or at least
amend existing laws. I say laws, because marriage laws do not stand in
isolation, they interact in multifarious ways with succession, inheritance and
adoption laws, to name a few. The content of the right claimed by the Petitioners
is such that it clearly places positive legislative obligations on the State, and
therefore, cannot be acceded to. That t here cannot be a mandamus to amend
or enact laws, is such a deeply entrenched constitutional aphorism , which need
not be burdened by quotational jurisprudence. We are afraid, that the creation
of social institutions and consequent re -ordering of societal relationships are
‘polycentric decisions ’, which have “multiplicity of variable and interlocking
factors, decisions on each one of which presupposes a decision on all others”18,
decisions that cannot be rendered by one stroke of the judicial gavel.
18 Indian Ex -Service Movement v. Union of India , (2022) 7 SCC 323 , 68.
11 Re: The impermissibility of the creation of a right to a union or an abiding
cohabitational relationship
15. Having concluded that there exists no unqualified right to marry, in the ordinary
course, no occasion would have arisen for any further deliberation. However,
as the learned Chief Justice, in his opinion, has arrived at a conclusion that
there exist s a con stitutional right to a union or an abiding cohabitational
relationship , it is necessary for me to express my opinion on this new
construction .
16. The learned Chief Justice locates components of th is right to union or an
abiding cohabitational relationship under Article 19(1)(a), Article 19(1)(c), Article
19(1)(e), Article 21 and Article 25 of the Constitution. In my opinion, it would not
be constitutionally permissible to identify a right to a union or an abiding
cohabitational relationship mirror ing the institution of marriage . The learned
Chief Justice identifies ‘ tangible ’ and ‘ intangible ’ benefits (bouquet of
entitlements) that arise from state recognition and regulation of marriages. The
Chief Justice further opines that the right to ma rriage is not fundamental.
However, it is these very tangible and intangible benefits, the denial of which,
according to the learned Chief Justice must inform the reading of a
constitutional right to an abiding cohabitational union. In other words, the
benefits of marriage , however fundamental to a fulfilling life do not make
marriage itself a fundamental right, but they render the right to an abiding
cohabitational union fundamental. I find it difficult to reconcile these.
17. The learned Chief Justice opines that “it is insufficient if persons have the ability
and freedom to form relationships unregulated by the State. For the full
12 enjoyment of such relationships, it is necessary that the State accord
recognition to such relationships. Thus, the right to enter into a union includes
the right to associate with a partner of one’s choice, according recognition to
the association, and ensuring that there is no denial of access to basic goods
and services is crucial t o achieve the goal of self -development .” The opinion of
the Chief Justice, thereafter, classifies that status of two persons in relationship:
(a) ‘relationships’ which do not have legal consequences, (b) ‘unions’ which
have legal consequences and marriages . In my considered opinion, it is in
positively mandating the State to grant recognition or legal status to ‘unions’
from which benefits will flow, that the doctrine of separation of powers is
violated. The framing of a positive right and the positive en titlements which flow
therefrom, essentially require the State to regulate such unions and benefits.
In my opinion, the direction in effect, is to amend existing statutory frameworks,
if not to legislate afresh.
18. Additionally, the opinion of the learned Ch ief Justice, situates the right to choice
of a partner and right to legal recognition of an abiding cohabitational
relationship within Article 25 of the Constitution of India. Emphasis is placed on
the term “ freedom of conscience ” which is placed alongside the right to freely
profess, practice and propagate religion. The opinion situates in this freedom of
conscience, the right not only to judge the moral quality of one’s own action but
also to act upon it. If that were permissibl e under Article 25, then the textual
enumeration of freedoms in Article 19 become redundant, since these freedoms
can be claimed to be actions on the basis of one’s own moral judgment. I find it
difficult to agree with such a reading of Artic le 25.
13 19. I am n ot oblivious to the concerns of the LGBTQ+ partners with respect to denial
of access to certain benefits and privileges that are otherwise available only to
married couples . The general statutory scheme for the flow of benefits
gratuitous or earned; proper ty or compensation; leave or compassionate
appointment, proceed on a certain definitional understanding of partner,
dependant, caregiver, and family. In that definitional understanding, it is no
doubt true, that certain classes of individuals , same -sex par tners, live -in
relationships and non -intimate care givers including siblings are left out. The
impact of some of these definitions is iniquitous and in some cases
discriminatory. The policy consideration s and legislative frameworks underlying
these definitional contexts are too diverse to be captured and evaluated within
a singular judicial proceeding. I am of the firm belief that a review of the impact
of legislative framework on the flow of such benefits requires a deliberative and
consultative exercise , which exercise the legislature and executive are
constitutionally suited, and tasked, to undertake .
20. For the reasons stated above, and in view of the preceding paragraph, the writ
petitions are disposed o f. | The Supreme Court on Tuesday refused to recognize the right of same-sex couples to enter into marriages or have civil unions [Supriyo @ Supriya Chakraborty and anr v. Union of India].
