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vil Appeal No. 331 of 1961.
Appeal from the judgment and decree dated March 29, 1956, of the Andhra Pradesh High Court in Appeal Suit No. 182 of 1950.
B. Manavala Chowdhry and B. K. B. Naidu, for the appellants.
Narasiah Chowdhry and R. Gopalakrishnan, for Respondents Nos. 1, 2 and 8.
987 1963.
May 10.
The judgment of the Court was delivered by DAS GUPTA J.
This appeal brought on a certificate granted by the High Court of Andhra Pradesh is against a decision of that Court reversing a decree granted by the Subordinate judge, Masulipatnam, dismissing a suit for partition.
Of the three plaintiffs who brought the suit, two claimed to be the reversioners of Boppanna Chandrappa, to whom we shall refer to as Chandrappa, and the third a purchaser of the interest of some of the reversioners, viz., defendants 4, 5 and 7.
According to the plaint the three plaintiffs were thus entitled to a 5/6th share of the properties while the 6th defendant was entitled as a reversioner of Chandrappa to the remaining 1/6th share.
The property was however in the actual possession of the three sons of Nagayya who were impleaded as the first three defendants.
In contesting the suit these defendants denied that these properties had ever belonged to Chandrappa and further that the plaintiffs 1 and 2 or the defendants 4, 5, 6 and 7 were his reversioners.
The main defence however was that even if the properties did belong to Chandrappa, the defendant 's father Nagayya became entitled to these as Chandrappa 's illatom son in law.
The basis of this plea of illatom son in lawship was said to be that Chandrappa had brought Nagayya into his family under an arrangement that the latter would marry his wife 's sister 's daughter Mangamma and help him in cultivation and management of the properties, in consideration of which Nagayya would inherit the entire property after Chandrappa 's death.
The Trial Court held that all the suit properties except a small portion did belong to Chandrappa 988 and the plaintiffs would be entitled to 5/6th share of Chandrappa 's properties and the 6th defendant to the remaining 1/6th share, on the death of Chandrappa 's widow Ramamma.
He however accepted the defence case that Nagayya had become entitled to the property on Chandrappa 's death as Chandrappa 's illatom son in law and accordingly dismissed the suit.
On appeal, the High Court held that the custom by which an illatom son in law inherited property could not be extended to a case where the marriage took place not with the daughter of the owner of the property but with some other relation of his.
The High Court also rejected an alternative plea that appears to have been raised before it that Nagayya became entitled to the property on the basis of a contract between him and Chandrappa.
In this view of the law, the High Court set aside the order passed by the Trial Court and decreed the suit.
It is no longer disputed before us that the rights of an illatom son in law cannot be claimed by a person who under a promise from the owner of the property that he would inherit the property marries not the daughter but some other relation of the owner of the property. 'The alternative contention which was raised before the High Court has however been repeated before us, It has been urged that there was a good and valid contract between Chandrappa and Nagayya, that in consideration of Nagayya marrying Mangamma and looking after Chandrappa 's property, Chandrappa would make him his heir and that the consequence of this contract was that Nagayya became Chandrappa 's heir.
The question here is not whether on Chandrappa 's death Nagayya could have obtained specific performance of the alleged contract.
For, assuming that there was a contract as alleged and that it was a valid contract, enforceable at law and also such of which specific performance could 989 have been obtained by proper proceedings in courts, the appellants ' rights would be to seek such specific performance.
The contention on behalf of the appellant is that even though specific performance has not been sought or given the contract itself would have the effect of transferring interest in the property to Nagayya on Chandrappa 's death.
In support of this contention the learned Counsel relied on three decisions of High Courts in India and also a decision of the Privy Council.
The first decision in point of time is the case of Challa Papi Reddi vs Challa Koti Reddi (1).
The facts there were that the defendant 's father who was selected by Musalireddi, in pursuance of a special custom, as a son in law who should take his property as if he was a son entered into possession of the property on Musalireddi 's death.
lie then associated with himself the plaintiff in the management of his property on promise of a share.
The plaintiff continued thus for many years, aiding in the management and improvement of the property, until a short time before the suit was brought, the first defendant turned the plaintiff out of doors and refused to give him the promised share.
The High Court of Madras held that the agreement by the first defendant 's father was to the effect that the plaintiff was being admitted to the rights of a co sharer and further, as there was a complete adoption or ratification of the father 's contract by the first defendant he ought to be held to it and the plaintiff was therefore a co sharer in the property.
It has to be mentioned that this case was decided long before the was enacted and the question whether a written document was necessary for transfer did not come up for consideration.
In Bhalla Nahana vs Prabhu Hari (2), which was the next case cited, what happened was that one Gosai (1) (1872) 7 Mad.
H.C.R. 25.
(2) 990 Ramji induced the parents of the defendant Prabhu Hari to give him in adoption by an express promise to settle his property upon the boy but died before such settlement could be executed.
Nearly 30 years after his death Ramji 's widow Bhani gave effect to her husband 's undertaking by executing a deed of gift of his property in her hands in favour of Prabhu Hari.
The reversioner to Gosai Ramji 's estate con tested in a suit brought by him, the validity of this alienation.
In holding that the alienation was valid, the High Court of Bombay pointed out that the performance of a husband 's contracts was among the proper and necessary purposes specified by Hindu jurists under which a widow could alienate property and said further that the equity to compel the heir and legal representative of the adoptive father specifically to perform his contracts survived and the property in the hands of his widow was bound by that contract.
Whether Prabhu Hari would have been entitled to the property even in the absence of the deed of gift did not fall for consideration in that case.
It also deserves to be Mentioned that this case was also decided several years before the came into force.
In Asita Mohon Ghosh Moulik vs Mohan Ghosh Moulik (1), one of the questions in dispute was whether the adopted son could take an equal share with the son Answering the question in the affirmative, the High Court of Calcutta after deciding that under the Hindu Law the adopted son was entitled to an equal share, also referred to an Ikrarnama which had been executed by the adoptive fatherland holding that the Ikrarnama was valid and operative, said that even apart from the law, the adopted son, would be so entitled.
It is difficult to see how this can be of any assistance in solving our present problem.
(1) 991 Lastly, the learned Counsel relied on the decision of the Privy Council in Malraju Lakhmi Venkayyamma vs Ventaka Narasimha Appa Rao (1).
The main question in controversy in that case was whether there was a completed contract by which the Rani, the former owner of the property had agreed that the possession of the property would be given to her niece Venkayyamma Rao immediately upon the expiry of her life interest.
The Privy Council held that there was such completed contract and directed the Receiver to deliver possession "upon the terms of the contract now affirmed".
It may be mentioned that this decision in Venkayyamma Rao 's Case (1), was among the authorities on which the Calcutta High Court relied in Ariff vs Jadunath Majumdar (2).
The High Court held that the result of equitable principles which had been applied in many cases in England and were also applied by the Privy Council in Venkayyamma Rao ' Case was that the defendant had acquired the rights of a permanent tenant.
When this very case went up to the Privy Council in appeal (1), the High Court 's decision was reversed.
The Privy Council pointed out that the dicta in Venkayyamma Rao 's Case did not mean "that equity can override the provisions of a statute and (where no registered document exists and no registrable document can be procured) confer upon a person a right which the statute enacts, shall be conferred only by a registered instrument".
This decision of the Privy Council in Ariff vs Jadunath Majumdar (2), was given in January 1931.
Nearly two years before that section 53A had been enacted in the introducing in a limited form the doctrine of equity of part performance.
There can, in our opinion, be no doubt that after section 53A was enacted the only case in which the English doctrine of equity of part performance could (1) (1916) L. R. 43 I.A. 138.
(2) (1930) 1.
(3) (1931) L. R. 58 1.
A. 91.
992 be applied in India is where the requirements of 53A are satisfied.
Quite clearly, section 53A does not apply to the facts of the present case.
It must therefore be held that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statute could be conferred only by a registered instrument.
Our conclusion therefore is that the High Court was right in holding that Nagayya or his heirs had acquired no right in the property.
The appeal is accordingly dismissed.
In the circumstances of the case, we make no order as to costs.
Appeal dismissed. | The plaintiffs brought a suit for partition, two of them claimed to be the reversioners of Chandrappa and the third a purchaser of the interest of the reversioners, defendants 4, 5 and 7.
They were thus entitled to a 5/6th share of the properties while the 6th defendant was entitled as a reversioner of Chandrappa to the remaining 1/6th share.
The property was in the possession of the three sons of Nagayya, the first three 986 defendants, who denied these properties ever belonged to Chandrappa and also that the plaintiffs 1 and 2 or defendants 4 to 7 were his reversioners.
The main defence was that even if the properties belonged to Chandrappa, the defendants ' father Nagayya became entitled to these as Chandrappa 's illatom son in law, on the basis that Chandrappa had brought Nagayya into his family under an arrangement that the latter would marry his wife 's sister 's daughter Mangamma and inherit the entire property after Chandrappa 's death.
The trial court dismissed the suit.
On appeal the High Court set aside the order and decreed the suit.
On certificate, the only contention, raised by the appellant in this court was that even though specific performance had not been sought, the contract itself would have the effect of transferring interest in the property to Nagayya on Chandrappa 's death.
Held that after enactment of section 53A in the , the only case in which the English doctrine of equity of part performance could be applied in India is where the requirements of section 53A are satisfied.
In the instant Case, 53A has no application.
It must be held therefore that the considerations of equity cannot confer on Nagayya or his heirs any title in the lands which under the statute could be conferred only by a registered instrument.
The appeal, therefore, must be dismissed.
Challa Papi Reddi vs Challa Koti Reddi, (1872) 7 Mad.
H C. R. 25; Bha 'a Nahana vs Parbhu Hari, (1877) 2 I.L.R. Bom.
67; Asita, Mohan Ghosh Moulik vs Mohan Ghosh Moulik, (1016) 20 G.W.N. 901; Venkatayyamma Rao vs Appa Rao, (1916) L. R. 43 1.
A. 138; Ariff vs Jadunath Majamdar, Cal. 1235, held inapplicable.
Ariff vs Jadunath Majumdar, (1931) L. R. 58 I.A. 91, relied on. |
Special Leave Petition (Civil) No. 1863 of 1986.
From the Judgment and Order dated 10.12.85 of the Madhya Pradesh High Court in Misc.
Civil case No. 297 of 1981.
Dr. N.M. Ghatate and S.V. Deshpande for the Petitioners.
Kuldip Singh, Additional Solicitor General, B.B. Ahuja and Miss A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This petition for leave to appeal is directed against the judgment and order dated 10th December, 1985 of the High Court of Madhya Pradesh, Jabalpur Bench.
The High Court upheld the imposition of penalty as well as the addition of alleged concealed income in the income tax assessment of the peti 791 tioner.
The relevant assessment year with which we are concerned in this application is 1974 75.
It appears that the petitioner had submitted his return of income for the assessment year 1974 75 showing a total income of Rs.3,113 in response to a notice issued under section 143(2) of the Act of the Income tax Act, 1961 (hereinafter called 'the Act ').
According to the petitioner, he had derived his income from 2 stores, i.e. M/s. Mohanani Fancy General Stores and M/s. Roopkala General Stores, Durg.
It, however, appears that on 19th January, 1974 on the basis of the order passed by the Superintendent, Central Excise, Jagpur, dated 25th December, 1975 there was confiscation of foreign watches from the house of the petitioner and levy of penalty of Rs.2 lakhs under the .
Accordingly, the Income Tax Officer issued a notice calling upon the assessee to show cause why the value of the watches seized from his residence should not be treated as his income from undisclosed sources.
In this connection it may be relevant to note that on 12th May, 1973 a search was made of the petitioner 's bed room from where a total of 565 wrist watches of foreign make valued at Rs.87,455 were seized from a suit case and in a secret cavity of a looked steel almirah and also behind the almirah there were watches folded in a bundle of waste papers.
A Panchnama was prepared at the same time mentioning these facts.
According to the Customs Authorities, the petitioner found himself unable to make any statement at that time on account of which recording of statements was deferred.
However, it is stated, the petitioner went out of the station on 14th May, 1973.
The petitioner 's statement was recorded on 13th May, 1973 as soon as he was available.
In his statement Annexure R III duly signed by him, he has admitted these facts and merely denied knowledge of the manner in which those watches came to be in his house.
It appears from the records of the Customs case, with which we will have to deal later in S.L.P. No. 1008/86, the petitioner was given a show cause notice as to why the period of six months fixed under section 110(2) of the should not be extended but no reply was given by the petitioner till 10th November, 1973 or even thereafter.
Hence, by an order dated 10th November, 1973 before the expiry of six months, time was extended by the Collector of Customs for a further period of 6 months for giving a notice as required under section 124(a) of the .
Under the proviso to subsection 2 of section 110 of the , a show cause notice specifying the requisite particulars, was given to the petitioner on 4th May, 1974.
In the reply the petitioner made a general denial.
The 792 enquiry was fixed on 30th october, 1975 for giving a personal hearing to the petitioner, when the petitioner 's Counsel appeared and sought for an adjournment to 20th November, 1975, which was granted.
However, on 20th November, 1975 the Counsel of the petitioner stated that the petitioner did not want to avail of the opportunity of personal hearing or even to cross examine the witnesses in whose presence the Panchayatnama was made at the time of the seizure of the watches.
It is necessary to bear these facts in mind because it has repercussions to the notice dated 19th January, 1974, as mentioned hereinbefore issued by the Income Tax Officer to show cause why the aforesaid sum of Rs.90,768 should not be treated as the petitioner 's concealed income.
The Income Tax Officer further directed issuance of the notice under section 271(1)(c) of the Act.
Being aggrieved by the said order the petitioner preferred an appeal before the Appellate Assistant Commissioner against the order dated 20th February, 1976.
The Appellate Assistant Commissioner dismissed the appeal and held that in view of the order passed by the Collector of Customs, the Income Tax Officer was justified in including the cost of the watches in the income of the assessee for the assessment year 1974 75.
Thereafter, on 29th March, 1978 the Assistant Commissioner of the Income tax issued notice of penalty under section 271(1)(c) of the Act, imposing penalty of Rs.90,000 minimum imposable being Rs.87,455 and maximum imposable being Rs.1,74,910.
Being aggrieved thereby the petitioner filed two appeals before the Income Tax Appellate Tribunal.
The Tribunal by its order dated 19th August, 1980 dismissed these appeals.
The petitioner has further stated that in the meanwhile the State of Madhya Pradesh initiated criminal proceedings under section 125 read with 111 of the and the learned Chief Judicial Magistrate, Durg, by his order convicted the petitioner and awarded one year 's rigorous imprisonment.
Thereafter, on 2nd November, 1982 the petitioner filed an appeal in the Court of Additional Judge in the Court of Sessions, who by his judgment allowed the appeal and acquitted the petitioner of the said criminal charge.
Thereafter, there was a reference to the High Court on two questions against the order of the Income tax Tribunal under section 256(1) of the Act.
The questions are as follows: "(i) Whether, on the facts and in the circumstances of the case, was the Tribunal justified in holding that the assessee was the owner of the watches and thus including the value 793 thereof in the assessment of the assessee? (ii) Whether, on the facts and in the circumstances of the case, the Tribunal was justified in holding that the department had discharged its burden for establishing the concealment of income by the assessee for the year under consideration and thus confirming the penalty of Rs.90,000 levied by the Inspecting Assistant Commissioner of Income Tax?" The High Court in its order noted that the raiding party by virtue of the search entered into the bed room of the assessee on 12th May, 1973 and seized the watches.
A Panchnama was prepared.
The Department found that the assessee was the owner.
Section 110 of the Evidence Act is material in this respect and the High Court relied on the same which stipulates that when the question is whether any person is owner of anything of which he is shown to be in possession, the onus of proving that he is not the owner, is on the person who affirms that he is not the owner.
In other words, it follows from wellsettled principle of law that normally, unless contrary is established, title always follows possession.
In the facts of this case, indubitably, possession of the wrist watches was found with the petitioner.
The petitioner did not adduce any evidence, far less discharged the onus of proving that the wrist watches in question did not belong to the petitioner.
Hence, the High Court held, and in our opinion rightly, that the value of the wrist watches is the income of the assessee.
In this connection reference may be made to the views expressed by Justice Tulzapurkar as his Lordship then was, of the Bombay High Court in the case of J.S. Parkar vs V.B. Palekar, where on difference of opinion between Justice Deshpande and Justice Mukhi, Justice Tulzapurkar agreed with Justice Deshpande and held the question whether on the evidence established, the petitioner was the owner of the gold seized, though there was no direct evidence placed before the taxing authorities to prove that the petitioner had actually invested moneys for purchasing the gold in question, the inference of the ownership of the gold in the petitioner in that case rested upon circumstantial evidence.
There also gold was seized from a motor launch belonging to the petitioner in that case.
There a contention was raised that the provision in section 110 of the Evidence Act where a person was found in possession of anything, the onus of proving that he was not the owner was on the person who affirmed that he was not the owner, was incorrect and inapplicable to taxation proceedings.
This contention was rejected.
The High Court of Bombay held that what was 794 meant by saying that the Evidence Act did not apply to the proceedings under the Act was that the rigour of the rules of evidence contained in the Evidence Act, was not applicable but that did not mean that the taxing authorities were desirous in invoking the principles of the Act in proceedings before them, they were prevented from doing so.
Secondly, all that section 110 of the Evidence Act does is that it embodies a salutary principle of common law jurisprudence which could be attracted to a set of circumstances that satisfy its condition.
We are of the opinion that this is a correct approach and following this principle the High Court in the instant case was right in holding that the value of the wrist watches represented the concealed income of the assessee.
Section 69A of the Act was inserted in the Finance Act, 1964 and it came into force w.e.f.
1st January, 1964.
The High Court has rightly held that the expression 'income ' as used in section 69A of the Act, has wide meaning which meant anything which came in or resulted in gain.
Hence, in the facts of this case a legitimate inference could be drawn that the assessee had income which he had invested in purchasing the wrist watches and, as such, that income was subject to tax.
In the view the High Court was justified in justifying the Tribunal 's holding that the assessee was the owner of the wrist watches and thus including the value in the assessment of the income of the assessee as his wealth and so deemed to be the income of the assessee by virtue of section 69A of the Act coupled with surrounding circumstances.
Therefore, inclusion of the money in purchasing the wrist watches, that is to say, Rs.87,455 was correct and proper for the assessment year under reference.
In this connection section 69A of the Act may usefully be set out as follows: "Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and such money, bullion, jewellery or valuable article is not recorded in the books of account, if any, maintained by him for any source of income, and the assessee offers no explanation about the nature and source of acquisition of the money, bullion, jewellery or other valuable article, or the explanation offered by him is not, in the opinion of the Assessing Officer, satisfactory, the money and the value of the bullion, jewellery or other valuable article may be deemed to be the income of the assessee for such financial year.
" 795 So far as the first question is concerned, the High Court answered accordingly and in our opinion rightly.
As regards the second question, section 271(1)(c) of the Act was inserted in the Finance Act, 1974 which reads as follows: "Explanation: Where the total income returned by any person is less than eighty per cent of the total income (hereinafter in the Explanation referred to as the correct income) as assessed under section 143 or section 144 or section 147 (reduced by the expenditure incurred bona fide by him for the purpose of making or earning any income included in the total income but which has been disallowed as a deduction), such person shall unless he proves that the failure to return the correct income did not arise from any fraud or any gross or wilful neglect on his part, be deemed to have concealed the particulars of his income or furnished inaccurate particulars of such income for the purposes of clause (c) of this sub section.
" From the facts found by the revenue, the assessee had shown only a total income of Rs.3,113 and subsequently the raiding party seized wrist watches worth Rs.87,455.
Thus the value of that income was included in the assessable income of the assessee.
Therefore, the total assessable income of the assessee came to Rs.90,568 whereas the returned income was Rs.3,113 which was certainly less than 80% of the total income and, as such, Explanation applied.
Accordingly, the revenue has discharged the onus of proving concealment of income.
This view was expressed by a Full Bench of Punjab & Haryana High Court in Vishwakarma Industries vs Commissioner of Income tax, where all the relevant authorities have been discussed.
In that view of the matter and in view of the principles behind the purpose of Explanation, the assessee in the instant case, has failed to discharge his onus of proof.
The aforesaid Explanation was amended by Finance Act, 1964 with effect from 1st April, 1964.
The amendment was prospective in effect and in the year under reference the amendment was in force.
Though the penalty proceedings are penal in nature but in the facts of this case the onus on revenue has been duly discharged.
This was also the view of the Bench decision of the Madhya Pradesh High Court in Commissioner of Income Tax vs Bherulal Shrikishan, 796 The second question referred to hereinbefore was, therefore, answered in favour of the revenue by the High Court and in our opinion the High Court was justified in so doing.
In the aforesaid view of the matter, there is no merit in this application for leave to appeal and it is accordingly dismissed.
N.V.K. Petition dismissed. | Petitioner is the assessee.
For the assessment year 1974 75 he submitted his return of income showing a total income of Rs.3,113 and stated that he derived this income from two stores which he had been running.
On May 12, 1973 in a search by the Customs authorities, 565 watches of foreign make of the value of Rs.87,455 were seized from the petitioner 's bedroom.
A panchnama was prepared.
The Income Tax Officer issued a notice dated January 19, 1974 to the petitioner to show cause why a sum of Rs.87,455 the value of the watches seized should not be treated as his concealed income and brought to tax under section 69A of the Act.
He further directed issuance of notice under section 271(1)(c) of the Act.
Being aggrieved the petitioner filed an appeal before the Appellate Assistant Commissioner who dismissed the appeal holding that in view of the order passed by the Collector of Customs confiscating the watches and levying penalty of Rs.2 lakhs under the Customs Act, the Income Tax Officer was justified in including the cost of watches in the income of the assessee for the assessment year 1974 75.
789 Thereafter on March 29, 1978 the Assistant Commissioner issued a notice of penalty under section 271(1)(c) of the Act, imposing a penalty of Rs.90,000.
The two appeals filed by the petitioner were dismissed by the Income tax Appellate Tribunal, and the petitioner sought a reference to the High Court under section 256(1) of the Act.
The High Court held that: (i) by virtue of the search in the house of the petitioner the watches were seized and a Panchnama was prepared, that under Section 110 of the it clearly establishes that the possession of the wrist watches was found with the petitioner, that as the petitioner did not adduce any evidence, he had not discharged the onus by proving that the wrist watches did not belong to him, the Tribunal had rightly held that the value of the wrist watches is the income of assessee, and (ii) that in view of the Explanation to section 271(1)(c) the Department had discharged the burden of establishing concealment.
The reference was accordingly answered against the assessee.
Dismissing the Special Leave Petition, ^ HELD: 1.
The expression 'income ' as used in section 69A of the Income Tax Act, 1961 has a wide meaning which meant any thing which came in or resulted in gain.[794D] 2.
Section 110 of the Evidence Act provides that where a person was found in possession of anything the onus of proving that he was not the owner was on the person who affirms that he was not the owner.
The High Court in J.S. Parker vs V.B. Palekar, held that what was meant by saying that the Evidence Act did not apply to proceedings under the Income Tax Act was that the rigour of the rules of evidence contained in the Evidence Act, was not applicable but that does not mean that when the taxing authorities were desirous in invoking the principles of the Evidence Act in proceedings before them, they were prevented from doing so.
[793G H;794A B] 3.
All that section 110 of the Evidence Act does is that it embodies a salutary principle of common law jurisprudence which could be attracted to a set of circumstances that satisfy its condition.
[794B] 4.
In the instant case, possession of the wrist watches was found with the petitioner.
The petitioner did not adduce any evidence, far less 790 discharged the onus of proving that the wrist watches in question did not belong to him.
Hence, the High Court held, and according to this Court rightly, that the value of the wrist watches is the income of the assessee by virtue of Section 69A of the Act.
[793D E] 5.
The amendment to the Explanation to section 271(1)(c) by the Taxation Laws (Amendment) Act 1975 is prospective in effect.
[795G] 6.
In the instant case, the assessee had shown only a total income of Rs.3113 and subsequently the raiding party seized wrist watches worth Rs.87,455.
The value of that income was included in the assessable income of the assessee.
The total assessable income of the assessee came to Rs.90,568 whereas the returned income was Rs.3,113 which was certainly less than 80% of the total income and, as such, Explanation to section 271(1)(c) applied.
Accordingly, the Revenue has discharged the onus of proving concealment of income.
[795E] Vishwakarma Industries vs Commissioner of Income tax, and Commissioner of Income Tax vs Bherulal Shrikishan, , approved.
Though the penalty proceedings are penal in nature, in the facts of this case the onus on the Revenue has been duly discharged.
[795G H] |
Civil Appeal No. 3951 (NCE) of:1987.
From the Judgment and Order dated 19.11.1987 of the Kerala High Court in E.P. No. 3 of 1987.
K.K. Venugopal, E.M.S. Anam, E. Ahmad and V.K. Beeram for the Appellant.
Dr. Y.S. Chitale, M.K. Damodaran, V.J. Mathew, Aseem Mehrotra and K.M.K. Nair for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
This is an appeal under Section 116A of the Representation of the People Act, 1951 (hereinafter referred to as the 'Act ') against the judgment of the High COurt of Kerala in Election Petition No. 3 of 1987, by which the election of the appellant to the Kerala Legislative Assembly from Mattancherry Constituency No. 73 was declared void on the ground that the appellant had committed two corrupt practices within the meaning of Section 123(4) of the Act.
The admitted facts are that election to the Kerala Legislative Assembly from all the constituencies was held on March 23, 1987.
The main contest in almost all the constitu encies was between the United Democratic Front (UDF) con sisting of Congress I, Kerala Congress, Indian Union Muslim League (IUML) and others on the one hand, and the Left Democratic Front (LDF) consisting of the Communist Party of India Marxist (CPI M), Revolutionary Socialist Party and others on the other.
The appellant was the candidate of the LDF and the first respondent was the candidate of the UDF.
In the said election, the appellant was declared elected by a margin of 1873 votes over his nearest rival, the first respondent.
On May 8, 1987, the first respondent filed an elec tion petition claiming a declaration that the appellant 's election was void and that he was entitled to be declared duly elected from the said constituency.
In support of the petition, the first respondent alleged various corrupt practices on the part of the appellant.
However, the High Court negatived all the said corrupt practices except two, viz., (i) printing and publication on March 22, 1987, a day prior to the election, pamphlets containing a news item in daily "Malayala Manorama" dated May 22, 1983, and (ii) publication of a wall poster, both maligning the personal character and conduct of the first respondent.
The High Court held that both these acts amounted to corrupt prac tices within the meaning of Section 123(4) of the Act and were sufficient to 726 void the election.
The pamphlet containing the reprint of the daily "Malayala Manorama" was marked as exhibit P 1 and two photographs of the wall poster were marked as Exs.
P 14 and P 15 before the High Court and would be referred to herein after as such.
exhibit P 14 is the close up and exhibit P 15 is the distant photograph of the same wall poster. 4.
Before we refer to the rival contentions and the material on record, it would be convenient if we reproduce here the contents of exhibit P 1 and Exs.
P 14 and P 15 to understand the allegations made in the said documents.
exhibit P 1 is a reprint of a page of the issue of 22nd May, 1983 of a daily newspaper "Malayala Manorama".
It contains the names and the photographs of four men, who were admit tedly murdered in May 1983.
It also carries two other photo graphs, one showing two killed bodies lying and the other showing the front part of the court building where allegedly all the four were killed.
It also carries a photograph of the appellant with his election symbol which was 'ladder ' and a photograph of the then Prime Minister, Rajiv Gandhi.
Apart from the contents of the said newspaper as they ap peared in the said old issue, it carries additions on the left hand, the English translation of which is as follows: "ELECT ZAKHARIA THE UNITED FRONT CANDIDATE MATTANCHERRY.
On March 23rd a decisive election is taking place in our State.
We wish to have a Government who will protect life and property of the people.
In the light of past expe rience the only front acquired legitimate claim to give protection is the United Democratic Front under the leader ship of Congress (I).
Marxist Party has only created insecu rity in the country.
X X X X X The Marxist Comrades who create lawlessness and commit murders while in power and out of power, is a chal lenge to peace loving inhabitants of Mattancherry.
Mattan cherry is a constituency which has witnessed terrible cruel ties of the Marxists.
The Mattancherry Town, once the centre of commerce, today became equal to a grave 727 yard only due to violent activities of the Marxist people.
The wounds created by their cruelties are always unhealed.
They need not be detailed by one.
X X X X X You may remember only the cruel murder that shocked Mattancherry in 1983.
Four youngsters were cut to death in the road in broad day light.
The relevant portion of the Malayala Manorama which published that news is given herewith as, such; everybody knows the hands behind that murder.
The Marxist leader arrested is also known.
X X X X X Dear sisters, brothers, you may think a while.
Should we have the rule of the Marxist terrorists.
We believe that the people of Mattancherry who wish peaceful life in the country will defeat Marxists.
X X X X X Believers in democracy should be specially careful not to split their votes.
It is possible to defeat Marxists only through unity of the believers in democracy.
That is why the Indian National Congress lead by Shri Rajiv Gandhi ' the stalvert of democratic Bharath is giving leadership to the democratic front.
It is the necessity of peace lovers that United Democratic Front should win for law and order and stable administration.
Therefore, it is humbly requested that M.J. Zakharia may be elected with big majority casting votes to his Ladder Symbol.
Photo of Vote Democratic Front Photo of candidate to avoid Marxist Rule Rajiv Gandhi M.J. Zakharia of Terror Constituency Election Committee Give Strength United Democratic Front, to Rajiv Gandhi 's Mattancherry hands 728 VOTE FOR UNITED DEMOCRATIC FRONT CANDIDATE M.J. ZAKHARIA IN LADDER SYMBOL Printed at Veekshanam.
" The High Court has found that the following statement in paragraph 3 above, viz., "everybody knows the hands behind that murder.
The Marxist leader arrested is also known" was in relation to the personal character/conduct of the first respondent.
P 14 and P 15 are the photographs, as stated earlier, of the poster pasted on a wall, with the pamphlet (exhibit P 1) pasted on its left side.
The contents of the wall poster are as follows: "Defeat murderer T.M. Mohammed who murdered four Christian brothers at Fort Cochin.
Our Symbol.
" The symbol is the ladder.
This poster directly accused the first respondent as being murderer of the said four killed persons and requested the voters to vote for the appellant.
As regards exhibit P 1, there is no mention of the first respondent directly by his name anywhere in the poster.
However, the first respondent has alleged that there is an innuendo by which he is projected there as the murderer of the four victims.
The High Court has accepted that the first respondent is referred to in the said pamphlet by innuendo.
The High Court has also found that the pamphlets were got printed by one Latif who was appellant 's agent, on behalf of his Election Committee and at the instance of and with the consent and connivance of the appellant and his election agent and was distributed by them among the electors knowing the imputation to be false and calculated to affect the prospectus of his election.
As regards Exs.
P 14 and P 15, the High Court has recorded a finding that the said wall poster was pasted on a wall at the instance and with the consent of the appellant 's election agent.
Thus, the High Court has recorded a finding that the first respondent had proved that the appellant was guilty of the corrupt prac tices within the meaning of Section 123(4) of the Act.
Before we proceed to discuss the relevant evidence on record, it is necessary to understand the correct posi tion of law on the subject.
The corrupt practices and elec toral offences are mentioned in Part 7 of the Act.
Chapter I of the said Part deals with corrupt practices and contains Section 123 whereas Chapter III thereof enumerates electoral offences.
and penalties therefore, and contains Sections 125 to 136.
729 Section 123(4) with which alone we are concerned in the present appeal reads as follows: "123(4) The publication by a candidate or his agent or by any other person with the consent of a candidate or his election agent, of any statement of fact which is false, and which he either believes to be false or does not believe to be true, in relation to the personal character or conduct of any candidate, or in relation to the candidature, or with drawal, of any candidate, being a statement reasonably calculated to prejudice the prospectus of that candidate 's election.
" It is obvious from the aforesaid provisions of Section 123(4) that for a publication to constitute the corrupt practice (a) it must be a statement of fact: by (i) a candi date; or (ii) his agent; or (iii) any other person with the consent of the candidate or his election agent; (b) the statement must be false or the candidate must believe it to be false or should not believe it to be true; (c) the state ment should refer to the personal character and conduct of another candidate and (d) that it must be reasonably calcu lated to prejudice the prospects of that other candidate 's election.
Explanation 1 to Section 123 states that in that Section the expression "agent" includes election agent, a polling agent and any person who is held to have acted as an agent in connection with the election with the consent of the candidate.
The expression "election agent" is defined in Section 40 and is accorded a special status of almost an alter ego of the candidate so much so that whatever is done by the election agent or with his consent is deemed to have been done by the candidate himself whether it is with the candidate 's consent or not.
It is further sufficient to note that the election agent is empowered to discharge almost all the functions that a candidate can himself perform.
The further provisions of the Act which are necessary to be noted are those of sub sections (1)(b), (1)(d) and (2) of Section 100.
They read as under: "100.
Grounds for declaring election to be void (1) Subject to the provisions of sub section (2) if the High Court is of opinion (a). . . 730 (b) that any corrupt practice has been committed by a re turned candidate or his election agent or by any other person with the consent of a returned candidate or his election agent; or (c). . . (d) that the result of the election, in so far as it con cerns a returned candidate, has been materially affected (i). . . (ii) by any corrupt practice committed in the interests of the returned candidate by an agent other than his election agent, or (iii) . . . . . . . . the High Court shall declare the election of the returned candidate to be void.
(2) If in the opinion of the High Court, a returned candi date has been guilty by an agent, other than his election agent of any corrupt practice but the High Court is satis fied (a) . . . . . . . . (c). . . . . . . . . (d). . . . . . . . . then the High Court may decide that the election of the returned candidate is not void".
The aforesaid provisions of Section 100 show that where the corrupt practice is committed not by the candidate or his election agent or any other person with the consent of the candidate or his election agent but by an agent other than the election agent and in his interest, and the corrupt practice by such agent has materially affected the result of his election, the High Court is enjoined to declare the election of the candidate to be void.
Sub section (2) of Section 100 enacts a rider to sub section (1) thereof, and states that even if the 731 agent has committed the corrupt practice in the interest of the returned candidate, if the High Court is satisfied that the said corrupt practice was not committed by the candidate or his election agent and every such corrupt practice was committed contrary to the orders and without the consent of the candidate or his election agent and that the candidate and his election agent took all reasonable means for pre venting the commission of the corrupt practice at the elec tion, and that in all other respects the election was free from any corrupt practice the part of the candidate or any of his agents, the High Court may decide that the election of the returned candidate is not void.
With this statement of law in mind, we may now refer to the two corrupt practices alleged to have been committed by the appellant.
We will first deal with exhibit P 1 the print ing, publication and distribution of which is held to have been one of the two corrupt practices committed by the appellant 's agent at his instance and with his consent and connivance as well as of his election agent.
As far as the petition is concerned, the relevant averments with regard to exhibit P 1 are as follows: "13.
Another important aspect which will amount to corrupt practice is the publication of pamphlets by the candidate, his agents and his workers with his consent and knowledge.
Malayala Manorama dated 23.5.1983 was reported by the candidate at the expenses of the first respondent.
This re printing is intended to propagate false statements which the candidate, his agents and as workers . .
X X X X X 19.
It is clear from these that the reprinting of Malayala Manorama by the candidate was with a view to create a false impression among the electorate that the petitioner is a murderer and hence the electorate shall not vote in favour of him.
This was done with a mala fide intention to propa gate false news among the electorate.
X X X X X 46.
Malayala Manorama daily dated 22nd May, 1983 was re printed with certain additions and also with photographs 732 of Prime Minister and the candidate with the candidate 's symbol.
This was reprinted from the Veekshanam Press at Ernakulam and got printed by the Election Committee of the first respondent . 47.
Annexure I reprinted Malayala Manorama was widely dis tributed in the constituency.
It was distributed on 22nd March, 1987.
March 22, 1987 was a Sunday and May 1983 was also a Sunday.
The petitioner is reliably informed that about 25,000 copies of Annexure I were printed and those copies of reprinted Malayala Manorama were distributed throughout the constituency.
" In paragraphs 48 to 53 of the petition, the first re spondent has proceeded to give the names of the persons who distributed the said pamphlet in different divisions of the constituency and of the persons whom he was going to examine as witnesses to prove the same.
In paragraph 54, he has made further averments in connection with the said pamphlet as follows: "Annexure was really the reproduction of Malayala Manorama daily dated 22.5.1983.
Since a news item regarding the murder of 4 persons was reported in the daily mentioned above, to mislead the electorate, the Malayala Manorama printed and published on 22.5.1983 was reprinted . " 9.
It will be apparent from these averments in the petition that although the first respondent has stated in his petition that the pamphlet was printed and distributed with a view to create a false impression among the elector ate that he was a murderer, he has not stated as to why it will create such an impression among the electorate.
It was necessary for him to state so in the petition because admit tedly the pamphlet nowhere names him as a murderer of the said four victims.
What was, however, argued by Dr. Chitale on behalf of the first respondent was that the statements in the pamphlet, viz., "everybody knows the hands behind that murder.
The Marxist leader arrested also is known" were a clear and a direct reference to the first respondent, be cause it was an admitted fact that the first respondent was arrested for an offence of harbouring the accused in that murder case.
There was also a protest meeting held in that connection, and the appellant who was his agent at that time had also addressed the said meeting condemning his arrest.
According to Dr. Chitale, therefore, 733 the arrest of the first respondent though for the offence of harbouring the murderers, was in connection with the murder and the statement in the pamphlet that "The Marxist leader arrested is also known" read with the earlier statement that "Everybody knows the hands behind that murder" was clearly calculated to create an impression in the mind of the elec torate that it was the first respondent who was the murder er.
Admittedly, therefore, even according to Dr. Chitale, these were the only two statements which could be said to have had a reference to the first respondent as the murderer and there was no direct reference to or implication of the first respondent as the murderer of the said four victims.
In other words, the first respondent even in his petition had relied upon an innuendo, and the innuendo was based upon the fact that, firstly, the first respondent was a Marxist leader and, secondly, he was arrested for harbouring the murderers.
However, in the petition, no averment is made anywhere that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the elector ate was likely to construe the said two statements as accus ing him as the murderer.
The facts and/or particulars which spell out the innuendo where one is alleged or relied upon to constitute a corrupt practice are themselves material facts and it is necessary to state them in the petition in view of the mandatory provisions of Section 83(1) of the Act.
The provi sions of Section 83(1) are as follows: "83.
Contents of petition (1) An election petition (a) shall contain a concise statement of the material facts on which the petitioner relies; (b) shall set forth full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice; and (c) shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908 (5 of 1908) for the verification of pleadings: Provided that where the petitioner alleges any corrupt practice, the petitioner shall also be accompanied by an affidavit in the prescribed form in support of the allega 734 tion of such corrupt practice and the particulars thereof.
" It is clear from the provisions of both clauses (a) and (b) of the Section that election petition has to contain (i) a concise statement of the material facts on which the petitioner relies and also (ii) give full particulars of any corrupt practice that the petitioner alleges.
In a case therefore, where what constitutes a corrupt practice is not a bare statement/statements published but those which are not published, and yet are implied, a statement of material facts will not be complete without the statement of such implicit facts.
In other words, without the statement of the said facts, the statement will not be a statement of materi al facts within the meaning of the said Section.
This provi sion of law is indisputable.
Much of the debate that took place before us cen tered round this aspect which has assumed all importance in the context of the first charge of the corrupt practice.
Various authorities were cited on both sides in support of the respective contentions on the subject.
We may briefly refer to them to the extent they are relevant for our pur pose.
In Hough vs London Express Newspaper Ltd., it was a case of an action for an alleged libel pub lished in the newspaper.
The plaintiff, Florence Sarah Hough, married Frank Hough in 1933 and lived with him in Battersea as his wife and had one child from him.
In Febru ary, 1936, he deserted her, and in June 1936 he was ordered to pay maintenance for the child.
He was known at Battersea, where he lived at the time of the order, and after the desertion also he continued to live there.
He acquired some notoriety as a boxer, and the plaintiff became known in the district as his wife.
On December 22, 1937, an article appeared in Daily Express, a newspaper owned by the defend ants, containing the words: "Frank Hough 's curly headed wife sees every fight.
"I should be in more suspense at home.
" she says, "I always get nervous when he gets in the ring although I know he won 't get hurt.
Nothing puts him off his food.
He always eats a cooked meal last thing at night, however late it is when he gets in".
" From the description given of the wife, it was obvious to those who knew the wife that another person was referred to.
Hence, the plaintiff brought an action for libel alleging that the words by innuendo meant that she was falsely repre senting herself to be the wife and that she was 735 an unmarried woman who had cohabited with and had children by the boxer.
On these facts, the Court of Appeal held: (i) the words were defamatory as reasonable persons knowing the circumstances would understand the words in defamatory sense (ii) it was not necessary for the plaintiff to prove that one or more persons understood the words in a defamatory sense.
1t is sufficient that reasonable persons might so understand them.
The decision, therefore, shows that it is not necessary that a person publishing a defamatory state ment should intend that the statement should refer to the defamed person.
It is sufficient that reasonable persons should understand it to refer to him or her.
The words need not be defamatory in the primary sense.
They are actionable if the existence of certain circumstances makes it reasona ble that persons to whom those circumstances are known, might understand them in a defamatory sense.
It is not necessary to prove that in fact persons with such knowledge did so understand them.
What is necessary, however, is that the special circumstances which are known to others and by which they are likely to understand the reference as being one to that defamed persons must be pleaded and proved.
In Fullam vs
Newscastle Chronicle and Journal Ltd. & Anr.
, the facts were that prior to 1962, the plaintiff was a Roman Catholic priest and a curate in the dioceses of Salford near Manchester.
In 1962, he gave up the priesthood and became a schoolteacher.
In 1964, he married and in 1965 he and his wife had their first child.
The plaintiff took a teaching post at Wakefield.
South Yorkshire, where he lived.
In July 1973, he applied for the deputy headmastership at a school in Redcar on Teesside, which was about 80 miles north of Wakefield, and he was appointed to that post.
There had been a controversy about the previous deputy headmaster.
On 21st July, a local news paper which circulated in the districts of Teesside and Newscastle Upon Tyne but not in the Wakefield area, pub lished an article about the plaintiff 's appointment which stated inter alia that he was a former Catholic priest, that he had left his parish in the Salford diocese and later had married and that it was claimed by the general secretary of the National Association of School masters that he "went off very suddenly from the parish where he was curate 'about seven years ago '.
" The plaintiff pleaded in his statement of claim that the words in the article meant and would be understood to mean that he (a) had lathered a child whilst still a priest serving in a parish, (b) had lathered an,,illegitimate child, (c) had wrongly continued to serve as a priest after his marriage, (d) had wrongly withheld the fact of his marriage from his eclesiastical 736 superiors and parishioners and accordingly was unfit to be deputy headmaster of the school at Redcar.