The Court said that the law as it stands today does not recognise the right to marry or the right of same-sex couples to enter into civil unions, and that it is upto the Parliament to make laws enabling the same.
The Court also held that the law does not recognise rights of same-sex couples to adopt children.
The judgment was rendered by a Constitution Bench of Chief Justice of India (CJI) DY Chandrachud and Justices Sanjay Kishan Kaul, S Ravindra Bhat, Hima Kohli and PS Narasimha. The Bench rendered four separate judgments.
The majority opinion was delivered by Justices Bhat, Kohli and Narasimha with Justice Narasimha delivering a separate concurring opinion. CJI Chandrachud and Justice Kaul delivered separate dissenting judgments.
All the judges were unanimous in holding that there is no unqualified right to marriage and same-sex couples cannot claim that as a fundamental right.
The Court also unanimously turned down the challenge to provisions of the Special Marriage Act.
The majority of Justices Bhat, Kohli and Narasimha also held that civil unions between same sex couples are not recognised under law and they cannot claim right to adopt children either.
However, CJI Chandrachud and Justice Kaul in their separate minority opinions ruled that same-sex couples are entitled to recognise their relationships as civil union and can claim consequential benefits.
In this regard, they also said that such couples have the right to adopt children and struck down adoption regulations to the extent it prevented the same.
CJI Chandrachud also said that provisions of Special Marriage Act cannot be struck down or words cannot be read into it to allow same-sex marriages.
Justice Kaul said that Special Marriage Act is discriminatory towards queer couples but concurred with the CJI in holding that it cannot be interpreted to allow same-sex marriages.
WATCH| Highlights of the minority and majority verdict in the marriage equality case:
The majority opinion rendered by Justice Ravindra Bhat held the following:
- There is no unqualified right to marriage.
- Entitlement to civil unions can be only through enacted laws and courts cannot enjoin such creation of a regulatory framework.
- Queer persons are not prohibited in celebrating their love for each other, but have no right to claim recognition of such union.
- Queer persons have the right to choose their own partner and they must be protected to enjoy such rights.
- Same-sex couples do not have right to adopt children under existing law.
- Central government shall set up a high-powered committee to undertake study of all relevant factors associated with same-sex marriage.
- Transgender persons have the right to marry.
The Court in its minority opinion held that queer couples have a right to enter into civil unions, though they do not have the right to marry under the existing laws.
The following are the highlights of CJI Chandrachud's minority judgment:
- Queerness is not urban or elite.
- There is no universal concept of marriage. Marriage has attained the status of a legal institution due to regulations.
- The Constitution does not grant a fundamental right to marry and the institution cannot be elevated to the status of a fundamental right.
- Court cannot strike down provisions of the Special Marriage Act. It is for Parliament to decide the legal validity of same-sex marriage. Courts must steer clear of policy matters.
- Freedom of queer community to enter into unions is guaranteed under the Constitution. Denial of their rights is a denial of fundamental rights. Right to enter into unions cannot be based on sexual orientation.
- Transgender persons have the right to marry under existing law.
- Queer couples have the right to jointly adopt a child. Regulation 5(3) of the Adoption Regulations as framed by the Central Adoption Resource Authority (CARA) is violative of Article 15 of the Constitution for discriminating against the queer community.
- Centre, states, union territories shall not bar queer people from entering into unions to avail benefits of the state.
Watch the pronouncement of the judgment here:
The five-judge bench had reserved its verdict on May 11 this year, after a ten-day hearing. The Court was called upon to decide on a batch of pleas seeking legal recognition of same-sex marriages in India.
Among other developments during the course of the hearings, the Court noted that:
- The US Supreme Court's decision that there was no Constitutional right to abortion was incorrect in the Indian context, and that an individual's right to adopt was not affected by their marital status in India.
- Recognising same-sex unions was up to the Legislature, but the government may have to ensure that same-sex couples are given social and other benefits and legal rights without the label of marriage.
- Courts cannot decide on issues based on young people's sentiments.
- Marriages are entitled to constitutional and not just statutory protections.
The lead petition was filed by Supriyo Chakraborty and Abhay Dang, two gay men living in Hyderabad.
Supriyo and Abhay have been a couple for almost 10 years. They both contracted COVID-19 during the second wave of the pandemic and when they recovered, they decided to have a wedding-cum-commitment ceremony to celebrate the ninth anniversary of their relationship.
However, despite the same, they do not enjoy the rights of a married couple, the plea pointed out.
It was also contended that the Supreme Court in the Puttaswamy case, held that LGBTQIA+ persons enjoy the right to equality, dignity and privacy guaranteed by the Constitution on the same footing as all other citizens.
The Central government opposed the petitions in Court, saying that same-sex couples living together as partners and having sexual relationships is not comparable to the Indian family unit concept, which involves a biological man and a biological woman with children born out of such wedlock.
The government also underlined that there can be no fundamental right for recognition of a particular form of social relationship.
Read about the 20 petitions seeking the legalisation of same-sex marriage, here.
Follow our detailed coverage of Day 1 of the hearing here and here.
Follow our detailed coverage of Day 2 of the hearing here and here.
Follow our detailed coverage of Day 3 of the hearing here and here.
Follow our detailed coverage of Day 4 of the hearing here and here.
Follow our detailed coverage of Day 5 of the hearing here and here.
Follow our detailed coverage of Day 6 of the hearing here and here.
Follow our detailed coverage of Day 7 of the hearing here and here.
Follow our detailed coverage of Day 8 of the hearing here and here.
Follow our detailed coverage of Day 9 of the hearing here and here.
Follow our detailed coverage of Day 10 of the hearing here and here. |
1 Full text of the inaugural National Academy of Medical Sciences (NAMS) Public Oration delivered by Hon’ble the Chief Justice of India Shri Justice N V Ramana NAMS, Ansari Nagar, New Delhi 23 August, 2022 Good evening. At the outset, I would like to pay my tributes to the medical professionals, paramedics and other associated service providers who lost their lives in our fight against COVID-19 pandemic. As I walked into this campus, I was flooded with the memories of my numerous interactions with Dr. J S Bajaj whom I used to consult. Those interactions – more on general topics and less on medicine – were highly illuminating. It is a pleasure and privilege to be here in the presence of such distinguished medical professionals. Perhaps yours is the only profession which follows Gandhiji’s principle- “service to man is service to God”. The practice of medicine is the bridge between science and technology and human-mind and body. Doctors express this scientific understanding day in and day out through their medical practice. There are a very few professions that exist in a constant state of flux in the way the medical profession does. In fact, the medical profession is most reflective of technological and the scientific developments. It is sensitive to every advancement in technology and is constantly striving to improve the care and services it offers. The significance of health of our people is reflected in the emphasis that the makers of our Constitution have given to the subject. Our courts also have played significant role in realizing these goals and shaping the health care policies of our country. The Directive
2 Principles have placed emphasis on the minutest details of health, nutrition, working conditions and welfare. In addition to the Directive Principles, the Constitution, in 11th and 12th schedules, places an obligation to provide safe drinking water, sanitation and adequate healthcare upon the local bodies. Since there was no explicit mention of Right to health under the Fundamental rights, the Supreme Court, in the case of Bandhua Mukti Morcha, interpreted Article 21 to include right to health. In the case of Paschim Banga Khet Mazdoor Samity, the Supreme Court held that, failure on the part of a government hospital to provide timely medical treatment to a person in need of such treatment results in violation of his right to life guaranteed under Article 21. In a sense, I would say medicine and law are similar. We must keep ourselves abreast of the latest developments in our fields to be able to provide the best possible healthcare or legal representation. A good lawyer, like a good doctor, must always work earnestly towards imbibing and accumulating greater knowledge. The possibilities for growth in both fields are seemingly endless. Both medicine and law are one of the oldest professions in the world. They arise from basic necessities of dignified human existence. People place their faith in lawyers and doctors alike, trusting that they will act in best interests of those who approach them. The doctors do so much more than simply intervene at a stage where a patient’s life is at risk. They play an active role in prevention of disease, in spreading awareness of best health practices, and are instrumental in improving quality of life in countless ways. In contemporary times, the doctors play multiple roles. They are healthcare providers, care givers, educators, managers, policy makers etc. Our recent experience with Covid taught us the significance of robust healthcare for all.
3 We have all learnt how a health emergency can cripple the entire nation. Health infrastructure and policy cannot be planned only when an emergency arises. It requires careful planning and involves meticulous thought process to manage resources in an efficient and effective manner. Being the primary stakeholders in the healthcare system, doctors are extremely important in framing the roadmap to health care in India. The medical expertise, interaction with the patients from varied groups, and the status in the society provides you with unique position and power to influence the society. Your relationship with your patients provides you with an opportunity to develop a deeper yet wider perspective on social issues. Your clinical excellence, professional integrity bestows you with the faith of the public. Admittedly, your profession is a service for humanity. But we also need doctors to assume larger public roles and allow grievances within the system to be aired. As primary health givers, doctors can play transformational roles in enhancing social well-being. There is a glaring lack of medical practitioners in leadership roles. The need of the hour is to bring back the medical leadership at least in shaping healthcare policies and strategies. It is a responsibility that must be borne with utmost seriousness. Considering the nature of your service, the doctors are not only individually responsible to the patients only, they also owe a duty to the society. One trend that needs discussion is the growing and unchecked corporatisation of our healthcare system. Private hospitals are being opened at an exponential rate. This is not necessarily a bad thing, but there is a glaring need for balance. We are seeing hospitals being run like companies, where profit making is more important than service to society. Due to this, hospitals and doctors alike are desensitized towards the plight of patients. They are just numbers for them. This trend has also spread monopoly and is deepening the inequities in access to health care.