Pursuant to RSC Order 82, rule 3(1), the plaintiff gave as the particulars of the facts on which he relied in support of innuendoes (i) that he had married on 15th February, 1964 and (ii) that his eldest child had been born in May 1965.
He did not give particulars of the persons who knew one or the other of those extrinsic facts and who, therefore, having regard to the statement in the article that he had left the parish suddenly "seven years ago", might have derived from the article the imputations alleged in (a) to (d) of para 5 of the statement of claim.
The defendants applied to strike out para 5 of the claim on the ground that it disclosed no reasonable cause of action.
The Court of Appeal held as follows: "(i) Although it was not the usual practice in libel actions to plead particular acts of publication if the words com plained of had been published in a newspaper, in cases where the action was based on a legal, or 'true ', innuendo and the ordinary readers of the paper would not have derived from the words complained of the innuendo alleged, the plaintiff was required, under RSC Order 18, rule 7(I) and Order 82, rule 3(I) to particularise not only the special circum stances which were alleged to give rise to the innuendo but also the identity of the readers of the paper who were alleged to know of those special circumstances, since the identity of those readers was a material fact on which the plaintiff relied in support of his cause of action.
(ii) Since the only readers of the article who could have concluded that the plaintiff had lathered a child or married while he was still a priest were readers who new either the date of birth of his 'eldest child or the date of his mar riage but did not know both those facts and such readers would be rare and exceptional, having regard in particular to the area where the paper circulated, the plaintiff should be ordered to give particulars identifying those readers.
Accordingly, unless such particulars were given, para 5 of the statement of claim should be struck out.
" While discussing the law on the subject, Lord Denning MR observed as follows: "The essence of libel is the publication of written words to 737 a person or persons by whom they would be reasonably under stood to be defamatory of the plaintiff.
But those words may give rise to two separate and distinct causes of action . .
First, the cause of action based on a popular innuendo.
If the plaintiff relies on the natural and ordi nary meaning of the words, he must in his statement of claim satisfy the person or persons to whom they were published, save in the case of newspaper or periodical which is pub lished to the world at large, when the persons are so numer ous as to go without saying.
Secondly, the cause of action based on a legal innuendo.
If the plaintiff relies on some special circumstances which convey some particular person or persons knowing the circum stances, a special defamatory meaning other than the natural and ordinary meaning of the words when he must in his state ment of claim specify the particular person or persons to whom they were published and the special circumstances known to that person or persons for the simple reason that these are the material facts on which he relies and must rely for this cause of action.
It comes straight within the general rule of pleading contained in RSC Order 82, rule 3.
In the second cause of action, there is no exception in the case of a newspaper because the words would not be so understood by the world at large but only by the particular person or persons who know the special circumstances." (emphasis supplied) Lord Denning further observed that this rule of pleading was not observed in Cassidy vs Daily Mirror Newspapers, or in Hough vs London Express Newspaper Ltd., (supra) because the defendant did not ask for particu lars.
After referring to paragraph 5 of the plaint, he then observed that paragraph 5 was utterly inadequate as it stood and that no ordinary reader could ever derive those imputa tions about "fathering a child" etc.
from the article.
It would have to be some particular person with knowledge of some special circumstances.
He further observed that the pleading in that case told the circumstances, viz., the marriage in 1964 and the birth of a son in 1965 but it did not tell as to who were the persons who knew of the circum stances and derived the imputations from the article.
In the same case, Scarman LJ stated that it was obvious that a 738 material fact in such a cause of action was that the persons to whom the words were published knew the extrinsic facts.
In principle, therefore, their knowledge being a material fact should be pleaded.
He further observed that there may be a case where the facts may be very well ' known in the area of the newspaper distribution in which even it would suffice to plead merely that the plaintiff would rely on inference that some of the newspaper readers must have been aware of the facts which are said to give rise to the innu endo.
But that was not the case in that action and, there fore, justice required that the plaintiff should fully particularise the publication relied on so that the defend ants may understand the nature of the case they have to make.
These two decisions, however, are in libel action and not in election matters.
In Sheopat Singh vs Ram Pratap, ; , one of the questions that directly arose for consideration was of the burden of proving the ingredients of the corrupt practice under Section 123(4).
The facts were that an alle gation was made against the personal character and conduct of one of the candidates in the election, viz., that a cinema theatre of Rs.7 lakhs in Ganganagar was the barkat of the cement of the Rajasthan Canal.
The candidate concerned was at the crucial time the Minister in charge of the Rajas than Canal Project.
During the election, a cinema theatre known as Adarsh Theatre was being put up at Ganganagar.
There was no dispute that the theatre referred to in the poster was the said Adarsh Theatre and it belonged to the concerned candidate and his sons.
In that context, there fore, it was manifest that the poster meant to convey the idea that the candidate had misappropriated the cement of the Rajasthan Canal of which he was in charge and built a big theatre in the name of his sons.
Hence, it was a clear reflection on the candidate 's personal character and con duct.
The argument advanced on behalf of the returned candi date was that there was no evidence in the case that the said statement was one reasonably calculated to prejudice the prospects of the election of the candidate against whom the said statement was meant, viz., Ramchander Chowdhary.
In that connection, it was argued that if the voters did not know that the cinema theatre which was being built in Ganga nagar belonged to Ramchander Chowdhary or his sons, the statement concerned would not deflect the voters from voting in favour of Chowdhary.
It was also argued that there was no evidence in the case that all or any of the voters knew the fact that the cinema theatre belonged to Chowdhary or his sons.
This Court stated in that case that they were not dealing with a libel action and, therefore, the 739 cases cited at the Bar on libel action such as Nevill vs Fine Art and General Insurance Co. Ltd., and the Capital and Counties Bank Ltd. vs George Henty & Sons, had no relevance for determining the ques tion under Section 123(4) of the Act.
The only question is whether the statement in question was reasonably calculated to prejudice the prospects of Chowdhary 's election.
The Court then pointed out that on behalf of the returned candi date it was not contended either before the Election Tribu nal or before the High Court that the voters had no knowl edge of the fact that the cinema theatre at Ganganagar belonged to Chowdhary or his sons.
The Court further ob served that apart from that the object with which the state ment was made was the crucial test.
Since it was proved that Ganganagar cinema theatre belonged to Chowdhary 's sons and that Chowdhary was the Minister in charge of the Rajasthan Canal and he was also the only effective candidate against the returned candidate who was the appellant in that case, the appellant 's intention in making that statement was obvious and that was to attack the personal character of Chowdhary in order to prejudice his prospects in election.
The appellant must have reasonably calculated that the voters, or at any rate the voters in and about the locality where the cinema theatre was being put up, had knowledge or the tact that It was being constructed by the Minister of his sons.
It cannot also be said that when a big cinema theatre at a cost of Rs.7 lakhs was being put up in Gangana gar the voters in and about that place would not have known about the ownership of that building.
Hence, the fact that the building was brought in for attacking the personal character of Chowdhary merely indicated that the appellant knew that the voters had knowledge of its ownership and expected that it would create the impression which it mani festly indicated to convey.
Hence, this Court held that the High Court 's finding that the statement was reasonably calculated to prejudice Chowdhary 's prospects in election could not be said to be unsupported by evidence or by the.
admitted facts placed before the High Court.
It was a rea sonable inference from the facts found by the High ' Court.
It must be said that in this case the question whether it was necessary for the election petitioner to state in the petition the extrinsic facts which would connect the person concerned with the libelous statement was not raised and, therefore, was not answered.
The only question which was agitated was whether the voters without knowing that the theatre belonged to the defamed candidate would be deflected from voting and this Court upholding the finding of the High Court, observed that it was not contended either before the Election 740 Tribunal or before the High Court that the voters had no knowledge of the fact that the cinema theatre belonged to Chowdhary or his sons.
Secondly, it was held that whether the voters had such knowledge was immaterial since what was crucial for the corrupt practice under Section 123(4) of the Act is the object with which it was made.
Since the election petitioner had proved that the theatre belonged to Chowd hary 's sons and that Chowdhary was the Minister in charge of the Rajasthan Canal, it must be held that the returned candidate had reasonably calculated that the voters or at any rate the voters in and about the locality where the theatre was being put up, had knowledge of the fact that it was being constructed by the Minister or his sons, and that such extrinsic facts could not have been unknown to the voters.
This decision may be construed as laying down that even if the petition does not state the extrinsic facts but the electorate is well aware of them, the petitioner can lead evidence and prove them.
Whether the petition in that case did or did not state the extrinsic facts is not clear from the decision.
It is also not clear from the judgment whether any evidence was led that in fact the voters had understood the said statement to refer to Chowdhary.
On the other hand, one of the observations made in the judgment shows that the proof of such an impression of the voters is dispensable for the purpose of establishing a corrupt prac tice under Section 123(4) of the Act.
That observation is as follows: "To be within the mischief of sub section (4) of Section 123 of the Act such a statement shall satisfy another test, namely, it shall be a statement reasonably calculated to prejudice the prospects of the election of the candidate against whom it is made.
The word "calculated" means de signed: it denotes more than mere likelihood and imports a design to affect voters.
It connotes a subjective element, though the actual effect of.
the statement on the electoral mind reflected in the result may afford a basis to ascertain whether the said statement was reasonably calculated to achieve that effect.
The emphasis is on the calculated effect, not on the actual result, though the latter proves the former.
But what is important to notice is that it is not necessary to establish by positive evidence that the voters, with the knowledge of the contents of the statement were deflected from voting for the candidate against whom the statement was made.
" In Kumara Nand vs Brijmohan Lal Sharma. ; the 741 facts were that the complaining candidate was called "the greatest of the thieves" in a poem recited at a public meeting in the presence of the returned candidate.
It was held that it was not a mere expression of opinion but was a statement of fact.
It was further held that in such circum stances, particulars are not necessary before a bald state ment with respect to personal character or conduct of the candidate can be said to be a statement of fact.
It was also observed that whether particulars are necessary will depend on the facts and circumstances of each case.
We may state here that the discussion in that case mainly centered around the question whether the particular statement was a state ment of fact or an expression of opinion.
In Habib Bhai vs Pyarelal & Ors.
, AIR 1964 MP 62 dealing with the question of innuendo the High Court referred to certain English cases on the point and held that "in view of these decisions, it is obvious that an innuendo is simply an averment that such a one, means such a particular person; or that such a thing, means such a particular thing: and, when coupled with the introductory matter, it is an averment of the whole connected proposition by which the charge may be brought home to the person concerned.
The whole attempt of the learned counsel for the appellant before us was to suggest that the words, though not per se defamatory of the third respondent, were definitely so in their secondary meaning read in the context of circumstances.
But, as no attempt was made in the pleadings to plead the extrinsic facts to show by those facts as to how the allegations contained in annexure I were related to the third respond ents, we are of opinion that it must he held that by refer ring to any possible meaning of the words used, no imputa tion could be read in the words as against him.
" It can, therefore, be said that in this case the Court had insisted that it was necessary to plead the extrinsic facts to show all those facts as to how allegations were related to the defamed or complaining candidate.
In Manmohan Kalia vs Yash & Ors., ; which is more or less on par with the present case, it was alleged by the election petitioner that the returned candidate through speeches either made by him or his friends had carried on a vilifying campaign to show that the complaining candidate was directly connected with the murder of one Asa Ram, a Harijan and one of the supporters of Congress (I) Party so as to wean away the votes of the harijans of the locality and members of the Congress (I) Party.
The High Court had disbelieved oral evidence and found no nexus with the news items etc. and had 742 dismissed the petition.
This Court held that where the doctrine of innuendo is applied, it must be clearly proved that the defamatory allegation was made in respect of a person though not named, yet so fully described that the allegation would refer to that person and that person alone.
Innuendo cannot be proved merely by inferential evidence which may be capable of two possibilities.
On the facts, the Court held that after having gone through the evidence, statement of witnesses and the documents placed before the Court, it was difficult to find any close connection or direct link between the imputations made against the appel lant in 1978 and those made in 1980.
In none of the docu ments produced by the complaining candidate which referred to the activities of the returned candidate, there was the slightest possibility that the appellant had anything to do with the murder of Asa Ram.
The Court further observed as follows: "It is now well settled by several authorities of the Su preme Court that an allegation of corrupt practice must be proved as strictly as a criminal charge and the principle of preponderance of probabilities would not apply to corrupt practices envisaged by the Act because if this test is not applied a very serious prejudice would be caused to the elected candidate who may be disqualified for a period of six years from fighting any election, which will adversely affect the electoral process".
In W. Hay & Ors.
vs Aswini Kumar Samanta, AIR 1958 Cal.
269 a Division Bench of the Calcutta High Court held that it is well settled that in a "libel action" the ordinary defam atory words must be set out in the plaint.
Where the words are per se or prima facie defamatory only the words need be set out.
Wherever the defamatory sense is not apparent on the face of the words, the defamatory meaning or as it is technically known in law, the innuendo must also be set out and stated in clear and specific terms.
Where again the offending words would be defamatory only in the particular context in which they were used, uttered or published, it is necessary also to set out except where as in England, the law is or has been made expressly otherwise, the offending context (colloquium) in the plaint, and to state or ever further that this context or the circumstances constituting the same, were known to the persons to whom the words were published, or, at least, that they understood the words in the defamatory sense.
In the absence of these necessary averments, the plaint would be liable to be rejected on the ground that it does not disclose any cause of action.
743 13.
What exactly should be pleaded in an action for defamation has been stated also in Halsbury 's Laws of Eng land Vol.
28 4th ed.
In paragraphs 174, 175, 176, 177 and 178 of the said Volume, we have discussion with regard to natural and ordinary meaning of the words complained of, and about the innuendo and the facts and matters supporting innuendo which should be pleaded and proved.
It is stated there that in drafting a statement of claim in libel or slander, it is necessary to distinguish between cases in which the words complained of are alleged to be defamatory in their natural and ordinary meaning, whether the literal or the inferential meaning, and those in which the defamato ry meaning is a secondary meaning derived from extrinsic or special facts or matters, so that a legal or true innuendo must be pleaded.
If it is claimed that the words are defama tory in their natural and ordinary meaning and the words bear only one literal meaning, which is clear and explicit, it is not necessary to plead the meaning in the statement of claim.
However, if the words are reasonably capable of bearing more than one literal meaning or if the defamatory meaning relied on is inferential (a "false or popular" innuendo), it is desirable and may even be necessary to plead the defamatory meaning or meanings.
Where the plain tiff wishes to claim that the words complained of were understood to be defamatory in a secondary or extended meaning by those persons having knowledge of some special facts or matters, such a meaning constitutes a separate cause of action and the same should be pleaded expressly in a separate paragraph in the statement of claim (emphasis supplied).
Particulars must be given of the facts and mat ters on which the plaintiff relies in support of any second ary or extended defamatory meaning which it is decided to plead.
These special facts or matters may be extrinsic to the words used or there may be some special meaning of the words themselves.
The plaintiff should plead that particular words bore the innuendo meaning.
In Gatley on Libel and Slander (8th ed.) in para graph 95, while dealing with "True and False Innuendoes", it is observed that in distinguishing between the ordinary and natural meaning and the innuendo meaning or words, the substantive law cannot be separated from the requirements of pleadings and the rules of evidence.
When the plaintiff wishes to rely on any special facts as giving the words a defamatory or any particular defamatory meaning, he must plead and prove such facts including, where necessary, any special knowledge possessed by those to whom the words are published which gives the words that meaning, and must set out the meaning in his pleading.
Where words are not defama tory in their natural and ordinary mean 744 ing but are so only by reason of extrinsic circumstances, the plaintiff must plead also those circumstances and the precise defamatory meaning conveyed by them to those persons to whom the words were published.
Otherwise, the statement of claim will disclose no cause of action.
Such an innuendo is required to be pleaded whenever the plaintiff relies on any extrinsic facts as giving to the words the meaning he alleges.
The plaintiff must plead the words, the extrinsic facts and knowledge of those facts on the part of one or more of those persons to whom the words were published.
He can also give evidence of any facts and circumstances which he has pleaded and which would lead reasonable persons to infer that the words were understood in that meaning provid ed such facts or circumstances were known to those persons to whom the words were published.
The evidence required is the evidence of special facts causing the words to have a meaning revealed to those who knew the special facts.
Street in his treatise on Torts (6th ed.) at page 294, has stated that where nothing is alleged to give an extended meaning, words must be construed by the judge in their ordinary and natural meaning.
The whole of the statement must be looked at, not merely that part on which the plain tiff relies as being defamatory, although, of course, it may be relevant to take account of the greater importance of some part of a statement, e.g., the headlines of an article in a newspaper.
There may be circumstances where the plain tiff alleges that the statement is defamatory because spe cific facts known to the reader give to the statement a meaning other than or additional to its ordinary meaning; this is known as a true or legal innuendo.
In that case, the plaintiff must plead and prove such facts, for the defendant is entitled to know that meaning of the statement on which the plaintiff relies so that he is able to argue either that the statement in that meaning is not defamatory or that it is then true of the plaintiff.
There is a third possibility.
The words may have a meaning beyond their literal meaning which is inherent in them and arises by inference or impli cation: this is sometimes known as the "false" innuendo.
The plaintiff has to plead separately any such "false" innuendo.
A "false" innuendo differs from a "true" innuendo in that the pleader of a "false" innuendo does not set out any extrinsic facts in support of his plea.
Duncan & Neil in their book on defamation (1978 ed.) while referring to "innuendo" on page 17 onwards have stated that the law of defamation recognises that (a) some words have technical or slang meaning or meanings which depend on some special knowledge possessed not by the general public but by a limited number of persons 745 and (b) that ordinary words may on occasions bear some special meaning other than their natural and ordinary mean ing because of certain extrinsic facts and circumstances.
The plaintiff who seeks to refer to an innuendo meaning has to plead and prove the facts and circumstances which give words a special meaning '.
He has also to prove that the words were published to one or more persons who knew these facts or circumstances or where appropriate, the meaning of the technical terms etc.
While referring to the test where identification depends on extrinsic facts, the learned authors have stated that where identification is in issue, the matter can sometimes be decided by construing the words themselves in their context.
More often, however, the plaintiff will be seeking to show that the words would be understood to refer to him because of some facts or circumstances which are extrinsic to the words themselves.
In these cases the plaintiff is required to plead and prove the extrinsic facts on which he relies to establish identification and, if these facts are proved, the question becomes: would reasonable persons knowing these facts or some of them, reasonably believe that the words referred to the plaintiff.
Where identification depends on extrinsic facts these extrinsic facts must be pleaded because they form part of the cause of action.
The conspectus of the authorities thus shows that where the defamatory words complained of are not defamatory in the natural or ordinary meaning, or in other words, they are not defamatory per se but are defamatory because of certain special of extrinsic facts which are in the knowl edge of particular persons to whom they are addressed, such innuendo meaning has to be pleaded and proved specifically by giving the particulars of the said extrinsic facts.
It is immaterial in such cases as to whether the action is for defamation or for corrupt practice in an election matter, for in both cases it is the words complained of together with the extrinsic facts which constitute the cause of action.
It is true that Section 123(4) of the Act states that the statement of fact in question must be "reasonably calculated to prejudice the prospects" of the complaining candidate 's election.
However, unless it is established that the words complained of were capable of being construed as referring to the personal character or conduct of the candi date because of some specific extrinsic facts or circum stances which are pleaded and proved, it is not possible to hold that they were reasonably calculated to prejudice his prospects in the elections.
For, in the absence of the knowledge of the special facts on the part of the 746 electorate, the words complained of cannot be held to be reasonably calculated to prejudice such prospects.
Once, however, it is proved by laying the foundation of facts that the words in question were, by virtue of the knowledge of the special facts, likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate, it may not further be necessary to prove that in fact the electorate had understood them to be so.
That is because all that Section 123(4) requires is that the person publishing the complaining words must have in tended and reasonably calculated to affect the prospects of the complaining candidate in the election.
It is in the light of this position in law that we have to examine as to whether the first respondent (elec tion petitioner) had discharged this primary burden cast on him.
We have already shown above by referring to the por tions of the petition relating to exhibit P 1, that beyond alleging that the pamphlet in question and particularly the two statements therein, viz., "everybody knows the hands behind that murder.
The Marxist leader arrested also is known", the first respondent has not shown as to how the said two statements or the rest of the contents of exhibit P 1 had projected him as the murderer in the eyes of the elec torate.
Dr. Chitale, learned counsel appearing for the first respondent relied upon the contents of paragraphs 14 and 19 of the petition to contend that the extrinsic facts to spell out the innuendo were sufficiently set out there and those facts being known to the electorate the said two offending statements were enough to point to the first respondent as the murderer in the eyes of the electorate.
We have already referred to the relevant portions from the said paragraphs.
We do not find any facts pleaded there whereby the elector ate would gather an impression that the first respondent was the murderer of the Said four victims.
Barring his own testimony, all other evidence led by the first respondent is also totally silent on this aspect of the matter.
None of his witnesses has stated anywhere that the contents of exhibit P 1 had made out the first re spondent as the murderer of the four victims or even that they were capable of doing so.
On the other hand, all his witnesses without exception are unanimous that after reading exhibit P 1 the impression it created on them was that it referred to an incident which had taken place on the previ ous day or to an earlier incident and nothing more.
None of the witnesses has stated that exhibit P 1 even remotely connect ed the first respondent with the murders.
This is what the witnesses have stated: 747 V.H. Ashraft, PW 2 states in his examination in chief as follows: "I read exhibit P 1.
The impression that it created in me was that it referred to an incident that took place on the previous day.
" In cross examination, the witness states: "On seeing a copy of exhibit P 1 my first impression was that it is an issue of the daily paper for that day . .
I did not go through exhibit P 1 in full.
Immediately I have gone through the daily issue also.
At that time I realised that Ex P 1 did not relate to an incident that took place on the previous day.
After that when I read exhibit P 1 I further realised that it relates to some incident on an earlier occasion".
VSA Muthaliff, PW 3 in his examination in chief states as follows: "On reading exhibit P 1 I thought that it is a supplement pub lished in connection with the election.
I thought that it is a supplement of Malayala Manorama Daily for that day.
I thought that it was the report regarding murders in connec tion with the election".
M.K. Saidalavi, PW 4 in his examination in chief states as follows: "On reading exhibit P 11 thought that it was the news about a murder that took place the previous day.
The impression that 1 gathered was that murder was committed by the Communists .
I thought that exhibit P 1 is likely to affect Left United Front adversely.
" In cross examination, the witness says as follows: "I had occasion to talk to my friends about exhibit P 1.
After reading exhibit P 11 understood that it was not the news of a recent incident.
I had occasioned to read about that inci dent earlier in 1983.
On going through exhibit P 1 I understood that it related to an incident that took place in 1983.
" C.J. Dominic, PW 5 in his examination in chief states as follows: 748 "On reading the headlines I went to the market.
When I returned home the talk there was as if murder took place the previous day.
Then in order to clear doubt I went to the reading room.
On going through the daily issue of the Ma layala Manorama I was not able to find the news in exhibit P 11 felt sorry that such a murder took place on the eve of the election." K.D. Abdu, PW 6 states in his examination in chief as fol lows: "I read the copy of exhibit P 1 I realised that it was a con scious attempt on the part of the United Democratic Front to defeat the petitioner in the election.
Copies of exhibit P 1 were supplied by them in almost all the houses in the local ity.
Majority of the voters in that locality was ladies and they were illiterate also.
" In cross examination, the witness states as follows: "Regarding exhibit P 1 my enquiry revealed that almost all the persons of the locality had complained.
I went through the entire copy of exhibit P 1.
" Then it appears that there is a note by the court that the witness says that exhibit P 1 was purposely intended to defame the petitioner.
The witness further stated in cross examina tion as follows: "When I talked to the petitioner (i.e., the first respond ent) about the speeches I made mention of the copy of exhibit P 1 also.
He did not ask for a copy. ' ' K. Prakash, PW 7 in his examination in chief states as follows: "On reading such posters exhibit P 1 the news appeared to me to be true.
It was only after the election that I came to know that the impression was not correct." Though T.M. Darar, PW 8 states in his examination in chief that he had seen copies of exhibit P 1 being distributed in 7th Division and he also alleges that he had seen the copy of the said pamphlet and the wall posters containing the photographs of the appellant seen pasted there, he does not give the impression about the same.
However, in crossex amination he states as follows: 749 "I went through the copy of exhibit P 1.
On reading I understood that it is an old story.
" Thanhapen, PW 9 in examination in chief has nothing to state.
However, in cross examination he states as follows: "1 did not read the copy of exhibit P 1 in full when it was given to me.
Even before reading I was pained to see it.
Pain was because I saw that four persons were murdered.
After going over to my daughter 's residence on the same day I read another copy of exhibit P 1 in full.
On reading I under stood that it is an old story.
Then the pain that I felt at first was slightly relieved.
But the pain continued because after all murder is murder.
" C.S Devadas, PW 10 in his cross examination states as fol lows: "The impression that I gathered was that the Marxists are murderers and therefore instead of giving votes to them it must be given to the 1st respondent (i.e., the appellant).
" Sathyan, PW 13 in his examination in chief states as fol lows: "In exhibit P 1 there was also a statement of the 1st respond ent.
The reading of the news regarding 4 murders appears at first sight to be an item of news going adverse to the petitioner.
This news item was a general discussion in the locality.
" In cross examination he states as follows: "When I got exhibit P 1 I read through the same.
Even after reading exhibit P 1 in full I was not able to realise that it was the news of murders committed much earlier.
Even after discussions with others I did not realise that it was an earlier incident.
It had news importance.
It was only after the election that I came to understand that the news item in exhibit P 1 related to an earlier incident.
Discussion was with my colleagues.
They said that they also got the copies of exhibit P 1.
They are persons without politics.
I did not bring this news item to the notice of the petitioner (i.e., the first respondent).
750 5.
The workers of the petitioner (i.e., the first respond ent) also used to come to me for canvassing.
I asked them about the news in exhibit P 1.
They said they knew about it.
This was after lunch on the date previous to election.
When Rajappan and Vasukutty gave a copy of exhibit P 1 to me others were waiting outside.
On seeing and reading a copy of exhibit P 1 it appeared to me to be a supplement of Malayala Manora ma daily for that day.
Even after reading.
the news item in exhibit P I, on account of the importance of the news, I had no occasion to think about it further to ascertain whether it is a recent news or an old news.
" P.M. Kaviraj, PW 14 in his examination in chief has only this to say: "I heard ladies saying that the news contained in exhibit P 1 is a cruel act.
" In cross examination he says as follows: "On getting PW 1, I read through it in entirety.
Even then 1 understand (sic) that it is the news of an old incident.
My impression was that it was the news relating to an inci dent which took place on that date.
I did not inform the petitioner that I read EX.
I wanted to tell him but I did not do so.
Till now I did not inform him.
That is be cause I am not interested.
I told my friends.
It was then that I knew that it was an old news.
" T.A. Guide, PW 15 in his examination in chief states as follows: "The persons mentioned in exhibit P 1 who have been murdered are my neighbours.
" In cross examination he states as follows: "On reading of exhibit P 11 understood that it related to an earlier incident.
We discussed the matter at home.
I also discussed the matter with some friends.
Thus, it is clear from the testimony of the first respondent 's witnesses that the contents of exhibit P 1 gave them an impression variously as either the incident had occurred the previous day or that it was 751 an old story or that the Communists or Marxits were murder ers or that it was a cruel act or that it was unfavourable to the first respondent.
The impression conveyed by the document that the Marxists or Communists were murderers and therefore the electorate should not ' vote for them and hence it was unfavourable to the first respondent, was not an impression about his personal character/conduct.
It was an impression at best about his political character/conduct.
In particular there was no impression that he was the murderer or one of the murderers.
As far as the petitioner himself is concerned, in paragraph 2 of his deposition in examination in chief he makes a general statement as follows: "Personally against me the propaganda on behalf of the first respondent (i.e., the appellant) was that I am a murderer, a non religious man and one who is unfit to be elected as a member of the legislative assembly.
" Thereafter in paragraph 19 of his deposition he says with reference to exhibit P 1 as follows: "The original of exhibit P 1 was printed and published on a Sunday which was 22.5.83, distribution was on a Sunday which was 22.3.1987.
Four murders were described as incidents which took place on the previous day.
Out of the 4 murdered, the photos of two dead bodies lying in the hospital were also published therein.
exhibit P 1 mainly contained the news about murders alone.
The intention behind the publication was to make the electors understand 4 murders that took place in 1983 as murders that took place on the previous day.
That paper also contains a request by the committee with the photos of 1st respondent (i.e., the appellant) and Rajiv Gandhi.
In the request it is specifically stated 'that it is only common knowledge as to who is behind the murder.
So also it is written that the Marxist leader who is arrest ed is also known to all.
That was the result of a conspiracy consciously entered into for the purpose of maligning and exposing me as a murderer and an undesirable person.
I was never an accused of any murder case.
In connection with the 4 murders described in exhibit P 1 a 752 case was registered against me for having given shelter to the accused in that case.
There were several meetings in protest against my rest in connection with that case stating that it is a false case.
1 had absolutely no involvement in giving protection or shelter to those persons.
Subsequently that case ended in acquittal.
In the main protest meeting held at Thoppumpadi one of the speakers was the 1st respond ent himself.
(i.e., the appellant).
At the time of those murders in 1983 Mr. Vayalar Ravi was the Home Minister.
He was also the leader of the Union in the Cochin Port Trust.
I was also a worker of a rival union there.
There were differ ences of opinion between myself and Mr. Vayalar Ravi.
There fore it was at his instigation that I was implicated in a false case." (emphasis supplied) Then there is a Court question: Whether the murders of those persons were political murders? The answer is: Those four murdered persons were anti social elements.
There was no politics involved in it.
Then he continues to state: "The publication of exhibit PW 1 on the date previous to the election had the effect of creating an impression among the impartial electors that I am a person involved in murders . .
If such a propaganda is made as was done in this case the opposite candidate will not be getting an opportunity to rectify the result.
1st respondent and his workers were fully aware of the fact that I am completely innocent in connection with the murders of the said four persons.
Since they were fully aware of the fact that I am sure to succeed in the election, this story was purposely manipulated as a result of conspiracy." "22.
exhibit PW 1 when it was published had the appearance of a real issue of Manorama.
Daily People on reading the report went under the impression that what was contained therein was the news of an incident which took place the previous day.
On seeing copies of exhibit PW 1, many of my workers and electors also telephoned and told me that a supplement of Malayala Manorama was seen.
They also inquired about the murders mentioned therein.
Since I was not able to get an opportunity of bringing the real facts 753 before the electors, myself and my workers were in a help less condition." (emphasis supplied) In his cross examination he states in paragraph 32 of his deposition as follows: "The fight hand side of exhibit P 1 contains a true copy of the Malayala Manorama.
In that portion there is no difference.
On the left hand side and the lower portion of the right side there are certain additions.
The news item in exhibit P 1 regarding murders are correct in all details.
What is wrong is only that it was published as if to appear that it was an incident that took place on the previous day.
My complaint is that an impression was created among the people that it was an incident that took place on 21.3.1987.
Even after reading the whole of exhibit P I people go only under the im pression that the incident happened on the previous day.
My memory is that I have specifically alleged in the petition that such an impression was created.
It was unfavourable to my interest only on account of the creation of such an impression that it was an incident that happened on the previous day.
My complaint is that I did not get an opportu nity to correct the impression before the polling.
I have alleged in the petition that such an impression was created among the voters and I did not get time to correct the impression before the polling.
In the true copy of Malayala Manorama contained in exhibit P 1 there is nothing against me.
On the left hand side of exhibit P 1 is the request to vote for the 1st respondent even though my name was not mentioned it was intended against me.
Even without mentioning my name it is possible to know that it was intended against me.
The writings in that request capable of identifying me as the culprit are the statements that the persons responsible are known to all and the Marxist leader who was arrested was also known to all." (emphasis supplied).
He was then asked the question: "Have you so stated in the petition?" The answer was "My memory is that it is so stat ed".
He then proceeds to state as follows: "If I remember correct I have stated in the petition that the person intended by the arrested Marxist leader is my self.
754 Many persons who gathered such an impression contacted me over phone.
I did not examine anybody among them.
I have examined several persons for proving the distribution of exhibit P 1.
None of those witnesses were asked by my counsel wheth er any of them understood the reference in the request contained in exhibit P 1 as concerning me.
I was present in court when those witnesses were examined.
I did not ask any of them whether they continued to hold the impression that the murder took place on the previous day . .
My impres sion is only from what my workers told me." (emphasis supplied) 20.
We have supplied the emphasis at the proper places in the first respondent 's testimony reproduced above.
He has himself admitted that all those who read exhibit P 1 gathered an impression that the incident had occurred on the day previous to its publication.
If that is so, then even the statements in exhibit P 1 that "Every body knows the hands behind that murder.
The Marxist leader arrested is also known" were not connected by the people with his arrest for harbouring the accused in the old murder case and vice versa.
The first respondent has repeated his allegation that the people had thought that the incident had taken place on the day previous to the publication of exhibit P 1 at places more than one in his testimony.
He has also placed his own interpretation on the said publication which is incompatible with the extrinsic facts stated by him in support of the innuendo meaning of the publication.
According to him (i) the four murders were described as incident which had taken place on the previous day; (ii) the intention behind its publication was to make the electorate believe that the murders which had taken place in 1983 were murders that had taken place on the previous day; (iii) it is in the context of this intention that it was specifically stated that it was only common knowledge as to who was behind the murders.
So also in the context of this intention that it was written that the Marxist leader who was arrested was also known to all; (iv) again it is to explain this intention that he has given the extrinsic facts, viz., that in connection with the four murders described in the publication a case was registered against him for having given shelter to the accused in that case.
He has also stated that there were several meetings in protest against his arrest and that in the main protest meeting the appellant was one of the speakers on his behalf; (v) according to him further the people on reading the report gathered the impression that what was stated in the publication was the news of an incident which had taken place the previous day; (vi) further what 755 was wrong with the publication, according to him, was only that it was published as if to appear that it was an inci dent that had taken place on the previous day.
He has reit erated this by specifically stating that his complaint was that an impression was created among the people that it was an incident that had taken place on March 21, 1987.
Accord ing to him, further even after reading the whole of exhibit P 1 people went only under the impression that the incident had occurred on the previous day.
It is his case further that he has specifically alleged in the petition that such an im pression was created and that it was unfavourable to his interest only on account of the creation of such an impres sion, viz., that it was an incident that had happened on the previous day.
He has then stated that even though his name was not mentioned, it was intended against him, and that even without mentioning his name it was possible to know that it was intended against him and that the publication was capable of identifying him as the culprit because of the statements that "the persons responsible were known to all" and "the Marxist leader arrested was also known to all.
Although he has also added at the end that many persons who gathered such an impression, viz., that he was meant by the publication, had contacted him over phone, he admitted that he did not examine anyone from among the said persons.
This is a telling circumstance against him because he had followed as a witness after all his witnesses were examined, and he knew that none of his witnesses had stated that they had connected the imputations in the publication with him.
On the other hand, as stated earlier, not only all his witnesses had stated that they had gathered the impression that the incident had taken place the previous day but he himself was of the view that the publication was meant to create such impression and that it did so.
Hence, there was no reason for the electorate to connect him with the said incident even remotely.
On his own testimony as well as on the testimony of his witnesses, therefore, it is clear that the publication was intended to create an impression and did create an impression that the incident of murders had taken place a day previous to the election.
If that is so, then the publi cation and the two allegedly offending statements in the same did not connect him with the murders much less had they called him a murderer.
Even his arrest for harbouring the accused in the old incident of murders was not capable of identifying him as the murderer in the eyes of the people.
None knew who were the accused and who were arrested in connection with the murders which were committed the previ ous day.
The people, however, certainly knew that the first 756 respondent was not arrested in connection with the said murders.
Hence the extrinsic facts which the first respond ent stated in his testimony for the first time even if they were given in the pleadings would not have spelt out the corrupt practice.
For those facts in the face of the asser tion of the first respondent himself were incapable of identifying him as the murderer in the eyes of the elector ate.
For these reasons, we are of the view that the extrin sic facts given for the first time by the first respondent in his testimony were incapable of identifying him as the hand behind the murders or as the murderer in the eyes of the people.
We are also of the view that in the absence of the extrinsic facts supporting the innuendo meaning of the publication, the petition lacked the statement of material facts for spelling out the corrupt practice complained of.
Either, therefore, the allegation of the corrupt practice should have been struck off or the petitioner ought not to have been allowed to lead evidence in support of it.
For, as stated earlier, whenever an innuendo is alleged, a statement of material facts as required by Section 83(i)(a) of the Act is not complete without stating the extrinsic facts spelling out the innuendo meaning.
It is the publication together with the extrinsic facts which in such circumstances consti tute the corrupt practice.
The absence of the statement of such facts is not an absence of the particulars of corrupt practice but an absence of the averment of material facts themselves.
Hence, it is not necessary for us to deal with the controversy raised before us with regard to the respon sibility of furnishing of or asking for particulars.
It is necessary, in this connection, to make a distinction between a purely libel action and an allegation of corrupt practice in an election petition.
Both, for libel action as well as for an allegation of corrupt practice in an election petition, it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo meaning of the words complained of.
However, whereas in a libel action it may further be necessary to prove that those with special knowledge of the extrinsic facts were likely to interpret or understand the words complained of in a defama tory sense, in an election action, it may not be necessary to do so and all that is necessary is to prove that the words complained of were reasonably calculated to prejudice the prospectus of the defamed candidate 's election.
However, this latter distinction does not obliterate the similarity between the two actions, viz., that in each case in the first instance the defamation is to be spelt out by pleading the necessary extrinsic facts.
In a libel action, the ex trinsic facts constitute a cause of action whereas in the election action they 757 constitute the corrupt practice.
In other words, without them, there is no cause of action in the libel suit and no allegation of corrupt practice in an election petition.
Dr. Chitale, however, contended that the appellant had nowhere stated that the first respondent was not intend ed to be referred to by the said publication.
In this con nection, he invited our attention to the appellant 's deposi tion.
In his cross examination on the subject.
In paragraph 25 the appellant has stated as follows: "The statement contained in exhibit P 1 may give an impression that it was in the name of the Election Committee.
On a reading of that statement, it would appear that it was on behalf of the Election Committee.
" There were then the following questions and answers: Question: Do you agree to the contents of the statement included in exhibit P 17 Answer: I do not have any disagreement.
Question: In the statement contained in exhibit P 1 it is stated that everyone knows persons behind the murder and also the Marxist leader who was arrested in that connection.
What is your opinion regarding those statements? Answer: That is only a repetition of an incident that took place in 1983.
I cannot say what was the intention behind that statement and who was intended thereby.
Question: No Marxist leader was arrested in connection with that case.
Further on a reading of that statement the impression that could be gathered is that the Marxist leader in the election was responsible for the murder and he was arrested.
Is it so? Answer: I have nothing to do with that statement.
And I was not able to gather such an impression on reading it.
I do not think that anybody else also will go under that impression.
Question: When any such statement is reprinted and published, it must be intended for upsetting the candidate.
Answer: That de pends upon the intention entertained by the person.
I cannot give an opinion.
Question: When the petitioner (the first respondent) was the Deputy Mayor of the Cochin Corporation, was he not arrested in connection with that case under the false accusation that he gave shelter to the accused? An swer: I remember that the petitioner (the first respondent) was arrested in connection with such a case.
He then pro ceeds as follows: "I was a speaker in a meeting in protest against his arrest.
I spoke in that meeting because I felt that it is a politi cally motivated false case.
In 1983, I have gone to the hospital 758 where the dead bodies were taken for post mortem." In the first instance, in the absence of the statement of the material facts in the petition as stated above, the appellant was not called upon to join issue with them in his written statement.
Secondly, there is nothing in his testi mony referred to above, which helps the first respondent in his case that the publication had referred to him as the murderer.
This is more so, because, as stated above, the first respondent himself has interpreted the publication as creating an impression of a different murder.
The next corrupt practice of which the High Court has found the appellant guilty is the wall poster affixed on the Palace Road on the northern side of the City Rationing Office, within 25 yards from the polling station.
Near this wall poster was also affixed exhibit P 1.
The contents of the wall poster are as follows: "Defeat murderer T.M. Mohammed who murdered four Christian brothers at Fort Cochin.
Our symbol.
" exhibit P 14 is the close up photograph of the said poster whereas exhibit P 15 is a photograph from a distance as stated earlier.
There is no doubt that the contents of this wall poster directly named the first respondent as the murderer of the four victims, and if it is proved that the said poster was affixed prior to the election by the workers of the appellant with his knowledge and consent as alleged in the petition, nothing more has to be established to hold the appellant guilty of the corrupt practice within the meaning of Section 123(4) of the Act.
The finding of the High Court on this corrupt practice is recorded in paragraph 50 of its judgment.
The High Court has stated there that the writings were at the instance of the appellant and with the consent of his election agent and that it was published in the presence of and under the supervision of the appellant 's election agent and hence it attracts all the requirements of Section 123(4) of the Act.
This finding is attacked on behalf of the appellant before us.
It is necessary, there fore, first to find out the allegations made by the first respondent in his election petition in that behalf.
The first respondent has alleged in paragraphs 17, 34, 84 and 120 of his petition as follows: "17.
The wall posters and writings on the walls arc done by the first respondent, his agents and his workers with a view to propagate false aspects against the petitioner and to mis 759 lead the electorate that the petitioner is a murderer and if anyone votes in favour of him the law and order of the society will be adversely affected.
This has misled the whole electorate which has caused serious prejudice in the election of the petitioner.
X X X X X 34.
On the Palace Road, on the northern side of the City Rationing Office the workers of the first respondent with the knowledge and consent of the first respondent affixed wall poster that the petitioner had murdered 4 Christian brothers at Fort Cochin and hence the electorate shall vote against the petitioner and they have to vote in favour of the first respondent.
It is also relevant to note that this is within 25 yards from the polling station and near this writing they have affixed the reprinted Malayala Manorama daily on 22nd March, 1987 morning.
This is to mislead the public that the petitioner is a murderer and he had murdered four Christian brothers . .
X X X X X 84.
To prove Annexures 20 and 21 the wall posters pasted on the walls near the City Rationing Office, Palace Road, COchin, the petitioner is examining two witnesses namely, (1) K. Prakash, House No. 8/796, T.D. East Raod, Cherali, Cochin 2 and (2) J. Sundaram, Kocherry Junction, Pandikuddy, Cochin 2.
X X X X X 120.
Even before the distribution of reprinted Malayala Manorama the first respondent has specifically instructed his workers to write on the walls and also paste handwritten wall posters throughout the constituency publishing that the petitioner is a murderer.
The hand written wall poster was pasted near the City Rationing Office on the Palace Road, a photostat copy of which is produced and marked as Annexure 20.