4 I understand that the there are many doctors on the boards of various private hospitals, having the responsibility to balance corporate interest with medical interest. Now, with the increasing intervention of corporate boards, the individual autonomy of doctors is getting eroded. Today, the discourse regarding hospitals and doctors is quite disheartening. I have noticed a growing distrust in the common citizen. Hefty fees, chaotic experiences, and sub-par service has marred the relationship between doctors and the general public. Especially in a country like India, where there is immense disparity in access to healthcare, doctors are accountable to the public. Exorbitant medical fees coupled with excessive barriers has made it almost impossible for the poor to get decent healthcare. It is primarily the cost of healthcare that is forcing people to suppress their health care needs and wellbeing. The heart-breaking fact is that, the crucial preventive stage is often lost when people suppress their health needs. They only approach the doctors when it is unmanageable and has crossed a certain threshold. Another side of lack of accessible healthcare, is giving space to quacks. Quackery begins where awareness ends. Where there is room for myths, there is room for quackery. Quackery is the biggest disease affecting India. Owing to the financial and time constraints, a huge majority of Indian population approaches these untrained and uncertified doctors. Lack of awareness and knowledge, misplaced belief, and sheer inaccessibility has massive ramifications on the health of the country, particularly the rural and under-privileged India. Need of the hour is to bring in a legislation to save people from falling prey to fraudulent practices in the name of treatment. Medical awareness is extremely significant for our society, which is filled with inherent notions and superstitions. Disease prevention and management is even more crucial for the marginalized classes as lack of good healthcare will only add to the social and economic stress. Therefore, we need doctors to focus on
5 well-being of the masses, as that keeps the wheel of our society and economy moving. We need more and more young practitioners to work for universal health coverage and reduce disparity in healthcare. Undoubtedly, the duty of care is inherent in the medical profession. From the ancient Roman and English laws to the present times, law places clear consequences for wilful disregard of one’s own duty. It is a phenomenon, which has implication from diagnosis, to treatment and rehabilitation. Even the smallest error by a physician can have a profound impact on the patient's life. Therefore, it is a doctor's responsibility to use due caution to prevent such events. The existence of a doctor-patient relationship is a prerequisite to impose culpability on the doctor. Since the patient typically has only a limited understanding of the illness and the process of treatment, the medical professional has a larger duty to the patient in a fiduciary relationship. Treatment for an individual involves various stakeholders. They have to traverse through doctors, private hospitals and insurance companies. Through this process the patient blindly trusts only the doctors. It is doctor’s presence and involvement that gives the assurance to patients that they are not just consumers. In the landmark decision of Jacob Mathew v. State of Punjab, the Supreme court of India laid down guidelines in cases of alleged negligence against medical practitioners in India. It clearly stated that there is a need for protecting doctors from frivolous or unjust prosecution. Over a period of time, this court has clearly stated that an error of judgment or an accident, is not a proof of negligence on the part of a medical professional. He or she would be liable only where their conduct fell below that of the standards of a reasonably competent practitioner in the field. However, these issues need to be adjudicated as per peculiar facts of each case. Doctors ought not to be penalized if best intentions and efforts were made, irrespective of the results. After all, doctors are humans too.
6 Now I must come to a topic that I feel strongly about. During the pandemic I saw various instances where doctors had been threatened, abused, attacked, and shunned. Despite this, they continued working on the front lines. This negative response towards doctors is truly unfortunate. Several false cases are being lodged against upright and hardworking doctors. They need a better, and more secure, working environment. We must foster an environment where more young people want to become doctors to serve Indian society. This attitude towards doctors is pushing out our best talents abroad. A massive brain drain is taking place where young, talented, and hardworking doctors do not see a future in India. We as a society must change this and incentivize our doctors to stay in India and continue their service and help meet both our medical and social goals. The Central and State Governments too have a serious responsibility. Many aspiring doctors from small towns and rural areas rely on the government for education, support and employment. But, beyond this initial support, the government must look out for the welfare of its doctors and improve their working conditions. The government must think of stronger incentives to make doctors accessible to rural population. NAMS has nearly 1,000 Top medical professionals, Fellows and about 10,000 members, led by Dr. Sarin. What a wealth of wisdom !! National Health, Medical education and disease prevention policies should be guided by NAMS. I implore all senior members of NAMS and other such organizations to help and guide the upcoming generation of doctors. I would like to conclude on a note of appreciation for all of you here and those engaged in the medical profession. Your selflessness and resilience were brought to the fore during the pandemic and medicine’s ability to persevere in the face of
7 adversity was proven yet again. I would like to thank you all for your service. I thank Dr. Shiv Kumar Sarin and other officebearers of NAMS for inviting me to this event and honouring me with the opportunity to deliver inaugural NAMS Public Oration. Dr. Sarin, a recipient of Shanti Swarup Bhatnagar award and Padma Bhushan, is a pioneer in the field of medical science and innovation in a career spanning over three decades. He has contributed internationally in the field of liver diseases. He is a thorough academic and a keen researcher. He is also known for his social endeavours. He is an institution builder. I feel that his services are underutilised. Hope the Governments across the country will draw benefit from his wealth of knowledge. I would like to end this oration with the words of Greek philosopher Hippocrates, the father of medicine, and I quote: “Wherever the art of Medicine is loved, there is also a love of Humanity.” Thank you. | Chief Justice of India (CJI) NV Ramana on Tuesday highlighted the importance of bringing in a law to address the issue of fraudulent healthcare services that patients fall prey to.