This was pasted by Anil Raj section Thamaraparambu, Amarava thy, Cochin 1.
This wall poster was written at the specific instruction of the Chief Agent and convener of the election committee and in their 760 presence Anil Raj pasted this wail poster on the wails.
This fact was witnessed by K. Prakash and J. Sundaram.
Really these writings misled the whole electorate and give a bad impression about the petitioner that he is a murderer, and he is responsible for the murder of 4 Christian brothers.
This is absolutely falsehood.
This publication was done by the candidate, his agents and by his workers with the con sent and knowledge of the candidate and they knew that this statement is false in relation to the petitioner.
The allegations in the petition were denied by the appellant in his written statement as follows: "12.
Averments in paragraphs 30 to 35 are also false and are hereby denied.
Neither the first respondent nor his agents or workers have any knowledge of the wail writings filed by the petitioner as Annexures 15 to 22.
Nor were any such writings made by any person with the consent or knowledge of this respondent.
Nor do the writings show anything beyond a criticism of the Marxist party on grounds of law and order.
However, the wall writings shown as Annexure 20 were not seen anywhere in the constituency nor made by the respondent or his workers.
It is deliberately concocted by the peti tioner.
In these paragraphs also no material facts required to impute a corrupt practice against the first respondent have been stated.
The entire allegations in the aforesaid paragraphs have been falsely made.
X X X X X 18 .
The annexure 20 appears to have been deliberate ly concocted by the petitioner with an ulterior motive and the rest of the aforesaid annexures are also similarly concocted nor do they show any corrupt practice.
The further contention in para 98 that these writing and wall posters appeared in the constituency between 10th and 14th March 1987 is absolutely false.
Nor were they done by this re spondent or by his agents or workers of the UDF.
Neither, with the consent of the knowledge of the respondent.
The witness mentioned in paragraph 98 also appears to be parti sans of the petitioner.
X X X X X 761 25.
The averments in paragraph 120 that the reprinted Ma layala Manorama was pasted and hand written wallposter was published stating that the petitioner is a murderer is entirely false and the averment that the first respondent instructed his workers to do so is false.
The averment that annexure 20 is a photo copy of a handwritten wall poster near the City Rationing Office on the Palace Road and this was pasted by Anil Raj and they are written on the specific instruction of the Chief Agent and convener of the election committee is wholly untrue and is denied . . .
X X X X X 26.
The averments in paragraph 121 that this respondent has spent more than two lakhs for the election purpose is wholly untrue.
The expense incurred by this respondent for the election has been strictly within the limits prescribed by law, and the ejection accounts of this respondent have been duly submitted as required by law.
The petitioner is fur nishing a wholly fanciful idea of Auto rikshaws and cars etc.
out of his imagination in paragraph 121.
It will thus be seen that in paragraph 17 of the petition, the first respondent has averred generally that it was the appellant, his agents and his workers who had pasted the wall posters.
Secondly, in this paragraph he has not specified any wail or walls on which the poster was pasted.
Thirdly, he has attributed the pasting only to the appel lant, his agents and his workers.
There is no mention of the election agent.
What is further in this paragraph he has not said whether the workers had done it with the Appellant 's consent or knowledge.
As regards the averments in paragraph 34 of the peti tion, the first respondent does state that the workers of the appellant had pasted the wall poser with the knowledge and consent of the appellant.
But it is necessary to remem ber here that he does not mention in this paragraph either the agent or the election agent nor does he state here that the pasting was ,done with the knowledge and consent of the election agent.
What is further important to note is that in this paragraph he mentions the pasting of the poster only on one wall and that is the Palace Road wall near the City Rationing Office.
762 In paragrah 84 again, he specifies that he is going to examine witnesses in connection with the pasting only on one wall, viz., the same wall on the Palace Road near the City Rationing Office, and he gives the names of two witnesses and one of them, viz., K. Prakash (PW 7) has been examined in that connection.
In the last paragraph where there is a reference to the said posters.
P 14/P 15, viz., paragraph 120, al though there is a vague mention of the "walls", the only wall specified is the same wall on the Palace Road.
In this paragraph, again the averment is that the said pasting was done by the workers and agents with the knowledge and con sent of the appellant.
In this paragraph, for the first time he has introduced the "Chief Agent" and the convenor of the Election Committee, and the allegation is that the wall poster was written at the specific instructions of the said Chief Agent and the Convenor.
He has not specified who the Chief Agent and the Convenor of the Election Committee were.
Although Dr. Chitale submitted that the expression "Chief Agent" should be construed to mean election agent, it is not possible for us to accept the submission for reasons more than one.
In the first instance, the pleadings with regard to corrupt practice have to be specific since everyone who is guilty of the corrupt practice is liable to be prosecuted for the offence.
Secondly, except in this paragraph, we don 't find there is a reference to any such person as Chief Agent.
Wherever the first respondent wanted to refer to the election agent, he has done so.
It cannot, therefore, be argued that he does not know the difference between the election agent and the Chief Agent.
The averments in the petition, therefore, bring out two facts in particular prominently.
One is that, though the first respondent has alleged vaguely in paragraphs 17 and 120 of the petition, that the wall posters were on more walls than one he has specified no wall in paragraph 17 and he has referred to only one wall, i.e., the Palace Road wall in all the other relevant paragraphs, viz. ,, 34, 84 and 120.
What is more, in paragraph 84, he had made it clear that he was going to examine witnesses only in connection with the pasting of the poster on the said one wall and no more.
Secondly, even with regard to the pasting of the wall poster on the said wall, he is not sure as to who had done it and with whose knowledge and consent.
As pointed out above, in paragraph 17 he has stated that only the appel lant 's agents and workers had pasted it.
He has not stated that his workers had done it with the appellant 's consent or with the consent of the election agent.
In paragraph 34 no doubt he states that the appellant 's workers had done it with the knowledge of the appellant, but in paragraph 120, he 763 states that it was done at the specific instructions of the Chief Agent of the appellant and in the presence of the Chief Agent and the convenor of the Election Committee.
Nowhere in the petition it is stated that it was done with the knowledge and consent and at the instance of or in the presence of the appellant 's election agent.
This assumes importance because his witness, K. Prakash (PW 7) as will be pointed out hereafter, has come out with a version which is inconsistent with the averments in the petition and has stated that the pasting of the poster on the Palace Road wail was being done under the supervision among others of Joseph Katithara, who was the appellant 's election agent.
As regards the evidence which the petitioner has led to prove Exs.
P 14 and P 15.
we find that although he had cited two witnesses, viz., K. Prakash and J. Sundaram, to prove the lone wallposter on the Palace Road only one wit ness, viz. K. Prakash is examined.
Though K. Prakash (PW 7) was cited to prove the lone wail poster on the Palace Road, he has from the witness box deposed to the fact that he had seen "wall posters" being pasted on the Saturday, a week prior to the election.
Since he is the only witness who has been examined to prove the actual pasting of the wall poster and the appearance of the wail poster prior to the election, his deposition has to be scanned carefully.
He has stated that he resided in the 8th Division of the Mattancherry Assembly Constituency.
In examination inchief, he stated that he was a medical wholesale distributor.
He had also an occasion to see a copy of exhibit P 1.
It was given to him at his residence on the date previous to the election.
He has also named the appellant and M/s. M.K. Latif, Naveen Kumar, Radhakrishnan and others as being the persons who had brought the copy of exhibit P 1 to his residence.
Indeed he seems to be a very important man, since not only the workers of the appellant but the appellant himself had, according to him, gone to his residence specially to deliver a copy of exhibit P 1 to him.
Then he has deposed to the fact that he had seen copies of Exs.
P 14 and P 15 being pasted on the "wails" and not only one wail near the City Rationing Office on the Palace Road.
He admits that exhibit P 14 is the close up photo and exhibit P 15 is the distant photo of the same poster.
It is, therefore, difficult to understand how he could have seen both being pasted.
May that be as it is.
It has further to be remembered that both Exs.
P 14 and P 15 are the photographs of not only the wail poster but also of exhibit P 1 which was pasted by its side.
Because, he has gone on to say that he had seen "wall posters" being pasted on Saturday, one week prior to the election.
Since it is the case of the first respondent himself that exhibit P 1 was printed and pub lished only a day prior to the election, it is difficult to understand as to how this witness 764 could have seen the wall poster together with exhibit P 1 being pasted one week prior to the election.
He has then named Anil Raj, Joseph Katithara who is the election agent of the appellant, K.M. Mohammed, Radhakrishnan and other unnamed workers of the UDF being persons present to supervise the pasting of the wail posters. ' Thereafter, he has corrected himself by saying that at that time the "photo" of exhibit P 1 was not there, a statement difficult to follow.
According to him at the time he saw the pasting being done, his co worker was also there.
He has not named him nor is he examined.
It is then his case that on the day previous to the election, he also saw a copy of exhibit P 1 being pasted near the wall poster.
Of course, this witness has also deposed to the writings on walls which are Exs.
P 16, P 17 and P 18 with which we are not concerned in this appeal but about which the first respondent had made serious complaint in the petition before the High Court which has been rejected by the High Court.
He is thus a witness not only for the past ing of Exs.
P 14/P 15 on all the walls in the City but for a similar pasting of all other exhibits complained of.
An omnipresent witness indeed.
In cross examination he was asked whether he was not the Secretary of the Election Committee of the first respondent in Division No. 8 and also the branch Secretary of the Marxist Communist Party.
He denied the said suggestion and stated that he did not work in the election for the first respondent and that he had no politics and he was not a member or sympathizer of any political party.
He has also gone on to maintain that he had seen wail posters similar to exhibit P 14 in other places and has named some of the places as Anavadil, UCO Bank, Cherlai, Pandikuddy Junction.
He has then stated contrary to what he had stated in his examina tion in chief, that he had not seen the act of pasting of exhibit P 1 and he did not know who pasted exhibit P 1 near exhibit P 14 although in examination in chief he has categorically stated as follows: "On the day previous to the election I saw copy of exhibit P 1 being pasted near the wall poster.
Time and again, the courts have uttered a warning against the acceptance of a non corroborated oral testimony in an election matter because it is not only difficult to get a non partisan witness but is also easy to procure partisan witnesses in such disputes.
The courts have, there fore, insisted upon some contemporaneous documentary evi dence to corroborate the oral testimony when in particular such evidence could have been maintained.
The dangers of accepting only 765 the oral testimony are illustrated by this witness.
In the first instance, this witness was cited by the first respond ent himself to prove only Exs.
P 14/P 15 pasted on one wail, viz., the City Rationing Office wall on the Palace Road as has been stated clearly in paragraph 84 of the petition.
Even if we construe the said paragraph in the petition liberally, it can only mean that this witness was cited to prove the "wallposters" being pasted on the "walls" near the City Rationing Office on the Palace Road.
He was not cited to depose to posters on walls in any other part of the City.
Secondly, the petitioner has not produced any documentary evidence such as the photographs of the posters on the other walls even near the City Rationing Office not to speak of the walls in other parts of the City.
exhibit P 15 shows the long length of the wall.
But except for this poster there is no poster on any other part of that wall seen in the photograph.
Assuming that there were posters on the other walls, even near the City Rationing Office, we have no evidence in that behalf much less of the posters on the walls in the other parts of the City.
The witness has, however, chosen to depose to his having seen posters on walls in other pans of the City to which again there is no specific reference in the petition.
It was the duty of the petitioner to give the particulars of the posters on the other wails or in other parts of the City.
His testimony is also suspect for other reasons as well.
Firstly, this wit ness has also deposed to the fact that he had received a copy of exhibit P 1 on the day prior to the election and what is ' further, he has gone to the extent of saying that it was the appellant himself who along with his election agent and other workers had gone to his residence to deliver the said copy.
It is difficult to believe that on the day prior to the election the appellant and his election agent in partic ular, will have no other work but to go from house to house distributing exhibit P 1.
Secondly, the witness has also deposed to the fact that he had not only seen the wall poster, Exs.
P 14/P 15 but he had also seen other wall posters which were the subject matter of the petition.
What is further, according to him, he had also seen Exs.
P 14/P 15 being pasted in his presence by one, Anil Raj under the supervi sion of the appellant 's election agent Joseph Katithara and the workers of the UDF one week prior to the election.
We have pointed out above that in the petition there is no reference to the election agent in this connection anywhere and the reference to the Chief Agent cannot be construed as a reference to him.
What is further, he has also in his examinatiOn in chief gone to the extent of saying that even when exhibit P 1 was pasted near exhibit P 14, a day prior to the election, he had seen the actual pasting.
This, of course, he retracted in his cross examination when he stated that he had not seen the said act of pasting.
We have, therefore, a witness here who is 766 omnipresent at all crucial times and places and has no compunction in contradicting himself on vital matters.
It is this witness that we are asked to believe in support of the first respondent 's case that the wail poster Exs.
P 14/P 15 was pasted by the appellant 's agents and workers under the supervision of the appellant 's election agent.
Needless to say that his testimony has to be discarded being of a very doubtful nature.
The only other witness who is examined in connection with Exs.
P 14/P 15 is the photographer, K.J. Simon (PW 25).
Even according to this witness, he had taken the photo graphs, Exs.
P 14/ P 15 on March 25 and 26, 1987, i.e., two days after the election.
Therefore, even if we accept his evidence that he had taken the photographs in question on the said days, that will not support the first respondent 's case that the said posters were there prior to the election day.
The appellant 's cross examination of this witness was directed to prove that he had not taken the photographs even on 25th and 26th March, 1987 but at a much later date and just prior to the filing of the present election petition.
The appellant 's case both in his written statement as well as in the Court is that the wall poster of which Exs.
P 14 and P 15 are the photographs was concocted much after the election and only for the purpose of the election petition.
It is in the light of this case of the appellant that we have to scrutinise the testimony of this witness.
The wit ness says that exhibit P 14 is the chose up photograph of the wail writing near the City Rationing Office and exhibit P 15 is its long distance view and that he had taken the photographs in question on March 25 and 26, 1987.
In cross examination, he was asked whether since he was a professional photogra pher and had his studio, he kept accounts.
His answer was that he kept accounts only for the indoorwork and not for the out door work an answer which is very difficult to appreciate.
The answer was given obviously to forestall the further investigation in the matter by compelling him to produce his accountbooks which would have shown the date on which he had actually taken the photographs.
He was then asked as to how he had remembered the dates on which he had taken the photographs of various other posters including Exs.
P 14/P 15.
To that he replied that he had given the dates of the photographs from his memory.
To test his memo ry, he was asked that since he was also taking photographs of marriage ceremonies which were on an average three or four times in a month, he could give the dates on which he had taken photographs in connection with some of the mar riages.
To that question, of course, he answered in the negative.
This witness, further, who was called only to depose to the fact that he had taken the photographs in question, has 767 gone further and stated that all the wall writings and wall posters appeared to him to be old and he had "seen them earlier".
According to him, further, they were written even two days prior to the date of election.
He also goes on to say that exhibit P 1 was seen by him on the day prior to the election.
Although he stated that he was paid Rs.800 for the photographs and Rs.1,000 for copies thereof, he did not enter the amounts in his accounts.
He stated that he had a Bank account but he did not remit the amount to the Bank.
He then stated that in his studio there would be no record to show that the photographs were taken.
He also stated that he had not given any receipt for receiving the payment.
It was then suggested to him that he was a sympathizer of the Marxist Party which suggestion, of course, he denied.
His testimony not only fails to impress us, but leads us to believe that there is much force in the contention of the appellant that the poster in question was concocted at a later day.
For otherwise it is difficult to explain as to why the witness who in the ordinary course should maintain his accounts and other documents should keep them from the court on pretexts which are not only far from convincing but positively doubtful.
There is yet another and a very important reason as to why the entire version with regard to Exs.
P 14/P 15 has to be rejected.
The first respondent has come to the court with a version that the wall poster and such other posters were pasted on walls in the different parts of the constitu ency at least a week prior to the election.
Admittedly, such false propaganda is an electoral offence punishable both under Section 127A of the Act and Section 17 I C of the Indian Penal Code.
The first respondent or his agents and workers could have made complaints both to the Election Officer as well as to the police in that connection immedi ately, and a regular panchnama of the same could also have been made at the time.
That would have been the best evi dence of the said allegation.
We have no doubt that the first respondent and his workers would not have failed to do so had the posters been pasted at the time alleged by them.
We are, therefore, impelled to reject the evidence produced by the first respondent in connection with the publication of the wallposter represented by Exs.
P 14/P 15.
In the circumstances, the finding of the High Court in respect of both the alleged corrupt practices will have to be set aside and 768 is hereby set aside.
Hence, we allow the appeal, set aside the order of the High Court and dismiss the election peti tion.
Interim order passed by this Court also stands vacat ed.
In the circumstances of the case, the parties will bear their own costs.
The Registry will take immediate action under Section 116C (2) of the Act.
G N. Appeal al lowed. | In the 1987 election to Kerala Legislative Assembly the appellant contested against the first respondent.
The appellant and respondents belonged to two different fronts, each consisting of several political parties.
The appellant was declared elected, by a margin of 1873 votes over his nearest rival, the first respondent.
The first respondent filed an election petition in the High Court claiming that the appellant 's election was void and that he should be declared elected in place of the appellant.
In support of his contention, he alleged various corrupt practices on the part of the appellant.
The High Court negatived all except two of the allegations, viz., (i) printing and publication on March 22, 1987, a day prior to the election, pamphlets containing a news item in daily "Malayala Manorama" dated May 22, 1983, and (ii) publication of a wail poster, maligning the 720 personal character and conduct of the first respondent.
The High Court held that both the said acts amounted to corrupt practices within the meaning of Section 123(4) of the Representation of People Act, 1951 and were sufficient to void the election.
This appeal under section 116A of the Representation of People Act, is against the High Court 's judgment.
Allowing the appeal, this court, HELD: 1.1.
As regards the pamphlets, the first respond ent in his election petition had relied upon an innuendo, and the innuendo was based upon the fact that, firstly, he was a Marxist leader and, secondly, he was arrested for harbouring the murderers.
However, in the election petition, no averment was made that it was because he was a Marxist leader and was also arrested for harbouring the murderers that the electorate was likely to construe the said two statements as accusing him as the murderer.
No facts were pleaded in the Election Petition whereby the electorate would gather an impression that the first respondent was the murderer of the said four victims.
[733B C; 746 E F] 1.2.
Barring his own testimony, all other evidence led by the first respondent is also totally silent on this aspect of the matter.
None of his witnesses has stated anywhere that the contents of the pamphlet had made out the first respondent as the murderer of the four victims or even that they were capable of doing so.
On the other hand, all his witnesses without exception are unanimous that after reading the pamphlet the impression it created on them was that it referred to an incident which had taken place on the previous day or to an earlier incident and nothing more.
None of the witnesses has stated that the said pamphlet even remotely connected the first respondent with the murders.
The impression conveyed by the document that the Marxists or Communists were murderers and therefore the electorate should not vote for them and hence it was unfavourable to the first respondent, was not an impression about his per sonal character/ conduct.
It was an impression at best about his political character/ conduct.
In particular there was no impression that he was the murderer or one of the murderers.
Although the first respondent has also added at the end that many persons who gathered such an impression, viz., that he was meant by the publication, had contacted him over phone, he admitted that he did not examine anyone from among the said persons.
This is a telling circumstance against him because he had 721 followed as a witness after all his witnesses were examined, and he knew that none of his witnesses had stated that they had connected the imputations in the publication with him.
On the other hand, as stated earlier, not only all his witnesses had stated that they had gathered the impression that the incident had taken place the previous day but he himself was of the view that the publication was meant to create such impression and that it did so.
Hence, there was no reason for the electorate to connect him with the said incident even remotely.
On his own testimony as well as on the testimony of his witnesses, therefore, it is clear that the publication was intended to create an impression and did create an impression that the incident of murders had taken place a day previous to the election.
If that is so, then the publication and the two allegedly offending statements in the same did not connect him with the murders much less had they called him a murderer.
Even his arrest for harbour ing the accused in the old incident of murders was not capable of identifying him as the murderer in the eyes of the people.
None knew who were the accused and who were arrested in connection with the murders which were committed the previous day.
The people, however, certainly knew that the first respondent was not arrested in connection with the said murders.
Hence the extrinsic facts which the first respondent stated in his testimony for the first time even if they were given in the pleadings would not have spelt out the corrupt practice.
For those facts in the face of the assertion of the first respondent himself were incapable of identifying him as the murderer in the eyes of the elector ate.
For these reasons, the extrinsic facts given for the first time by the first respondent in his testimony were incapable of identifying him as the hand behind the murders or as the murderer in the eyes of the people.
[746F H; 751A B; 755D H; 756A B] 1.3.
In the absence of the extrinsic facts supporting the innuendo meaning of the publication, the petition lacked the statement of material facts for spelling out the corrupt practice complained of.
Either, therefore, the allegation of the corrupt practice should have been struck off or the petitioner ought not to have been allowed to lead evidence in support of it.
[756C] 2.1.
Where the defamatory words complained of are not defamatory in the natural or ordinary meaning, or in other words, they are not defamatory per se but are defamatory because of certain special or extrinsic facts which are in the knowledge of particular persons to whom they are ad dressed, such innuendo meaning has to be pleaded and proved specifically by giving the particulars of the said extrinsic facts.
It is immaterial in such cases as to whether the action is for 722 defamation or for corrupt practice in an election matter, for in both cases it is the words complained of together with the extrinsic facts which constitute the cause of action.
It is true that Section 123(4) of the Act states that the statement of fact in question must be "reasonably calculated to prejudice the prospects" of the complaining candidate 's election.
However, unless it is established that the words complained of were capable of being construed as referring to the personal character or conduct of the candi date because of some specific extrinsic facts or circum stances which are pleaded and proved, it is not possible to hold that they were reasonably calculated to prejudice his prospects in the elections.
For, in the absence of the knowledge of the special facts on the part of the elector ate, the words complained of cannot be held to be reasonably calculated to prejudice such prospects.
Once, however, it is proved by laying the foundation of facts that the words in question were, by virtue of the knowledge of the special facts, likely to be construed by the electorate as referring to the personal character or conduct of the complaining candidate, it may not further be necessary to prove that in fact the electorate had understood them to be so.
That is because all that Section 123(4) requires is that the person publishing the complaining words must have intended and reasonably calculated to affect the prospects of the com plaining candidate in the election.
[745E H; 746A B] 2.2.
Whenever an innuendo is alleged, a statement of material facts as required by Section 83(i)(a) of the Act is not complete without stating the extrinsic facts spelling out the innuendo meaning.
It is the publication together with the extrinsic facts which in such circumstances consti tute the corrupt practice.
The absence of the statement of such facts is not an absence of the particulars of corrupt practice but an absence of the averment of material facts themselves.
Sheopat Singh vs Ram Pratap, ; ; Kumara Nand vs Brijmohan Lal Sharma, ; ; Habib Bhai vs Pyarelal & Ors., AIR 1964 MP 62; Manmohan Kalia vs Yash & Ors.
, ; ; W. Hay & Ors.
vs Aswini Kumar Saman ta, AIR 1958 Cal. 269; Hough vs London Express Newspaper Ltd., ; Fullam vs Newscastle Chronicle and Journal Ltd. & Anr., ; Cassidy vs Daily Mirror Newspapers, ; Nevill vs Fine Art and General Insurance Co. Ltd., and Capital and Counties Bank Ltd. vs George Henty & Sons, , referred to.
Halsbury 's Laws of England, Vol. 28, 4th Edn. paras 174 178; Gatley on Libel and Slander, 8th Edn.
paragraph 95; Street on Torts, 723 6th Edn., p. 294 and Duncan & Neil on Defamation, [1978] Edn., p. 17, referred to.
Both, for libel action as well as for an allegation of corrupt practice in an election petition, it is necessary to plead as well as to prove the extrinsic facts to spell out the innuendo meaning of the words complained of.
Howev er, whereas in a libel action it may further be necessary to prove that those with special knowledge of the extrinsic facts were likely to interpret or understand the words complained of in a defamatory sense, in an election action, it may not be necessary to do so and all that is necessary is to prove that the words complained of were reasonably calculated to prejudice the prospects of the defamed candi date 's election.
However, this latter distinction does not obliterate the similarity between the two actions viz., that in each case in the first instance the defamation is to be spelt out by pleading the necessary extrinsic facts.
In a libel action, the extrinsic facts constitute a cause of action whereas in the election action they constitute the corrupt practice.
In other words, without them, there is no cause of action in the libel suit and no allegation of corrupt practice in an election petition.
[756F H; 757A] 4.1.
As regards the wail posters in which the first respondent was described as a murderer and it is stated that hence he should be defeated, the first respondent in his petition has stated generally that it was the appellant, his agents and his workers who had pasted the wallposters.
He has not specified any wail or wails on which the poster was pasted.
He has not mentioned either the agent or the elec tion agent nor did he state that the pasting was done with the knowledge and consent of the election agent.
It is important to note that he mentioned the pasting of the poster only on one wail, though there was a vague reference to "walls".
[761F H; 765B] 4.2.
Time and again, the courts have uttered a warning against the acceptance of a non corroborted oral testimony in an election matter because it is not only difficult to get a non partisan witness but is also easy to procure partisan witnesses in such disputes.
The courts have, there fore, insisted upon some contemporaneous documentary evi dence to corroborate the oral testimony when in particular such evidence could have been maintained.
Such a danger is illustrated by the testimony of PW. 25 in the instant case.
It is not only contradictory, and fails to impress this court but also leads to the belief that there is much force in the contention of the appellant that the poster in ques tion was concocted at a later day.
It is difficult to ex plain as to why the witness a 724 professional photographer who in the ordinary course should maintain his accounts and other documents should keep them off from the court on pretexts which are not only far from convincing but positively doubtful.
Although he stated that he was paid Rs.8,00 for the photographs and Rs.1,000 for copies thereof, he did not enter the amounts in his ac counts.
He stated that he had a Bank account but he did not remit the amount to the Bank.
He then stated that in his studio there would be no record to show that the photographs were taken.
He also stated that he had not given any receipt for receiving the payment.
[764G H; 767A D] 4.3. "Election agent" as defined in Section 40 of the Act is accorded a special status of almost an alter ego of the candidate so much so that whatever is done by the elec tion agent or with his consent is deemed to have been done by the candidate himself whether it is with the candidate 's consent or not.
He is empowered to discharge almost all the functions that a Candidate can himself perform.
1729E FI 4.4.
It was alleged that the wall poster was written at the specific instructions of the Chief Agent and the Conven or.
It was not specified who the Chief Agent and the Conven or of the Election Committee were.
The argument that the expression "Chief Agent" should be construed to mean elec tion agent, cannot be accepted since the pleadings with regard to corrupt practice have to be specific since every one who is guilty of the corrupt practice is liable to be prosecuted for the offence.
And except in one place, there is no reference to any such person as Chief Agent.
Wherever the first respondent wanted to refer to the election agent, he has done so.
It cannot, therefore, be said that he did not know the difference between the election agent and the Chief Agent.
[762B E] 4.5.
The first respondent has come to the court with a version that the wail poster and such other posters were pasted on wails in the different parts of the constituency at least a week prior to the election.
Admittedly, such false propaganda is an electoral offence punishable both under Section 127A of the Act and Section 171 C of the Indian Penal Code.
The first respondent or his agents and workers could have made complaints both to the Election Officer as well as to the police in that connection immedi ately, and a regular panchnama of the same could ,also have been made at the time.
That would have been the best evi dence of the said allegation.
The first respondent and his workers would not have failed to do so had the posters been pasted at the time alleged by them.
[767E F] 725 |
ivil Appeal No. 2072 of 1990.
From the Judgment and Order dated 13.5.
1986 of the Calcutta High Court in Suit No. 2479 of 1967.
M.K. Banerjee, Subrat Rai Choudhary, Gopal Subramanium, N.P. Aggarwala, Anil Aggarwala, P.C. Sharma, L.P. Aggarwala, Ms. Indira Banerjee, R.N. Jhunjhunwala, Praveen Kumar, C.S. Vaidyanathan, P.R. Seetharaman, D.N. Mukherjee, Raj Kumr Gupta and P.C. Kapur for the appearing parties.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Leave granted.
This appeal is directed against the order of the Divi sion Bench of the High Court of Calcutta.
The appellant was transposed as the plaintiff in the Original Side suit No. 2479/67 in the High Court of Calcutta.
The suit was filed for a declaration that the various properties set out in the Schedule belonged and still belong to the joint family consisting of the members mentioned in the plaint.
Pending the suit an application was filed for appointment of a receiver for the various properties mentioned in Schedule 'A ' annexed to the petition, for injunction and for other reliefs.
One Mr. S.C. Sen was appointed as Receiver.
A declaration was also sought in the suit that the trust dated October 20th, 1948 created by late Gopi Krishna Khemka, father of the plaintiff, is void and for cancellation of the same.
Premises No. 38, New Road, Alipore, building with open space was one of the properties belonging to the trust.
Grindlays Bank Limited ( 'Grindlays ' for short), respondent No. 1 herein was the original tenant and they were occupying four flats and they surrendered a portion of the tenancy namely two flats i.e. Flats Nos. 1 and 2 which came into effect from 1st 965 April, 1978.
The receiver let out these two flats to M/s Tata Finlay Ltd. ( 'Tatas ' for short) with Effect from Febru ary 7, 1979 pursuant to a letter written by Tatas.
Question ing the action of the receiver an application was filed in the High Court contending that the receiver had no authority to create any tenancy and that the receiver has virtually created two new tenancies terminating the original tenancy of Grindlays and it was contended before the learned Single Judge of the Calcutta High Court that neither Grindlays nor Tatas were entitled to occupy the premises and they are liable to be evicted summarily.
The learned Single Judge was not inclined to order summary eviction as prayed for but, however, observed that the respective contentions of the parties as to the validity of the tenancy created in favour of Tatas have not been finally decided by the High Court and that the parties are at liberty to agitate the same grounds in any action that they may be advised to proceed for evic tion of Tatas and Grindlays.
As against the order of the learned Single Judge, an appeal was filed before a Division Bench.
It was contended before the Division Bench that upon surrender of Flats Nos. 1 and 2 by the Grindlays a fresh tenancy was created by the receiver from 1st April, 1978 and the other tenancy in favour of Tatas is beyond the powers of the receiver and that the receiver had no authority to create any tenancy either in favour of Grindlays or Tatas.
Various contentions were raised before the Division Bench and ultimately the Division Bench having considered the several submissions passed an order, the operative portion of which reads as follows: "Therefore, the petitioner is entitled to get a decree for possession on any ground mentioned in Section 13(1) of the said Act and such relief can be obtained in a suit which cannot be filed in this court inasmuch as the premises in question is situated outside the original side jurisdiction of this Court.
" More or less the same contentions are advanced before us.
Firstly it is submitted that the receiver had no right or authority to create any lease or tenancy in respect of the said flats for a term exceeding three years at a time and such creation of a tenancy should be deemed to be only for a period of three years ' terminable on the expiry of the said period.
In this context a further submission is that upon surrender of Flat Nos. 1 and 2 by Grindlays a fresh tenancy was created by the receiver from 1st April, 1978 for which he had no authority.
Therefore, the High Court ought to have ordered summary eviction of Tatas, and Grindlays.
966 It is not in dispute that the tenancy in respect of Flat Nos. 1 and 2 was surrendered by the Grindlays and from 1st April, 1978 Tatas was inducted as tenant in respect of the said two flats at a monthly rent of Rs. 1200 and service charge at the rate of Rs.600 per month and since then Tatas is a monthly tenant in respect of the said two flats.
It is the case of the Tatas that the terms of the tenancy were reduced into writing as recorded in the letter dated 7th February, 1979 and the receiver adopted the same and did not raise any objection thereto, and it claimed to be still a monthly tenant and therefore, they are entitled to protec tion under West Bengal Premises Tenancy Act ( 'Act ' for short) and the appellant has no right to demand vacant possession of the said flats from the Tatas.
The stand taken by the Grindlays is that the premises in question comprised of four flats and they took all the four flats for 10 years on lease from 1st June, 1958.
After the expiry of the period of the said lease relationship between Grindlays and the Trust continued to be that of landlord and tenant governed by the Act, and that in 1977 they agreed to surrender Flat Nos. 1 and 2 by the letters dated 10th March, 1978 and 29th March, 1978 addressed to the receiver in favour of Tatas.
However, at all material times they retained the tenancy in respect of Flat Nos. 3 and 4 and continued to be tenant in respect of those flats and they are also governed by the act.
In the letters written it is also stated by the Grind lays that their continuation as tenant of flat Nos. 3 and 4 was acknowledged by the receiver by his letter dated 15th May, 1978.
It is contended on behalf of the appellant that after the expiry of the lease the receiver had no power to grant a lease for a period exceeding three years without the leave of this Court as envisaged in Chapter 21 Rule 5(a) of the Original side Rules and that in the instant case without obtaining any such leave receiver 's granting monthly tenan cies is illegal.
Reliance was also placed on the injunction order passed by Justice A.N. Sen sitting on original Side while appointing the receiver.
The learned Judge passed an order restraining the tenants from selling or "transferring" any of the properties mentioned in Schedule 'A '.
According to the appellants the transfer includes lease and therefore, the Receiver by creating a new lease i.e. tenancy has vio lated the injunction order and on that ground also the action of the receiver should be held to be illegal.
First we shall dispose of this contention and then advert to the rest.
Order 40 C.P.C. which provides for the appointment of Receivers empowers the court to confer upon the Receivers all such powers, as to bringing and defending suits and for the realization, management, protection, preservation and improvement of the property.
In Satyanarayan Banerji and Ors.
vs Kalyani Prosad Singh Deo Bahadur and Ors., AIR 1945 calcutta 387, a Division Bench held that the object of appointment of 967 Receiver is not to divest the rightful owner of the title but only to protect the property and an appointment might operate to change possession but cannot affect the title to the property, which remains in those in whom it was vested when the appointment was made.
In Ratnasami Pillai vs Sabap athy Pillai and Ors., AIR 1925 Madras 318, it is held that the Receiver has only such powers as expressly granted by the Court.
Relying on these two decisions the learned counsel for the appellants submitted that in the instant case the Re ceiver has acted in such a manner affecting the title to the property and to the detriment of the interest of the right ful owner.
Section 5 of the Transfer of Property Act defines the meaning of 'transfer of property ' and it is in the following terms: "In the following sections "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to him self, or to himself and one or more other living persons and "to transfer property" is to perform such act.
In this Section "living person" includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.
" In Mulla Transfer of Property Act, 7th Edition, page 48, there is a passage in this respect which reads thus: "The word "transfer" is defined with reference to the word "convey".
This word in English Law in its narrower and more usual sense refers to the transfer of an estate in hand; but it is sometimes used in a much wider sense to include any form of an assurance inter vivos.
The definition in Sec.
205(1)(ii) of the Law of Property is "conveyance includes a mortgage, charge, lease, assent, vesting declaration, vest .
ing instrument, disclaimer, release of every other assurance of property or of any interest therein by any instrument except a will.
" This is a special definition adopted for the purposes of the Law of Property Act, 1925.
The word "con veys" in Sec.
5 of the Indian act is obviously used in the wider sense referred to above.
Transferor must have an 968 interest in the property.
He cannot serve himself from it and yet convey it.
" The word 'transfer ' is defined with reference to word 'convey '.
In Hari Mohan alias Hari Charan Pal vs Atal Krishna Bose and Ors., XXIII Vol.
Indian Cases 925, a Division Bench of the Calcutta High Court held that "the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, includes a lease, as a lease is a transfer of an interest in immovable property".
It is, therefore, clear that a lease comes within the meaning of the word 'transfer ' but in this case the matter does not stop there.
According to the learned counsel for the respondents the receiver has not created any new tenancy and the continuation of Grindlays as tenants in respect of Flats Nos. 3 and 4 does not amount to a new lease and, therefore, there is no transfer.
Conse quently there is no violation of the injunction order passed by Justice A.N. Sen. Learned counsel for the respondents.
referred to various documents mostly in the form of letters between the receiver and the Grindlays.
We have perused these letters.
They go to show that the Grindlays surren dered those two flats with the consent of the receiver but the stand taken by them is.
that their continuation as tenants of Flat Nos. 3 and 4 was acknowledged by the receiv er and the same cannot be treated as a new lease.
One of the questions is whether mere surrender of Flats Nos. 1 and 2 affects the Grindlays ' tenancy of Flats Nos. 3 and 4.
It is also contended by the learned counsel for the appellant that after the expiry of the stipulated period the tenancy in question turned to be a monthly tenancy and, therefore, the entire character of tenancy got changed.
In Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd., , a Division Bench consisting of Beaumont, C.J. and Kania, J. explaining the nature of the monthly tenancy observed in the following terms: "A characteristic of a periodical tenancy is that as each period commences, it is not a new tenancy, it is really an accretion to the old tenancy.
A monthly tenancy, that is, a tenancy subject to a month 's notice, creates in the first instance a tenancy for two months certain.
But as soon as the third month commences, that is not a new tenancy; it turns the original tenancy into a three months ' tenancy, and when the fourth month begins, the tenancy becomes a four months ' tenancy, and so on so long as the tenancy 969 continues, until that is to say, notice to quit is given.
" Relying on the above passage the learned counsel contended that the monthly tenancy, therefore, is new tenancy.
Even otherwise, according to the learned counsel the integrity of the tenancy is broken up and on that score also it is a new tenancy.
Reliance is placed on Badri Narain Jha and Ors.
vs Rarneshwar Dayal Singh and Ors.
, ; it is ob served: "An interse partition of the mokarrari interest amongst the mokarraridars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which .possesses certain common rights in the whole and is liable to discharge common obligations in its entirety." In White vs Tyndall, 13 Appeal Cases 263 it is stated that the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay is one rent, not two rents and not each to pay half a rent but one rent.
There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land.
According to the appellant, in the instant case, if this principle is followed, the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies have come into existence paying separate rents and, therefore, in that view also it is a new tenancy.
Yet another submission of the appellant is that the act of the receiver in leasing out in favour of Grindlays and Tatas for a period of more than three years was bad in view of Chapter 21 Rule 5(a) of the Original Side Rules.
Though this point appears to have been abandoned before the Division Bench yet it is also canvassed before us.
Chapter 21 of the Calcutta High Court Original Side Rules deals with Receivers.
Relevant part of the Rule 5 reads thus: "5.
In every order directing the appointment of a Receiver of immovable property, there shall, unless otherwise or dered, be inserted the following directions: (a) that the Receiver shall have all the powers provided for 970 in Order XL, rule 1(d) of the Code, except that he shall not, without the leave of the Court (1) grant leases for a term exceeding three years.
The submission is that the act of the Receiver in leasing out the flats in the above manner beyond three years is in violation of this Rule and in that view of the matter lease should be cancelled and the tenants should summarily be evicted.
Learned counsel for the respondents, on the other hand, submitted that there was no new tenancy and surrender of flats Nos. 1 and 2 by the Grindlays and retaining two more flats does not amount to a new tenancy atleast so far as Grindlays is concerned and a reduction of rent also does not create new tenancy inasmuch as the rent that they had to pay was only for two flats in respect of each their tenancy continue.
In Woodfall 's Law of Landlord and Tenant, 25th Edn.
Page 969, paragraph 2079 reads as under: "2079.
Implied surrender of part only.
If a lessee for years accept a new lease by indenture of part of the lands, it is a surrender for that part only, and not for the whole (k); and though a contract for years cannot be so divided, as to be avoided for part of the years and to subsist for the residue, either by act of the party or act in law; yet the land itself may be divided, and the tenant may surrender one or two acres, either expressly or by act of law, and the lease for the residue will stand good and untouched.
" In Halsbury 's Laws of England, 4th Edn.
Volume 27, paragraph 449 read as under: "449.
Surrender by change in nature of tenant 's occupation.
A surrender is implied when the tenant remains in occupation of the premises in a capacity inconsistent with his being tenant, where, for instance, he becomes the landlord 's employee, or where the parties agree that the tenant is in future to occupy the premsises rent free for life as a licensee.
An agreement by the tenant to purchase the rever sion does not of itself effect a surrender, as the purchase is conditional on a good title being made by the Landlord.
" 971 In Foa 's General Law of Landlord and Tenant, 7th Edition by Judge Forbes, paragraph 991 reads thus: "991.
Lease of part, & c It has been held that acceptance of a new lease of part only of the demised premises operates as a surrender of that part and no more (b); but any ar rangement between landlord and tenant which operates as a fresh demise will work a surrender of the old tenancy, and this may result from an agreement under which the tenant gives up part of the premises and pays a diminished rent for the remainder and it may result from the mere alteration in the amount of rent payable (c).
Where one only of two or more lessees accepts a new lease, it is a surrender only of his share (d).
" In Hill and Redman 's Law of Landlord and Tenant, 16th Edn.
on page 45 1, it is observed: "Any arrangement between the landlord and tenant which operates as a fresh demise will work a surrender of the old tenancy; and this may result from an agreement under which the tenant gives up part of the premises and pays a dimin ished rent for the remainder, provided a substantial differ ence is thereby made in the conditions of the tenancy.
But a surrender does not follow from a mere agreement made during the tenancy for the reduction or increase of rent, or other variation of its terms, unless there is some special reason to infer a new tenancy, where, for instance, the parties make the change in the rent in the belief that the old tenancy is at an end.
" From the above passage it can be inferred that surrender of a part does not amount to implied surrender of the entire tenancy and the rest of the tenancy remains untouched.
We shall now examine the cases cited.
In Konijeti Venkayya and Another vs Thammana Peda Venkata Subbarao and Another, 19, Viswanatha Sastri, J. referred to the above mentioned passage from Woodfall 's Law of Landlord and Tenant and observed that the principle of law is stated correctly.
It can therefore be seen that surrender of the part of the lease does not amount to surrender of the whole.
In N.M. Ponniah Nadar vs 972 Smt.
Kamalakshmi Ammal, AIR 1989 SC 467 it is held: "A mere increase or reduction of rent will not necessarily import a surrender of an existing lease and the grant of a new tenancy.
So also if on account of the variation in the quantum of rent any consequential change is made regarding the time and manner of the payment of the rent it cannot have the effect of graver consequences being imported into the change of rent than what the parties had intended and warrant a finding by the Court, that the parties had intend ed to create a new tenancy in supersession of the earlier one or that by operation of law a new tenancy had come into existence.
" From what has been considered above it emerges that surren der of part of the tenancy does not amount to implied sur render of the entire tenancy.
Likewise the mere increase or reduction of rent also will not necessarily import a surren der of an existing lease and the creation of a new tenancy.
We have noticed above that the transfer includes 'lease '.
Therefore it becomes necessary at this stage to consider whether there has been violation of injunction granted by Justice A.N. Sen which formed part of the appointment order of the Receiver.
So far as the Grindlays are concerned we are unable to accede to the contention that a new tenancy is created.