The CJI was speaking at the inaugural National Academy of Medical Sciences' (NAMS, Delhi) public oration on ‘Law and Medicine’.
Talking in the context of the rise of quackery in India, the CJI Ramana explained,
"Quackery begins where awareness ends. Where there is room for myths, there is room for quackery. Quackery is the biggest disease affecting India. Owing to the financial and time constraints, a huge majority of Indian population approaches these untrained and uncertified doctors. Lack of awareness and knowledge, misplaced belief, and sheer inaccessibility has massive ramifications on the health of the country, particularly the rural and under-privileged India. Need of the hour is to bring in a legislation to save people from falling prey to fraudulent practices in the name of treatment."
The CJI said that he would speak about certain aspects of the medical education system in the country after his retirement.
In his speech, the CJI said that the practice of medicine was the bridge between science and technology, and the human mind and body.
"Doctors express this scientific understanding day in and day out through their medical practice. There are very few professions that exist in a constant state of flux in the way the medical profession does. In fact, the medical profession is most reflective of technological and the scientific developments. It is sensitive to every advancement in technology and is constantly striving to improve the care and services it offers."
He also touched upon the significance of safeguarding the health of citizens, which he said the Constitution-makers laid great emphasis on.
"Our courts also have played significant role in realizing these goals and shaping the health care policies of our country. The Directive Principles have placed emphasis on the minutest details of health, nutrition, working conditions and welfare. In addition to the Directive Principles, the Constitution, in 11th and 12th schedules, places an obligation to provide safe drinking water, sanitation and adequate healthcare upon the local bodies."
The Chief Justice went on to highlight the similarities between those practicing law and medicine.
"A good lawyer, like a good doctor, must always work earnestly towards imbibing and accumulating greater knowledge. The possibilities for growth in both fields are seemingly endless. Both medicine and law are the oldest professions in the world. They arise from basic necessities of dignified human existence. People place their faith in lawyers and doctors alike, trusting that they will act in best interests of those who approach them."
Next, he emphasised that the commercialisation of healthcare needs to be checked.
"Private hospitals are being opened at an exponential rate. This is not necessarily a bad thing, but there is a glaring need for balance. We are seeing hospitals being run like companies, where profit making is more important than service to society. Due to this, hospitals and doctors alike are desensitized towards the plight of patients. They are just numbers for them. This trend has also spread monopoly and is deepening the inequities in access to health care."
This meant that the poor reach doctors at a very late stage, he highlighted.
"Exorbitant medical fees coupled with excessive barriers has made it almost impossible for the poor to get decent healthcare. It is primarily the cost of healthcare that is forcing people to suppress their healthcare needs and well-being. The heart-breaking fact is that the crucial preventive stage is often lost when people suppress their health needs. They only approach the doctors when it is unmanageable and has crossed a certain threshold."
Attacks on doctors unfortunate
The CJI's speech also touched upon the aspect of attacks on doctors during the COVID-19 pandemic.
"During the pandemic I saw various instances where doctors had been threatened, abused, attacked, and shunned. Despite this, they continued working on the front lines. This negative response towards doctors is truly unfortunate. Several false cases are being lodged against upright and hardworking doctors. They need a better, and more secure, working environment. We must foster an environment where more young people want to become doctors to serve Indian society."
CJI Ramana said such developments are leading to a massive brain drain, and to prevent this, doctors must be incentivised to remain in India.
"...the government must look out for the welfare of its doctors and improve their working conditions. The government must think of stronger incentives to make doctors accessible to rural population." |
Will the Minister of LAW AND JUSTICE be pleased to state:
(a) whether the Government has taken note of the fact that several cases having
serious consequences for the legal system of the country are pending before
various Constitution Benches of the Sup reme Court for a long time;
(b) if so, the details thereof including the name of cases, type of Constitution Bench
and period of pendency;
(c) whether it is true that the reason for pendency of the above mentioned cases is
the lack of interest in expeditin g the same, if so, the details thereof and the
corrective action likely to be taken by the Government in this regard; and
(d) the list of cases heard and disposed of by the Constitutional Benches of the
Supreme Court since its inception till date, decade -wise?
(a) to (d): A Statement is laid on the Table of the House.
(a) & (b): The adjudication and disposal of cases is within the exclusive domain of the
judiciary. The Central Government has no role in the said matter. However, a s per
information obtained from Supreme Court of India, as on 20.07.2023, there were 29 main
cases pending for adjudication before the Supreme Court in the form of Constitution
Bench cases. Out of these 29 cases, 18 cases are pending before 5 -Judge Bench, 6 cases
pending before 7 -Judge Bench and 5 cases pending before 9 -Judge Ben ch for
adjudication. Th e detailed statement of the aforementioned cases are at ANNEXURE -I.
(c): No, Sir , it cannot be said that the reason for pendency of the Constitution Bench
cases is the lack of interest in expediting the same . As per information obtained from the
Supreme Court, in respect of the Constitution Bench cases there are intricate issues of
law involved and arguments are addressed for number of days ranging from weeks to
months. The said issues require deep analysis and thorough examination of law.
Therefore, it is not possible to set out strict parameters and timelines regarding
adjudication of such cases.
As far as corrective action in this regard is concerned, the adjudication and
expeditious disposal of cases is within the exclusive domain of the judiciary and
Government has no role in the matter.
(d): As per information obtained from the Supreme Court, the detailed list of cases
heard and disposed of by the Constitution Benches of Supreme Court since its inception
till date, decade -wise from year(s) 1950 to 2023 is at ANNEXURE -II.
Annexure -I
S.No. Case N o. & Year of
Institution/Pending
since
Cause Title No. of connected matters
1 C.A. No. 841/2018 ETC. M/S. Bajaj Alliance General
Insurance Co.Ltd.
Vs.Rambha Devi And Ors (+75)
9487/2019 Central Organisation For
Railway Electrification
Company (+3)
1013/2019 In Re Article 370 Of The
Constitution
Government Of NCT Of Delhi
Vs.Union Of India And Anr
Ashok Kumar Jain
Main Matter is W.P.
Assam Sanmilita Mahasangha
Vs. Union Of India & Ors. (+16)
7 CRL.A. NO. 1003/2017 Pyare Lal
Vs. State Of Haryana
8 SMW(Crl) No. 1/2022 In Re: Framing Guidelines
Regarding Potential Mitigating
Circumstances To Be
Considered While Imposing
Death Sentences
9 C.A. No. 7513/2005 State Of A.P & Ors.
Vs. B. Archana Reddy & Ors. (+18)
10 CRL.A. No. 451/2019 Sita Soren
Vs. Union Of India
11 C.A. No. 9228/2022 Hariharan And Ors
Vs. Harsh Vardhan Singh Rao
And Ors
12 CRL. A NO. 375/2006 Union Of India & Ors
Vs. Preeti Aggarwal (+6)
13 SLP(C) No. 2755/2008
etc.
(Main matter is SLP(C)
No. 3660/2008) Shiromani Gurudwara
Prabandhak Comm itt.
Vs. Shail Mittal & Ors (+5)
14 W.P. (C) No. 36/2016 V. Vasanthakumar Vs. H.C.
Bhatia And Ors
Main matter is W.P.(C)
No. 202/2018 Sameena Begum vs. Union of
India & Ors. (+9)
16 SLP(C) No. 804/2017
ETC. Karmanya Singh Sareen and
Anr. Vs. Union of India &
17 C.A. no.16879/1996 State of West Bengal & Ors.
vs. Paschim Banga B.K.
Samity & Ors. (+23)
18 C.A. No. 37/1992 Abhiram Singh vs. C.S.
Commachen (Dead) by LRs
and Ors.
1 C.A. No. 8763/1994 Arjun Flour Mills vs. State of
Orissa & Ors. (+10)
210/2003 N. Ravi & Ors. vs . Speaker
Legislative Assembly,
Chennai & Ors. (+1)
3 C.A. No. 2286/2006 Aligarh Muslim University
through its Registrar Faizan
Mustafa vs. Naresh Agarwal
and Ors. (+9)
4 C.A. No. 2317/2011
ETC. State of Punjab & Ors. vs.
Davinder Singh & Ors. (+21)
5 C.A. No. 8588/2019
ETC. Rojer Mathew vs. South
Indian Bank Ltd. And Ors. (+21)
6 W.P. (C) No. 493/2022 Subhash Desai vs. Principal
Secretary, Governor of
Maharashtra and Ors.
1 C.A. No. 1012/2002 Property Owners Association
vs. State of Maharashtra (+15)
2 C.A. No. 151/2007 State of U.P. & Ors. vs. M/s.
Lalta Prasad Vaish (+27)
3 C.A. No. 4056 - Mineral Area Development (+81)
4064/1999 Authority etc. vs. M/s. Steel
Authority of India & Ors.
4 C.A. No. 897/2002 State of U.P. vs. Jai Bir Singh (+46)
5 R.P. (C ) No. 3358/2018
373/2006 Kantaru Rajeevaru vs. Indian
Young Lawyers Association
through its General Secretary
Ms. Bhakti Pasrija and Ors. (+66)
Source: - Supreme court of India
Annexure -II
S.no. Period No. of Constitution Bench matters disposed of | The Supreme Court has decided a total of 2,183 Constitution bench cases since it came into existence in January 1950, the Minister of State for Law and Justice, Arjun Ram Meghwal said in parliament on Friday.