It is true that Justice A.N. Sen issued an injunction restraining the defendants from selling or transferring any of the properties.
There is some force in the submission of the learned counsel for the appellant that the lease in favour of Tatas amounts to transfer but the same cannot be said of Grindlays.
Therefore the question of evicting them summarily on this ground does not arise.
However, the sub mission of the learned counsel is that even the lease in favour of the Grindlays expired and by creating a monthly tenancy it may even go beyond three years, and therefore it is not only creating a new lease but also is in violation of Rule 5 of the Original Side Rules.
We think we need not deal with this question elaborately in view of the main and important question regarding the applicability of the provi sions of the Act.
However, we have already considered and held that no new tenancy is created so far Grindlays are concerned.
Regarding the contention of infraction of Rule 5 it must be noted that the tenancy continued as monthly tenancy and it cannot be said that the Receiver has created tenancy for a period exceeding three years and as observed in Utility 's case it is an accretion to the old tenancy and not a new 973 tenancy.
Merely because there is change in a tenancy namely that it has become a monthly tenancy, it does not amount to a new tenancy as contended by the appellant so far as Grind lays are concerned.
It is also submitted on behalf of the Grindlays that no new lease has been created by the Receiver and they come within the meaning of 'tenants ' and therefore they cannot be evicted except as provided under the provisions of the Act.
Section 2(h) of the Act reads thus: "tenant" means any person by whom or on whose account or behalf, the rent of any premises is, or but for a special contract would be, payable and includes any person continu ing in possesion after the termination of his tenancy or in the event of such person 's death, such of his heirs as were ordinarily residing with him at the time of his death but shall not include any person against whom any decree or order for eviction has been made by a Court of competent jurisdiction.
" In Darnadilal and Others vs Parashram and Others, Section 2(i) of the Madhya Pradesh Accommoda tion Control Act, 1961 which is analogous to Section 2(h) of the Act has been considered and it is held: "Tenancy has its origin in contract.
There is no dispute that a contractual tenant has an estate or property in the subject matter of the tenancy, and heritability is an inci dent of the tenancy.
It cannot be assumed, however, that with the determination of the tenancy the estate must neces sarily disappear and the statute can only preserve his status of irremovability and not the estate he had in the premises in his occupation.
" It is also further observed that: "The definition makes a person continuing in possession after the determination of his tenancy a tenant unless a decree or order for eviction has been made against him, thus putting him on par with a person whose contractual tenancy still subsists." In Biswabani (P) Ltd. vs Santosh Kumar Dutta and Ors.
, ; it is observed that: 974 "If thus the appellant was already in possession as a tenant of the premises an unsuccessful attempt to create a fresh lease would not change the nature of his possession as from a tenant to one in part performance under a void lease.
The appellant continues to be in possession as tenant merely because the appellant and respondents 1 and 2 attempted to enter into a fresh lease which did not become effective.
" Their Lordships referred to a passage in Woodfall on 'Land lord and Tenant ' Vol. 1, 27th Edn.
page 187 para 446 which reads thus: "Moreover, if the tenant enters into possession under a void lease, he thereupon becomes tenant from year to year upon the terms,of the writing, so far as they are applicable to and not inconsistent with a yearly tenancy.
Such tenancy may be determined by the usual notice to quit at the end of the first or any subsequent year, and it will determine, without any notice to quit, at the end of the term mentioned in the writing.
But if the lessee does not enter he will not be liable to an action for not taking possession; nor will an action lie against the lessor for not giving possession at the time appointed for the commencement of the term but before the lease is executed.
" In an unreported judgment of the Calcutta High Court in Smt.
Ashrafi Devi and Anr.
vs Satyapal Gupta & Ors., Suit No. 966/58 dated 9th Sept., 1977 Justice Sabyasachi Mukharji, as he then was, dealt with the question of cancelling the tenancy of lease created in respect of a room and kitchen by the Official Receiver.
In that case it was found that the Official Receiver violating the order of the injunction granted lease which the Court found it to be illegal.
Then the learned Judge proceeded further to consider whether such an illegality can be rectified in the proceedings before the Court and it was held that "Therefore, by acting in viola tion of the order of the court, no right, in my opinion, can be created in favour of a third party.
Indeed the court has not acted.
The action was in breach of the order of the court.
" The learned counsel for the appellant relied on this judgment in support of his submission that the lease in the instant case created by the Official Receiver is also ille gal.
From the facts of that case we find a clear injunction order was passed specially restraining the Receiver from creating any new tenancy and in gross violation of that order.
But, in the instant case, the facts are different.
The injunction granted 975 by A .N.
Sen, J. does not apply to the tenancy in favour of Grindlays in respect of flats Nos. 3 and 4 inasmuch as it is an old tenancy though in a modified form.
In Ashrafi Devi 's, case as a matter of fact, the learned Judge observed: "There was no question of the lease being given without the power by the Receiver or in derogation or in violation of the order of the court.
The lease within the competency of a Receiver cannot be impeached or affected in the summary manner as was contended.
" We have already noted that the Grindlays were the tenants in respect of the four flats.
They surrendered two flats.
This partial surrender does not put an end to the tenancy and we are satisfied that in respect of the Grindlays no new tenan cy is created by the Receiver and they continued to be the tenant and they are entitled to the protection under the Act.
Shri Vaidyanathan, learned counsel appearing for one of the respondents, relying on the Full Bench decision of the Madras High Court in Arumugha Gounder vs Ardhanari Mudaliar and Others, AIR 1975 Madras 23 1 contended that the protec tion under the Act cannot be extended to the tenant of a Receiver.
In that case the tenant was let into possession of a land by Receiver appointed by the Court pending the suit.
The question was whether the provisions of Tamil Nadu Culti vating Tenants Protection Act, 1955 can be extended to such a tenant.
It was observed in para 6 that: "So then the act of the Receiver in letting out the land in the suit is an act of the Court itself and it is done on behalf of the Court, the whole purpose of the Court taking possession through the Receiver appointed by it is to pro tect the property for the benefit of the ultimate successful party.
If that is the essence and purpose of appointment of a Receiver, as we hold it is, it will be difficult to agree that by a literal application of the Tamil Nadu Cultivating Tenants Protection Act, it could be put beyond the reach of the Court to give relief to the successful party entitled to possession." Before arriving at this conclusion, the Full Bench, as a matter of fact, also observed in para 3: 976 "If literal application of the Tamil Nadu Cultivating Ten ants Protection Act is made, it may prima facie appear that a tenant let into possession by a Receiver would be entitled to statutory protection under the Act.
A cultivating tenant in relation to any land has been defined to mean a person who carries on personal cultivation on such land under a tenancy agreement, express, or implied.
A "landlord" in relation to a holding or part thereof is defined to mean a person entitled to evict a cultivating tenant from such holding or part.
A tenant let into possession by a Receiver appointed by Court literally appears to satisfy the defini tion of "cultivating tenant" and the Receiver, the defini tion of "Landlord" because the former carried on personal cultivating under a tenancy agreement.
" The Full Bench however took the view that the Receiver appointed by the Court acts as an Officer of the Court and he cannot create a lease which takes the pending matter beyond the purview of the Court and anyone who gets posses sion through such an act could only do so subject to the directions and orders of the Court.
In our view the princi ple laid down by the Full Bench does not apply to the facts in the instant case atleast to the case of Grindlays as in our view on new tenancy is created in their favour.
Even by the time the Receiver was appointed the Grindlays were the tenants in respect of the four flats and they continued to be so.
It is only later after due correspondence that they made a partial surrender and those two flats were let out to Tatas after due negotiations in respect of the rent.
Grind lays ' affidavit shows that they have also sent rent by way of Bank pay orders and they have been received by the Land lord.
It is only for the first time on 26.7.88 that the tenant was informed to stop the payment of rent.
Further the receiver has not acted in any manner affecting the title.
Now coming to the case of Tatas we agree with the High Court that it is a new tenancy.
Such a lease comes within the meaning of 'transfer ' and in view of the injunction order passed by A.N. Sen, J. creation of such a new tenancy is legally barred.
In Kerr on Receivers, 12th Edn.
at p. 154 it is observed: "The receiver does not collect the rents and profits by virtue of any estate vested in him, but by virtue of his position as an officer of the Court appointed to collect property upon the title of the parties to the action.
977 In appointing a receiver the Court deals with the possession only until the right is determined, if the right be in dispute.
" It is also useful to note a passage from Sir John Woodroffe book "on Receivers": "The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis for the benefit of whoever may be ultimately determined to be entitled thereto." In Kanhaiyalal vs Dr. D.R. Banali, ; at p. 729 it was observed: "A receiver appointed under 0.40 of the Code of Civil Proce dure, unlike a receiver appointed under the insolvency Act, does not own the property or hold any interest therein by virtue of a title.
He is only the agent of the Court for the safe custody and management of the property during the time that the Court exercises jurisdiction over the litigation in respect of the property." In such a situation the question is whether the Tatas can invoke the benefit of the provisions of the Act.
In Smt.
Ashrafi Devi 's case this is precisely the question that is decided, and we have already referred to some of the obser vations made therein.
Justice Sabyasachi Mukharji held further: "On behalf of the transferee of the said property, it was contended that the West Bengal Tenancy Premises Act, 1956 protects such transferee.
If however, a valid lease or a tenancy had been created then of course, such a lease or a tenant would be protected but that, in my opinion, begs the question.
Secondly, it was contended that no party should be made to suffer because of an Act of the Court, I have not been able to appreciate this contention.
The court specifi cally prevented the transfer or creation of the tenancy.
The tenancy which is created was in derogation and in violation of the order of the court.
Therefore, by acting in violation of the order of the court, no right, in my 978 opinion, can be created in favour of a third party.
Indeed, the court has not acted.
The action was in breach of the order of the court.
" Similarly as observed in Arumugha Gounder 's case any such act of the Receiver done on behalf of the Court pen dente lite and anyone who gets possession through such an act could only do so subject to the directions and orders of the Court.
If we apply the above principles to the case of Tatas the tenancy created in their favour by the Receiver is in violation and contrary to the injunction order and such an act is subject to the directions and orders of the Court appointing the Receiver.
Therefore the tenancy created in favour of the Tatas was in breach of the order of the court and consequently the Tatas cannot claim any protection under the provisions of the Act and they are liable to be evicted.
In the counter affidavit filed on their behalf, it is no doubt stated that they were inducted into possession and even sending the cheques.
The case of the appellant is that cheques were never encashed.
In any event as observed above, the new tenancy created in their favour contrary to the orders of the Court does not create a fight and is liable to be cancelled.
Consequently the provisions of the Act cannot be invoked by them.
The appeal is therefore dismissed as against respondent No. 1 Grindlays and allowed as against respondent No. 2 Tatas.
In the circumstances of the case, parties are directed to bear their own costs.
R.S.S. Appeal dis missed. | The appellant had filed a suit in the High Court of Calcutta for a declaration that the properties set out in the schedule belonged to a joint family and that the trust created by the father of the plaintiff/appellant in respect of the said properties was void.
Pending the suit, a Receiv er was appointed by Justice A.N. Sen.
While making the appointment the learned Judge had passed an order restrain ing the Receiver from selling or ' 'transferring ' ' any of the properties.
The property in dispute is a building at Alipore, Calcutta, which comprised of four fiats.
Grindlays Bank Ltd., respondent No. 1, had taken all the four flats on lease for 10 years from 1st June, 1958.
After the expiry of the period of lease, Grindlays continued to be the tenant.
On 1st April, 1978 Grindlays surrendered a portion of the tenancy, namely, two fiats i.e. fiats Nos. 1 and 2, in favour of Tatas.
The Receiver let out these two fiats to M/s Tata Finlay Ltd. with effect from February 1979.
Questioning the action of the Receiver, an application was filed in the High Court contending that the Receiver had no authority to create 962 any tenancy, that he had virtually created two new tenancies after terminating the original tenancy of Grindlays, and that neither Grindlays nor Tatas was entitled to occupy the premises and they were liable to be evicted summarily.
The learned Single Judge was not inclined to order summary eviction as prayed for.
An appeal was filed before the Division Bench.
The Division Bench inter alia observed that any such relief could be obtained in a suit but the same could not be filed in the High Court inasmuch as the per mises in question was situated outside the Original Side Jurisdiction of the High Court.
Before this Court it was contended on behalf of the appellant that (i) the Receiver had only such powers as were expressly granted by the Court; (ii) "transfer" included lease and therefore the Receiver by creating a new lease i.e. tenancy, had violated the injunction order passed by Justice A.N. Sen; (iii) after the expiry of the stipulated period of lease in favour of Grindlays, the tenancy turned to be a monthly tenancy and therefore the entire character of tenancy changed, and the monthly tenancy therefore was a new tenancy; (iv) protection under the West Bengal Premises Tenancy Act could not be extended to the tenant of a Receiv er; (v) the break up of the tenancy affected the integrity of the tenancy inasmuch as by virtue of this break up two new tenancies had come into existence; and (vi) the lease in favour of Grindlays had expired and by creating a monthly tenancy which may even go beyond three years, the Receiver had created a new lease in violation of Chapter 21 Rule 5(a) of the Original Side Rules.
In reply, it was contended on behalf of Tatas that a monthly tenancy in respect of the said two flats had been created in their favour and therefore they were entitled to protection under the Tenancy Act.
On behalf of Grindlays it was contended that after the expiry of the period of the original lease in 1968, rela tionship between Grindlays and the Trust continued to be of landlord and tenant; that at all material times they re tained the tenancy in respect of flats Nos. 3 and 4, and were governed by the Tenancy Act; that the surrender of flats Nos. 1 and 2 by the Grindlays and their continuation as tenants at reduced rent did not amount to a new lease in respect of flats Nos. 3 and 4, and hence there was no trans fer and no violation of the injunction.
Dismissing the appeal as against respondent No. 1 and allowing it against respondent No. 2, this Court, HELD: (1) In the Transfer of Property Act, the word 'trans fer ' is 963 defined with reference to the word 'convey '.
Similarly, the term 'transfer ' as used in Section 11 or Section 88 of the Bengal Tenancy Act, included a lease, as a lease is a trans fer of an interest in immovable property.
A lease, there fore, comes within the meaning of the word 'transfer ' [968A B] Hari Mohan alias Hari Charan Pal vs Atal Krishana Bose & Ors., XXIII Vol.
Indian Cases 925, referred to.
(2) Surrender of part of the tenancy did not amount to implied surrender of the entire tenancy.
Likewise the mere increase or reduction of rent also would not necessarily import a surrender of an existing lease and the creation of a new tenancy.
[972C D] Konijeti Venkayya & Anr.
vs Thammana Peda Venkata Subba rao & Anr.
AIR 1957 A.P. 619 and N.M. Ponniah Nadar vs Smt.
Kamalakshmi Ammal, AIR 1989 S.C. 467, referred to.
(3) The Tenancy in favour of Grindlays continued as monthly tenancy for a period exceeding three years.
It was an accretion to the old tenancy and not a new tenancy It could not therefore be said that the Receiver had created tenancy for a period exceeding three years in violation of Chapter 21 Rule 5(a) of the Original Side Rules.
Merely because there was change in the character of a tenancy, namely that it had become a monthly tenancy, it did not amount to a new tenancy.
[972G H] Utility Articles Manufacturing Co. vs Raja Bahadur Motilal Bombay Mills Ltd., , referred to.
(4) A clear injuction order was passed by Justice A.N. Sen specifically restraining the Receiver from creating any new tenancy.
But the injunction did not apply to the tenancy in favour of Grindlays in respect of fiats Nos. 3 and 4 inasmuch as it was an old tenancy though in a modification form.
The Grindlays were therefore entitled to the protec tion under the provisions of the Tenancy Act.
[974G H; 975A, C] Damadilal & Ors.
vs Parshram & Ors., [1976] Supp.
SCR 645 and Biswabani (P) Ltd. vs Santosh Kumar Dutta, ; , referred to.
Ashrafi Devi & Anr.
vs Satyapal Gupta & Ors., Suit No. 966 58 dated 9th Sept. 1977.
Calcutta High Court and Armugha Gounder vs Ardhanari Mudaliar & Ors., , distinguished.
964 (5) In the case of Tatas, it was a new tenancy.
Such a lease came within the meaning of 'transfer ' and in view of the injunction order passed by Justice A.N. Sen, creation of such a new tenancy was legally barred.
Consequently the Tatas could not claim any protection under the provisions of the Act and were liable to be evicted.
[978C] Kanhaiyalal vs Dr. D.R. Banaji, ; at p. 729; Smt.
Ashrafi Devi & Anr.
vs Satyapal Gupta & Ors., (supra) and Armugha Gounder vs Ardhanari Mudalier, (supra), referred to. |
ivil Appeal No. 1416 of 1975.
From the Judgment and Order dated 2.12.
1974 of the Madhya Pradesh High Court in M.P. No. 565 of 1974.
Sakesh Kumar and S.K. Agnihotri for the Appellants.
S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Respondents.
J. This is an instance of how a resourceful mind can find ingenious method to circumvent the law.
The first respondent in this case is the Home Decorators & Finance (P) Ltd. of which the second respondent is the Managing Director.
The appellant Government collects enter tainment tax under the Entertainment Duty and Advertisement Tax Act, 1936 (hereinafter referred to as the 'Act ') from the organisers of the entertainment programmes whenever the entries to such programmes are charged.
The entertainment tax is recovered at the rate of 36 per cent of the fee charged.
In order to evade this tax, the respondents evolved a stratagem and organised two 1002 performances called "Mahendar Kapoor Nite" in a local audi torium, namely, Manas Bhawan Hall Wright Town Jabalpur, on 7th and 8th July, 1974.
Although the Articles and the Memo randum of Association of the 1st Respondent did not permit them to do so, with a view both to bring the said programmes within the scope of the Articles of Association and to evade the payment of the tax, the respondents issued advertise ments of the programmes in a local newspaper giving out that the programmes were being arranged to encourage savings.
The scheme was that all those who wanted to attend the programme will become members of a group which they called "Nav Nirman Group" by paying an admission fee of Rs.2 which was non refundable and a membership subscription of Rs. 10 which was refundable after 10 years.
The advertisements also stated that since there was an overwhelming demand, the performance would be staged on two dates, namely, the 7th and 8th July, 1974 and that the membership forms would be available at the site on the dates concerned and that the entry to the pro gramme would be strictly on the production of the invitation card as well as the membership card.
It appears that on July 7, 1974 and July 8, 1974, as many as 3189 and 4649 gullible persons respectively fell victims, and paid both the admis sion fee as well as the membership subscription.
The re spondents collected both the membership forms as well as the receipts for payment from the said persons at the time of giving them the entry to the programme.
The result was that the persons concerned were left neither with the membership form nor with the receipts for the money they had paid.
Needless to say that although the promise was that such performances would be repeated for 10 years hence, and the members concerned would have an entry to the programmes on the basis of the membership cards, neither the membership cards were issued, nor the admission fee or the membership subscription were returned to the members, nor the perform ances were staged.
In effect, the respondents made good with the money they had collected ostensibly for promoting sav ings.
Thus both the members of the public were defrauded of their moneys as well the State Government of their taxreve nue.
The District Excise Officer who was also the Enter tainment Tax Collector under the said Act, sensing the ploy had, however, taken precaution to check, on both the said dates, the receipts and the amounts received by the respond ents and had dexterously prepared a panchnama at the spot.
He determined the amount of tax recoverable on the said collections, and issued to the respondents two separate 1003 notices on July 9, 1974 demanding the tax along with the dutysurcharge thereon for the collections made on 7th and 8th July, 1974 respectively.
The total amount so demanded by both the notices was Rs.35,429.76.
The respondents challenged the notices by a writ petition under Article 226 of the Constitution before the High Court.
The High Court by the impugned decision held that the assessment of the tax made by the Officer was arbitrary because, firstly, there was no allegation that the invitation cards which were issued were sold, and secondly, the subscription fee of Rs. 10 recovered from each member was not divided by 10 which it was necessary to do, for the entertainment tax could be collected only on Re. 1 per year for the next 10 years.
The High Court, therefore, allowed the writ petition and quashed the notices.
It also appears that the respondents had paid Rs.5,000 in part payment of the amount demanded under the notices.
The High Court, therefore, also directed the appellants to refund the said amount as being "exacted" from the respondents.
We are afraid ,.
the High Court completely missed the crucial point and, therefore, mis directed itself.
The admitted facts as stated above were that the respondents had collected in all Rs. 12 from each of the members out of which Rs.2 were non refundable being the so called admission fee and Rs. 10 were refundable only after 10 years.
The "members" were not issued the membership cards nor were they left either with any trace of their membership forms or receipts for the payments they had made.
Instead they were handed over entrance slips during interval which were col lected at the door.
The result was that even if the "mem bers" were to claim an entry for programmes, if any in future, they would not have been able to do so.
As it hap pened further, in fact, no programmes were ever staged at any time thereafter.
The so called 'Nav Nirman Group" did not have any legal existence.
It was an amorphous body.
The rules and regulations framed for the said body further showed some interesting features as follows: "For the purpose of Prizes there shall be Five Sub groups of one lakh members each.
After every Sub group of one lakh members there shall be total 4280 prizes divided into 20 half yearly draws and valuing total amount of Rs.5 lakhs.
The date of the First Draw will be announced through News papers.
Every member, irrespective of whether he has received any 1004 prize(s) or not shall be entitled to the refund of his deposit of Rs. 10 after the maturity of the duration of the group, i.e., 10 years, along with a bonus of Rs.2 on surren der of the official Receipt cum Membership Evidence issued by the Company.
Duration of the Group shall be commenced from the date of the 1st Draw.
x x x x x x For the purposes of Bumper Draw there shall be 50 SubGroups of 10,000 continued members each and after every such sub group there shall carry various valuable prizes to the tune of about Rs.2,50,000.
Members of incomplete subgroup of 10,000 continued members shall be given an extra bonus of Rs.25 in the shape of articles, the list of which shall be declared nearing maturity of the Group, instead of partici pating in Bumper Draw.
X X X X X X Every member will be issued a receipt while being admitted as a member and the number of such receipt shall be his membership Number also.
No separate pass book will be is sued.
The receipt itself shall be treated as final and conclusive evidence of membership.
X X X X X X After the completion of 1st sub group one lakh members the First Draw shall be conducted, but in case total membership of the sub group does not attain the target necessary to form the sub group before date of the draw (which shall be announced through Newspapers) then the remaining membership number of the sub group shall be treated as the Company 's membership numbers and any prize/benefit accruing through these numbers as a result of the draw shall remain the Company 's property.
The Company may allot such membership numbers subsequently to the new applicants for the remaining period with the subsequent benefits only.
The same rule shall apply to every further sub group of one lakh members.
X X X X X X 1005 Membership of the Group for 10 years and cannot be cancelled or withdrawn by the member before maturity of the Group.
Prizes and Film Star show are added incentive and not Part of the Scheme and are not binding on the Company under circumstance beyond control.
X X X X X X The management may change any article of the declared prize looking to the time and circumstances prevailing at the time of the particular draw.
X X X X X X The management of the Company reserves the right to add, alter, or amend the rules and regulations as and when neces sary for the efficient and proper conduCt of the group as well as in compliance with the Government rules and regula tions which may come in force hereafter and the same shall be binding on all the members.
" It will be apparent from the Scheme that it was not meant for promoting music.
It was a pure business preposition meant to collect money and earn profits, and it was to be used as a device to evade the entertainment duty.
The re ceipts and/or the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door.
In the circumstances, whatever be the description given to the receipts/cards they were liable to the enter tainment duty.
The impugned notices were, therefore, proper ly issued by the appellants.
We are, therefore, unable to accept the reasoning of the High Court that Rs. 10 collected by the respondents were the membership subscription or that the duty could not have been collected at a time on Rs. 10.
Hence, we allow the appeal and set aside the impugned decision with costs.
T.N.A. Appeal allowed. | The respondents organised two music programmes by formu lating an ostensible savings scheme under which the entry to the programme was open to persons on becoming members of the scheme by paying an admission fee of Rs.2, non refundable, and membership subscription of Rs. I0, refundable after 10 years.
The entry to the programme was strictly on the pro duction of invitation card as well as membership card.
Many persons paid the admission fee and the membership subscrip tion.
At the time of giving entry to the programme, the respondents collected the membership forms and money re ceipts from the persons concerned as a result of which they were left neither with membership form nor with the money receipts.
Although the promise was that such programmes would be repeated for 10 years yet no such performances were arranged.
The result was that members of the public were defrauded of their money and the State Government of its tax revenue.
The Entertainment Tax Collector checked the receipts of the respondent on both the dates of performances and accord ingly issued notices to them demanding the tax and the duty surcharge thereon under the Madhya Pradesh Entertain ments Duty and Advertisement Tax Act, 1936.
The respondents challenged the validity of the notices by filing a writ petition in the High Court which allowed the petition and quashed the notices by holding that the assessment of tax was arbitrary because (i) there was no allegation that the invitation cards were sold; and (ii) 1001 membership subscription of Rs. I0 was not divided by 10 since the entertainment tax could be collected only on Re. 1 per year for the next 10 years.
Hence this appeal by the State.
Allowing the appeal and setting aside the decision of the High Court.
this Court.
HELD: The Scheme was not meant for promoting music.
It was a pure business preposition meant to collect money and earn profits.
and it was to be used as a device to evade the entertainment duty.
The receipts and the invitation cards were nothing but tickets for the show and only for one show, and were collected at the door.
Therefore.
whatever be the description given to the receipts or cards they were liable to the entertainment duty.
The impugned notices were proper ly issued by the appellants.
Since the High Court completely missed the crucial point and, therefore, mis directed it self, it is not possible to accept its reasoning that Rs. 10 collected by the respondents were the membership subscrip tion or that tile duty could not have been collected at a time on Rs. 10.
[1005E F; 1003D] |
ivil Appeal No. 2581 of 1986.
Appeal by Certificate from the Judgment and Order dated 15.10.1985 of the Bombay High Court in Appeal No. 547 of 1984.
WITH Civil Appeal No. 855 of 1987.
220 From the Judgment and Order dated 8.12.1986 of the Industrial Court, Maharashtra, Bombay in Complaint (ULP) No. 1202 of 1984.
Ashok Desai, Attorney General, G.B. Pai, J. Ramamurthy, Jitendra Sharma, B.N. Dutt, H.S. Parihar, Vipin Chandra, R.F. Nariman, P.H. Parekh, N.K. Sahu, Mrs. Urmila Sirur and Raj Birbal for the appearing parties.
The Judgment of the Court was delivered by SAWANT, J.
These are two appeals involving a common question of law, viz., whether an employer has a right to deduct wages unilaterally and without holding an enquiry for the period the employees go on strike or resort to go slow.
In CA No. 2581 of 1986 we are concerned with the case of a strike while in the other appeal, it is a,case of a go slow.
By their very nature, the facts in the two appeals differ, though the principles of law involved and many of the au thorities to be considered in both cases may be the same.
For the sake of convenience, however, we propose to deal with each case separately to the extent of the distinction.
Civil Appeal No. 2581 of 1986 2.
The appellant in this case is a nationalised bank, and respondents 1 and 2 are its employees whereas respond ents 3 and 4 are the Unions representing the employees of the Bank.
It appears that some demands for wage revision made by the employees of all the banks were pending at the relevant time, and in support of the said demands the All India Bank Employees ' Association had given a call for a countrywide strike.
The appellant Bank issued a circular on September 23, 1977 to all its managers and agents to deduct wages of the employees who would participate in the strike for the days they go on strike.
Respondents 3 and 4, i.e., the employees ' Unions gave a call for a four hours strike on December 29, 1977.
Hence, the Bank on December 27, 1977 issued an Administrative Circular warning the employees that they would be committing a breach of their contract of service if they participated in the strike and that they would not be entitled to draw the salary for the full day if they did so, and consequently, they need not report for work for the rest of the working hours on that day.
Notwithstand ing it, the employees went on a four hours strike from the beginning of the working hours on 29th December 1977.
There is no dispute that the banking hours for the public covered the said four hours.
The employees, however, resumed 221 work on that day after the strike hours, and the Bank did not prevent them from doing so.
On January 16, 1978, the Bank issued a Circular directing its managers and agents to deduct the full day 's salary of those of the employees who had participated in the strike.
The respondents filed a writ petition in the High Court for quashing the circular.
The petition was allowed.
The Bank preferred a Letters Patent Appeal in the High Court which also came to be dismissed.
Hence, the present appeal.
The High Court has taken the view, firstly, that neither regulations nor awards nor settlements empowered the Bank to make the deductions, and secondly, in justice, equity and good conscience the Bank could not by the dictate of the impugned circular attempt to stifle the legitimate weapon given by the law to the workers to ventilate their griev ances by resorting to strike.
The High Court further took the view that since strikes and demonstrations were not banned in the country and despite the inconvenience that they may cause, they were recognised as a legitimate form of protest for the workers, the circular acted as a deterrent to the employees from resorting to a legally recognised mode of protest.
According to the High Court, the circular even acted as an expedient to stifle the legitimate mode of protest allowed and recognised by law.
The deduction of the wages for the day according to the Court amounted to unilat erally changing the service conditions depriving the workers of their fixed monthly wages under the contract of service.
The Court also reasoned that under the conditions of serv ice, wages were paid not from day to day or hour to hour but as a fixed sum on a monthly basis.
The contract between the Bank and the workers being not a divisible one, in the absence of a specific term in the regulations, awards and settlements, the Bank could not unilaterally reduce the monthly wage and thus give the employees lesser monthly wages than the one contracted.
The non observance by the employees of the terms of the contract may give the employer a cause of action and a right to take appropriate remedy for the breach, but the employer was not entitled to deduct any part of the wages either on a pro rata basis or otherwise.
The High Court further opined that the Bank was not without a remedy and the employees cannot hold the bank to ransom.
The Bank could get the four hours strike declared illegal by recourse to the machinery provided by law or put the erring workers under suspension for minor misconduct under Regula tion 19.7, hold an enquiry and if found guilty, impose punishment of warning, censure, adverse remarks or stoppage of increment for not more than six months as prescribed by Regulation 19.8.
The High Court also rejected the contention of the Bank that the Bank was entitled to make 222 deductions under Section 7(2) of the by holding that the provision enabled the employer to deduct wages only if the Bank had power under the contract of employment.
The principal question involved in the case, accord ing to us, is, notwithstanding the absence of a term in the contract of employment or of a provision in the service rules or regulations, whether an employer is entitled to deduct wages for the period that the employees refuse to work although the work is offered to them.
The deliberate refusal to work may be the result of various actions on their part such as a sit in or stay in strike at the work place or a strike whether legal or illegal, or a go slow tactics.
The deliberate refusal to work further may be legal or illegal as when the employees go on a legal or illegal strike.
The legality of strike does not always exempt the employees from the deduction of their salaries for the period of strike.
It only saves them from a disciplinary action since a legal strike is recognised as a legitimate weapon in the hands of the workers to redress their griev ances.
It appears to us that this confusion between the strike as a legitimate weapon in the hands of the workmen and the liability of deduction of wages incurred on account of it, whether the strike is legal or illegal, has been responsible for the approach the High Court has taken in the matter.
It is necessary to clear yet another misconception.
There is no doubt that whenever a worker indulges in a misconduct such as a deliberate refusal to work, the employ er can take a disciplinary action against him and impose on him the penalty prescribed for it which may include some deduction from his wages.
However, when misconduct is not disputed but is, on the other hand, admitted and is resorted to on a mass scale such as when the employees go on strike, legal or illegal, there is no need to hold an inquiry.
To insist on an inquiry even in such cases is to pervert the very object of the inquiry.
In a mass action such as a strike it is not possible to hold an inquiry against every employee nor is it necessary to do so unless, of course, an employee contends that although he did not want to go on strike and wanted to resume his duty, he was prevented from doing so by the other employees or that the employer did not give him proper assistance to resume his duty though he had asked for it.
That was certainly not the situation in the present case in respect of any of the employees and that is not the contention of the employees either.
Hence, in cases such as the present one, the only question that has to be considered is whether, when admittedly the employees refuse to work by going on strike, the employer is entitled to deduct wages for the relevant period or not.
We 223 thought that the answer to this question was apparent enough and did not require much discussion.
However, the question has assumed a different dimension in the present case be cause on the facts, it is contended that although the em ployees went on strike only for four hours and thereafter resumed their duties, the Bank has deducted wages for the whole day.
It is contended that in any case this was imper missible and the Bank could at the most deduct only pro rata wages.
Normally, this contention on the part of the workers would be valid.
But in a case such as the present one, where the employees go on strike during the crucial working hours which generate work for the rest of the day, to accept this argument is in effect to negate the purpose and efficacy of the remedy, and to permit its circumvention effectively.
It is true that in the present case when the employees came back to work after their four hours strike, they were not prevented from entering the Bank premises.
But admittedly, their attendance after the four hours strike was useless because there was no work to do during the rest of the hours.
It is for this reason that the Bank had made it clear, in advance, that if they went on strike for the four hours as threatended, they would not be entitled to the wages for the whole day and hence they need not report for work thereafter.
Short of physically preventing the employ ees from resuming the work which it was unnecessary to do, the Bank had done all in its power to warn the employees of the consequences of their action and if the employees, in spite of it, chose to enter the Bank 's premises where they had no work to do, and in fact did not do any, they did so of their own choice and not according to the requirement of the service or at the direction of the Bank.
In fact, the direction was to the contrary.
Hence, the later resumption of work by the employees was not in fulfilment of the con tract of service or any obligation under it.
The Bank was therefore not liable to pay either full day 's salary or even the pro rata salary for the hours of work that the employees remained in the Bank premises without doing any work.
It is not a mere presence of the workmen at the place of work but the work that they do according to the terms of the contract which constitutes the fulfilment of the contract of employ ment and for which they are entitled to be paid.
It is also necessary to state that though, before the High Court, reliance was placed by the Bank on the provi sions of Section 7(2)(b) read with Section 9 of the for a right to deduct the wages for absence from duty, there is nothing on record to show that the provisions of the said Act have been made applicable to the Bank.
However, assuming that Act was applicable to the Bank, we are of the opinion that the relevant discussion of the 224 High Court has missed the contentions urged by the Bank on the basis of the said provisions.
What was urged by the Bank was that the said provisions enabled it to deduct wages for absence from duty.
Hence, even if the Service rules/regula tions were silent on the point, the Bank could legally deduct the wages under the said provisions.
The High Court has reasoned that the power given by the said provisions come into play only when the employer has power to do so, probably meaning thereby, the power under the Service rules/regulations.
We are unable to appreciate this reason ing, which to say the least, begs the question.
It is, therefore, necessary to point out that if the Act was ap plicable, the Bank would certainly have had the power to deduct the wages under the said provisions in the absence of any service rule regulation to govern the situation.
Since the admitted position is that the service rules do not provide for such a situation, the question as stated earlier which requires to be answered in the present case, is whether there exists an implied right in the employer Bank to take action as it has done.
There is no dispute that although the service regulations do not provide for a situa tion where employees on a mass scale resort to absence from duty for whole day or a part of the day whether during crucial hours or otherwise, they do provide for treating an absence from duty of an individual employee as a misconduct and for taking appropriate action against him for such absence.
Since the High Court has indicated a disciplinary action under the said provision even in the present circum stances, we will also have to deal with that aspect.
But before we do so, we may examine the relevant authorities cited at the Bar. 8.
In Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd., ; the facts were that on 1st November, 1948 the night shift operatives of the carding and spinning department of the appellant Mills stopped work, some at 4 p.m., some at 4.30 p.m. and some at 5 p.m. and the stoppage ended at 8 p.m. in both the departments, and at 10 p.m. the strike ended completely.
The apparent cause for the strike was that the management of the Mills had expressed its inability to comply with the request of the workers to declare the forenoon of the 1st November, 1948 as a holiday for solar eclipse.
On 3rd November, 1948, the management put up a notice that the stoppage of work on the 1st November amounted to an illegal strike and a break in service within the meaning of the Factories Act and that the management had decided that the workers who had partici pated in the said strike would not be entitled to holidays with pay as provided by the Act.
The disputes having thus arisen, 225 the State Government referred the matter to Industrial Tribunal.
The Tribunal held that the workers had resorted to an illegal strike and upheld the view of the management that the continuity of service of the workers was broken by the interruption caused by the illegal strike and as a result the ' workers were not entitled to annual holidays with pay under Section 49 B(1) of the Factories Act.
The Tribunal, however, held that the total deprivation of leave with pay was a severe punishment and reduced the punishment by 50 per cent and held that the workers would be deprived of only half their holidays with pay.
In the appeal before the then Labour Appellate Tribunal, the Tribunal held, among other things, that what happened on the night of the 1st November did not amount to a strike and did not cause any interrup tion in the workers ' service.
The Tribunal observed that "It would be absurd to hold that non permitted absence from work even for half an hour or less in the course of a working day would be regarded as interruption of service of a workman for the purpose of the said section (i.e., Section 49 B(1) of the Factories Act).
We are inclined to hold that the stoppage of work for the period for about 2 to 4 hours in the circumstances of the ease is not to be regarded as a strike so as to amount to a break in the continuity of service of the workman concerned".
In the result, the Tribu nal allowed the Union 's appeal and ordered that holidays at full rates as provided for in Section 49 A of the Factories Act will have to be calculated on the footing that there was no break in the continuity of service.
This Court set aside the finding of the Appellate Tribunal by holding that it could not be disputed that there was a cessation of work by a body of persons employed in the Mills and that they were acting in combination and their refusal to go back to work was concerted, and the necessary ingredients of the defini tion of "strike" in Section 2 (q) of the Industrial Disputes Act existed and it was not a ease of an individual worker 's failure to turn up for work.
Hence, it was an illegal strike because no notice had been given to the management, the Mills being a public utility industry.
In Secretary of State for Employment vs Associated Society of Locomotive Engineers and Firemen and Ors.
(No. 2), , Lord Denning MR observed: ".
It is equally the case when he is employed as one of many 's to work in an undertaking which needs the service of all.
If he, with the others, takes steps wilfully to disrupt the undertaking to produce chaos so that it will not run as it should.
then each one who is a party to those steps is guilty 226 of a breach of his contract.
It is no answer for any one of them to say 'I am only obeying the rule book ', or 'I am not bound to do more than a 40 hour week '.
That would be all very well if done in good faith without any wilful disrup tion of services; but what makes it wrong is the object with which it is done.
There are many branches of our law when an act which would otherwise be lawful is rendered unlawful by the motive or object with which it is done.
So here it is the wilful disruption which is the breach.
It means that the work of each man goes for naught.
It is made of no effect.
I ask: is a man to be entitled to wages for his work when he, with others, is doing his best to make it useless? Surely not.
Wages are to be paid for services rendered, not for producing deliberate chaos.
The breach goes to the whole of the consideration, as was put by Lord Campbell CJ in Cuckson vs Stones, [1858] 1 E & E 248 at 255, (1983 60) All ER Rep 390 at 392 and with other cases quoted in Smith 's Leading Cases (13th Edn., Vol. 2, p. 48), the notes to Cutter vs Power, [1795] 6 Term Rep 320, (1775 1802)All ER Rep 159)".
In Miles vs Wakefield Metropolitan District Council, [ 1989] I LLJ 335 the facts were that the plaintiff, Miles was the Superintendent Registrar in the Wakefield Metropolitan District Council.
His duties included performing marriages.
As part of trade union action, he declined to perform mar riages on Saturdays which day was very popular with marrying couples.
However, on that day he performed his other duties.
The Council, not wanting to terminate his services, imposed a cut in his remuneration.
He sued the Council for payment but failed.
He appealed to the Court of Appeal and was successful.
The appellate court held that he was a statutory official and there was no contractual relation and the only action against him was dismissal.
Aggrieved by this appel late decision, the Council went before the House of Lords in appeal.
The House of Lords held that the salary payable to the plaintiff was not an honorarium for the mere tenure of office but had the character of remuneration for work done.
If an employee refused to perform the full duties which could be required of him under his contract of service, the employer is entitled to refuse to accept any partial per formance.
In an action by an employee to recover his pay, it must be proved or admitted that the employee worked or was willing to work in accordance with the contract of employ ment or that such service as was given by the employee, if falling short of.
his contractual obligations was accepted by the 227 employer as sufficient performance of the contract.
In a contract of employment wages and work go together.
The employer pays for the work and the worker works for his wages.
If the employer declines to pay, the worker need not work.
If the worker declines to work, the employer need not pay In an action by a worker to recover his pay, he must allege and prove that he worked or was willing to work.
In the instant case, the plaintiff disentitled himself to salary for Saturday morning because he declined to work on Saturday morning in accordance with his duty.
Since the employee had offered only partial performance of his con tract, the employer was entitled, without terminating the contract of employment, to decline partial performance, and in that case the employee would not be entitled to sue for his unwanted service.
In this connection, Lord Templeman stated as follows: "The consequences of counsel 's submissions demonstrate that his analysis of a contract of employment is deficient.
It cannot be right that an employer should be compelled to pay something for nothing whether he dismisses or retains a worker.
In a contract of employment wages and work go together.
The employer pays for work and the worker works for his wages.
If the employer declines to pay, the worker need not work.
If the worker declines to work, the employer need not pay.
In an action by a worker to recover his pay he must allege and be ready to prove that he worked or was willing to work . . " It may be mentioned here that on the question whether the employee engaged in some kind of industrial action can claim wages on the basis of quantum meruit, only two of the Law Lords expressed themselves in favour, while the other three did not want to express any definite opinion on the question.
Among the decisions of the various High Courts relied upon by the parties in support of the respective cass, we find that except for the decision in V. Ganesan vs The State Bank of India & Ors., given by the learned Single Judge of the Madras High Court and the deci sion of the Division Bench of the same Court in that matter and other matters decided together in State Bank of India, Canara Bank, Central Bank etc.
& Ors.
vs Ganesan, Jambuna than, Venkataraman, B.V. Kamath, V.K. Krishnamurthy, etc.
& Ors., , all other decisions, namely, (i) Sukumar Bandyo 228 padhyyay & Ors.
vs State of West Bengal & Ors., [1976] IXLIC 1689; (ii) Algemene Bank Nederland, N.V. vs Central Govern ment Labour Court, Calcutta & Ors., [1978] II LLJ, 117; (iii) V. Ramachandran vs Indian Bank, ; (iv) Dharam Singh Rajput & Ors.
vs Bank of India, Bombay & Ors., [1979]12 LIC 1079; (v) R. Rajamanickam, for himself and on behalf of other Award Staff vs Indian Bank, [1981] II LLJ 367; (vi) R.N. Shenoy & Anr. etc.
vs Central Bank of India & Ors.
, [1984] XVII LIC 1493 and (vii) Prakash Chandra Johari vs Indian Overseas Bank & Anr.
[1986] II LI J 496, have variously taken the view that it is not only permissi ble for the employer to deduct wages for the hours or the days for which the employees are absent from duty but in cases such as the present, it is permissible to deduct wages for the whole day even if the absence is for a few hours.