The period between 1960 and 1969 witnessed the highest number of Constitution bench cases being decided and disposed of, reaching 956 cases. On the other hand, the period from 2000 to 2009 saw the lowest number of disposals, with only 138 cases being decided.
As for the recent years between 2020 and 2023, the Court has decided 19 cases so far.
The minister was responding to a question by Lok Sabha Member of Parliament from Kerala's Alappuzha, AM Ariff.
The decade-wise distribution of Constitution bench cases decided is as follows.
The minister's response further said that 29 Constitution Bench matters were pending before the Supreme Court of India as on July 20, 2023.
Of these, 18 cases were pending before a five-judge bench, 6 were before a seven-judge bench and 5 were before a nine-judge bench, as per the Minister's response to a question by Lok Sabha Member of Parliament from Kerala's Alappuzha, AM Ariff.
The oldest Constitutional Bench case pending is the case of Abhiram Singh vs. CS Commachen (Dead) by LRs and Ors. It was registered in 31 years ago, in 1992.
However, the statistics quoted by by the minister diverges from the details provided on the Supreme Court website.
As per the Supreme Court website, 44 Constitution Bench cases were pending before the apex court as on July 1, 2023.
Of these, 33 are pending before five-judge bench, 6 before seven-judge bench, and 5 before nine-judge bench. |
Government of India
Ministry of Law and Justice
Department of Justice
(Appointments Division)
Jaisalmer House,
26, Man Singh Road,
New Delhi-110 011.
Dated: 24th May, 2023.
In exercise of the power conferred by Article 223 of the Constitution of
India, the President is pleased to appoint, Shri Justice S. Vaidyanathan, Judge
of Madras High Court, to perform the duties of the office of the Chief Justice
of that High Court with effect from 25.05.2023 consequent upon the
retirement of Shri Justice T. Raja, Acting Chief Justice, Madras High Court.
141 -a 7,3
(Rajinder ICashyap)
Special Secretary to the Government of India
Tele: 2338 3037
To
The Manager,
Government of India Press,
Minto Road, New Delhi.
No. K-11019/18/2023-US.1/11 Dated: 24.05.2023
Copy to:
1. Shri Justice S. Vaidyanathan, Judge of Madras High Court,
Chennai.
2. The Secretary to Governor, Tamil Nadu, Chennai..
3. The Secretary to Chief Minister, Tamil Nadu, Chennai.
4. The Secretary to the Acting Chief Justice, Madras High Court,
Chennai.
5. The Chief Secretary, Government of Tamil Nadu, Chennai.
6. The Registrar General, Madras High Court, Chennai.
7. The Accountant General, Tamil Nadu, Chennai.
8. The President's Secretariat, (CA.II Section), Rashtrapati Bhawan,
New Delhi.
9. PS to Principal Secretary to the Prime Minister, PM's Office,
South Block, New Delhi.
10. Registrar (Conf.), o/o Chief Justice of India, 07, Krishna Menon
Marg, New Delhi.
12. Technical Director, MC, Department of Justice, with a request to
upload on the website of the Department (wvvw.doj.gov.in). | The Central government on May 24 notified appointment of Justice S Vaidyanathan as the acting Chief Justice of Madras High Court.
Justice Vaidyanathan will take over the post on May 25 upon retirement of the incumbent acting Chief Justice T Raja.
A notification to this effect was released on the Department of Justice website.
"In exercise of the power conferred by Article 223 of the Constitution of India, the President is pleased to appoint, Shri Justice S. Vaidyanathan, Judge of Madras High Court, to perform the duties of the office of the Chief Justice of that High Court with effect from 25.05.2023 consequent upon the retirement of Shri Justice T. Raja, Acting Chief Justice, Madras High Court," the notification said.
Justice Vaidyanathan was born on August 17, 1962 at Coimbatore. He enrolled as an advocate on August 27, 1986.
Justice Vaidyanathan practiced before the Madras High Court. He was elevated as an additional judge of the Madras High Court on October 25, 2013 and was made a permanent judge on April 14, 2015. |
MFA No. 104251 of 2017
MFA No. 104251 of 2017
This appeal by the petitioner/husband in
M.C.No.15/2017 is directed against the impugned
judgment and decree dated 07.10.2017 passed by the
learned Senior Civil Judge & JMFC., Raibag (hereina fter
referred to as the 'Trial Court'), whereby, the sai d petition
filed by the appellant/husband against the responde nt/wife
seeking dissolution of their marriage by a decree f or
divorce on the ground of desertion was dismissed by the
Trial Court.
2. Respondent having been served with notice of
the petition, has remained unrepresented and has no t
contested the petition before the Trial Court.