It is also held that the contract is not indivisible.
Some of the decisions have also held that the deduction of wages can also be made under the provisions of the and similar statutes where they are applicable.
It is further held that deduction of wages in such cases is not a penalty but is in enforcement of the contract of employment and hence no disciplinary proceedings need precede it.
Even in V. Ganesan vs The State Bank of India & Ors., (supra), it was not disputed on behalf of the employees that the employer, namely, the Bank had no fight to deduct pro rata the salary of the officers for the period of absence from duty.
What was contended there was that the Bank was not entitled to deduct the salary for the whole three days on which the employees had staged a demonstration for a duration of 30 minutes during working hours on two days and for an hour, on the third day.
The learned Judge held that by permitting the employees to perform their work during the rest of the day and by accepting such performance the bank must be deemed to have acquiesced in the breach of contract by the employees.
It is on this fact that the learned Judge held that the right to deduct salary (obviously for the whole day) on the principle of "no work no pay" could be exercised only when there was a term in the contract or when there was a statutory provision to that effect.
The Division Bench of the said Court in appeal against the said decision and similar other matters (supra) confirmed the reasoning of the learned Judge and held that in the absence of either a term in the contract of service stipulating that if an employee abstains from doing a particular work on a particu lar day, he would not be entitled to emoluments for the whole day or in the absence of a statutory provision laying down such a rule, it was impermissible for the employer to deduct or withhold the emoluments 229 of the employees even for the hours during which they worked.
Having accepted the performance of work from the employees for the rest of the day, the Banks are bound to compensate the employees for the work performed by them.
In that very case, the Court also held, on the facts arising from the other matters before it, that the refusal to per form the clearing house work can only be the subject matter of a disciplinary action and it cannot straightaway result in the withholding of the wages for the whole day.
Non signing of the attendance register and doing work is also work for which the employees should be compensated by pay ment of remuneration.
On the specific question whether the management can take action in situations, where either the contract, Stand ing Order or rules and regulations are silent, both parties relied on further authorities.
In Workmen of M/s. Firestone Tyre & Rubber Co. of India (P) Limited vs Firestone Tyre & Rubber Co., ; on which reliance was placed on behalf of the workmen it was held that under the general law of master and servant, an employer may discharge an employee either temporarily or permanently but that cannot be without adequate notice.
Mere refusal or inability to give employment to the workmen when he reports for duty, on one or more grounds mentioned in clause (kkk) of Section 2 of the Industrial Disputes Act is not a temporary discharge of the workmen.
Such a power, therefore, must be found out from the terms of the contract of service or the Standing Orders governing the establish ment Hence, even for lay off of the workmen there must be a power in the management either in the contract of service or the standing orders governing the establishment.
Ordinarily, the workmen, therefore, would be entitled to their full wages when the workmen are laid off without there being any such power.
There was no common law right to lay off the workmen, and, therefore, no right to deny the workmen their full wages.
In Krishnatosh Das Gupta vs Union of India & Ors., , it was a case of the employees of the National Test House, Calcutta who had staged demonstration after signing the attendance register to register their protest against suspension of some of their colleagues.
Though the employees signed the attendance register and attended the office, they did no work on the relevant day.
As such, a circular was issued by the Joint Director inform ing the employees that they would be considered as "not on duty".
By a subsequent circular the same Joint Director notified to all departments concerned the decision of the Cabinet that there shall not be pay for no work.
Relying on the said 230 circular the Management of the National Test House effected on a mass scale pay cut from the pay and allowances of the concerned employees.
The circular was challenged by the employees by a writ petition before the High Court.
The High Court held that in order to deduct any amount from salary, there must be specific rules relating to the contract of service of the person concerned.
On behalf of the employers, reliance was placed on a decision of this Court in Sant Ram Sharma vs State of Rajas than & Anr.; , for the proposition laid down there.that in the absence of any statutory rules or a spe cific provision in the rules, the Government can act by administrative instructions.
The Court has held there that though it is true that the Government cannot amend or super sede statutory rules by administrative instructions, if the rules are silent on any particular point, Government can fill up the gaps and supplement the rules and issue instruc tions not inconsistent with the rules already framed.
In Roshan Lal Tandon vs Union of India, ; , this Court has stated that although the origin of Government service is contractual in the sense that there is an offer and acceptance in every case, once appointed to his post or office, the Government servant acquires a status, and his rights and obligations are no longer determined by consent of both parties but by statute or statutory rules which may be flamed or altered unilaterally by the Govern ment.
In other words, the legal position of the Government servant is more of status than of contract.
The hallmark of status is the attachment to legal relationship of rights and duties imposed by the public law and not by mere agreement of the parties.
The relationship between the Government and the servant is not like an ordinary contract of service between a master and servant.
The legal relationship is something entirely different, something in the nature of status.
In V.T. Khanzode & Ors.
vs Reserve Bank of India & Anr.
, ; , this Court has reiterated that so long as Staff Regulations are not flamed, it is open to issue admin istrative circulars regulating the service conditions in the exercise of power conferred by Section 7(2) of the so long as they do not impinge on any regulations made under Section 58 of the Act.
The same view with regard to power to issue administra tive instructions when rules are silent on a subject has been reiterated by the Court in Paluru Ramkrishnaiah & Ors.
vs Union of India & 231 Anr.
; , and in Senior Superintendent of Post Office & Ors.
vs Izhar Hussain, ; 11.
The principles which emerge from the aforesaid authorities may now by stated.
Where the contract, Standing Orders or the service rules/regulations are silent on the subject, the management has the power to deduct wages for absence from duty when the absence is a concerted action on the part of the employees and the absence is not disputed.
Whether the deduction from wages will be pro rata for the period of absence only or will be for a longer period will depend upon the facts of each case such as whether where was any work to be done in the said period, whether the work was in fact done and whether it was accepted and acquiesced in, etc.
It is not enough that the employees attend the place of work.
They must put in the work allotted to them.
It is for the work and not for their mere attendance that the wages/salaries are paid.
For the same reason, if the employ ees put in the allotted work but do not, for some reason may be even as a protest comply with the formali ties such as signing the attendance register, no deduction can be effected from their wages When there is a dispute as to whether the employees attended the place of work or put in the allotted work or not, and if they have not, the reasons therefore etc., the dispute has to be investigated by holding an inquiry into the matter.
In such cases, no deduction from the wages can be made without establishing the omission and/or commission on the part of the employees concerned.
When the contract, Standing Orders, or the service rules/regulations are silent, but enactment such as the providing for wage cuts for the absence from duty is applicable to the establishment concerned, the wages can be deducted even under the provisions of such enactment.
Apart from the aforesaid ratio of the decisions and the provisions of the and similar statutes on the subject, according to us, the relevant provisions of the major legislation governing the industrial disputes, viz., the also lend their support to the view that the wages are payable pro rata for the work done and hence deductible for the work not done.
Section 2 (rr) of the said Act defines "wages" to mean "all remuneration . which would, if terms of employ ment, expressed or implied, were fulfilled, be payable to workman in respect of his employment or work done in such employment . " while Section 232 2(q) defines "strike" to mean "cessation of work" or "refus al to continue to work or accept employment by workman".
Reading the two definitions together, it is clear that wages are payable only if the contract of employment is fulfilled and not otherwise.
Hence, when the workers do not put in the allotted work or refuse to do it, they would not be entitled to the wages proportionately.
The decisions including the one impugned in this appeal which have taken the view which is either contrary to or inconsistent with the above conclusions, have done so because they have proceeded on certain wrong presumptions.
The first error, as we have pointed out at the outset, is to confuse the question of the legitimacy of the strike as a weapon in the workers ' hands with that of the liability to lose wages for the period of strike.
The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognises it as their implied right.
However, the legislation also circumscribes this right by prescribing conditions under which alone its exercise may become legal.
Whereas, therefore, a legal strike may not invite disciplinary proceedings, an illegal strike may do so, it being a misconduct.
However, whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike.
The liability to lose wages does not either make the strike illegal as a weapon or deprive the workers of it.
When workers resort to it, they do so knowing full well its consequences.
During the period of strike the contract of employment continues but the workers withhold their labour.
Consequently, they cannot expect to be paid.
The second fallacy from which the said decisions suffer is to view the contract of employment as an indivisible one in terms of the wageperiod.
When it is argued that the wages cannot be deducted pro rata for the hours or for the day or days for which the workers are on strike because the con tract, which in this case is monthly, cannot be subdivided into days and hours, what is forgotten is that, in that case if the contract comes to an end amidst a month by death, resignation or retirement of the employee, he would not be entitled to the proportionate payment for the part of the month he served.
This was the iniquitous and harsh conse quence of the rule of indivisibility of contract laid down in an English case, Cutter vs Powell, [1795] 6 TR 320 which was rightly vehemently criticised and later, fortunately not followed.
If the employment contract is held indivisible, it will be so for both the parties.
We are also unable to see any difficulty, inequity or impracticability in construing the contract as divisible into different 233 periods such as days and hours for proportionate reimburse ment or deduction of wages, which is normally done in prac tice.
The third fallacy was to equate disputed individual conduct with admitted mass conduct.
A disciplinary proceed ing is neither necessary nor feasible in the latter case.
The contract of employment, Standing Orders or the service rules provide for disciplinary proceedings for the lapse on the part of a particular individual or individuals when the misconduct is disputed.
As things stand today; they do not provide a remedy for mass misconduct which is admitted or cannot be disputed.
Hence, to drive the management to hold disciplinary proceedings even in such cases is neither necessary nor proper.
The service conditions are not expect ed to visualise and provide for all situations.
Hence, when they are silent on unexpected eventualities, the management should be deemed to have the requisite power to deal with them consistent with law and the other service conditions and to the extent it is reasonably necessary to do so.
The pro rata deduction of wages is not an unreasonable exercise of power on such occasions.
Whether on such occasions the wages are deductible at all and to what extent will, howev er, depend on the facts of each case.
Although the employees may strike only for some hours but there is no work for the rest of the day as in the present case, the employer may be justified in deducting salary for tile whole day.
On the other hand, the employees may put in work after the strike hours and the employer may accept it or acquiesce in it.
In that case the employer may not be entitled to deduct wages at all or be entitled to deduct them only for the hours of strike.
If further statutes such as the or the State enactments like the Shops and Establishments Act apply, the employer may be justified in deducting wages under their provisions.
Even if they do not apply, nothing prevents the employer from taking guidance from the legisla tive wisdom contained in it to adopt measures on the lines outlined therein, when the contract of employment is relent on the subject.
It is, however, necessary to reiterate that even in cases such as the present one where action is resorted to on a mass scale, some employees may not be a party to the action and may have genuinely desired to discharge their duties but could not do so for failure of the management to give the necessary assistance or protection or on account of other circumstances.
The management will not be justified in deducting wages of such employees without holding an in quiry.
That, however, was not the grievance of any of the employees in the present case, as pointed out earlier.
234 15.
Hence, we are unable to sustain the impugned deci sion which is untenable in law.
The decision is accordingly set aside with no order as to costs.
Civil Appeal No. 855 of 1987 16.
The facts in this case are different from those in the earlier appeal.
In this case, the allegation of the employer Company is that the workers had indulged in "go slow" and as a result there was negligible production in the month of July 1984.
The workers did not attend to their duty and only loitered in the premises and indulged in go slow tactics only with a view to pressurise the Company to con cede demands.
The Company was, therefore, compelled to suspend its operation by giving a notice of lock out.
Ac cording to the Company, therefore, since the workers had not worked during all the working hours, they had not earned their wages.
Hence, the Company did not pay the workers their wages for the entire month of July 1984.
The workers ' Union, therefore, filed a complaint before the Industrial Court under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971 (MRTU & PULP Act, for short) complaining that the Company had indulged in unfair labour practice mentioned in Item 9 of Schedule 4, from 7th August, 1984 which was the date for payment of salary for the month of July 1984, and under Item 6 of Schedule 2 of the Act with effect from 14th August, 1984 since the Company had declared a lock out from that day.
It was also alleged that since no specific date of the com mencement of the alleged lock out had been specified, it was an illegal one.
It appears that the Company had declared the lock out by notice dated July 30, 1984 and the lock out was effected from August 14, 1984.
Subsequently, there were negotiations between the Union and the Company, and a set tlement was reached on October 15, 1984 as a result of which the lock out was lifted with effect from October 16, 1984.
The terms of the settlement were formally reduced to writing on November 30, 1984.
In this appeal, we are not concerned with the lock out and the subsequent settlement.
The question that falls for consideration before us is whether the Company was justified in denying to the workers the full monthly wages for the month of July 1984.
On this question, the Industrial Court accepted the oral testimony of the Company 's witnesses that the workmen had not at all worked for full eight hours on any day in July 1984 and that they were working intermit 235 tently only for some time and sitting idle during the rest of the day.
On an average the workers had not worked for more than one hour and 15 to 20 minutes per day, during that month.
The Industrial Court did not accept the evidence of the Union 's witness that the witness and the other workmen had worked on all the days during the entire month of July 1984 because he admitted that after the Company told the workers that it could not concede to the demands, the work ers had started staging demonstration.
Although the witness denied that from July 3, 1984, the workers started indulging in go slow, he admitted that the Company was displaying notices from time to time with effect from July 4, 1984 alleging that the workers were not giving production and that they were loitering here and there.
According to the Industrial Court in the circumstances, it did not see any good reason to disbelieve the Company 's witnesses.
The Court further held that normally in view of this evidence on record, it would have held that the pro rata deduction of wages made by the Company for the month of July 1984 would not amount to an act of unfair labour practice falling under Item 9 of Schedule IV of the MRTU and PULP Act.
However, in view of the two judgments of the Bombay High Court in T.S. Kelwala & Ors.
vs Bank of India & Ors., i.e. the one impugned in the earlier appeal and Apar (Pvt) Limited vs
S.R. Samant & Ors., [1980] II LLJ 344, the Court had to hold that the non payment of full wages to the work men for the month of July 1984 was an act of unfair labour practice falling under the said provision of the Act.
The Court further held that admittedly the workers were not piece rated and there was no agreement or settlement allow ing the Company to deduct wages on the ground that they were indulging in "go slow" or that they had not given normal production.
According to the Court, the remedy of the Compa ny against the workmen may lie elsewhere.
Thus, the Court taking sustenance from the Bombay High Court Judgments referred to above held that the deduction of wages during the month of July, 1984 on account of the go slow was not justified, and declared that the Company had committed an unfair labour practice by not paying full monthly wages to the workmen, and directed the Company to pay the said wages for the month of July 1984.
It is this order of the Indus trial Court which is challenged directly in this Court by the present appeal.
Since one of the two decisions of the Bombay High Court on which the Industrial Court relied was rendered in another context and it has already been discussed in the other appeal, we may refer here only to the other decision, viz., Apar (Pvt) Ltd. vs S.R. Samant & Ors.
, (supra) which is pressed in service before us on behalf of the workmen.
The facts in that case were that by a settlement dated Au 236 gust 3, 1974 the workmen were allowed increase in the basis wages, dearness allowance, house rent, etc.
in addition to the production bonus in terms of a scheme.
That settlement was binding on the parties upto the end of April 1977.
The matters ran a smooth course till August 1975.
However, from September 1975, the Company refused to pay the production bonus and with effect from 15th October, 1975 it refused to pay the wages, dearness allowances etc.
as per the settle ment.
On August 21, 1975, a notice was put up by the Company starting that because of the attitude of indiscipline on the part of the workers and deliberate go slow tactics resulting in low production, the management was relieved of its com mitments and obligation imposed upon it by the settlement.
A notice in terms of Section 9A of the was also put up indicating a certain scale of wages to which only the workers would be entitled.
These wages were not more than the wages under the Minimum Wages Act and were even less than what was agreed to in the earli er agreement of January 23, 1971.
A complaint was, there fore, filed under the MRTU & PULP Act before the Industrial Court, and the Industrial Court recorded a finding that the figures of production produced by the Company before it related only to few departments.
Out of total of 700 employ ees who were working earlier, 116 were retrenched at the relevant time.
The Company 's allotment of material, viz., aluminium was also reduced from 7390 metric tones to 2038 and there was no supply of even that allotted quantity.
The Court further referred to certain inconsistent statements made by the factory manager and held that the management had failed to discharge the burden of proof of justifying the drastic reduction of the wages and other emoluments.
The Court therefore recorded a finding that the Company had engaged in an unfair labour practice.
Against the said decision, the Company preferred a writ petition before the High Court.
The High Court on these facts held that the wages could be deducted only in terms of a statutory provi sion or of a settlement.
A reduction of wages on the allega tion that the workers in general had resorted to go slow was wholly impermissible in law specially when the workmen were not piece rated employees.
The High Court referred to the cases where reduction of wages for absence from duty for striking work was held as valid such as Major Kanti Bose & Ors.
vs Bank of India & Ors., (supra); V. Ramachandran vs Indian Bank, (supra) and Algemene Bank, Nederland vs Central Government Labour Court, Calcutta, (supra) and held that those cases were distinguishable because they related to absence from duty and not go slow.
In M/s. Bharat Sugar Mills Ltd. vs Shri Jai Singh & Ors., [1962] 3 237 SCR 684 the facts were that certain workmen of the appel lant Mills resorted to "go slow".
The appellant Mills held a domestic inquiry and as a result thereof decided to dismiss 21 workmen, and apply to the Industrial Tribunal under Section 33 of the for permission to dismiss the workmen.
Evidence was laid before the Tribunal to prove the charge against the workmen.
The Tribunal held that the domestic enquiry was not proper, that the appellant was guilty of mala fide conduct and victimisation, that except in the case of one workman, the others were guilty of deliberate go slow and accordingly granted permission in respect of the one workman only.
It is against the said decision that the appellant Mills had approached this Court.
This Court held that the evidence produced before the Tribu nal clearly established that 13 out of the 20 workmen were guilty of deliberate go slow and in that connection observed as follows: "Go slow which a picturesque description of deliberate delaying of production by workmen pretending to be engaged in the factory is one of the most pernicious practices that discontended or disgruntled workmen sometime resort to.
It would not be far wrong to call this dishonest.
For, while thus delaying production and thereby reducing the output the workmen claim to have remained employed and thus to be entitled to full wages.
Apart from this also, "go slow" is likely to be much more harmful than total cessation of work by strike.
For, while during a strike much of the machinery can be fully turned off, during the "go slow" the machinery is kept going on a reduced speed which is often extremely damaging to machinery parts.
For all these reasons "go slow" has always been considered a serious type of misconduct." This Court, therefore, set aside the order of the Tribunal refusing permission to dismiss 13 of the workmen.
There cannot be two opinions that go slow is a serious misconduct being a covert and a more damaging breach of the contract of employment.
It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work.
It has been roundly condemned as an industrial action and has not been recognised as a legit imate weapon of the workmen to redress their grievances.
In fact the model standing orders as well as the certified standing orders of most of the industrial establishments define it as a misconduct and provide for a disciplinary action for it.
Hence, once it is 238 proved, those guilty of it have to face the consequences which may include deduction of wages and even dismissal from service.
But by its very nature, the proof of go slow, particu larly when it is disputed, involves investigation into various aspects such as the nature of the process of produc tion, the stages of production and their relative impor tance, the role of the workers engaged at each stage of production, the pre production activities and the facilities for production and the activities of the workmen connected therewith and their effect on production, the factors bear ing on the average production etc.
The go slow further may be indulged in by an individual workman or only some workmen either in one section or different sections or in one shift or both shifts affecting the output in varying degrees and to different extent depending upon the nature of product and the productive process.
Even where it is admitted, go slow may in some case present difficulties in determining the actual or approximate loss, for it may have repercussions on production after the go slow ceases which may be difficult to estimate.
The deduction of wages for go slow may, there fore, present difficulties which may not be easily resolu ble.
When, therefore, wages are sought to be deducted for breach of con tract on account of go slow, the quantum of deduction may become a bone of contention in most of the cases inevitably leading to an industrial dispute to be adjudicated by an independent machinery statutory or other wise as the parties may resort to.
It is necessary to empha size this because unlike in this case of a strike where a simple measure of a pro rata deduction from wages may pro vide a just and fair remedy, the extent of deduction of wages on account of a go slow action may in some case raise a complex question.
The simplistic method of deducting uniform percentage of wages from the wages of all workmen calculated on the basis of the percentage fail in production compared to the normal or average production may not always be equitable.
It is, therefore, necessary that in all cases where the factum of go slow and/or the extent of the loss of production on account of it, is disputed, there should be a proper inquiry on charges which furnish particulars of the go slow and the loss of production on that account.
The rules of natural justice require it, and whether they have been followed or not will depend on the facts of each case.
In the present case, the Industrial Court, as point ed out earlier, has accepted the evidence of the witness of the Company that the workmen had not worked for full eight hours on any day in the month concerned, namely, July 1984, and that they were working intermittently only for sometime and were sitting idle during the rest 239 Of the time.
According to him, the workers had worked hardly for an hour and 15 to 20 minutes on an average during the said month.
The witness had also produced notices put up by the Company from time to time showing the daily fall in the production and calling upon the workmen to resume normalcy.
There is further no dispute that the copies of these notices were sent to the Union of the workmen as well as to the Government Labour Officer.
The Industrial Court did not accept the evidence of the workmen that there was no go slow as alleged by the Company.
Accordingly, the Industrial Court has recorded a finding that the pro rata deduction of wages made by the Company for the month of July 1984 did not amount to an act of unfair labour practice within the mean ing of the said Act.
It does not further appear from the record of the proceedings before the Industrial Court that any attempt was made on behalf of the workmen to challenge the figures of production produced by the Company.
These figures show that during the entire month of July 1984, the production varied from 7.06 per cent of 13.9 per cent of the normal production.
The Company has deducted wages on the basis of each day 's production.
In view of the fact that there is a finding recorded by the Industrial Court that there was a go slow resorted to by the workmen and the production was as alleged by the Company during the said period, which finding is not challenged before us, it is not possible for us to interfere with it in this appeal.
As stated above, all that was challenged was the right of the employer to deduct wages even when admittedly there is a go slow which question we have answered in favour of the employer earlier.
The question with regard to the quantum of deduction from the wages, therefore, does not arise before us for consideration.
It is, however, likely that the work men did not question the figures of production before the Industrial Court because they were armed with the two deci sions of the High Curt (supra) which according to them, had negatived the right of the employer to deduct wages even in such circumstances.
While, therefore, allowing the appeal, we direct that the appellant will not deduct more than 5 per cent of the wages of the workmen for the month of July 1984.
The appeal is allowed accordingly with no order as to costs.
G.N. Appeals allowed. | In the former appeal, the appellant is a nationalised Bank.
In 1977, some demands for wage revision made by the employees of all Banks were pending and in support of their demands, a call for a country wide strike was given.
The appellant Bank issued a Circular on September 23, 1977 to its managers and agents directing them to deduct wages of the employees for the days they go on strike.
The respondent Unions gave a car for a four hour strike on December 29, 1977.
Two days before the strike, the appellant Bank issued an Administrative Circular warning the employees that if they participate in the strike, they would be committing a breach of their contract of service and they would not be entitled to salary for the full day and they need not report for work for the rest of the working hours on that day.
However, the employees went on strike as scheduled, for four hours which included banking hours of the public, and re sumed duty thereafter.
The appellant Bank did not prevent them from doing so.
The appellant Bank by its circular di rected the managers and agents to deduct the full day 's salary of those employees who participated in the strike.
On a writ petition filed by the respondents, the High Court quashed the said Circular.
The Letters Patent Appeal filed by the appellant was dismissed.
Hence, the appeal by the Bank.
In the latter appeal, the appellant is a company whose workers had indulged in "go slow" in July 1984, thereby bringing down production.
The workers did not attend to their work and were loitering in the premises and were indulging in go slow tactics to pressurise the 215 company to concede their demands.
The company suspended its operation by giving a notice of lock out.
It did not pay wages to the workers for July , 1984 on the ground that they did not work during all the working hours and had not their wags.
The workers ' union filed a complaint before the Indus trial Court complaining that the appellant company had indulged in unfair labour practice and that the lock out declared was illegal The Industrial Court held that the deduction of wages for July, 1984 on account of the go slow was not justified It also declared that the company had committed an unfair labour practice by not paying full monthly wages to the workers and directed the company to pay the said wages for the month of July, 1984.
Aggrieved, the appellant company has preferred the appeal.
Allowing the appeals, this Court, HELD: 1.1 There is no doubt that whenever a worker indulges in a misconduct such as a deliberate refusal to work, the employer can take disciplinary action against him and impose on him the penalty prescribed for it which may include some deduction from his wages.
However, when miscon duct is not disputed but is, on the other band, ' admitted and is resorted to on a mass scale such as when the employ ees go on strike, legal or illegal, there is no need to hold an inquiry.
To insist on an inquiry even in such cases is to pervert the very object of the inquiry.
In a mass action such as strike it is not possible to hold an inquiry against every employee nor is it necessary to do so unless, of course, an employee contends that although he did not want to go on strike and wanted to resume his duty, he was pre vented from doing so by the other employees or that the employer did not give him proper assistance to resume his duty though he had asked for it.
That was certainly not the situation in the present case in respect of any of the employees and that is not the contention of the employees either.
It is true that in the present case when the employ ees came back to work after their four hours strike, they were not prevented from entering the Bank premises.
But admittedly, their attendance after the four hours strike was useless because there was no work to do during the rest of the hours.
It is for this reason that the Bank had made it clear, in advance, that if they went on strike for the four hours as threatened, they would not be entitled to the wages for the whole day and hence they need not report for work thereafter Short of physically preventing the employ ees from resuming the work which it was unnecessary to do, the Bank had done all hi its power to warn the employees of the consequences of their action and if the employees, in spite of it, chose to enter the Bank 's premises where they had no work to do, and in fact did not 216 do any, they did so of their own choice and not according to the requirement of the service or at the direction of the Bank.
In fact, the direction was to the contrary.
Hence, the later resumption of work by the employees was not in fulfil ment of the contract of service or any obligation under it.
The Bank was therefore not liable to pay either full day 's salary or even the pro rata salary for the hours or work that the employees remained in the Bank premises without doing any work.
It is not a mere presence of the workmen at the place of work but the work that they do according to the terms of the contract which constitutes the fulfilment of the contract of employment and for which they were entitled to be paid.
[222E H; 223A F] 1.2 Although the service regulations do not provide for a situation where employees on a mass scale resort to ab sence from duty for whole day or a part of the day whether during crucial hours or otherwise they do provide for treat ing an absence from duty of an individual employee as a misconduct and for taking appropriate action against him for such absence.
[224D E] 2.1.
When the contract, Standing Orders, or the service rules/ regulations are silent, but enactment such as the payment of Wages Act providing for wage cuts for the absence from duty is applicable to the establishment concerned, the wages can be deducted even under the provisions of such enactment.
[231F] 2.2.
The working class has indisputably earned the right to strike as an industrial action after a long struggle, so much so that the relevant industrial legislation recognises it as their implied right.
However, the legislation also circumscribes this right by prescribing conditions under which alone its exercise may become legal.
Whereas, there fore, a legal strike may not invite disciplinary proceed ings, an illegal strike may do so, it being a misconduct.
However, whether the strike is legal or illegal, the workers are liable to lose wages for the period of strike.
The liability to lose wages does not either make the strike illegal as a weapon or deprive the workers of it.
When workers resort to it, they do so knowing full well its consequences.
During the period of strike the contract of employment continues but the workers withhold their labour.
Consequently, they cannot expect to be paid.
[232C E] 2.3.
The contract, which is this case is monthly, cannot be subdivided into days and hours.
If the contract comes to an end amidst a month by death, resignation or retirement of the employee, he would not be entitled to the proportionate payment for the part of the month 217 he served.
If the employment contract is held indivisible, it will be so for both the parties.
There is no difficulty, inequity or impracticability in construing the contract as divisible into different periods such as days and hours for proportionate reimbursement or deduction of wages, which is normally done in practice.
[232G H; 233A] 2.4.
The contract of employment, Standing Orders or the service rules provide for disciplinary proceedings for the lapse on the part of a particular individual or individuals when the misconduct is disputed.
As things stand today, they do not provide a remedy for mass misconduct which is admit ted or cannot be disputed.
Hence, to drive the management to hold disciplinary proceedings even in such cases is neither necessary nor proper.
The service conditions are not expect ed to visualise and provide for all situations.
When they are silent on unexpected eventualities, the management should be deemed to have the requisite power to deal with them consistent with law and the other service conditions and to the extent it is reasonably necessary to do so.
The pro rata deduction of wages is not an unreasonable exercise of power on such occasions.
Whether on such occasions, the wages are deductable at all and to what extent will, howev er, depend on the facts of each case.
Although the employees may strike only for some hours but there is no work for the rest of the day as in the present case, the employer may be justified in deducting salary for the whole day.
On the other hand, the employees may put in work after the strike hours and the employer may accept it or acquiense in it.
In that case the employer may not be entitled to deduct wages at all or be entitled to deduct only for the hours of strike.
If statutes such as the or the State enactments like the Shops and Establishments Act apply, the employer ,may be justified in deducting wages under their provisions.
Even if they do not apply, nothing prevents the employer from taking guidance from the legisla tive wisdom contained in it to adopt measures on the lines outlined therein, when the contract of employment is silent on the subject.
[233B F] V.T. Khanzode & Ors.
vs Reserve Bank of India & Anr., ; ; Paluru Ramkrishnaiah & Ors. etc.
vs Union of India & Anr.
; , and Senior Superin tendent of Post Office & Ors.
vs lzhar Hussain; , , relied on.
Buckingham and Carnatic Co. Ltd. vs Workers of the Buckingham and Carnatic Co. Ltd., ; ; V. Ganesan vs The State Bank of India & Ors., ; State Bank of India, Canara Bank, Central Bank etc.
& Ors.
vs Ganesan, Jambunathan, Venkatara 218 man, B.V. Kamath, V.K. Krishnamurthy, etc.
& Ors.
, ; Sukumar Bandyopadhyyay & Ors.
vs State of West Bengal & Ors., [1976] IX LIC 1689; Algemene Bank Nederland, N.V. vs Central Government Labour Court, Calcutta & Ors., [1978] II LLJ, 117; V. Ramachandran vs Indian Bank, [1979] I LLJ 122; Dharam Singh Rajput & Ors.
vs Bank of India, Bombay & Ors.
, ; R. Rajamanickam, for himself and on behalf of other Award Staff vs Indian Bank, [1981] II LLJ 367; R.N. Shenoy & Anr. etc.
vs Central Bank of India & Ors.
, [1984] XVII LIC 1493; Prakash Chandra Johari vs Indian Overseas Bank & Anr., [1986] II LLJ 496; Workmen of M/s. Firestone Tyre & Rubber Co. of India (P) Ltd. vs Firestone Tyre & Rubber Co., ; ; Krishnatosh Das Gupta vs Union of India & Ors., ; Sant Ram Sharma vs State of Rajasthan & Anr., ; ; Roshan Lal Tandon vs Union of India, ; ; Secretary of State for Employment vs Associated Society of Locomotive Engineers and Firemen and Ors.
(No. 2), ; Miles vs Wakefield Metropolitan District Council, [1989] I LLJ 335 and Cutter vs Pwell, [1795] 6 TR 320, referred to.
There cannot be two opinions that go slow is a serious misconduct being a covert and a more damaging breach of the contract of employment.
It is an insidious method of undermining discipline and at the same time a crude device to defy the norms of work.
It has been roundly condemned as an industrial action and has not been recognised as a legit imate weapon of the workmen to redress their grievances.
In fact the model standing orders as well as the certified standing orders of most of the industrial establishments define it as a misconduct and provide for disciplinary action for it.
Hence, once it is proved.
those guilty of it have to face the consequences which may include deduction of wages and even dismissal from service.
[237G H; 238A] 3.2.
The proof of go slow, particularly when it is disputed, involves investigation into various aspects such as the nature of the process of production, the stages of production and their relative importance, the role of the workers engaged at each stage of production, the pre produc tion activities and the facilities for production and the activities of the workmen connected therewith and their effect on production, the factors hearing on the average production etc.
The go slow further may be indulged in by an individual workman or only some workmen either in one sec tion or different sections or in one shift or both shifts affecting the output in varying degrees and to different extent depending upon the nature of product and the produc tive process.
Even where it is admitted, go slow may in some case present 219 difficulties in determining the actual or approximate loss, for it may have repercussions on production after the go slow ceases which may be difficult to estimate.
The deduc tion of wages for go slow may, therefore, present difficul ties which may not be easily resoluble.
When, therefore, wages are sought to be deducted for breach of contract on account of go slow, the quantum of deduction may become a bone of contention in most of the cases inevitably leading to an industrial dispute to he adjudicated by an independent machinery statutory or otherwise as the parties may resort to.
The simplistic method of deducting uniform percentage of wages from the wages of all workmen calculated on the basis of the percentage fail in production compared to the normal or average production may not always be equitable.
It is, therefore, necessary that in all cases where the factum of go slow and/or the extent of the loss of production on account of it, is disputed, there should he a proper inquiry on charges which furnish particulars of the go slow and the loss of production on that account.
The rules of natural justice require it, and whether they have been followed or not will depend on the facts of each case.
[238B G] 3.3.
In the instant case, there is a finding recorded by the Industrial Court that there was a go slow resorted to by the workmen resulting in loss of production during the said period.
Since the said finding is not challenged, it is not possible to interfere with it in this appeal.
Though the appellant is justified in deducting wages for the said period, in the facts and circumstances of the case it is directed that it will not deduct more than 5 per cent of the wages of the workmen for the month of July, 1984 when they indulged in go slow tactics.
[239D F] M/s. Bharat Sugar Mills Ltd. vs Shri Jai Singh & Ors., ; T.S. Kelwala & Ors.
vs Bank of India & Ors., and Apar (Pvt) Ltd. vs
S.R. Samant & Ors., [1980] II LLJ 344, referred to. |
vil Appeal Nos.
3241 48 of 1981 Etc.
From the Judgment and Order dated 20.7.1983 of the Punjab & Haryana High Court in C.W.P. Nos.
469,748,750,751,752 and 753 of 1981 B.N. Shinghvi, V.A. Bobde, M.K. Ramamurthy, N.B. Shetty K.K. Venugopal, Dr. Anand Prakash, S.S. JavaIi, H.S. Gill, Brij Bhushan, M.G. Ramachandran, M.C. Dhingra, A.K. Sanghi, U.A. Rana, B.R. Agarwala, R.C. Pathak, Naresh Mathur, S.K. Sajwan.
Baby Lal, Praveen Kumar, B.B. Singh, Vineet Kumar, B.D. Ahmed.
R.S. Hegde, Parijat Singh, Mrs. Jayshree Wad, section Balakrishnan, Ms. Janani, Mrs. Urmila Kapoor, T.T. Kunhikan nan, H.K. Puri, section Srinivasan, Mrs. M. Karanjawala, Vijay Kumar Verma.
Ashok Grover, V.N. Ganpule, M.A. Gagrat, Mrs. P.S. Shroff, Anil Gupta, R.A. Gupta, A.K. Ghosh, section Mandal, Ranjit Kumar, M. Veerappa, Girish Chandra, Dr. Meera Aggar wal, A.K. Srivastava, K.R. Nambiar, A.G. Ratnaparkhi, R. Satish, P.H. Parekh, S.A. Shroff and K.V. Sree Kumar for the appearing parties.
This analogous cluster of seventeen appeals by special leave, and a special leave petition involves a common question of law though they arise out of the following respective facts: c.A. Nos.
324 z 3248 of 1981 These eight appeals by the Land Development and Reclama tion Corporation, Chandigarh are from the Judgment and Order of the Punjab and Haryana High Court dismissing its writ petitions challenging the Award dated 2.8.1980 of the Labour Court, Chandigarh holding that the respondents were entitled to reinstatement with back wages except Yaspal (C.A. No. 3242 of 1981) who was to get wages up to 10.10.1979, with benefits of continuity of service.
The respondents were workmen under the management of the Corporation and their services were terminated on the ground that the Chairman had no power to appoint them.
The Labour Court in its Award held that their services were terminated illegally without pay ment of retrenchment compensation under the , hereinafter referred to as the Act ', and that they were entitled to reinstatement.
117 C.A. No. 686 (NL) of 1982 This appeal is from the Judgment dated 9.11.1981 of the High Court of Bombay (Nagpur Bench).
The first respondent was an employee of the appellant 's corporation since 1972.
He was taken on probation in 1975 for one year which was extended from time to time, lastly from 1.9.1977 to 31.10.
1977, whereafter his services being not found satisfactory were terminated with effect from 1.11.1977 under Regulation 44(b) of the State Transport Employees Service Regulations of the Corporation.
The Labour Court took the view that it amounted to retrenchment and the provisions of section 25F of the Act having not been complied with the termination was ille gal.
The appellant 's writ petition therefrom was dismissed.
C.A. No. 1817 of 1982 The respondent workman was employed by the appellant Bank on 3.10.1962 as a clerk and he was put on probation for six months.
As allegedly there was total lack of confidence of the bank in the employee it terminated his service on 27.7.1974 on payment of three month 's salary.
The industrial tribunal by its award dated 3.12.1981 directed reinstatement of the workman with full back wages on the ground of non compliance with the provisions of section 25F of the .
The employer Bank now appeals from that Award.
C.A. No. 1898 of 1982 Respondent Nos. 2 6 were employed on probation by the appellant a partnership firm on 12.6.1975.
Respondent Nos.
2 5 assaulted a supervisor and being afraid of police re mained absent from 29.3.1976 and abandoned their jobs and their services were terminated.
Respondent No. 6 stopped attending duties from 9.8.1975 and he left the service of his own accord.
The Labour Court by its Award dated 16.9.
1980 held that their termination amounted to retrenchment and was illegal for non compliance with the provisions of section 25F of the Act and they were entitled to reinstatement with full back wages.
The Management 's writ petition challenging the Award having been unsuccessful, it has appealed.
C.A. No. 3261 of 1982 Respondent Namdeo was a clerk under the appellant Maha rashtra State Road Transport Corporation.
Pursuant to a disciplinary 118 proceeding his service was terminated with effect from 23.4.1963 by giving him one month 's salary in lieu of no tice.
Moved by the respondent, the Assistant Commissioner under section 16 of the C.P. & Berar Industrial Disputes Settle ment Act, 1947 held the Inquiry Proceeding to be an empty paper formality and the termination amounted to dismissal and accordingly he set aside the order and directed the corporation to reinstate and pay him his back wages amount ing to Rs. 15,97 1.66 within one month.
The Corporation having moved the State Industrial Court at Nagpur under section 16(5) of the Settlement Act, that Court by its order dated 29.9.1973 allowed the application and set aside the Assist ant Labour Commissioner 's judgment and dismissed the work man 's application holding that the acts of misconduct fairly stood proved and he deserved to be dismissed from service.
The High Court on being moved by the workman set aside the Labour Court 's order and restored that of the Assistant Labour Commissioner.
Hence this appeal.
CIVIL APPEAL NO.
3025 . .
OF 1990 The services of the workman Sri Pratap Singh, driver respondent No. 3 were terminated with effect from 18.10.1974 under clause 9(a)(i) of the DRTA (Conditions of Appointment and Service) Regulations 1952.
As the conciliation efforts failed, the order was placed before the Labour Court, Delhi, who set aside the order on the ground of noncompliance with the provisions of section 25F of the Act and ordered reinstate ment with full back wages and continuity of service.
The High Court having dismissed the writ petition therefrom, the appellant seeks special leave.
We grant special leave and hear the appeal.
C.A. No. 885 of 1980 The workmen appellants Nos. 2 and 3 were discharged on I 1.11.1972 for their trade union activities.
The Labour Court, Bombay by its Award dated 25.8.1977 refused to inter fere.
Challenge to the Award in the High Court having failed, the workmen appealed to this Court.
C.A. No. 1866 of 1982 The workman respondent No. 2 reported for artisan train ing on 25.9.1963 and was absorbed as artisan trainee on 16.3.1964.
He was made a skilled machine operator, under the appellant company and was discharged with effect from 23.7.1970.
The Labour Court by its 119 Award dated 1.8.1980 held the termination to be illegal on ground of non compliance of section 25F of the Act, though the order of discharge was issued under Standing Order 18(1).
The Company has appealed against the said order.
C.A. No. 1868 of 1984 The respondent was an employee in the appellant 's facto ry as welder and his services were terminated with effect from 21.11.1972 under Standing Order No. 28.
The Labour Court by its Award dated 30.12.1980 held the order of termi nation amounted to retrenchment and bad for non compliance with section 25F and hence set it aside and ordered reinstatement with full back wages.
Hence this appeal.
C.A. No. 8456 of 1983 The respondent was dismissed by the appellant Corpora tion after disciplinary inquiry by order dated 28.5.1971 paying one month 's wages in advance.
The workman having raised an industrial dispute, the Labour Court, Aurangabad by its Award dated 9.11.1979 held the order of termination to be legal and proper.
The respondent 's writ petition therefrom was allowed and the Award was quashed and the workman was declared entitled t0 reinstatement.
Hence this appeal.
C.A. No. 10828 of 1983.
The respondent was a store keeper of Rungta Colliery.
His name was struck off the rolls of the Colliery with effect from 8.7.1975.
He having raised an industrial dis pute, the Industrial Tribunal, Jabalpur by its Award dated 22.8.1977 held the striking off t0 be unjustified and that the termination amounted to retrenchment and bad for non payment of retrenchment compensation.
In the workman 's Letters Patent Appeal the Division Bench of the High Court also held that the termination amounted to retrenchment.
Hence this Management 's appeal.
The respective cases were argued with some dexterity by the learned counsel Mr. B.N. Singhvi, Mr. N.B. Shetye, Mr. S.S. Javali, Mr. K.K. Venugopal, Mr. V.A. Bobde, Mr. M.K. Ramamurthy, Mr. M.G. Ramachandran & Mr. R.S. Hegde.
On the above diverse facts two rival contentions are raised by the parties.
The learned counsel for the employers contend that the word 'retrenchment ' as defined in section 2(00) of the Act means termination of 120 service of a workman only by way of surplus labour for any reason whatsoever.
The learned counsel representing the workmen counted that 'retrenchment ' means termination of the service of a workman for any reason whatsoever, other than those expressly excluded by the definition in section 2(00) of the Act.
The precise question to be decided, therefore, is whether on a proper construction of the definition of "retrenchment" in section 2(00) of the Act, it means termination by the employer of the service of a workman as surplus labour for any reason whatsoever, or it means termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, and those expressly excluded by the definition.
In other words, the question to be decided is whether the word "retrenchment" in the definition has to be understood in its narrow, natural and contextual meaning or in its wider literal meaning.
Mr. N.B. Shetye, Mr. K.K. Venugopal, and the learned counsel adopting their arguments refer to the introduction of the provision of "retrenchment" in the Act.
Retrenchment was not defined either in the repealed Trade Disputes Act, 1929, or in the , as originally enacted.
Owing to a crisis in the textile industry in Bom bay, apprehending large scale termination of services of workmen, the Government of India issued an Ordinance which later became the Industrial Disputes (Amendment) Act, 1953 (Act 43 of 1953) which was deemed to have come into force on the 24th day of October, 1953.
Besides introducing the definitions of "lay off" [Clause 2 (kkk)] and "Retrenchment" [Clause 2(oo)] this Amendment Act of 1953 also inserted Chapter VII in the Act which dealt with "lay off" and "Retrenchment".
That Chapter contained sections 25A to 25J. Section 25A provided that sections 25C to 25E inclusive shall not apply to certain categories of industrial estab lishments.
Section 25C dealt with right of workmen laid off compensation.
Section 25D provided for maintenance of muster rolls of workmen by employers and section 25E stated the cases in which the workmen were not entitled to lay off compensation.
Section 25F dealt with conditions precedent to retrenchment of workmen.
Section 25G dealt with procedure for retrenchment and section 25H dealt with re employment of retrenched workmen; and section 25J dealing with the effect of laws inconsistent with this Chapter said that the provi sions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other law (including standing orders made under the Industrial Employ ment (Standing Orders) Act, 1946 (XX of 1946); 121 provided that nothing contained in this Act shall have effect to derogate from any fight which a workman has under any award for the time being in operation or any contract with the employer.
The Statement of Objects and Reasons of the Amendment Act, 1953 was as under: "The Industrial Disputes (Amendment) Bill, 1953 seeks to provide for payment of compensation to workmen in the event of their lay off or retrenchment.
The provisions included in the Bill are not new and were discussed at various tripar tite meetings.
Those relating to lay off are based on an agreement entered into between the representatives of em ployers and workers who attended the 13th session of the Standing Labour Committee.
In regard to retrenchment, the Bill provides that a workman who has been in continuous employment for not less than one year under an employer shall not be retrenched until he has been given one month 's notice in writing or one month 's wages in lieu of such notice and also a gratuity calculated at 15 days ' average pay for every completed year of service or any part thereof in excess of six months.
A similar provision was included in the Labour Relations Bill, 1950, which has since lapsed.
Though compensation on the lines provided for in the Bill is given by all progressive employers, it is felt that a common standard should be set for all employers" Clause 2(00) as inserted read as under: " 'Retrenchment ' means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary ac tion, but does not include (a) voluntary retirement of the workman; or (b) retirement of the workman on reaching the age of super annuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill health.
" 122 We are referred to contemporaneous interpretation of the word "retrenchment.
In Employees of Messrs India Reconstruc tion Corporation Ltd., Calcutta vs Messers.
India Recon struction Corporation Ltd., reported in it was observed by the Calcutta High Court: "Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with.
In sub stance the difference between closure and normal retrench ment is one of degree only.
As in the case of retrenchment so in the case of closure the workmen are not responsible for closing their jobs.
In both the cases, what is called compensation by way of retrenchment relief should be admis sible.
" In Messrs Benett Coleman and Company Ltd. vs Their Employees, reported in it was observed by Cal cutta High Court: "Thus whether the closure was justified or not, the workmen who have lost their jobs would in any event get compensa tion.
If it was not bona fide or not justified, it may be that the measure of compensation would be larger than if it was otherwise.
" The above almost contemporaneous exposition is worth consideration, Contemporanea expositio est optima et fortio sima in lege, Contemporaneous exposition is the best and strongest in the law.
A statute is best ex plained by following the construction put upon it by judges who lived at the time it was made.
In Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor Union, , the appellant company could not work its mills to full capacity owing to short supply of sugar cane and got the permission of the Government to sell its machinery but continued crushing cane under a lease from the purchaser.
The workmen 's union in order to frustrate the transaction resolved to go on strike and serving a strike notice did not cooperate with the management with the result that it lost heavily.
On the expiry of the lease and closure of the industry, the services of the workmen were duly terminated by the company.
The workmen claimed the share of profits on the basis of the offer earlier made by the compa ny and accepted by the workers.
The company having declined to pay and the dispute having been referred, 123 the Industrial Tribunal held that the company was bound to pay and accordingly awarded a sum of Rs.45,000 representing their share of the profits and the award was affirmed by the Labour Appellate Tribunal.
Question before this Court in appeal was whether the termination of the workmen on the closure of the industry amounted to retrenchment.
It was held that the award was not one for compensation for termi nation of the services of the workmen on closure of the industry, as such discharge was different from the discharge on retrenchment, which implied the continuance of the indus try and discharge only of the surplusage, and the workmen were not entitled either under the law as it stood on the day of their discharge or even on merits to any compensa tion.
The contention of the workmen was that even before the enactment of Industrial Disputes (Amendment) Act, 1953, the tribunal had acted on the view that the retrenchment includ ed discharge on closure of business and had awarded compen sation on that footing and that the award of the tribunal in Pipraich 's case could be supported in that view and should not be disturbed.
This was based on the decision in Employ ees of Messrs India Reconstruction Corporation Ltd. Calcutta vs Messrs India Reconstruction Corporation Ltd., (supra); and Messrs Benett Coleman and Company Ltd. vs Their Employ ees, (supra).
But their Lordship did not agree.
Venkatarama Ayyar, J. speaking for the four Judge Bench said: "Though there is discharge of workmen both when there is retrenchment and closure of business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded, retrench ment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business." As a result it was held that the Award in Pipraich was against the agreement and could not be supported as one of compensation to the workmen.
Thus this Court in Pipraich (supra) was dealing with the question whether the discharge of the workmen on closure of the undertaking would constitute retrenchment and whether the workmen were entitled on that account to retrenchment compensation; and it was observed that retrenchment connoted in its ordinary acceptation that the business itself was being continued but that a portion of the staff or 124 the labour force was discharged as surplusage and the termi nation of services of all the workmen as a result of the closure of the business could not, therefore, be properly described as retrenchment, which in the ordinary parlance meant discharge from the service and did not include dis charge on closure of business.
The same view was expressed in Hariprasad Shivshankar Shukla vs A.D. Divikar, [1957] SCR 121; also reported sub nomine Barsi Light Railway Co. vs K.N. Joglekar, , wherein the Constitution Bench heard two appeals; namely, Civil Appeal Nos. 103 and 105 of 1956.
In Civil Appeal No. 105 of 1956 the main appellant was the Barsi Light Railway Company Ltd., and the principal respond ent was the President of the Barsi Light Railwaymen 's Union.
Under an agreement dated August 1, 1895 between the Secre tary of State for India in Council and the Railway Company, the Secretary of State could purchase and take over the undertaking after giving Railway Company a notice.
On Decem ber 19, 1952 a notice was given to the Railway Company for and on behalf of the President of India that the undertaking of the Railway Company would be purchased and taken over as from January 1, 1954.
On November 11, 1953, the Railway Company served a notice on its workmen intimating that as a result of the talking over, the services of all the workmen of the Railway Company would be terminated with effect from December 31, 1953.
The notice further stated that the Gov ernment of India intended to employ such of the staff of the company as would be willing to serve on the railway on terms and conditions which were to be notified later.
About 77 per cent of the staff of the Railway Company were reemployed on the same scales of pay, about 23 per cent were reemployed on somewhat lower scales of pay and only about 24 per cent of the former employees of the Railway Company declined service under the Government.
Applications for compensation having been filed on behalf of the erstwhile workmen of the Railway Company under section 15 of the , for payment of retrenchment compensation to the said workmen under clause (b) of section 25F of the Act, the question was whether the erstwhile workmen were entitled to claim compen sation under clause (b) of section 25F of the Act; and whether they had been retrenched by their former employer within the meaning of the expression 'retrenchment ' in the Act.
In Civil Appeal No. 103 of 1956, the main appellant was Sri Dinesh Mills Ltd. Baroda and the principal respondent was District Labour Officer and Inspector under the .
The appellant company was running a woollen mill at Baroda and had abut 450 workmen and 20 clerks who worked in shifts day and night.
On or about October 31, 125 1953, the appellant put up a notice declaring its intention to close down the entire mill.
As a result of the closure, the services of all 450 workmen and 20 clerks were terminat ed and the appellant company claimed that the closure was bona fide being due to heavy losses sustained by the compa ny.
The principal respondent claimed retrenchment compensa tion for the workmen of the appellant under clause (b) of section 25F of the Act.
Section 25F at the relevant time stood as follows: "25F. Conditions precedent to retrenchment of workmen.
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice; Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days ' average pay for every completed year of service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the appro priate Government.
" In both the appeals the question before the Constitu tion Bench was whether the claim of the erstwhile workmen both of the Railway Company and of Shri Dinesh Mills Ltd., to the compensation under clause(b) of section 25F of the Act was a valid claim in law.
Observing that the Act had a 'plexus of amendments ', and some of the recent amendments had been quite extensive in nature and that section 25F occurred in Ch.
VA of the Act which dealt with 'lay off and retrenchment ' in the Amending Act, and analysing section 25F as it then stood, S.K. Das, J. speaking for the Constitution Bench observed that in the first part of the section both the words 're trenched ' and 'retrenchment ' were used and obviously they had the same meaning except that one was verb 126 and the other was a noun and that to appreciate the true scope and effect of section 25F one must first understand what was meant by the expression 'retrenched ' or 'retrenchment ' Analysing the definition of 'retrenchment ' in section 2(00) the Court found in it the following four essential require ments: (a) termination of the service of a workman;, (b) by the employer; (c) for any reason whatsoever; and (d) other wise than as a punishment inflicted by way of disciplinary action.
The Court then said: "It must be conceded that the definition is in very wide terms.
The question, however, before us is does this defini tion merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases to exist on a bona fide closure or discontinuance of his business by the em ployer?" The Court further said: "There is no doubt that when the act itself provides a dictionary for the words used, we must look into that dic tionary first for an interpretation of the words used in the statute.
We are not concerned with any presumed intention of the legislature; our task is to get the intention as ex pressed in the statute.
Therefore, we propose first to examine the language of the definition and see if the ordi nary, accepted notion of retrenchment fits in, squarely and fairly, with the language used.
" The Court reiterated the following observations in Pipraich (supra): "But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff of the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment.
" 127 This was the ordinary accepted notion of 'retrenchment ' in an industry before addition of section 2(oo) to the Act, as retrenchment in that case took place in 1951.
Replying to the argument that by excluding the bona fide closure of business as one of the reasons for termination of the serv ice of workmen by the employer, one would be cutting down the amplitude of the expression 'for any reason whatsoever ' and reading into the definition the words which did not occur there, the Court agreed that the adoption of the ordinary meaning would give to the expression 'for any reason whatsoever ' a somewhat narrower scope; one might say that it would get a colour in the context in which expres sion occurred; but the Court did not agree that it amounted to importing new words in the definition and said that the legislature in using that expression said in effect: "It does not matter why you are discharging the surplus; if the other requirements of the definition are fulfilled, then it is retrenchment".
In the absence of any compelling words to indicate that the intention was to include bona fide closure of the whole business, it would be divorcing the expression altogether from its context to give it such a wide meaning as was contended.
About the nature of the definition it was said: "It is true that an artificial definition may include a meaning different from or in excess of the ordinary accepta tion of the word which is the subject of definition; but there must then be compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended.
Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word defined.
" The Court in Hariprasad dealt with two other conten tions; one was that before the amending Act of 1953 the retrenchment had acquired a special meaning which included the payment of compensation on a closure of business and the legislature gave effect to that meaning in the definition clause and by inserting section 25F.
The second was that section 25FF inserted in 1956 by Act 41 of 1956 was 'Parlia mentary exposition ' of the meaning of the definition clause and of section 25F.
Rejecting the contentions the Court held that retrenchment meant the discharge of surplus workmen in an existing or continuing business; it had acquired no special meaning so as to include discharge of workmen on bona fide closure of business, though a number of Labour Appellate Tribunals awarded compensation to 128 workmen on closure of business as an equitable relief for variety of reasons.
The Court accordingly held: ". that retrenchment as defined in section 2(00) and as used in section 25 has no wider meaning than the ordinary, accepted connotation of the word; it means the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise than as a punishment inflicted by way of discipli nary action, and it has no application where the services of all workmen have been terminated by the employer on real and bona fide closure of business as in the ' case of Shri Dinesh Mills Ld. or where the services of all workmen have been terminated by the employer on the business or undertaking being taken over by another employer in circumstances like those of the Railway Company.
" It is interesting to note that the Amending Act No. 41 of 1956 inserted original section 25FF on September 4, 1956.
The objects and reasons were stated thus: "Doubt has been raised whether retrenchment compensation under the becomes payable by reason merely of the fact that there has been a change of employers, even if the service of the workman is continued without interruption and the terms and conditions of his service remain unaltered.
This has created difficulty in the transfer, re constitution and amalgamation of companies and it is proposed to make the intention clear by amending section 25F of the Act.
" Hariprasad 's case (supra) was decided on November 27, 1956.
The Industrial Disputes (Amendment) Ordinance, 1957 (4 of 1957) was promulgated immediately thereafter with effect from December 1, 1956 and that Ordinance was replaced by the Industrial Disputes (Amendment) Act 1957 (XVIII of 1957).
The following was the Statement of Objects and Reasons: "In a judgment delivered on the 27th November, 1956, the Supreme Court held that no retrenchment compensation was payable under section 25F of the , to workmen whose services were terminated by an em ployer on a real and bona fide closure of business, or when termination occurred as a result of transfer of owner 129 ship from one employer to another (see AIR 1957 SC 12 1).
This has led and is likely to lead to a large number of workmen being rendered unemployed without any compensa tion.
In order to meet this situation which was causing hardship to workmen, it was considered necessary to take immediate action and the Industrial Disputes (Amendment) Ordinance, 1957 (4 of 1957), was promulgated with retrospec tive effect from 1st December, 1956." "This Ordinance was replaced by an Act of Parliament enact ing the provisions contained in sections 25FF and 25FFF.
These sections provide that 'compensation would be payable to workmen whose services are terminated on account of the transfer or closure of undertakings. ' In the case of trans fer of undertakings, however, if the workman is re employed on terms and conditions which are not less favourable to him, he will not be entitled to any compensation.
This was the position which existed prior to the decision of the Supreme Court.
In the case of closure of business on account of the circumstances beyond the control of the employer, the maximum compensation payable to workmen has been limited to his average pay for three months.
If the undertaking is engaged in any construction work and it is closed down within two years on account of the completion of its work, no compensation would be payable to workmen employed there in.
" Hariprasad (supra) having accepted the ordinary contex tual meaning of retrenchment, namely, termination of surplus labour as the major premise it was surely open to the Par liament to have amended the definition of retrenchment in section 2(00) of the Act.
Instead of doing that the Parliament added section 25FF and 25FFF which said: "25FF.
Compensation to workmen in case of transfer of under takings Where the ownership or management of an undertaking is transferred, whether by agreement or by operation of law, from the employer, in relation to that undertaking to a new employer, every workman who has been in continuous service for not less than one year in that undertaking immediately before such transfer shall be entitled to notice and compen sation in accordance with the provisions of section 25F, as if the workman had been retrenched: 130 Provided that nothing in this section shall apply to a workman in any case where there has been a change of employers by reason of the transfer, if (a) the service of the workman has not been interrupted by such transfer; (b) the terms and conditions of service applicable to the workman after such transfer are not in any way less favour able to the workman than those applicable to him immediately before the transfer; and (c) the new employer is under the terms of such transfer or otherwise, legally liable to pay to the workman, in the event of his retrenchment, compensation on the basis that his service has been continuous and has not been interrupted by the transfer." "25FFF.
Compensation to workmen in case of closing down of undertakings (1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in contin uous service for not less than one year in that undertaking immediately before such closure shall, subject to the provi sions of sub section (2), be entitled to notice and compen sation in accordance with the provisions of section 25 F, as if the workman had been retrenched; Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workmen under clause (b) of section 25 F shall not exceed his aver age pay for three months.
" Thus, by this Amendment Act the Parliament clearly provided that though such termination may not have been retrenchment technically so called, as decided by this Court, neverthe less the employees in question whose services were terminat ed by the transfer or closure of the undertaking would be entitled to compensation, as if the said termination was retrenchment.
As it has been observed, the words "as if" brought out the legal distinction between retrenchment defined by section 2(00) as it was interpreted by this Court and termination of services consequent upon transfer of the undertaking.
In other words, the provision was that though termination of services on transfer or closure of 131 the undertaking may not be retrenchment, the workmen con cerned were entitled to compensation as if the said termina tion was retrenchment.
Thus we find that till then the accepted meaning of retrenchment was ordinary, contextual and narrower meaning of termination of surplus labour for any reason whatsoever.
In Anakapalla Co operative Agricultural and Industrial Society Ltd. vs Workmen, [1963] Suppl.
1 SCR 730, a company running a sugar mill was suffering losses every year due to insufficient supply of sugarcane and wanted to shift the mill.
The cane growers formed a co operative society and purchased the mill.
As agreed between the company and the society, the company terminated the services of the employ ees and paid retrenchment compensation to them under section 25FF of the Act.
This society employed some of the old employees and refused to absorb some of them who raised an industrial dispute.
The Industrial Tribunal having directed the purchaser society by its award to re employ them, the society contended that it was not a successor in interest of the company and hence the claim of re employment was not sustainable and the services of the employees having been terminated upon payment of compensation by the company under section 25FF no claim could be made against the transferee socie ty.
This Court held that the society was the successor in interest of the company as it carried on the same or similar business as was carried by the vendor company at the same place and without substantial break in continuity.
It was further held that the employees were not entitled to both compensation for termination of service and immediate re employment at the hands of the transferee and section 25H was not applicable to the case as the termination of service upon transfer or closure was not retrenchment properly so called and that termination of service dealt with in section 25FF could not be equated with retrenchment covered by section 25F.
It was observed that the words 'as if ' in section 25FF clearly distinguished retrenchment under section 2(00) and termination under section 25FF.
Gajendragadkar, J., as he then was, speaking for the five Judges Bench said that in Hariprasad this Court was called upon to consider the true scope and effect of the concept of retrenchment as defined in section 2(00) and it held that the said definition had to be read in the light of the accepted connotation of the words, and as such, it could have no wider meaning than the ordinary connotation of the word and according to this connotation retrenchment meant the discharge of surplus labour or staff by the employer for any reason whatsoever, otherwise ' then as a punishment inflicted by way of disciplinary action, and did 132 not include termination of services of all workmen on the bona fide closure of industry or on change of ownership or management thereof.
It was observed: " . . the effect of this decision was that though the definition of the word 'retrenchment ' may perhaps have included the termination of services caused by the closure of the concern or by its transfer, these two latter cases could not be held to fall under the definition because of the ordinary accepted connotation of the said word.
This decision necessarily meant that the word 'retrenchment ' in section 25FF had to bear a corresponding interpretation." In Workmen of Subong Tea Estate vs The outgoing Manage ment of Subong Tea Estate and Anr., reported in ; , it was similarly observed at page 613 of the report: "In dealing with the question of retrenchment in the light of the relevant provisions to which we have just referred, it is, however, necessary to bear in mind that the manage ment can retrench its employees only for proper reasons.
It is undoubtedly true that it is for the 'management to decide the strength of its labour force, for the number of workmen required to carry out efficiently the work involved in the industrial undertaking of any employer must always be left to be determined by the management in its discretion, and so, occasions may arise when the number of employees may exceed the reasonable and legitimate needs of the undertak ing.
In such a case, if any workman become surplus, it would be open to the management to retrench them.
Workmen may become surplus on the ground of rationalisation or on the ground of economy reasonably and bona fide adopted by the management, or of other industrial or trade reasons.
In all these cases, the management would be justified in effecting retrenchment in its labour force.
Thus, though the right of the management to effect retrenchment can not normally be questioned, when a dispute arises before an Industrial Court in regard to the validity of any retrenchment, it would be necessary for industrial adjudication to consider whether the impugned retrenchment was justified for proper reasons.
It would not be open to the management either capriciously or without any reason at all to say that it proposes to reduce its labour 133 force for no rhyme or reason.
This position can not be seriously disputed" In Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukherjee and Ors., reported in ; where the post of motion setter was abolished and the respondent was given a job of a trainee on probation for the post of As sistant Line Fixer and the management found him unsuitable for the job even after extending his probation period upto nine months and offered him the post of fitter on the same pay and the respondent instead of accepting the offer wanted to be given another chance to show his efficiency in his job and the management struck off his name from the rolls with out complying with the provisions of section 25F(a) and (b) of the Act and the Labour Court having given award in the respondent 's favour and the appellant 's writ petition was rejected by the High Court, Goswami, J. speaking for three Judges Bench said: "Striking off the name of the workman from the rolls by the management is termination of his service.
Such termination of service is retrenchment within the meaning of section 2(00) of the Act.
There is nothing to show that the provisions of section 25F (a) and (b) were complied with by the management in this case.
The provisions of section 25F(a), the proviso apart, and (b) are mandatory and any order of retrenchment in violation of these two peremptory conditions precedent is invalid.
" The appeal was accordingly dismissed.
The earlier decisions were not referred to.
Next comes the decision in State Bank of India vs Shri N. Sundara Money, reported ; Chandra chud, V.R. Krishna lyer and A.C. Gupta, JJ.).
In an applica tion under Article 226, the respondent on automatic extin guishment of his service consequent to the pre emptive provision as to the temporariness of the period of his employment in his appointment letter claiming to have been deemed to have had continuous service for one year within the meaning of section 25(B)(2) of the Act, the Single Bench of the High Court having allowed his writ petition and the writ appeal of the appellant having also failed, this Court in appeal found as fact that the appointment was purely tempo rary one for a period of 9 days but might be terminated earlier, without assigning any reason therefor at the peti tioner 's discretion; and the employment unless terminated earlier, would automatically cease at the expiry of the period i.e. 18.11.1972.
This 9 days ' employment added on to what had gone before ripened to a continuous service for a year "on the antecedent arithmetic of 240 days of broken bits of service" and considering the meaning of 'retrench ment ' it was held that the expression for any reason whatso ever 134 was very wide and almost admitting of no exception.
The contention of the employer was that when the order of ap pointment carried an automatic cessatioin of service, the period of employment worked itself out by efflux of time, not by act of employer and such cases were outside the concept of retrenchment.
This Court observed that to re trench is to cut down and one could not retrench without trenching or cutting, but "dictionaries are not dictators of statutory construction where the benignant moo&of a law and, more emphatically, the definition clause furnish a different denotation.
" Accepting the literal meaning, Krishna Iyer, J. observed: "A break down of section 2(00) unmistakably expands the semantics of retrenchment. 'Termination . . for any reason whatso ever ' are the key words.
Whatever the reason, every termina tion spells retrenchment.
So the sole question is, has the employee 's service been terminated? Verbal apparel apart, the substance is decisive.
A termination takes place where a term expires either by the active step of the master or the running out of the stipulated term.
To protect the weak against the strong this policy of comprehensive definition has been effectuated.
Termination embraces not merely the act of termination by the employer, but the fact of termina tion howsoever produced.
May be, the present may be a hard case, but we can visualise abuses by employers, by suitable verbal devices, circumventing the amount of section 25F and section 2(00).
Without speculating on possibilities, we may agree that 'retrenchment ' is no longer terra incognita but area covered by an expansive definition.
It means 'to end, con clude, cease. ' In the present case the employment ceased, concluded, ended on the expiration of 9 days automatically may be, but cessation all the same.
That to write into the order of appointment the date of termination confers no mokshas from section 25F (b) is inferable from the proviso to section 25F(1).
True, the section speaks of retrenchment by the employer and it is urged that some act of volition by the employer to bring about the termination is essential to attract section 25F and a omatic extinguishment of service by effluxion of time cannot be sufficient.
" It was further observed: "Words of multiple import have to be winnowed judicially 135 to suit the social philosophy of the statute.
So screened we hold that the transitive and intransitive senses are covered in the current context.
Moreover, an employer terminates employment not merely by passing an order as the service runs.
He can do so by writing a composite order, one giving employment and the other ending or limiting it.
A separate, subsequent determination is not the sole magnetic pull of the provision.
A pre emptive provision to terminate is struck by the same vice as the post appointment termination.
Dexterity of diction cannot defeat the articulated con science of the provision.
" The precedents including Hariprasad do not appear to have been brought to the notice of their Lordship in this case.
It may be noted that since Delhi Cloth and General Mills (supra) a change in interpretation of retrenchment in section 2(00) of the Act is clearly discernible.
Mr. Venugopal would submit that the Judgment in Sundara Money 's case and for that matter the subsequent decisions in the line are per incuriam for two reasons: (i) that they failed t0 apply the law laid down by the Constitution Bench of this Hon 'ble Court in Hariprasad Shukla 's case (supra) and (ii) for the reason that they have ignored the impact of two of the provisions introduced by the Amendment Act of 1953 along with the definition of "retrenchment" in section 2(00) and section 25F namely, sections 25G and 25H.
We agree with the learned counsel that the question of the subsequent deci sions being per incuriam could arise only if the ratio of Sundara Money 's case and the subsequent Judgments in the line was in conflict with the ratio in the Hariprasad Shuk la 's case (supra) and Anakapalla 's case (supra).
The issue, it is urged, was, whether it was necessary for the Court to interpret section 2(00) as being restricted to termination of services of workmen rendered surplus for arriving at a decision in the case and if it was unnecessary to so inter pret section 2(00) for the purpose of arriving at a decision in that case, the interpretation of section 2(00) would necessarily by rendered obiter.
According to counsel, the long discus sion on interpretation of section 2(00) could not be brushed aside as either obiter or mere casual observations of the Constitution Bench.
It is urged that for the.purpose of ratio decidendi, the question is not whether a subsequent Bench of the Su preme Court thinks that it was necessary or unnecessary for the Constitution Bench, of the earlier Bench to have dealt with the issue, but whether the Constitution Bench itself thought it necessary to interpret Section 2(00) for 136 arriving at its final decision.
If the smaller Bench of the Supreme Court could ignore the earlier decision of a larger Bench of the Supreme Court by holding that in its opinion, it was not necessary for the earlier Bench to have gone into the issue, equally it would be open to a High Court to adopt the same approach and ignore binding Judgments of the Su preme Court; giving rise to judicial indiscipline.
According to counsel the Constitution Bench, in its unanimous verdict, undoubtedly found it necessary to go into the interpretation of section 2(00) and did so with elaborate reasoning supporting its findings, because if the contention of the Management in that case was accepted, namely, that "retrenchment" would cover only termination of surplus labour for any reason whatsoever, the logical result of this finding, would be twofold: (i) that the termination of the entirety of workmen by reason of closure, would not be a termination of workmen rendered surplus and, therefore, a case of closure would be outside section 2(00), and (ii) secondly, such termination of workmen rendered surplus, could arise only if the industry continued to be a running industry.
The question whether the positive content of section 2(00) restricting the definition of workmen rendered surplus, for any reason, whatsoever, is part of the ratio or not, submits Mr. Venugopal, is wholly an academic question in view of the fact that as many as 9 High Courts have restricted the applicability of section 25F, 25G and 25H to only cases of termi nation of services of surplus labour for any reason whatso ever and not to other types of termination, whatever may be the reason for such termination.
Even if a Judgment was to be based on two alternative reasons or conclusions, each one of these alternative reasons or basis, would form the ratio of the Judgment.
It is also urged that the argument would equally apply to the ratio of Anakapalla 's case rendering the Judgments in Sundra Money 's case and the later decisions per incuriam, for not having noticed or followed a binding precedent of the Supreme Court itself, as the Judgment of the Constitution Bench binds smaller Divisions of the Court.
We now deal with the question of per incuriam by reason of allegedly not following the Constitution Bench decisions.
The Latin expression per incuriam means through inadvert ence.
A decision can be said generally t0 be given per incuriam when this Court has acted in ignorance of a previ ous decision of its own or when a High Court has acted in ignorance of a decision of this Court.
It can not be doubted that article 141 embodies, as a rule of law, the doctrine of precedents on which our judicial system is based.
In Bengal Immunity Company Ltd. vs State of Bihar, , it was held that the words of article 137 14 1, "binding on all courts within the territory of India", though wide enough to include the Supreme Court, do not include the Supreme Court itself, and it is not bound by its own judgments but is free to reconsider them in appropriate cases.
This is necessary for proper development of law and justice.
May be for the same reasons before judgments were given in the House of Lords in Re Dawson 's Settlement Lloyds Bank Ltd. vs Dawson and Ors., [1966] 1 WLR 1234, on July 26, 1966 Lord Gardiner, L.C. made the following statement on behalf of himself and the Lords of Appeal in Ordinary: "Their Lordships regard the use of precedent as an indis pensable foundation upon which to decide what is the law and its application to individual cases.
It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.
Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law.
They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so.
In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for cer tainty as to the criminal law.
" Though the above announcement was not made in the course of judicial proceeding it shows that it is open to House of Lords to depart from the doctrine of precedent when consid ered justified.
Section 2 12 of the Government of India Act, 1935 and article 141 of the Constitution of India were enacted to make the law declared by the Supreme Court binding on all courts in the country excluding, as is now being interpret ed, the Supreme Court itself.
The doctrine of ratio deciden di has also to be interpreted in the same line.
In England a decision is said to be given per incuriam when the court has acted in ignorance of a previous decision of its own or of a court of co ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords.
In the former case it must decide which decision to follow, and in the latter it is bound by the decision of the House of Lords.
It has been said that the decision of the House of 138 Lords mentioned above, refers to a decision subsequent to that of the Court of Appeal.
However, "a prior decision of the House of Lords inconsistent with the decision of the Court of Appeal, but which was not cited to the Court of Appeal will make the later decision of the Court of Appeal of no value as given per incuriam.
" But if the prior deci sion had been cited to the Court of Appeal and that court had misinterpreted a previous decision of the House of Lords, the Court of Appeal must follow its previous decision and leave the House to rectify the mistake.
In Halsbury 's Laws of England 4th Ed.
10 para 745 it has been said: "While former decisions of the House are normally binding upon it, the House will depart from one of its own previous decisions when it appears right in the interests of justice and of the proper development of the law to do so.
Cases where the House may reconsider its own previous decisions are those involving broad issues of justice or public policy and questions of legal principle.
Only in rare cases will the House reconsider questions of construction of statutes or other documents.
The House is not bound to follow a previous case merely because it is indistinguishable on the facts. ' ' The position and experience in this Court could not be much different, keeping in view the need for proper develop ment of law and justice.
As regards the judgments of the Supreme Court allegedly rendered in ignorance of a relevant constitutional provision or other statutory provisions on the subjects covered by them, it is true that the Supreme Court may not be said to "declare the law" on those subjects if the relevant provi sions were not really present to its mind.
But in this case sections 25G and 25H were not directly attracted and even if they could be said to have been attracted in laying down the major premise, they were to be interpreted consistently with the subject or context.
The problem of judgment per incuriam when actually arises, should present no difficulty as this Court can lay down the law afresh, if two or more of its earlier judgments cannot stand together.
The question howev er is whether in this case there is in fact a Judgment per incuriarn.
This raises the question of ratio decidendi in Hariprasad and Anakapalla 's cases on the one hand and the subsequent decisions taking the contrary view on the other.
139 An analysis of judicial precedent, ratio decidendi and the ambit of earlier and later decisions is to be found in the House of Lords ' decision in F.A. & A.B. Ltd. vs Lupton (Inspector of Taxes), [19722] AC 634, Lord Simon concerned with the decisions in Griffiths vs J.P. Harrison (Watford) Ltd., , and Finsbury Securities Ltd. vs Inland Revenue Commissioners, , with their inter relationship and with the question whether Lupton 's case fell within the precedent established by the one or the other case, said: "What constitutes binding precedent is the ratio decidendi of a case and this is almost always to be ascertained by an analysis of the material facts of the case that is, general ly, those facts which the tribunal whose decision is in question itself holds, expressly or implicitly, to be mate rial.
" It has also been analysed: "A judicial decision will often be reached by a process of reasoning which can be reduced into a sort of complex syllo gism, with the major premise consisting of a pre existing rule of law (either statutory or judge made) and with the minor premise consisting of the material facts of the case under immediate consideration.
The conclusion is the deci sion of the case, which may or may not establish new law in the vast majority of cases it will be merely the application of existing law to the facts judicially ascertained.
Where the decision does consititute new law, this may or may not be expressly stated as a proposition of law: frequently the new law will appear only from subsequent comparison of, on the one hand, the material facts inherent in the major premise with, on the other, the material facts which consti tute the minor premise.
As a result of this comparison it will often be apparent that a rule has been extended by an analogy expressed or implied.
" To consider the ratio decidendi of a case we have, therefore, to ascertain the principle on which the case was decided.
Sir George Jessel in Osborne vs Rowlett, , remarked that 'the only thing in a judge 's decision binding as an authority upon a subsequent judge is the principle upon which the case was decided '.
The ratio decidendi of a decision may be narrowed or widened by the judges before whom it is cited as a prece dent.
In the process the 140 ratio decidendi which the judges who decided the case would themselves have chosen may be even different from the one which has been approved by subsequent judges.
This is be cause Judges, while deciding a case will give their own reasons but may not distinguish their remarks in a rigid way between what they thought to be the ratio decidendi and what were their obiter dicta, that is, things said in passing having no binding force, though of some persuasive power.
It is said that "a judicial decision is the abstraction of the principle from the facts and arguments of the case." "A subsequent judge may extend it to a broader principle of wider application or narrow it down for a narrower applica tion.
" The submissions of Mr. Venugopal that for the purpose of ratio decidendi, the question is not whether a subsequent Bench of this Court thinks that it was necessary or unneces sary for the Constitution Bench, or the earlier Bench to have dealt with the issue, but whether the Constitution Bench itself thought it necessary to interpret section 2 (00) for arriving at the final decision has to be held to be untena ble in this wide and rigid form.
Analysing the compled syllogism of Hariprasad 's case we find that its major premise was that retrenchment meant termination of surplus labour of an existing industry and the minor premise was, that the termination in that case was of all the workmen on closure of business on change of ownership.
The decision was that there was no retrenchment.
In this context it is important to note what subsequent benches of this Court thought to be the ratio decidendi of Hariprasad, and for that matter of Anakapalla.
In Santosh Gupta vs State Bank Of Patiala, reported in ; , O. Chinnappa Reddy, J. sitting with Krish na Iyer, J. deduced the ratio decidendi of Hariprasad thus: "In Hariprasad Shivshankar Shukla vs A.D. Divikar, the Su preme Court took the view that the word 'retrenchment ' as defined in section 2(00) did not include termination of services of all workmen on a bona fide closure of an industry or on change of ownership or management of the industry.
In order to provide for the situations which the Supreme Court held were not covered by the definition of the expression 're trenchment ', the Parliament added section 25FF and section 25FFF providing for the payment of compensation to the workmen in case of transfer of undertakings and in case of closure of undertakings respectively.
" 141 In Hariprasad (supra) the learned Judges themselves formulated the question before them as follows: "The question, however, before us is does this definition merely give effect to the ordinary, accepted notion of retrenchment in an existing or running industry by embodying the notion in apt and readily intelligible words or does it go so far beyond the accepted notion of retrenchment as to include the termination of services of all workmen in an industry when the industry itself ceases t0 exist on a bona fide closure or discontinuance of his business by the em ployer.
" The question was answered by the learned Judges in the following words: "In the absence of any compelling words to indicate that the intention was even to include a bona fide closure of the whole business, it would, we think, be divorcing the expres sion altogether from the context to give it such a wide meaning as is contended for by learned counsel for the respondents . . it would be against the entire scheme of the Act to give the definition clause relating to retrench ment such a meaning as would include within the definition termination of service of all workmen by the employer when the business itself ceases to exist." Rejecting the submission of Dr. Anand Prakash that "termina tion of service for any reason whatsoever" meant no more and no less than discharge of a labour force which was a sur plusage, it was observed in Santosh Gupta (supra) that the misunderstanding of the observations and the resulting confusion stem from not appreciating the lead question which was posed and answered by the learned Judges and ' that the reference to 'discharge on account of surplusage ' was illus trative and not exhaustive on account of transfer or closure of business.
Mr. V.A. Bobde submits, and we think rightly, that the sole reason for the decision in Hariprasad was that the Act postulated the existence and continuance of an industry and where the industry i.e. the undertaking, itself was closed down or transferred, the very substratum disappeared and the Act could not regulate industrial employment in the absence of an industry.
The true position in that case was that section 2(00) and 25F could not be invoked since the undertaking itself 142 ceased to exist.
The ratio of Hariprasad, according to the learned counsel, is discernible from the discussion at pp.
13 1 132 of the report about the ordinary accepted notion of retrenchment 'in an industry ' and Pipraich 's case was re ferred to for the proposition that continuance of the busi ness was essential; the emphasis was not on the discharge of surplus labour but on the fact that "retrenchment connotes in its ordinary acceptation that the business itself is being continued . . the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as retrenchment.
" At page 134 in the last four lines also it was said: "But the fundamental question at issue is, does the definition clause cover cases of closure of business when the closure is real and bona fide?" The reasons for arriving at the conclusion are given as "it would be against the entire scheme of the Act to give the definition clause relating to retrenchment such a meaning as would include within the definition termi nation of service of all workmen by the employer when the business itself ceases to exist and that the industrial dispute to which the provisions of the Act applies is only one which arises out of an existing industry".
Thus, the Court was neither called upon to decide nor did it decide whether in a continuing business, retrenchment was confined only to discharge of surplus staff and the reference to discharge of surplusage was for the purpose of contrasting the situation in that case, i.e. workmen were being re trenched because of cessation of business and those observa tions did not constitute reasons for the decision.
What was decided was that if there was no continuing industry the provision could not apply.
In fact the question whether retrenchment did or did not include other terminations was never required to be decided in Hariprasad and could not, therefore have been, or be taken to have been decided by this Court.
Lord Halsbury 's dicta in Quinn vs Leathem, ; at page 506 is: " . . every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but gov erned and qualified by the particular facts of the case in which such expressions are to be found.
The other is that a case is only on authority for what it actually decides.
" This Court held in State of Orissa vs Sudhansu Misra, ; , that a decision is only an authority for what it actually decides.
143 What is of the essence in a decision is its ratio and not other observation found therein nor what logically follows from the various observations made in it.
We agree with Mr. Bobde when he submits that Hariprasad 's case is not an authority for the proposition that section 2(00) only covers cases of discharge of surplus labour and staff.
The Judg ments in Sundara Money (supra) and the subsequent decisions in the line could not be held to be per incuriam inasmuch as in Hindustan Steel and Santhosh Gupta 's cases, the Division Benches of this Court had referred to Hariprasad 's case and rightly held that its ratio did not extend beyond a case of termination on the ground of closure and as such it would not be correct to say that the subsequent decisions ignored a binding precedent.
In Hindustan Steel Ltd. vs The Presiding Officer, Labour Court, ; the question was whether termination of service by efflux of time was termination of service within the definition of retrenchment in section 2(oo) of the Act.
Both the earlier decisions of the Court in Haripra sad (supra) and Sundara Money (supra) were considered and it was held that there was nothing in Hariprasad which was inconsistent with the decision in Sundara Money 's case.
It was observed that the decision in Hariprasad was only that the words "for any reason whatsoever" used in the definition of retrenchment would not include a bona fide closure of the whole business because it would affect the entire scheme of the Act.
The decisions in L. Robert D 'Souza vs Executive Engineer, Southern Railway and Anr., ; The Managing Director, National Garages vs
J. Gonsalves, ; Goodlas Nerolac Paints vs Chief Commis sioner, Delhi, and Rajasthan State Electricity Board vs Labour Court, , in which contrary view was taken, were overruled in Santosh Gupta holding that the discharge of the workman on the ground that she did not pass the test which would have enabled her to be confirmed was 'retrenchment ' within the meaning of section 2(oo) and therefore, the requirement of section 25F had to be complied with.
The workman was em ployed in the State Bank of Patiala from July 13, 1973 till August, 1974 when her services were terminated.
According to the workman she.
had worked for 240 days in the year preced ing August 21, 1974 and the termination of her services was retrenchment as it did not fall within any of the three accepted cases.
The management 's contention was that termi nation was not due to discharge of surplus labour but due to failure of the workman to pass the test which could have enabled her to be confirmed in the service and as such it was not retrenchment.
This contention was repelled.
144 Both Mr. Shetye and Mr. Venugopal submit that judicial discipline required the smaller benches to follow the deci sions in the larger benches.
This reminds us of the words of Lord Mailsham of Marylebone, the Lord Chancellor, "in the hierarchical system of courts which exists in this country, it is necessary for each lower tier . . to accept loyal ly the decisions of the higher tiers".
However, in view of the ratio decidendi of Hariprasad, as we have seen, there is no room for such a criticism.
In Management of Karnataka State Road Transport Corpora tion, Bangalore vs M. Boraiah, reported in ; , a Division Bench of A.N. Sen and Ranganath Misra, JJ.
fol lowing the decisions in State Bank of India vs N. Sundara Money, (supra); Hindustan Steel Ltd. vs Presiding Officer, Labour Court, Orissa, (supra); Santosh Gupta vs State Bank of Patiala, (supra); Indian Hume Pipe Co. Ltd. vs Workmen, [ ; Mohan Lal vs Management of M/s. Bharat Electronics Ltd., ; and Surendra Kumar Verma vs Central Government Industrial Tribunal cum Labour Court, New Delhi, ; , held that in the above series of cases that have come later, the Constitution Bench deci sion in Hariprasad (supra) has been examined and the ratio indicated therein has been confined to its own facts and the view indicated by the Court in that case did not meet with the approval of Parliament and, therefore, the law had been subsequently amended.
Speaking for the Court, R.N. Misra, J. significantly said: "We are now inclined to hold that the stage has come when the view indicated in Money case (supra) has been 'absorbed into the consensus ' and there is no scope for putting the clock back or for an anti clockwise operation." More than a month thereafter in Gammon India Ltd. vs Niranjan Dass; , , a three Judges Bench (D.A. Desai, R.B. Misra and Ranganath Misra, JJ.) construing the one month 's notice of termination in that case due to reduc tion of volume of business of the company said: "On a true construction of the notice, it would appeal that the respondent had become surplus on account of reduction in volume of work and that constitutes retrenchment even in the traditional sense of the term as interpreted in Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Mazdoor 145 Union, though that view does not hold the field in view of the recent decisions of this Court in State Bank of India vs N. Sundara Money; Hindustan Steel Ltd. vs Presiding Officer, Labour Court, Orissa; Santosh Gupta vs State Bank of Patia la; Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukherjee; Mohan Lal vs Management of M/s. Bharat Electron ics Ltd. and L. Robert D 'Souza vs Executive Engineer, South ern Railway.
The recitals and averments in the notice leave no room for doubt that the service of the respondent was terminated for the reason that on account of recession and reduction in the volume of work of the company, respondent has become surplus.