3. Heard learned counsel for the appellant and
perused the material on record.
MFA No. 104251 of 2017
4. The material on record discloses that the
appellant got married to the respondent on 12.06.20 09
and from out of their wedlock, a male child Aditya was
born on 10.08.2011 who is presently in the custody of
respondent/mother.
5. In the first instance, the appellant/husband
issued legal notice on 03.08.2016 calling upon the
respondent/wife to join him and since she did not d o so,
the appellant instituted M.C.No.33/2016 seeking
restitution of conjugal rights. By judgment and dec ree
dated 05.12.2016, the said petition came to be allo wed in
favour of the appellant against the respondent ther eby
granting a decree of restitution of conjugal rights exparte,
directing respondent to join the appellant. It was
contended that despite the aforesaid judgment and d ecree
for restitution of conjugal rights passed in favour of the
appellant/husband against the respondent/wife, she did
not join him and as such, the appellant was constru ed to
institute the present petition (i.e. M.C.No.15/2017 )
MFA No. 104251 of 2017
seeking divorce on the ground of desertion. In the instant
petition also, the respondent remained exparte and did not
contest the petition. The appellant examined himsel f as
PW1 and produced two documents at Exs.P1 and P2 in
compromising of the marriage certificate and certif ied copy
of the judgment and decree dated 05.12.2016 passed in
M.C.No.33/2016 as referred to supra .
6. It is needless to state that the respondent who
remained exparte did not cross-examine PW1 nor she
adduced any oral or documentary evidence on her beh alf
and despite this, the Trial Court proceeded to pass the
impugned judgment and decree dismissing the petitio n,
aggrieved by which, the appellant/husband is before this
Court by way of the present appeal.
7. A perusal of the undisputed material on record
will indicate that the specific ground urged by the
appellant for the purpose of seeking divorce was th at the
respondent had deserted him and was leaving separat ely
from the year 2013 onwards. Further, despite obtain ing an
MFA No. 104251 of 2017
exparte decree for restitution of conjugal rights in
M.C.No.33/2016, the respondent did not join the pet itioner
nor did she comply with the exparte judgment and decree
which is sufficient ground for divorce within the m eaning
of Section 13(1A)(ii) of the Hindu Marriage Act, 19 55.
8. In the instant case, it is an undisputed fact t hat
despite judgment and decree for restitution of conj ugal
rights having passed in favour of the appellant/hus band
against the respondent/wife on 05.12.2016, the
respondent has not joined the appellant and there h as not
been any restitution of conjugal rights between the parties
for more than a period of one year after decree whi ch was
passed on 05.12.2016. Under these circumstances, we are
of the opinion that the Trial Court committed an er ror in
dismissing the petition without appreciating the ab ove
aspects as well as the un-impeached, un-controverte d and
unchallenged pleadings and evidence of the appellan t
which constitute sufficient grounds to grant decree for
divorce and as such, the impugned judgment and decr ee
MFA No. 104251 of 2017
passed by the Trial Court deserves to be set aside and the
petition filed for divorce deserves to be allowed. In the
result we proceed to pass the following:
(i) The appeal is hereby allowed .
(ii) The impugned judgment and decree dated
07.10.2017 passed in M.C.No.15/2017 on the file of
the learned Senior Civil Judge & JMFC., Raibag is s et
aside.
(iii) M.C.No.33/2016 filed by the appellant stands
allowed.
(iv) The marriage solemnized between the appellant and
the respondent on 12.06.2009 stands dissolved by a
decree for divorce. | The Karnataka High Court recently ruled that non compliance with a decree for restitution of conjugal rights is a valid ground for divorce under Section 13(1A)(ii) of Hindu Marriage Act [Bhimrao vs Santoshi].
Justices SR Krishna Kumar and G Basavaraja made the observation on an appeal by a man against a trial court order refusing to grant him divorce on the same ground.
The petitioner who got married to the respondent in July 2009, cited desertion as the primary reason for seeking a divorce.
The husband, in an attempt at reconciliation, first issued a legal notice to his wife on August 3, 2016, requesting her to join him.
As she failed to respond, he filed a plea seeking restitution of conjugal rights. The court granted a decree for restitution of conjugal rights ex parte, directing the wife to reunite with the husband.
However, despite this court order, she did not comply with the same prompting the husband to seek divorce on the grounds of desertion.
The Court observed that despite the ex parte decree for restitution of conjugal rights, the man's wife did not join him. This was a sufficient ground for divorce, the Court stated.
"Despite obtaining an exparte decree for restitution of conjugal rights in M.C.No.33/2016, the respondent did not join the petitioner nor did she comply with the exparte judgment and decree which is sufficient ground for divorce within the meaning of Section 13(1A)(ii) of the Hindu Marriage Act, 1955," the Court said.
The Court found that the trial court had erred in dismissing the husband's petition. Consequently, the assailed judgment was set aside and the petition for divorce was allowed. |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.