Even apart from this, the termination of service for the reasons mentioned in the notice is not covered by any of the clauses (a), (b) and (c) of section 2(00) which defines retrenchment and it is by now well settled that where the termination of service does not fall within any of the excluded categories, the termination would be ipso facto retrenchment.
It was not even attempted to be urged that the case of the respondent would fall in any of the excluded categories.
It is therefore indisputably a case of retrenchment." (Emphasis supplied) In a fast developing branch of Industrial and Labour law it may not always be of particular importance to rigidly adhere to a precedent, and a precedent may need be departed from if the basis of legislation changes.
It was in realisa tion of the idea of a living law that in Reg vs Home Secre tary, exhibit P. Khawaja, reported in [1984] AC 74 (H.L.) it was said at p. 84: The House will depart from a previous decision where it is right to do so and where adherence to a previous decision may lead to injustice in a particular case.
Constitutional and administrative law are not fields where it is of partic ular importance to adhere to precedent.
A recent precedent may be more readily departed from than one which is of long standing.
A precedent may be departed from where the issue is one of statutory construction " We now take up the question of interpretation of section 2(00) of the Act dealing with the rival contentions, namely, ordinary or contextual as against literal meaning.
146 When we analyse the mental process in drafting the definition of "retrenchment" in section 2(00) of the Act we find that firstly it is to mean the termination by the employer of the service of a workman for any reason whatsoever.
Having said so the Parliament proceeded to limit it by excluding certain types of termination, namely, termination as a punishment inflicted by way of disciplinary action.
The other types of termination excluded were (a) voluntary retrenchment; or (b) retrenchment of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation on that behalf; or (c) termination of service of a workman on the ground of continued ill health.
Had the Parliament envisaged only the question of termination of surplus labour alone in mind, there would arise no question of excluding (a), (b) and (c) above.
The same mental process was evident when section 2(00) was amended inserting another exclusion clause (bb) by the Amending Act 49 of 1984, with effect from 18.8.1984, "termination of the service of work man as a result of the non renewal of the contract of em ployment between the employer and the workman concerned on its expiry of such contract being terminated under a stipu lation in that behalf contained therein.
" This is literal interpretation as distinguished from contex tual interpretation. "The only rule of construction of Acts of Parliament", says Tindal, C.J. in Sussex Peerage case, [1844] 11 C1 & Fin 85 (143), "is that they should be construed according to the intent of the Parliament which passed the Act.
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense.
The words themselves alone do, in such case, best declare the intention of the lawgiv er.
" In Mutto vs T.K. Nandi, reported in ; (418) it was similarly said: "The Court has to determine the intention as expressed by the words used.
If the words of a statute are themselves precise and unambiguous then no more can be necessary then to expound those words in their ordi nary and natural sense.
The words themselves alone do in such a case best declare the intention of the lawgiver.
" As was stated in Thompson vs Gould, reported in ; (420) "it is a wrong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do 147 so." "The cardinal rule of construction of statute is to read statutes literally, that is, by giving to the words their ordinary, natural and grammatical meaning." [Jugalki shore vs Ram Cotton Co. Ltd.; , To interpret an Act of Parliament is to give effect to its intention.
Lord Simon in Ealing L.B.C. vs Race Relations Board, ; (360) said: "The Court sometimes asks itself what the draftsman must have intended.
This is reasonable enough: the draftsman knows what is the intention of the legislative initiator (nowadays almost always an organ of the executive); he know what canons of construction the courts will apply; and he will express himself in such a way as accordingly to give effect to the legislative intention.
Parliament, of course, in enacting legislation assumes responsibility for the language of the draftsman.
But the reality is that only a minority of legislators will attend the debates on the legislation.
Failing special interest in the subject matter of the legislation, what will demand their attention will be something on the face of proposed legislation which alerts them to a questionable matter.
Accordingly, such canons of construction as that words in a non technical statute will primarily be interpreted according to their ordinary meaning . . " According to Lord Simon looking into the legislative history or ' the preparatory works may sometimes be useful but may often lead to abuse and waste, as "an individual legislator may indicate his assent on an assumption that the legislation means so and so and the courts may have no way of knowing how far his assumption is shared by his col leagues, even those present." "In the absence of such mate rial it is said, the courts have five principal avenues of approach to the ascertainment of the legislative intention: (1) examination of the social background, as specifically proved if not within common knowledge, in order to identify the social or juristic defect which is likely subject of remedy; (2) a conspectus of the entire relevant body of the law for the same purpose; (3) particular regard to the long title of the statute to be interpreted (and where available, the preamble), in which the general legislative objectives will be stated; (4) scrutiny of the actual words to be interpreted, in the light of the established canons of interpretation; and (5) examination of the other provisions of the statute in question (or of other statutes in pari materia) for the illumination which they 148 throw on the particular words which are the subject of interpretation.
The Heydon 's Rule requires that the court will look at the Act to see what was its purpose and what mischief in the earlier law it was designed to prevent.
Four things are to be considered: (i) What was the law before the making of the Act? (ii) What was the mischief and defect for which the earlier law did not provide? (iii) What remedy the Parlia ment had resolved to cure? (iv) What is the true reason for the remedy? The Court shall make such construction as shall suppress the mischief and advance the remedy.
Where the statute has been passed to remedy a weakness in the law, it is to be interpreted in such a way as well to bring about that remedy.
The literal rules of construction require the wording of the Act to be construed according to its literal and gram matical meaning whatever the result may be.
Unless otherwise provided, the same word must normally be construed through out the Act in the same sense, and in the case of old stat utes regard must be had to its contemporary meaning if there has been no change with the passage of time.
However, the Law Commission 21 of England has struck a note of caution that "to place undue emphasis on the literal meaning of the words of a provision is to assume an unattainable perfection in draftsmanship".
In Whiteley vs Chappelf, , a statute concerned with electoral mal practices made it an offence to personate 'any person enti tle to vote ' at an election.
The defendant was accused of personating a deceased voter and the court, using the liter al rule, found that there was no offence as the personation was not of person entitled to vote.
A dead person was not entitled to vote.
A deceased person did not exist and had no right to vote and as a result the decision arrived at was contrary to the intention of Parliament.
As it was pointed out in Prince of Hanover vs Attorney General [1956] Ch.
188, the Golden Rule in the form of modified literal Rule, according to which the words of statute will as far as possible be construed according to their ordinary and plain and natural meaning, unless this leads to an absurd result.
Where the conclusion reached by applying the literal rule is contrary to the intention of Parliament, the Golden rule is helpful.
A tested rule is that of Noscitur a sociis.
The meaning of a word can be gathered from its context.
Under this rule words of doubtful meaning may be better understood from the nature of the words and phrases with which they are associated [Muir vs Keay, [1875] L.R 10 Q.B. 594].
But this will not apply when the word itself has been defined.
149 In the case before us the difficulty was created by defining 'retrenchment ' to mean something wider than what it naturally and ordinarily meant.
While naturally and ordi narily it meant discharge of surplus labour, the defined meaning was termination of service of a workman for any reason whatsoever except those excluded in the definition itself.
Such a definition creates complexity as the drafts man himself in drafting the other sections using the defined word may slip into the ordinary meaning instead of the defined meaning.
Way back in the Queen vs The Commissioners under the Boiler Explosions Act, 1882, [1891] 1 Q.B. Division 703, a boiler for generating steam was situate above ground at a colliery, and a pipe conducted the steam down the shaft and along the working to a pumping engine in the mine.
A valve in this pipe, in the mine and near the pumping engine blew off.
The question was whether the pipe in which the explo sion occurred was a 'boiler ' within the interpretation clause of the Boiler Explosions Act, 1882.
Lord M.R. Esher said; "If the Act had dealt with the explosion of a boiler and in some other ' section with an explosion in pipes or in any other specified thing, the matter would be easy; but the draftsman has gone upon that which to my mind is a dangerous method of drawing Acts of Parliament.
He has put in a sec tion which says that a boiler shall mean something which is in reality not a boiler.
This third section of the Act of 1882 that is the Boiler Explosions Act 1882 is a 'peculiarly bad specimen ' of the method of drafting, which enacts that a word shall mean something which in fact it does not mean." However, a judge facing such a problem of interpretation can not simply fold his hands and blame the draftsman.
Lord Denning in his Discipline of Law says at p. 12: "Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity.
The English language is not an instru ment of mathematical precision.
Our literature would be much the poorer if it were.
This is where the draftsman of Acts of Parliament have often been unfairly criticised.
A judge, believing himself to be lettered by the supposed rule that he must look to the language and nothing else, laments that the draftsmen have not provided for this or that, or have been guilty of some or other ambiguity.
It would cer 150 tainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity.
In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of Parlia ment, and he must do this not only from the language of the statute, but also from a consideration of the social condi tions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement the writ ten word so as to give 'force and life ' to the intention of the legislature.
" Analysing the definition of retrenchment in section 2(00) we find that termination by the employer of the service of a workman would not otherwise have covered the cases excluded in (a) and (b), namely, voluntary retirement and retirement on reaching the stipulated age of retirement.
There would be no volitional element of the employer.
Their express exclu sion implies that those would otherwise have been included.
Again if those cases were to be included, termination on abandonment of service, or on efflux of time, and on failure to qualify, although only consequential or resultant, would be included as those have not been excluded.
Thus, there appears to be a gap between the first part and the exclusion part.
Mr. Venugopal, on this basis, points out that cases of voluntary retirement, superannuation and tenure appointment are not cases of termination 'by the employer ' and would, therefore, in any event, be outside the scope of the main provisions and are not really provisos.
The definition has used the word 'means '.
When a statute says that a word or phrase shall "mean" not merely that it shall "include" certain things or acts, "the definition is a hard and fast definition, and no other meaning can be assigned to the expression than is put down in definition" (per Esher, M.R., Gough vs Gough, A defi nition is an explicit statement of the full connotation of a term.
Mr. Venugopal submits that the definition clause cannot be interpreted in isolation and the scope of the exception to the main provision would also have to be looked into and when so interpreted, it is obvious that a restrictive mean ing has to be given to section 2(00).
It is also pointed out that section 25G deals with the prin ciple of 'last come, first go ', a principle which existed prior to the Amendment Act 151 of 1953 only in relation to termination of workmen rendered surplus for any reasons whatsoever and that was followed in Vishwamitra Press, Kanpur vs Workers of Vishwamitra Press, at p.33/41; Presidency Jute Mills Co. Ltd. vs Presidency Jute Mills Co.
Employees Union, [1952] L.A.C. 62; Iron and Steel Mazdoor Union,Kanpur vs J.K. Iron and Steel Co. Ltd., ; Halar Sali and Chemical Works, Jamnagar vs Workmen, ;Prakriti Bhushan Gupta vs Chief Mining Engineer Railway Board, ; Sudarshan Banerjee vs Mcleod and Co. Ltd., (7 11).
Besides, it is submitted, by its very nature the wide definition of retrenchment would be wholly inapplicable to termination simpliciter.
The question of picking out a junior in the same category for being sent out in place of a person whose services are being terminated simpliciter or otherwise on the ground that the management does not want to continue his contract of employment would not arise.
Similarly it is pointed out that starting from Sundara Money where termination simpliciter of a workman for not having passed a test, or for not having satisfactorily completed his probation would not attract section 25G, as the very question of picking out a junior in the same category for being sent out instead of the person who failed to pass a test or failed to satisfactorily complete his probation could never arise.
If, however, section 25G were to be followed in such cases, the section would itself be rendered uncon stitutional and violative of fundamental rights of the workmen under Articles 14, 19(1)(g) and 21 of the Constitu tion.
It would be no defence to this argument to say that the management could record reasons as to why it is not sending out the juniormost in such cases.
Since in no single case of termination simpliciter would section 25G be applicable and in every such case of termination simpliciter, without exception, reasons would have to be recorded Similarly, it is submitted, section 25H which deals with re employment of re trenched workmen, can also have no application whatsoever, to a case of termination simipliciter because of the fact that the employee whose services have been terminated, would have been holding a post which 'eo instanti ' would become vacant as a result of the termination of his services and under section 25H he would have a right to be reinstated against the very post from which his services have been terminated, rendering the provision itself an absurdity.
It is urged that section 25F is only procedural in character along with sections 25G and 25H and do not prohibit the substantive right of termination but on the other hand requires that in effecting termination of employment,notice would be given and payment of money would be made and theater procedure under sections 25G and 25H would follow.
152 Mr. Bobde refutes the above argument saying that sections 25F, 25G and 25H relate to retrenchment but their contents are different.
Whereas section 25F provides for the conditions precedent for effecting a valid retrenchment, section 25G only provides the procedure for doing so.
Section 25H operates after a valid retrenchment and provides for re employment in the circumstances stated therein.
According to counsel, the argument is misconceived firstly for the reasons that section 2 itself says that retrenchment will be understood as defined in section 2(00) unless there is anything repugnant in the sub ject or context; secondly section 25F clearly applies to re trenchment as plainly defined by section 2(00); thirdly section 25G does not incorporate in absolute terms the principle of 'last come, first go ' and provides that ordinarily last employee is to be retrenched, and fourthly sections 25H upon its true construction should be held to be applicable when the retrenchment has occurred on the ground of the workman becoming surplus to the establishment and he has been re trenched under sections 25F and 25G on the principle 'last come, first go '.
Only then should he be given an opportunity to offer himself for re employment In substance it is submit ted that there is no conflict between the definition of section 2(00) and the provisions of sections 25F, 25G and 25H.
We find that though there are apparent incongruities in the provi sions, there is room for harmonious construction in this regard.
For the purpose of harmonious construction, it can be seen that the definitions contained in section 2 are subject to their being anything repugnant in the subject or context.
In view of this, it is clear that the extended meaning given to the term 'retrenchment ' under clause (00) of section 2 is also subject to the context and the subject matter.
Section 25 F prescribed the conditions precedent to a valid re trenchment of workers as discussed earlier.
Very briefly, the conditions prescribed are the giving of one month 's notice indicating the reasons for retrenchment and payment of wages for the period of the notice.
Section 25 FF pro vides for compensation to workmen in case of transfer of undertakings.
Very briefly, it provides that every workman who has been in continuous service for not less than one year in an undertaking immediately before such transfer shall be entitled to notice and compensation in accordance with the provisions of section 25F "as if the workman had been retrenched".
(Emphasis supplied).
Section 25 FFA pro vides that sixty days ' notice must be given of intention to close down any undertaking and section 25 FFF provides for compensation to workmen in case of closing down of undertak ings.
Very briefly stated section 25 FFF which has been already discussed lays down that "where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for 153 not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub section (2), be entitled to notice and compensation in accordance with the provisions of section 25 F, as if the workman had been retrenched".
(Emphasised supplied).
Section 25 H provides for re employment of retrenched workmen.
In brief, it provides that where any workmen are retrenched, and the employer proposes to take toto his employment any person, he shall, give an opportunity to the retrenched workmen to offer themselves for re employment as provided in the section subject to the conditions as set out in the section.
In our view, the principle of harmonious construc tion implies that in a case where there is a genuine trans fer of an undertaking or genuine closure of an undertaking as contemplated in the aforesaid sections, it would be inconsistent to read into the provisions a right given to workman "deemed. to be retrenched" a right to claim re employment as provided in section 25 H.
In such cases, as specifically provided in the relevant sections the workmen concerned would only be entitled to notice and compensation in accordance with section 25 F.
It is significant that in a case of transfer of an undertaking or closure of an under taking in accordance with the aforesaid provisions, the benefit specifically given to the workmen is "as if the workmen had been retrenched" and this benefit is restricted to notice and compensation in accordance with the provisions of section 25 F.
The last submission is that if retrenchment is under stood in its wider sense what would happen to the rights of the employer under the Standing Orders and under the con tracts of employment in respect of the workmen whose service has been terminated.
There may be two answers to this ques tion.
Firstly, those rights may have been affected by intro duction of sections 2(00), 25F and the other relevant sections.
Secondly, it may be said, the rights as such are not affect ed or taken away, but only an additional social obligation has been imposed on the employer so as to give the retrench ment benefit to the affected workmen, perhaps for immediate tiding over of the financial difficulty.
Looked at from this angle, there is implicit a social policy.
As the maxim goes Stat pro ratione voluntas populi; the will of the people stands in place of a reason.
Regarding the seeming gaps in the definition one would aptly remember what Lord Simonds said against the view that the court having discovered the intention of Parliament must proceed to fill in the gaps and what the legislature had not written the court must write.
"It appears to me to be a naked usurpation of the legisla 154 tive function under the thin disguise of interpretation.
And it is the less justifiable when it is guess work with what material the legislature would, if it had discovered the gap, have filled it in.
If a gap is disclosed, the remedy lies in an amending Act.
" The Court has to interpret a statute and apply it to the facts.
Hans Kelsen in his Pure Theory of Law (P. 355) makes a distinction between interpretation by the science of law or jurisprudence on the one hand and interpretation by a law applying organ (especially the court) on the other.
According to him "jurisprudential interpretation i., purely cognitive ascertainment of the meaning of legal norms.
In contradistinction to the interpretation by legal organs, jurisprudential interpretation does not create law".
"The purely cognitive interpretation by jurisprudence is there fore unable to fill alleged gaps in the law.
The filling of a so called gap in the law is a law creating function that can only be performed by a law applying organ; and the function of creating law is not performed by jurisprudence interpreting law.
Jurisprudential interpretation can do no more than exhibit all possible meanings of a legal norm.
Jurisprudence as cognition of law cannot decide between the possibilities exhibited by it, but must leave the decision to the legal organ who, according to the legal order, is authorised to apply the law.
" According to the author if law is to be applied by a legal organ, he must determine the meaning of the norms to be applied; he must 'interpret ' those norms (P. 348).
Interpretation therefore is an intel lectual activity which accompanies the process of law appli cation in its advance from a higher level to a lower level.
According to him, the law to be applied is a frame.
"There are cases of intended or unintended indefiniteness at the lower level and several possibilities are open to the appli cation of law.
" The traditional theory believes that the statute, applied to a concrete case, can always supply only one correct decision and that the positive legal 'correct ness ' of this decision is based on the statute itself.
This theory describes the interpretive procedure as if it con sisted merely in an intellectual act of clarifying or under standing; as if the law applying organ had to use only his reason but not his will, and as if by a purely intellectual activity, among the various existing possibilities only one correct choice could be made in accordance with positive law.
According to the author: "The legal act applying a legal norm may be performed in such a way that it conforms (a) with the one or the other of the different meanings of the legal norm, (b) with the will of the norm creating authority that is to be determined somehow ', (c) with the expression which the norm creating authority has chosen, (d) with the one or the other of the contradictory norms; or (e) the concrete case to 155 which the two contradictory norms refer may be decided under the assumption that the two contradictory norms annul each other.
In all these cases, the law to be applied constitutes only a frame within which several applications are possible, whereby every act is legal that stays within the frame.
" The definitions is section 2 of the Act are to be taken 'unless there is anything repugnant in the subject or con text '.
The contextual interpretation has not been ruled out.
In R.B.I. vs Peerless General Finance, reported in ; , O. Chinnappa Reddy, J. said: "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 interpreta tion is best which makes the textual interpretation match the contextual.
A statute is best interpreted when we know why it was enacted.
With this knowledge, the statute must be read, first as a whole and then section by section, clause by clause, phrase by phrase and word by word.
If a statute is looked at, in the context of its enactment, with the glasses of the statutemaker, provided by such context, its scheme, the sections, clauses, phrases and words may take colour and appear different than when the statute is looked at without the glasses provided by the context.
With these glasses we must look at the Act as a whole and discover what each section, each clause, each phrase and each word is meant and designed to say as to fit into the scheme of the entire Act.
No part of a statute and no word of a statute can be construed in isolation.
Statutes have to be construed so that every word has a place and everything is in its place.
It is by looking at the definition as a whole in the setting of the entire Act and by reference to what preceded the enactment and the reasons for it that the Court con strued the expression 'Prize Chit ' in Srinivasa and we find no reason to depart from the Court 's construction.
" As we have mentioned, industrial and labour legislation involves social and labour policy.
Often they are passed in conformity with the resolutions of the International Labour Organisation.
In Duport Steels vs Sirs, the House of Lords observed that there was a difference between applying the law and making it, and that judges ought to avoid becoming involved in controversial social issues, since this might affect their reputation in imparti ality.
Lord Diplock said: 156 "A statute passed to remedy what is perceived by Parliament to be a defect in the existing law may in actual operation turn out t0 have injurious consequences that Parliament did not anticipate at the time the statute was passed; if it had, it would have made some provision in the Act in order to prevent them . .
But if this be the case it is for Parliament.
not for the judiciary, to decide whether any changes should be made to the law as stated in the Acts Applying the above reasonings; principles and prece dents, t0 the definition in section 2(00) of the Act, we hold that "retrenchment" means the termination by the employer of the service of a workman for any reason whatsoever except those expressly excluded in the section.
The result is that C.A. Nos.
3241 48 of 1981, 686(NL) of 1982, 18 17 of 1982, 1898 of 1982, 3261 of 1982, 1866 of 1982, 1868 of 1982, 8456 of 1983, 10828 of 1983 and the appeal arising out of S.L.P. (C) No. 3149 of 1983 are dis missed with costs quantified at Rs.3,000 in each appeal.
It is stated that in C.A. No. 686 of 1982 the respondent has already been reinstated pursuant to the order dated 24.10.1983 passed by this Court, having regard to the fact that he has served since 1983, he shall be considered for confirmation with effect from his due date according to Rules, if he is not already confirmed by the Corporation.
In view of the facts and circumstances of the case, we dispose of C.A. No. 885 of 1980 with the direction that the two workmen involved in this appeal be paid compensation of Rs. 1,25,000 (Rupees one lakh twenty five thousand) each in full and final settlement of all claims including that of reinstatement.
The payment shall be spread over a period from 11.11.1972 till date for the purpose of Income tax.
C.A. No. 4116 (NL) of 1984 was on the board, but the paper book is not available.
Hence it is delinked from the series.
C.A. Nos.
512 513 of 1984 and C.A No. 783 of 1984 were wrongly placed on the board.
Their subject matters are different and hence are delinked from this cluster to be heard separately by an appropriate bench.
R.N.J. Appeals disposed of. | This batch of eighteen appeals by special leave involves a common question of law, regarding the scope and ambit of the word 'retrenchment ' as defined in Section 2(oo) of the Industrial Dispute Act, 1947.
112 One of the appeals is by the workmen against the order of the High Court affirming the award of the Labour Court refusing to interfere with the order of termination of their services by the employer for their trade union activities, while the rest are by the employers/ managements against the orders of High Courts/Industrial Tribunal/ Labour Court setting aside the orders of termination of the services of the illegal for non compliance of the provisions of Section 25F of the Act.
While the employers ' contention is that the word "re trenchment" as defined in Section 2(oo) of the Act means termination of service of a workman only by way of surplus labour for any reason whatsoever, the workmen contend that "retrenchment" means termination of the service of a workman for any reason whatsoever, other than those expressly ex cluded by the definition in Section 2(oo) of the Act.
Disposing of the appeals, this Court, HELD: (1) Definition of 'retrenchment ' in Section 2(oo) means termination by the employer of the service of a work man for any reason whatsoever, otherwise than as a punish ment inflicted by way of disciplinary action and those expressly excluded by the definition.
This is the wider literal interpretation as distinguished from the narrow, natural and contextual interpretation of the word to mean termination by the employer of the service of a workman as surplus labour for any reason whatsoever.
[156C; 131B] B.N. Mutto vs T.K. Nandi, ; ; Jugal Ki shore Saraf vs Raw Cotton Co. Ltd., ; ; Sussex Peerage Case, [1844] II CI & Fin 85:8 ER 1034 (HL); Thompson vs Goold & Co., ; Ealsing L.B.C. vs Race Relations Board, ; Whiteley vs Chappell, [1868] LR 4; Prince Ernest of Hanover vs Attorney General, and Muir vs Keay, 44 MJMC 143, referred to.
(2) Difficulty was created by defining 'retrenchment ' to mean something wider than what it naturally and ordinarily meant.
Such a definition created complexity as the draftsman himself in drafting the other sections using the definition may slip into the ordinary meaning instead of the defined meaning.
However, a judge facing such a problem of interpre tation cannot simply fold his hands and blame the draftsman.
[149A B; F] 113 (3) The definition has used the word 'means '.
When a statute says that a word or phrase shall 'mean ' not merely that it shall 'include ' certain things or acts, "the defini tion is a hard and fast definition, and no other meaning can be assigned to the expression than is put down in defini tion." [150F G] Queen vs Commissioners under the Boiler Explosions Act, 1882, [1891] I QBD 703 and Gough vs Gough, LT II; relied on.
(4) There are apparent incongruities when the definition Clause Section 2(oo) is considered in the context of the main provisions viz. Sections 25F, 25G and 25H but there is room for harmonious construction.
The definitions contained in Section 2 are subject to there being anything repugnant in the subject or context.
[152C D] Vishwamitra Press vs Workers, ; ; Presidency Jute Mills Co. Ltd. vs Presidency Juite Mills Co. Employees Union, [1952] I LLJ 796 (LAT) (Cal); Iron & Steel Mazdoor Union, Kanpur vs J.K. Iron and Steel Co. Ltd., ; Halar Salt and Chemical Works, Jamnagar vs Workmen, ; Prakriti Bhushan Gupta vs Chief Mining Engineer, Railway Board, ; Sudarshan Banerjee vs Mcleod and C. Ltd., ; Srinivasa Enterprises vs Union of India, ; ; Reserve Bank of India vs Peerless Central Finance and Investment Co. Ltd., [1987] 2 SCR I, referred to.
(5) The express exclusion of volitional element in cl.
(a) and (b) of Section 2(oo) namely, voluntary retirement, and retirement on superannuation age implies that those would otherwise have been included.
If such cases were to be included, termination on abandonment of service, on efflux of time and on failure to qualify, though only consequential or resultant would be included as those have not been ex cluded.
Then there appears to be a gap between the first part and the exclusion part.
When such a gap is disclosed, the remedy lies in an amending Act.
The Court has to inter pret a statute and apply it to the facts.
[150C E] Duport Steels vs Sirs, , referred to.
(6) Construing retrenchment in its wider sense, the rights of the employer under the standing orders and under contracts of employment may have been affected by Sections 2(00) and 25F and other relevant sections.
Secondly, it may be said that the rights as such are not affected or taken away but only additional social obligation has been 114 placed on the employer so as to give retrenchment benefit to affected.
workmen perhaps for tiding over immediate finan cial distress.
Seen from this angle, there is implicit a social policy.
So goes the maxim Stat Pro ratione voluntes populi the will of the people stands in place of a reason.
[153E G] (7) In Sundara Money and subsequent cases the Supreme Court has adopted wider liberal meaning rejecting the narrow natural and contextual meaning.
The question of subsequent decisions of the Supreme Court being per incuriam on grounds of failure to apply the earlier law laid down by the Consti tution Bench in Hariprasad Shukla case could arise only if ratio in Sunclara Money and subsequent decisions was in conflict with the ratio in Hariprasad and Anakapalli.
Hari prasad case is not an authority for the proposition that Section 2(oo) only covers cases of discharge of surplus labour and staff.
Sundara Money and subsequent decisions in the line could not be held to be per incuriam in as much as in Hindustan Steel and Santosh Gupta cases the Division Benches of the Supreme Court had referred to Hariprasad case, and rightly held that its ratio did not extend beyond the case of termination on the ground of closure and as such it would not be correct to say that subsequent decision overlooked a binding precedent.
In a fast developing branch of Industrial and Labour Law it may not be always of partic ular importance to rigidly stick to a precedent and a prece dent may need to be departed from if the basis of legisla tion changes.
[143B C; 145E] L. Robert D 'Souza vs Executive Engineer, Southern Rail way and Anr., ; Rajasthan State Electricity Board vs Labour Court, ; Goodlas Nerolac Paints vs Chief Commissioner, Delhi, and The Managing Director, National Garages vs J. Gonsalves, , overruled.
Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukherjee and Ors.
, ; ; Hindustan Steel Ltd. vs The Presiding Officer, Labour Court; , ; Santosh Gupta vs State Bank of Patiala, ; ; Gammon India Ltd. vs Niranjan Das, ; and Reg vs Home Secretary, Ex P. Khawaja, [1984] AC 74 (HL), relied on.
Pipraich Sugar Mills Ltd. vs Pipraich Sugar Mills Maz door Union, ; Sub Nomine Barsi Light Railway Co. vs K.N. Joglekar, ; Hariprasad Shivshankar Shukla vs A.D. Divikar, [1957] SCR 121; Anaka palla Co operative Agricultural 115 and Industrial Society Ltd. vs Workmen.
[1963] Supp. 1 SCR 730 and Workmen of Subong Tea Estate vs The Outgoing Manage ment of Subong Tea Estate and Anr., ; , dis tinguished.
Employees vs India Reconstitution Corporation Ltd., ; Indian Hume Pipe Co. Ltd. vs Workmen, ; Benett Coleman and Company Ltd. vs Employees, ; Mahan Lal vs Bharat Electronic Ltd., ; and Surendra Kumar Verma vs Central Govern ment Industrial Tribunal cum Labour Court, New Delhi; , , referred to.
(8) Article 141 embodies, a rule of law, the doctrine of precedents on which our judicial system is based.
[136H] (9) Per Incuriam means through inadvertance.
A decision can be said generally to be given per incuriam when the Supreme Court has acted in ignorance of its own previous decision or when a High Court has acted in ignorance of a decision of the Supreme Court.
The problem of judgment per incuriam when actually arises, should present no difficulty as the Supreme Court can lay down the law afresh if two or more of its earlier judgments cannot stand together.
Article 141, which embodies as a rule of law, the doctrine of prece dents, was enacted to make the law declared by the Supreme Court itself.
[136G; 138G; 137F] Re Dawson 's Settlement Lloyds Bank Ltd. vs Dawson, and Bengal Immunity Company Ltd. vs State of Bihar, , relied upon (10) The doctrine of ratio decidendi has also to be interpreted in the same line.
To consider the ratio deciden di Court has to ascertain the principle on which the case was decided.
The ratio decidendi of a decision may be nar rowed or widened by the judges before whom it is cited as a precedent.
[139G H] State of Orissa vs Sudhansu Shikhar Misra, ; ; F.A. & AB Ltd. vs Lupton (Inspector of taxes), ; Osborne vs Rowlett.
and Quinn vs Leathem. ; , relied on Griffiths vs J.P. Harrison (Watford) Ltd., ; Finsbury Securities Ltd. vs Inland Revenue Commissioners, , referred to. 116 |
ivil Appeal No. 3704 of 1989.
From the Judgment and Order dated 11.3.1987 of the Bombay High Court in Second Appeal No. 725 of 1980.
437 U.R. Lalit, G.A. Shah, V.N. Ganpule for the Appellants.
D.A. Dave, R. Karanjawala, Ms. M. Karanjawala and Jatin der Sethi for the Respondents.
The Judgment of the Court was delivered by SAWANT.J.
This is a case where the High Court in second appeal has interfered with a pure finding of fact recorded by the First Appellate Court for no worthwhile reason, and ignoring the mandatory provisions of Section 100 of the Civil Procedure Code.
The only question which was involved in the suit was whether the suit properties in which the plaintiff claimed one fifth share, were the ancestral joint family properties or whether they were the self acquired properties of his father, Ramchandra.
The relevant facts are: defendant No. 1, Ramchandra had four sons including the plaintiff, and a daughter.
The three other sons and the daughter are defend ants Nos. 2 to 5.
One of the sons, defendant No. 3 appears to support the plaintiff.
During the pendency of the suit, Ramchandra died and his sons including the plaintiff have been brought on record as his heirs and legal representa tives.
The suit properties consisted of lands being (i) Survey No. 21/1 admeasuring 14 acres 3 gunthas, (ii) Survey No. 20/2 admeasuring 2 acres 36 gunthas, (iii) Survey No. 20/1 admeasuring 3 acres 30 gunthas and two houses all situated at Nizampur, Taluka Saaki, District Dhuiia.
It was the case of the plaintiff in his plaint that a joint family consisting of his father Ramchandra and his brother, Supadu owned several houses, and a land comprised in Survey No. 71 admeasuring about 14 acres.
In the partition between Ram chandra and Supadu, two houses and Survey No. 71 came to the share of Ramchandra The said two houses are included in the suit properties and it is not disputed on behalf of the respondent defendants that they are ancestral properties and the plaintiff has one fifth share in the same.
However, the case of the plaintiff that Survey No. 71 was the ancestral property was vehemently disputed and that has been the sheet anchor of contention of both the parties while the plaintiff claims that rest of the suit properties were purchased by Ramchandra out of the income and subsequently the sale proceeds, of the said land (since admittedly the said land was sold by Ramchandra in 1953), it is the case of the defendants that the said land was in fact purchased jointly by Ramchandra and his brother, Supadu out of their own earnings, and in the partition between Ramchandra and Supadu that land came to the share of Ramchandra.
Hence, according to the defendants, even 438 assuming that the rest of the suit properties were purchased with the help of the income from Survey No. 71, they were the self acquired properties of Ramchandra.
In support of his case that Survey No. 71 was the ancestral property, the plaintiff relied upon the fact that the said survey No. had come to the share.
of Ramchandra in a general partition between him and his brother, Supadu in 1918.
As against this, the defendants contended that Ram chandra 's father Pandu died in 1904 and since the property all along stood in the name of Supadu it showed that it was purchased after Pandu 's death in 1904.
They also relied upon the fact that Ramchandra was a skilled goldsmith and was well known for his artisanship and commanded good business.
His brother was also a goldsmith and both of them had pur chased the said land with the earning in goldsmithery.
It was also their case that Ramchandra 's father, Pandu had only two houses and no other property nor did he carry on any business even of goldsmithery.
Hence, there was no question of purchasing Survey No. 71 out of the income from the ancestral property by Ramchandra and Supadu and the purchase was with the help of the income which they had earned from the business which they were carrying on by their own skill.
It was also shown by the defendants that when Survey No. 71 was sold in 1953, no objection whatsoever was taken to the sale nor permission of any of the sons including that of the plaintiff was deemed necessary for the same.
They further contended that they had hardly any income from Survey No. 71 and the properties which were purchased prior to 1953 could not have been purchased with the help of any such income assuming that it was an ancestral land.
According to them, therefore, the suit properties were purchased only from the income from the business of goldsmithery.
The three of the properties were purchased prior to 1953 while the rest were purchased long after 1953, i.e. in 1961, 1965 and 1967.
Hence, their purchase had no relation to the sale of Survey No. 71 in 1953, again assuming that it was an ancestral property.
It is for these reasons, according to them, that the suit properties except the two houses which were admit tedly the ancestral properties were not the joint family properties in which the plaintiff could claim his share.
The relevant issues were framed including the issue as to whether defendants proved that the suit properties were self acquired and plaintiff had no share in it.
The Trial Court answered the said issue in favour of the plain tiff and decreed the suit against the defendants.
Against the said decision, the defendants appealed and the First 439 Appellate Court after reappreciating the evidence and point ing out the infirmities in the conclusions arrived at by the Trial Court, dismissed the suit except to the extent of the plaintiff 's share in the two ancestral houses.
It may be mentioned here that although Ramchandra, defendant No. 1 died during the pendency of the suit, he had willed out his properties in favour of the defendants and, therefore, the plaintiff had no share in the self acquired properties of Ramchandra which could have been granted to him otherwise.
The First Appellate Court held that the following circumstances showed that the suit properties except the ancestral houses were the self acquired properties of Ram chandra.
The first circumstance was that Survey No. 71 was purchased in the name of Supadu which showed that in all probability the property was purchased after the death of Ramchandra 's father, Pandu.
Secondly, since there was no record to show that Pandu had any lands or was carrying on any business, Survey No. 71 must have been purchased by Ramchandra and Supadu with the help of their earnings.
It was not disputed and in fact it was admitted that Ramchandra was a skilled goldsmith and was carrying on business of goldsmithery along with his brother, Supadu and was earning sufficient income with the help of which he could purchase the properties.
Survey No. 71 further was sold in 1953 without obtaining the consent of the other members of the family.
Had it been the joint family property the vendee would have insisted upon such consent.
The High Court interfered with these findings on grounds which were not even made out by the plaintiff either in the plaint or in his evidence and which were contrary to the admissions of the plaintiff himself.
The High Court held that since the property had come to the share of Ramchandra in general partition, it must be held that it was an ances tral property.
The High Court further held that Survey No. 71 was yielding sufficient income with the help of which the other properties would have been purchased and further the goldsmithery business was an ancestral business and, there fore, the properties purchased with the help of such income should also be held to be joint family properties.
It may be stated here that the learned counsel appearing for the appellant defendants wanted to produce before us documents to show that in fact Survey No. 71 was purchased in the year 1907 by Ramchandra and his brother Supadu after the death of their father, Pandu in 1904, and that in the Revenue records the property always 440 stood in the name of Supadu.
We did not permit him to pro duce the said documents since no explanation whatsoever was available as to why the documents were not produced before the courts below.
However, it was not disputed at any time that the property had all along stood in the name of Supadu and, therefore, the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of Pandu cannot be said to be unreasonable.
Secondly, there is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No; 71.
In fact, the uncontroverted evidence on record shows that Ramchandra who had entered the witness box had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labour ers who brought their own implements and bullocks.
This shows that the family derived less than normal income from the said land.
Secondly, it was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such, and was doing his business as goldsmith and earning sufficient income.
It was not his case further that the goldsmithery was the ancestral business.
However, the High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so.
What is further, the plaintiff 's case was that the suit properties were purchased with the income from Survey No. 71.
Thus it is obvious that the conclusions ' which were arrived at by the first Appel late Court were reasonable and legal besides being conclu sions of facts.
There was, therefore, no question of law involved in the second appeal.
Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved a substantial question of law it could not entertain it and that before it could entertain it, the Court had to formulate such question.
We are, therefore, more than satisfied that the High COurt has erred in law in interfering with the decree passed by the First Appellate Court.
We, therefore, allow the appeal, set aside the decision of the High Court and restore the decree passed by the First Appellate Court.
Since the parties belong to one family we pass no order as to costs.
G.N. Appeal al lowed. | S and R were brothers who carried on the business of gold smithery, and a partition took place between them in 1918.
R got 2 houses and land in Survey No. 71.
Later on, one of the sons of R instituted a suit claiming that Survey No. 71 was an ancestral property and that some of the suit properties were purchased by R out of the income, and subsequently the sale proceeds, of the land.
The defendants, viz., the other children of R contended that Survey No. 71 was purchased by S and R with the income they derived from gold smithery and the suit properties except the two houses which were admittedly the ancestral properties, were not the joint family properties in which the plaintiff could claim his share.
The Trial Court decreed the suit in favour of the plain tiff.
On appeal by the defendants, the First Appellate Court reappreciated the evidence, found infirmities in the conclu sions arrived at by the Trial Court and dismissed the suit except to the extent of plaintiff 's share in the two ances tral houses, on the basis of its finding that the other properties were self acquired properties of R. During the pendency of the suit R died.
By virtue of his will the self acquired properties of R went to the defend ants and the plaintiff was left out.
The plaintiff preferred an appeal before the High Court against the order of the First Appellate Court.
The High Court interfered with the said findings of facts and held that since Survey No. 71 had come to the share of R in general partition, it was ancestral property.
it further observed that since the said property was yielding income with the help of which the other properties could have been purchased and since 436 further the gold smithery business was an ancestral busi ness, the properties purchased with the help of such income should be held to be joint family properties.
Aggrieved, the defendants have filed this appeal.
Allow ing the appeal, HELD: 1.
There was, no question of law involved in the second appeal.
Yet the High Court chose to interfere with the finding ignoring the mandatory provisions of Section 100 of the Civil Procedure Code that unless it was satisfied that the case involved substantial question of law it could not entertain it and that before it could entertain it, the Court had to formulate such question.
[440F] 2.1 It was not disputed at any time that the property in Survey No. 71 had all along stood in the name of Supadu and, therefore, the presumption drawn by the First Appellate Court that this showed that in all probability the property was purchased after the death of his father cannot be said to be unreasonable.
There is no evidence brought on record by the plaintiff with regard to the quantum of income from Survey No.71.
In fact, the uncontroverted evidence on record shows that Ramchandra had no implements and bullocks for cultivating the land and the land was always cultivated with the help of the labourers who brought their own implements and bullocks.
This shows that the family derived less than normal income from the said land.
It was admitted by the plaintiff that Ramchandra was a skilled goldsmith and was well known in the locality as such, and was doing his busi ness as goldsmith and earning sufficient income.
[440A D] 2.2 The High Court ignoring the fact that it was not the case of the plaintiff that goldsmithery was an ancestral business and that it was not his case that the suit proper ties were purchased with the help of the income from the said business held that it was so.
What is further, the plaintiff 's case was that the suit properties were purchased with the income from Survey No. 71.
Thus it is obvious that the conclusions which were arrived at by the First Appellate Court were reasonable and legal besides being conclusions of facts.
[440D E] |
Criminal Appeal No. 96 of 1979.
From the Judgment and Order dated 9.11.1977 of the Patna High Court in Criminal Appeal No. 332 of 1971.
Khanna for the Appellants.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This appeal by special leave is di rected against the judgment and order dated 9.11.1977 of the High Court of Patna whereby the conviction and sentences of the appellants for the offences under Sections 302,394 and 34, I .P.C., have been confirmed.
The three appellants are brothers.
The deceased, Bigna Bedia, lived with his wife Sohagia Bedia and sons in village Karmatola.
The incident happened on the night of 5/6.9.
Bigna was sleeping 574 along with his son Jhalku in the verandah while Sohagia was sleeping along with Malku on cot.
At about midnight, the intrud ers entered the house by cutting the tatti and attacked Sohagia and her husband.
Binga Bedia sustained fatal injuries and died instantaneously.
Sohagia was injured.
The intruders took away the utensils and two she goats kept at one end of the verandah.
Jiwan Bedia, the brother of the deceased, on being informed by Jhalku and Lalku about the incident reached the house and after making enquiries, he lodged the first information report at the police station at about 10.00 A.M in the next morning.
The crime was registered against unidentified persons.
In the course of the investigation these appellants were arrested and were finally charge sheeted.
There had been ill feeling between the appellants on the one hand and the deceased and his wife on the other, though the appellants are the sons of the eider sister of Sohagia.
The prosecution case is that on account of enmity, the three appellants committed the crime.
Sohagia claimed to be an eye witness.
According to this witness, the three appellants were armed.
Gurja had a tangi, Birja had a lathi and Mukund had a pharsa.
On entering the house Gurja and Birja dealt blows on Sohagia with the weapons they had.
She got injured and cried.
On hearing the alarm, the deceased was awakened from sleep and when he was trying to get up, all the three appellants left her and killed her husband.
P.W. 14 asserted that Gurja had been flashing a torch and that she had iden tified all the three appellants.
She also stated that she became unconscious and regained consciousness only the next day when the police arrived at the scene.
According to the prosecution, P.W. 14 is the only eye witness.
Lalku and Jhalku who ran to the house of P.W 1 had not seen the as sailants.
The trial court accepted the testimony of P.W. 14 corroborated by the medical evidence and other circumstances as the basis for the conviction.
The High Court agreed with the trial court in holding that the prosecution has succeed ed to bring home the guilt of all the appellants.
The learned counsel for the appellants urged before us that the testimony of P.W. 14 suffers from serious infirmi ties casting reasonable doubt as to the identity of the assailants and the conviction is therefore unwarranted.
The circumstances relied on by the learned counsel is that in the first information report the identity of the accused had not been revealed.
It is argued that if P.W. 14 had identi fied the assailants, it would have been possible for P.W. 1 to disclose the identity of the accused at the time the first information report was lodged and the circumstances are such that the statements 575 of P.W. 14 are inspired and the prosecution has introduced the theory of unconsciousness of P.W. 14 only in an attempt to explain away the lacuna.
To appreciate this contention, it is necessary to scrutinise the first information report in detail.
P.W. 1, Jiwan Bedia, is the full brother of the deceased.
He has been residing in village Jawabera which is at a distance of about half a kilometer from Karmatola.
Lalku and Jhalku reached his house at about midnight and raised hulla that some thieves had entered their house and killed their father and were also killing their mother.
On hearing this, P.W. 1 got up and went to village Jawabera where he informed his gotias about the incident.
Then taking Sawna Bedia, Jhopra Bedia and others along with him he went to the house of Bigna Bedia.
There he did not find any thief.
On entering the house, he found Bigna Bedia lying dead with bleeding injuries on his head and legs.
The wife of Bigna was also injured with a cut injury on her face.
He learnt there from the wife and both the sons of Bigna that 5 or 6 persons had entered the house by cutting the tatti and had inflicted injuries on Bigna and his wife with tangi, bhujali etc.
and they also removed the lock and peg and took away utensils and two she goats from the house.
P.W. 1 then went to the villagers of Karmatola and told them about this incident.
P.W. 1 also contacted the Mukhia of the village Hindebilli and others before going to the police station.
P.W. 1 in narrating the incident in the Fard byan stated that he learnt from the wife and sons of the deceased that 5 or 6 persons had entered the house and committed the crime and details could be furnished by the widow and the sons of the deceased.
P.W. 1, no doubt, in cross examination supported the version of P.W. 14 that Sohagia was lying unconscious when he reached the house at night and she narrated the incident after regaining consciousness the next day when the police reached there.
The statement of P.W. 1 at the earliest point of time belies the truth of what he has deposed before the court.
He had been categoric that he made enquiries with the wife and sons of the deceased before proceeding to the police station and asserted that 5 or 6 unknown persons had committed the crime.
It clearly indicates that an attempt had been made by the prosecution to introduce the case of unconsciousness of P.W. 14 to explain the infirmity.
It may be that P.W. 14 on account of the shock could not have been so eloquent and depressed, but P.W. 1 had been in the house the whole night and he had contacted all the concerned persons and also made enquiries.
The statement in exhibit p. 6 that details would be given by the wife and sons who were present in the house also affirms that he could not gather any 576 useful information regarding the identity of the assailants.
The courts below have failed to appreciate the evidence of P.W. 14 in the correct perspective in the light of the clinching evidence in the case.
The circumstances that the identity of the assailants was unknown until the police arrived at the scene is clear indication that P.W. 14 or her children had not identified the assailants at the time of the occurrence.
It could be that on account of enmity and ill will their suspicion has turned against these appellants and inspired by that suspicion, the investigation had been misdirected.
We do not therefore consider it safe to sustain the conviction when there is reasonable doubt regarding the participation of the appellants.
The benefit of doubt must necessarily go to the appellants.
In the result, the appeal is allowed.
The convictions and sentences are set aside.
The bail bonds shall stand canceled.
P.S.S. Appeal allowed. | The appellants were convicted for offences under sections 302,394 and 34 IPC.
They were alleged to have entered the house of the deceased at midnight and attacked him and his wife, PW 14, with sharp edged weapons.
He sustained fatal injuries and died instantaneously.
His wife was injured.
Their two sons ran to the house of uncle PW 1, at a distance to inform him of the incident.
They had not seen the assail ants.
By the time PW 1 reached the scene the assailants had fled.
He had been in the house the whole night and contacted all the concerned persons.
In the FIR that he lodged at about 10 a.m. the next morning the assailants were not named.
The prosecution case was that the appellants had commit ted the crime on account of enmity.
PW 14, who claimed to be an eye witness, deposed that she had identified the appel lants.
She also stated that she became unconscious and regained consciousness only the next day when the police arrived.
PW 1 supported her version.
The trial court accepted the testimony of PW 14.
The High Court agreed with it.
In this appeal by special leave, it was contended for the appellants that if PW 14 had identified the assailants, it would have been possible for PW 1 to disclose the identi ty of the accused at the time the first information report was lodged, and that the prosecution had introduced the theory of unconsciousness of PW 14 only in an attempt to explain away the lacuna Allowing the appeal, the Court, HELD: 1.
It is not safe to sustain the conviction when there is 573 reasonable doubt regarding the participation of the appel lants in the crime.
The benefit of doubt must necessarily go to them.
The statement of PW 1 at the earliest point of time belies the truth of what he had deposed before the court.
He had been categoric in the FIR that he had made enquiries with the wife and sons of the deceased before proceeding to the police station and asserted that five or six unknown persons had committed the crime.
He had also stated that details could be furnished by the widow and sons of the deceased.
This affirmed that he could not gather any useful information regarding identity of the assailants.
All the same, in cross examination he supported the version of PW 14 that she was lying unconscious when he reached the house at night and she narrated the incident after regaining con sciousness when the police reached there.
It clearly indi cates that an attempt had been made by the prosecution to introduce the case of unconsciousness of PW 14 to explain the infirmity.
[576F; G] 3.
The circumstance that the identity of the assailants was unknown until the police arrived at the scene showed that PW 14 or her children had not identified the assailants at the time of the occurrence.
The courts below have failed to appreciate her evidence in the correct perspective in the light of the clinching evidence.
[576B] |
ivil Appeal No. 2335 of 1989.
From Order No. 766/88 C dated 24.10.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. B/847/85 C. V. Sreedharan, N.M. Poppli and V.J. Francis for the Appel lant.
Ashok H. Desai, Solicitor General, Ms. Randharangaswami and P. Parmeswaran for the Respondent.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, CJ.
This is an appeal from the order of the Customs, Excise & Gold (Control) Appellate Tribunal (hereinafter called 'the CEGAT ') dated 24th Octo ber, 1988 under section 35 L(b) of the Central Excises & Salt Act, 1944 (hereinafter referred to as 'the Act ').
The appeal which the CEGAT disposed of had been filed by the Collector of Central Excise, Guntur against the order of the Collector of Central Excise (Appeals), Madras dated 6th February, 1985.
The short question which arises in this appeal is whether the lamination of duty paid kraft paper with polyethylene resulting in 'polyethylene laminated kraft paper ' would amount to 'manufacture ' and excisable under law or not.
It appears that the Collector (Appeals) in his order following his earlier order in respect of the appellant herein had taken the view that polyethylene laminated or coated kraft paper obtained from duty paid kraft paper is not liable to duty again.
632 The Collector of Central Excise, (Appeals), Madras had followed the decision of the Division Bench of Andhra Pra desh High Court in the case of Standard Packagings, Nellore vs Union of India, for reaching the aforesaid finding and held that the appellant would be eligible to claim refund of duty paid by them in this re gard.
Lamination, indisputably by the well settled principles of excise law, amounts to 'manufacture '.
This question, in our opinion, is settled by the decisions of this Court.
Reference may be made to the decision of this Court in Empire Industries Ltd. & Ors.
vs Union of India & Ors.
, ; Reference may also be made to the decision of this Court in Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., We are, there fore, of the opinion that by process of lamination of kraft paper with polyethylene different goods come into being.
Laminated kraft paper is distinct, separate and different goods known in the market as such from the kraft paper.
Counsel for the appellant sought to contend that the kraft paper was duty paid goods and there was no change in the essential characteristic or the user of the paper after lamination.
The fact that the duty has been paid on the kraft paper is irrelevant for consideration of the issue before us.
If duty has been paid, then benefit of credit for the duty paid would be available to the appellant under rule 56 A of the Central Excise Rules, 1944.
The further contention urged on behalf of the appellant that the goods belong to the same entry is also not relevant because even if the goods belong to the same entry, the goods are different identifiable goods, known as such in the market.
If that is so, the manufacture occurs and if manu facture takes places, it is dutiable. 'Manufacture ' is bringing into being goods as known in the excise laws, that is to say, known in the market having distinct, separate and identifiable function.
On this score, in our opinion, there is sufficient evidence.
If that is the position, then the appellant was liable to pay duty.
We are, therefore, clearly of the opinion that the order of the CEGAT impugned in this appeal does not contain any error.
The appeal, therefore, fails and is accordingly dismissed.
There will, however, no order as to costs.
G.N. Appeal dis missed. | To a question whether lamination of duty paid kraft paper with polyethylene resulting in 'polyethylene laminated paper ' would amount to 'manufacture ' and excisable under Excise Law, the Collector of Central Excise (Appeals) an swered in the negative, and held that the appellant was eligible to claim refund of duty paid by it.
In reaching this finding he followed the decision in Standard Packag ings, Nellore vs Union of India, AP.
Against the said order, the Collector of Central Excise preferred an appeal before the Customs, Central Excise and Gold (Control) Appellate Tribunal.
The Tribunal reversed the order of the Collector (Appeals) and held that the appellant was liable to duty.
Aggrieved, the appellant has preferred this appeal under Section 35 L(b) of the .
It was contended that duty was already paid on kraft paper and there was no change in the essential characteristic or the user of the paper after lamination, and that both the goods belong to the same entry.
Dismissing the appeal, HELD: 1.1.
By process of lamination of kraft paper with polyethylene different goods come into being.
Laminated kraft paper is distinct, separate and different from the kraft paper.
Lamination, indisputably by the well settled principles of excise law, amounts to manufacture.
[632C D] 631 1.2. 'Manufacture ' is bringing into being goods as known in the excise laws, that is to say, known in the market having distinct, separate and identifiable function.
[632F] 1.3.
Even if the goods belong to the same entry, the goods are different identifiable goods, known as such in the market.
If that is so, manufacture occurs, and if manufac ture takes place, it is dutiable.
[632F] Empire Industries Ltd. & Ors.
vs Union of India & Ors.
, ; and Collector of Central Excise, Kanpur vs Krishna Carbon Paper Co., , relied on. |
ivil Appeal No, 307 of 1987.
From the Judgment and Order dated 16.10.1985 of the Allahabad High Court in C.M.W. No. 3689 of 1984.
G.B. Pai, Ms. Urmila Kapoor and section Janani for the Appellant.
Prithivi Raj, Vishnu Mathut and Ms. section Dikshit for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
When the service of an employee is terminated consequent upon the employer accepting the resignation voluntarily tendered by the employee, does the termination so brought about amount to 'Retrenchment ' within the meaning of Section 2(s) read with Section 6N of the Uttar Pradesh , is the question which we are called upon to decide in this appeal by special leave.
The facts relevant to be stated for the disposal of this appeal are as under: Ram Singh was employed by the appellant company on 10th March, 1960 and was posted in the Bradma machine section of the company.
His duties were to attend to the printing of shares, pay sheets, registers, ESI cards etc.
, relating to the appellant company.
On 1st November, 1970 he addressed a letter of resignation to the Manager of the appellant compa ny in the following words: "R/Sir, I regret to bring to your kind notice that my family circum stances do not permit me to continue my service and hence I am compelled to sever my connections with these Mills imme diately.
I, therefore, request your goodself kindly to arrange for the payment of all my dues at an early date.
" Two days thereafter he wrote another letter to the Manager of the company which reads as under: 526 "R/Sir, Since I have already tendered my resignation from my serv ices, I request you kindly to depute somebody in the Bradma Office taking charge and learning the work, so that the entrusted work may be carried on smoothly.
Thanking you so much for making early arrangement as re quested.
" A copy of this letter was endorsed to the Special Executive of the appellant company for information and necessary action.
On receipt of the above letters, the Manager of the appellant company replied as under: "The resignation tendered by you vide your letter dated 1st instant, is hereby accepted with effect from 16th instant.
Please hand over charge of the Company 's properties in your possession to Shri R.S. Mathur and collect payment in full and final settlement from the Mills Pay Office." After the receipt of this letter the charge of the Bradma Section was handed over by the employee to the said R.S. Mathur on 15th November, 1970.
The amount due to the employee by way of salary, allowances, etc., upto 16th November, 1970 was worked out but the actual payment was received by the employee on 22nd December, 1970.
He was also paid his service gratuity at the end of February, 1971.
It appears that the employee raised an industrial dispute and sought a reference under Section 4K of the State Act.
The employee 's demand for a reference was initially rejected by the State Government on 12th November, 1973 but it came to be accepted subsequently on 28th November, 1974.
The appel lant company thereupon filed a writ petition challenging the said reference made by the State Government but the High Court dismissed the petition on 7th September, 1981.
Pursu ant to the reference, the Labour Court made an Award in favour of the employee on 25th January, 1984.
The Labour Court came to the conclusion that the employee 's resignation was not voluntary and, therefore, his services had been wrongly terminated with effect from 15th November, 1970.
He was ordered to be reinstated.
Against this Award of the Labour Court the appellant approached the High Court under Article 226 of the Constitution.
The High Court came to the conclusion that the employee had tendered his resignation voluntarily 527 and without any threat or coercion.
It also took the view that the claim for overtime wages was an after thought.
However, considering the definition of 'retrenchment ' in Section 2(s), the High Court came to the conclusion that the termination of service of the employee fell within the said definition and as the appellant company had failed to ob serve the requirements of section 6N, the termination of service was clearly invalid.
The approach to the High Court is reflected in the following passage of its Judgment: 8"The contention raised is that there was no act of the employer in this connection and hence this may not be said to be a case of retrenchment of the respondent.
To this I do not find possible to agree.
There is no denial that the respondent had been in continuous service for not less than one year within the meaning of Section 6N.
According to Section 2(s), retrenchment covers termination by the employ er of the service of a workman for any reason whatsoever.
To this there are exceptions applicable where the termination is by way of punishment inflicted as a result of a discipli nary_ action or voluntary retirement of the workman or retirement of the workman on attaining the age of superannu ation.
The provision is in pari materia with section 2(00) of the Central Act.
The case does not fail within any of these exceptions.
Voluntary retirement of a workman may not stand in need of acceptance by the employer; this may be hedged in with certain conditions such as those relating to certain number of years having been put in service and the like, but resignation may be tendered at any time though it requires acceptance to be effective.
There is retrenchment under law where the services of a workman stand terminated for any reason whatsoever.
This may not be a consequence directly flowing from an act of the employer.
The material factor would be whether there is determination of the rela tionship of employer and workman between the parties.
If as a consequence this relationship has ceased or has been brought to an end, there is the resultant termination of the services of the workman.
" In support of this view reliance was placed on the decisions of this Court in The State Bank of India vs N. Sundara Money, ; ; Hindustan Steel Ltd. vs The Presid ing Officer, Labour Court, Orissa & Others, ; , Delhi Cloth and General Mills LId.
vs Shambhu Nath Mukherji and Others, ; ; Santosh 528 Gupta vs State Bank of Patiala, ; and L. Robert D 'Souza vs Executive Engineer, Southern Railway and Another, ; Reliance was also placed on the decision of the Kerala High Court in Corporation of Cochin vs Jalaji & Others, Proceeding further the High Court concluded as under: " . . the present is a case where there was act of the employer also before the termination became effective.
As discussed above, the resignation tendered by the respondent could not take effect without the acceptance on the part of the employer.
The acceptance was accorded on November 4, 1970, expressly in writing.
This clearly is an act of the employer which put a seal to the matter and brought about cessation of the relationship of the employer and the work man.
Therefore, there is no escape from the conclusion that it was a case of retrenchment.
It remains to be seen on relevant material whether in fact there was compliance made of the requirement of section 6N." However, the order of reinstatement passed by the Labour Court, Kanpur was set aside and the matter was remanded to the Labour Court for a decision on the question whether there was an infraction of section 6N. The High Court, however, made it clear that "the issue of resignation shall not be open to read judication".
In other words, the only question which the Labour Court was required to consider was whether the retrenchment was in conformity with section 6N of the State Act.
Feeling aggrieved by this order the appel lant company has approached this Court under Article 136 of the Constitution.
The State Act, i.e., Uttar Pradesh was enacted to provide powers to prevent strikes and lock outs, to settle industrial disputes and for other incidental matters.
Section 2(s) defines the term 'Retrench ment ' as under: "2(s): 'Retrenchment ' means the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as punishment inflicted by way of discipli nary action, but does not include (i) voluntary retirement of the workmen; or 529 (ii) retirement of the workmen on reaching the age of super annuation if the contract of employment between the employer and workman concerned contains a stipulation in that behalf.
" This definition is in pari materia with the definition of 'retrenchment ' found in section 2(00) of the Central Act i.e. as it stood prior to its amendment by Act LIX of 1984.
Section 6N the State Act reads as under: "6N. Conditions precedent to retrenchment of workman.
No workman employed in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until (a) the workman has been given one month 's notice in writing indicating the reasons for retrenchment and the period of notice has expired, or the workman has been paid in lieu of such notice wages for the period of the notice; Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service; (b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days ' average pay for every completed year of service or any part thereof in excess of six months; and (c) notice in the prescribed manner is served on the State Government.
" This section substantially reproduces section 25F of the Central Act.
In the Central Act the proviso came to be omitted by Act LIX of 1984 and instead clause (bb) came to be added to section 2(00).
The first question which we must consider is whether in the background of facts stated earlier it can be said that the services of the employee were terminated by way of 'retrenchment ' as understood by 530 section 2(s) and, if yes, whether the employer was required to comply with the provisions of section 6N of the State Act.
It becomes clear on a plain reading of the definition of the term 'retrenchment ' that it comprises of two parts; the first part is the inclusive part which defines retrench ment whereas the second part is in the nature of an excep tion and excludes two types of cases from the scope and ambit of the said definition.
Under the first part termina tion of an employee 's service by the employer for any reason whatsoever, otherwise than by way of punishment inflicted as a disciplinary measure, amounts to retrenchment.
Under the second part cases of (i) voluntary retirement & (ii) retire ment on superannuation are excluded from purview of the first part of the definition.
Termination of service can be brought about in diverse ways by an employer but every termination is not retrenchment, as for example, termination of service by way of punishment for proved misconduct.
The words 'for any reason whatsoever ' are undoubtedly words of wide import and hence termination of service by the employer will attract the definition of retrenchment unless it is shown to be penal in nature brought about by way of disci plinary action or as falling within one of the two exclusion clauses extracted earlier.
In order to counter the employ ee 's contention that he was retrenched from service on the employer having communicated the acceptance of his resigna tion, the employer has placed reliance on the first clause, namely, that the workman had voluntarily retired from serv ice.
The letter dated 1st November, 1970 written by the employee to the Manager of the appellant company expressing his desire to resign his job shows that it was a voluntary act on the part of the employee.
This was followed by anoth er letter of 3rd November, 1970 whereby the workman request ed the company to depute someone to take charge of the Bradma office so that he gets acquainted with the work to ensure a smooth take over.
It was on this request of the employee that the appellant company accepted his resignation by the letter of 4th November, 1970 with effect from 16th November, 1970.
From this correspondence it is crystal clear that the employee desired to sever his relations with the appellant company on account of his family circumstances.
But for this request made by the employee there was no reason for the appellant company to terminate the contract of service on its own.
Just as an employer has a right to terminate the service of an employee, an employee too has a fight to put an end to the contract of employment by inform ing his employer of his intention to give up the job.
This fight is specifically conferred by clause 21 of the Standing Orders certified under Section 5 of the Industrial Employ ment (Standing Orders) Act, 1946.
This clause reads as under: 531 "Any permanent clerk desirous of leaving the company 's service shall give one month 's notice in writing to the Manager unless he has a specific agreement providing for a longer or shorter notice.
If any permanent clerk leaves the service of the company without giving notice, he shall be liable to be sued for damages." Similar clause with reduced notice period is also to be found in the certified Standing Orders for operatives.
Therefore, one of the ways of terminating the contract of employment is resignation.
If an employee makes his inten tion to resign his job known to the employer and the latter accepts the resignation, the contract of employment comes to an end and with it stands severed the employer employee relationship.
Under the common law the resignation is not complete until it is accepted by the proper authority and before such acceptance an employee can change his mind and withdraw the resignation but once the resignation is accept ed the contract comes to an end and the relationship of master and servant stands snapped.
Merely because the em ployer is expected to accept the employee 's resignation it cannot be said that the employer has brought about an end to the contract of employment so as to bring the case within the first part of the definition of retrenchment.
A contract of service can be determined by either party to the con tract.
If it is determined at the behest of the employer it may amount to retrenchment unless it is by way of punishment for proved misconduct.
But if an employee takes the initia tive and exercises his right to put an end to the contract of service and the employer merely assents to it, it cannot be said that the employer has terminated the employment.
In such cases the employer is merely acceding to the employee 's request, may be even reluctantly.
Here the employee 's role is active while the employer 's role is passive and formal.
The employer cannot force an unwilling employee to work for him.
Under clause 21 of the certified Standing Orders all that the employee is required to do is to give the employer a notice to quit and on the expiry of the notice period his service would come to an end.
A formal acceptance of the employee 's desire by the employer cannot mean that it is the employer who is putting an end to the contract of employ ment.
It would be unfair to saddle the employer with the liability to pay compensation even where the service is terminated on the specific request of the employee.
Such an intention cannot be attributed to the legislature.
We are, therefore, of the opinion that where a contract of service is determined on the employee exercising his right to quite, such termination cannot be said to be at the instance of the employer 532 to fall within the first part of the definition of retrench ment in section 2(s) of the State Act.
The High Court has placed reliance on ,four decisions of this Court to which we may now advert.
In Sundara Money 's case the employment was for a fixed duration of 9 days, on the expiry whereof the service was to end.
This condition was imposed unilaterally.
The employment was to terminate not because the employee did not desire to serve but because of the unilateral condition imposed by the employer.
The initiative for the termination, therefore, came from the employer attracting the wide terminology of section 2(00).
In Hindustan Steel Ltd. the termination of service was by efflux of time.
Placing reliance on the law laid down in Sundara Money 's case and the proviso to section 25F(a), this Court held that the termination of service was by way of retrenchment.
In the case of Delhi Cloth Mills the employ ee 's name was taken as automatically removed from the rolls of the company under the Standing Orders for continued absence without prior intimation.
The striking off the name was clearly an act of the employer resulting in termination of service amounting to retrenchment.
Santosh Gupta 's was a case of termination of service on account of her failure to pass the prescribed test.
That was the reason for terminat ing her service.
All the same it was the employer 's action which resulted in the termination of her service attracting section 2(00).
In the case of Robert D 'souza the termination was rounded on the ground of unauthorised absence from duty which clearly was an act of the employer.
In all the. above cases on which the High Court placed reliance, no question of termination of service on the employee voluntarily ten dering his resignation arose for consideration.
These cases are, therefore, not helpful since they turn on their own special facts.
None of them deals with a case of voluntary resignation tendered by an employee.
We may now examine the question from another angle, namely, whether an employee whose resignation has been accepted by the employer falls within the first exclusion clause to the definition of the term 'retrenchment '.
There can be no doubt that a resignation must be voluntarily tendered for if it is tendered on account of duress or coercion, it ceases to be a voluntary act of the employee expressing a desire to quite service.
In the present case the High Court has come to the conclusion that the employee had tendered his resignation voluntarily.
Does termination of service brought about by the acceptance of resignation fall with the expression 'voluntary retirement '? The meaning of the term 'resign ' and 'retire ' in different dictionaries is as under: 533 TABLE Name of the Meaning of 'Resign ' Meaning of 'Retire ' Dictionary Black 's Law Formal renouncement to terminate employ Dictionary or relinquishment ment or service upon (5th Edn.) of an office.
reaching retirement age.
Shorter Ox To relinquish, The act of retiring ford English surrender, give up or withdrawing to Dictionary or hand over (some or from a place or (Revised thing); esp., an from a place or Edn. of 1973) office, position, position.
right, claim, etc.
To give up an office or position; to retire.
The Random To give up an office To withdraw from of House Dic , position etc.; to fice business or tionary relinquish (right, active life claim, agreement etc.) From the aforesaid dictionary meanings it becomes clear that when an employee resigns his office, he formally relin quishes or withdraws from his office.
It implies that he has taken a mental decision to sever his relationship with his employer and thereby put an end to the contract of service.
As pointed out earlier just as an employer can terminate the services of his employee under the contract.
So also an employee can inform his employer that he does not desire to serve him any more.
Albeit, the employee would have to give notice of his intention to snap the existing relationship to enable the employer to make alternative arrangements so that his work does not suffer.
The period of notice will depend on the period prescribed by the terms of employment and if no such period is prescribed, a reasonable time must be given before the relationship is determined.
If an employee is not permitted by the terms of his contract to determine the relationship of master and servant, such an employment may be branded as bonded labour.
That is why in Central Inland Water Transport Corporation vs Brojonath Ganguly, [1986] 3SCC 156 at page 228 this Court observed as under: 534 "By entering upon a contract of employment a person does not sign a bond of slavery and a permanent employee cannot be deprived of his right to resign.
A resignation by an employ ee would, however, normally require to be accepted by the employer in order to be effective." In the present case the employee 's request contained in the letter of resignation was accepted by the employer and that brought an end to the contract of service.
The meaning of term 'resign ' as found in the Shorter Oxford Dictionary includes 'retirement '.
Therefore, when an employee volun tarily tenders his resignation it is an act by which he voluntarily gives up his job.
We are, therefore, of the opinion that such a situation would be covered by the ex pression 'voluntary retirement ' within the meaning of cluase (i) of Section 2(s) of the State Act.
In Santosh Gupta 's case Chinnappa Reddy, J. observed as under: "Voluntary retrenchment of a workman or the retrenchment of the workman on reaching the age of superannuation can hardly be described as termination, by the employer, of the service of a workman".
(Here the word 'retrenchment ' has reference to 'retirement '.) above observation clearly supports the view which com mends to us.
We are, therefore, of the opinion that the High Court was not right in concluding that because the employer accepted the resignation offer voluntarily made by the employee, he terminated the service of the employee and such termination, therefore, fell within the expression 'retrenchment ' rendering him liable to compensate the em ployee under section 6N.
We are also of the view that this was a case of 'volun voluntary retirement ' within the mean ing of the first exception to section 2(s) and therefore the question of grant of compensation under section oN does not arise.
We, therefore, cannot allow the view of the High Court to stand.
For the above reasons we allow this appeal, set aside the orders of the Courts below and hold that the employee is not entitled to any compensation under section 6N of the State Act.
The appeal is allowed accordingly.
No costs throughout.
Lal Appeal allowed. | One Ram Singh was appointed by the appellant company on 10.3.1960.
On 1.11.1970, he addressed a letter of resigna tion to the Manager of the company saying that owing to his family circumstances, it was no longer possible for him to continue in service and that he was compelled to sever his connections with the company.
He made a demand of all his dues.
He wrote another letter two days later that someone should be posted in the section where he was working in order that he may learn the work are: printing of shares, pay sheets and pay registers etc.
The appellant company conveyed the acceptance of the resignation with effect from the 16th November, 1970 and paid all his dues on 22.12.1970.
The amount of gratuity was also paid later.
Ram Singh there after raised an industrial dispute and sought a reference under Section 4K of the U.P. Industrial Dispute Act, 1947.
Initially his demand was not accepted by the State Govern ment but later the State Government accepted his demand on 28.11.1974 whereupon the appellant company filed a writ petition in the High Court challenging the said reference made by the State Government but the High Court dismissed the petition.
The Labour Court thereafter made an award on the reference, in favour of the employee.
It came to the conclusion that the employee 's resignation was not voluntary and therefore his services had been wrongly terminated and accordingly he was directed to be reinstated.
The appellant challenged the validity of the said award under Article 226 of the Constitution before the High Court.
The High Court came to the conclusion that the employee had tendered his resignation voluntarily but it held that termination of the service of the employee fell within the definition of 'r etrenchment ' as contained in Section 2(s) and as the appel lant company had failed to comply with the requirement of Section 6N, the termination of service was invalid.
The High Court accordingly set aside the order of reinstatement passed by 524 the Labour Court and remanded the matter to the Labour Court for a decision on the question whether there was infraction of the provisions of Section 6N. Being aggrieved by that order of the High Court, the appellant company has filed this appeal after obtaining special leave.
Allowing the appeal, this Court, HELD: Where a contract of service is determined on the employee exercising his right to quit, such termination cannot be said to be at the instance of the employer to fail within the first part of the definition of retrenchment in Section 2(s) of the U.P. Industrial Disputes Act.
[531H; 532A] A contract of service can be determined by either party to the contract.
If it is determined at the behest of the employer it may amount to retrenchment unless it is by way of punishment for proved misconduct.
But if an employee takes the initiative and exercises his right to put an end to the contract of service and the employer merely assents to it, it cannot be said that the employer has terminated the employment.
In such cases the employer is merely acced ing to the employee 's request, may be even reluctantly.
Here the employee 's role is active while the employer 's role is passive and formal.
The employer cannot force an unwilling employee to work for him.
[531E F] When an employee resigns his office, he formally relin quishes or withdraws from his office.
it implies that he has taken a mental decision to sever his relationship with his employer and thereby put an end to the contract of service.
[533E] In the present case the employee 's request contained in the letter of resignation was accepted by the employer and that brought an end to the contract of service.
[534B] This was a case of 'voluntary retirement ' within the meaning of the first exception to section 2(s) and therefore the question of grant of compensation under section 6N did not arise.
The employee is not entitled to any compensation under section 6N of the State Act.
[534F] The State Bank of India vs
N. Sundara Money; , ; Hindustan Steel Ltd. vs The Presiding Officer, Labour court, Orissa and Ors., ; ; Delhi Cloth and General Mills Ltd. vs Shambhu Nath Mukherji and others; , ; Santosh (Gupta vs State Bank of Patiala, ; ; L. Robert D 'souza vs, Executive Engineer, Southern Railway and Anr., [1982] 1SCC 645 and 525 Corporation of Cochin vs Jalaji and Ors., [1984] 1 LLJ |
Criminal Appeal No. 328 of 1979.
From the Judgment and Order dated 2.1.1979 of the Alla habad High Court in Government Appeal No. 663 of 1973.
Pramod Swarup for the Appellant.
Manoj Swarup, Prashant Choudhary and Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
Khanjan Pal, the appellant, was con victed by the High Court for the offence punishable under Section 302, I.P.C. and sentenced to undergo imprisonment for life, in reversal of the order of acquittal passed by the Sessions Judge, Agra.
The brief facts of the case are as under: The appellant, Khanjan Pal, and the deceased, Deep Singh, were working in the bangles welding factory of Data Ram in Mohalla Rajputana, Thana Firozabad.
The prosecution case was that while working in the factory at about 2.30 P.M. on 8.4.1972, the appellant 608 said to the deceased that he had illicit relationship with one Tara.
Deep Singh said that he considered Tara to be his sister.
The altercation ensued between the appellant and the deceased and in the course of the altercation, the appellant stabbed the deceased with a knife and this incident was witnessed by P.W. 2, Ram Pratap Singh, and P.W. 4, Maharaj Singh besides Umrao Singh, P.W. 1.
The injury sustained by the deceased was a punctured wound penetrating into chest cavity.
The occurrence was reported at the police station by Umrao Singh, father of the deceased at 3.00 P.M. the same day.
In the course of the investigation, blood stained shirt was seized from the appellant and sent for chemical examina tion.
The certificate was to the effect that it was stained with human blood.
The trial court acquitted the appellant discarding the testimony of the eye witnesses mainly for the reasons that the occurrence could not have happened at the alleged time and place as the place of occurrence was not mentioned in the first information report, the postmortem report referred to the presence of undigested food in the abdomen of the deceased, the presence of Umrao Singh (P.W. 1), Ram Pratap Singh (P.W. 2), and Maharaj Singh (P.W. 4) was doubtful in the light of the conduct of P.W. 3, Data Ram and that since the attendance register was not produced, it was doubtful whether the factory was opened on that day or not.
The appellant was therefore given the benefit of doubt by the trial court.
The High Court on a careful analysis of the entire evidence dislodged the finding of the trial court, accepted the testimony of P.W. 2 and P.W. 4 and concluded that the prosecution had established the charge against the appel lant.
We have been taken through the judgments ' and the relevant records of the case.
We are satisfied that the High Court had interfered with the order of acquittal for cogent reasons and that the conclusion of the High Court that the appellant has caused the death of the deceased, Deep Singh, by stabbing with a knife in the manner alleged by the prose cution is unassailable.
The approach by the trial court was clearly wrong and the finding is perverse.
The testimony of the two independent eye witnesses had not been properly appreciated.
Their presence at the scene could not at all be doubted in the light of what P.W. 3 has deposed.
They are probable witnesses and there had not been any infirmity in their evidence as rightly pointed out by the High Court.
The evidence of P.W. 1, rejected by the trial court was also not accepted by the High Court.
The reasoning adopted by the trial court, in our opinion, was so perverse that the High Court was justified in upsetting the finding and 609 arriving at an independent conclusion which is fully sup ported by the evidence on record.
We do not, therefore, see any merit in the contention advanced on behalf of the appel lant that the conviction is wrong.
however, agree with the learned counsel for the appellant that on the basis of the facts proved, the offence is not murder punishable under Section 302, I.P.C., and that the act of the appellant as proved would fail only under Section 304 Part II, I.P.C. The appellant had in statement under Section 3 13, Cr.P.C., admitted that there had been an altercation between the two and the deceased received the injury in the course of a scuffle.
The evidence clearly established that the whole incident was a sudden development and that the appellant had acted at the spur of the moment and without any pre meditation.
There had been no ill will or enmity between the two.
A casual remark made by the appellant provoked the deceased and the altercation ensued which culminated in the stabbing with knife.
The appellant used the knife only once and did not act in any cruel man ner.
It was in the sudden quarrel in heat of passion that the appellant inflicted the injury on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased.
In such circumstances.
the act of the appellant falls under Excep tion 4 to Section 300, I.P.C., and the appellant is liable to be convicted only under Section 304, Part II, I.P.C. We accordingly alter the conviction to one under Section 304, Part II, I.P.C. We are told that the appellant had already undergone imprisonment for over one year.
He had been released on bail by order of this Court dated 16.7.
The appellant, a young man who had been at large for over nearly 12 years, in our opinion, cannot be committed to prison for any further period at this stage.
To meet the ends of justice, we direct the appellant to pay a fine of Rs.50,000 in addition to the term of imprisonment he has already suffered.
We, thus modify the sentence awarded by the High Court.
We also direct that the fine, if realised, shall be paid to P.W. 1, Umrao Singh, the father of the deceased and other legal heirs of Deep Singh.
In case of default in payment of fine, the appellant shall undergo further imprisonment for one year.
The appeal is partly allowed.
G.N. Appeal partly allowed. | The appellant was charged with the murder of a co worker at the factory in which they were working.
The Trial Court discarded the testimony of eye witnesses and other circum stances and acquitted the appellant, by giving him the benefit of doubt.
On appeal, the High Court accepted the testimony of the eyewitnesses and convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment.
This appeal is against the High Court 's judgment.
Allowing the appeal in part, HELD: 1.
The High Court had interfered with the order of acquittal for cogent reasons and that the conclusion of the High Court that the appellant has caused the death of the deceased, by stabbing with a knife in the manner alleged by the prosecution is unassailable.
The approach by the trial court was clearly wrong and the finding is perverse.
The testimony of the two independent eye witnesses had not been properly appreciated.
Their presence at the scene could not at all be doubted in the light of what P.W. 3 has deposed.
They are probable witnesses and there had not been any infirmity in their evidence.
[608F G] 2.
However, the offence is not murder punishable under Section 302 IPC, and that the act of the appellant as proved would fail only under Section 304 Part II, IPC.
The appel lant had admitted that there had been an altercation between the two and the deceased received the injury in the course of a scuffle.
The evidence clearly established that the whole incident was a sudden development and that the appel lant had acted at the spur of the moment and without any pre meditation.
607 There had been no ill will or enmity between the two.
A casual remark made by the appellant provoked the deceased and the altercation ensued which culminated in the stabbing with knife.
The appellant used the knife only once and did not act in any cruel manner.
It was in the sudden quarrel in heat of passion that the appellant inflicted the injury on the deceased without any intention to cause death but having knowledge that such act was likely to cause the death of the deceased.
[609B D] 3.
The conviction is altered to one under Section 304, Part II, IPC.
Appellant had already undergone imprisonment for over one year.
He had been released on bail by order of this Court.
The appellant, a young man who had been at large for over nearly 12 years, cannot be committed to prison for any further period at this stage.
[609E] 4.
To meet the ends of justice, it is directed that the appellant should pay a fine of Rs.50,000 in addition to the term of imprisonment he has already suffered.
This amount would be paid to the father of the deceased and other legal heirs.
In case of default in payment of fine, the appellant should undergo further imprisonment for six months.
[609F G] |
Appeal No. 312 of 1959.
Appeal from the judgment and order dated August 23, 1956, of the Bombay High Court in Income tax Reference No. 21 of 1956.
Hardyal Hardy and D. Gupta, for the appellant.
A.V. Viswanatha Sastri and I. N. Shroff, for the respondent.
December 6.
The Judgment of the Court was delivered by KAPUR, J.
This is an appeal by special leave brought by the Commissioner of Income tax against the judgment and order of the High Court of Bombay answering the question in favour of the assessee.
The question referred by the Tribunal was: "Whether on the facts and in the circumstances of the case the amount of Rs. 3,20,162 is an allowable deduction under Section 10(2)(xi) or 10(2)(xv) of the Income tax Act?" which was amended by the High Court as follows: "Whether on the facts and in the circumstances of the case the amount Rs. 3,20,162 is an allowable deduction" and was answered in the affirmative and against the appellant.
The facts of the case shortly stated are these: The respondent is a registered firm carrying on business as commission agents.
It was treated as the agent of a non resident principal Haji Mohamed Syed Ali Barbari of Port Sudan (hereinafter 'referred to as the nonresident principal.
It was carrying on the business of export of cloth and kariana (i.e., miscellaneous goods) to Aden, Saudi Arabia and sudan.
It used to supply goods from India to the nonresident principal, who on his part, was sending cotton to the respondent and other merchants for sale in India.
For the years 1942 43, 1943 44, 1944 45 and 1945 46, the respondent firm was treated as the agent of the nonresident principal under section 43 of the Income tax Act 951 (which will hereinafter be termed 'the Act ') for the purpose of income tax and Excess Profits Tax.
The respondent firm had to pay in all Rs. 3,78,491 under section 42(1) of the Act and after allowing for the amounts which were in its hands the account of the principal non resident showed a debit balance of Rs. 3,20,162.
For the year of assessment, 1953 54, the respondent firm treated this amount as a bad debt and claimed it as a deductible loss to be set off against profits.
The Income tax Officer treating this claim as one under section 10(2)(xv) of the Act, disallowed it.
The Appellate Assistant Commissioner treated it as one under section 10 (2)(xi) of the Act and he also disallowed it.
On appeal to the Income tax Appellate Tribunal it was held to be a bad debt and an allowable deduction as it was incurred as a result of the business activities which the respondent firm was carrying on with the nonresident principal.
At the instance of the Commissioner of Income tax, the case was stated to the High Court and the High Court modified the question and answered the same in the affirmative, i.e., against the appellant.
The High Court held that as the law imposed an obligation upon the respondent firm to discharge the liability and it was incidental to the business of the respondent the amount was a deductible loss; and even if it was not a debt, then also the amount could be claimed by the assessee as a business or trading loss, because in arriving at the true profit of the respondent 's business that loss had to be deducted.
The High Court thus applied section 10(1) of the Act to the amount claimed by the respondent.
The allowability of the amount in dispute depends upon the nature of the liability imposed upon the respondent firm.
The contention of the respondent 's counsel was that it was carrying on foreign trade and had dealings with a foreign merchant and in the course of the business there were imports and exports and therefore the interconnection between the respondent firm and the non ' resident principal was so intimate as to invite the application of section 42(1), i.e., the establishment of agency as 'contemplated in that section.
The liability to pay arises under a. 42(2) which provides 952 "Where a person not resident or not ordinarily resident in the taxable territories carries on business with a person resident in the taxable territories, and it appears to the Income tax Officer that owing to the close connection between such persons the course of business is so arranged that the business done by the resident person with the person not resident or not ordinarily resident produces to the resident either no profits or less than the ordinary profits which might be expected to arise in that business, the profits derived therefrom or which may reasonably be deemed to have been derived therefrom, shall be chargeable to income tax in the name of the resident person who shall be deemed to be, for all the purposes of this Act, the assessee in respect of such income tax." Relying on this provision it was argued that the nature of the respondent 's business was foreign trade which was inter connected with the business of the non resident principal.
Its nature was such as to attract the imposition of liability on the respondent firm under section 42(2) of the Act and therefore the loss so incurred must be taken to be incidental to and arising out of the business of the respondent.
"The thing to be taxed", said Lord Halsbury, L. C., "is the amount of profits and gains.
The word 'profits ' I think is to be understood in its natural and proper sense in a sense which no commercial man would.
misunderstand": Gresham Life Assurance Society V. Styles (1).
Hence even if a deduction is not specifically enumerated in sub section (2) of B. 10 it would still be a debatable item to reflect the taxable profits.
The Privy Council in Commissioner of Income tax vs Sir section M. Chitnavis (1) held that the Act nowhere authorises the deduction of bad debts of a business, such a deduction is necessarily allowable because what is chargeable to income tax in respect of a business are the profits and gains of a year and in assessing the amount of profits and gains of that, year account must necessarily be taken of all losses incurred, otherwise true profits and gains cannot be ascertained.
In order (1)(1892) , 188 (H.L.).
(2)(1932) L.R. 59 I.A. 290, 296. 953 that a loss may be deductible it must be a loss in the business of the assessee and not payment relating to the business of somebody else which under the provisions of the Act is deemed to be and becomes the liability of the assessee.
The loss becomes allowable if it "springs directly from and is incidental" to the business of the assessee.
The decision therefore mainly depends upon whether the loss claimed is a business loss of that nature.
In our opinion the amount which became payable by the respondent firm cannot be called its business loss.
In order to be deductible the loss must be in the nature of a commercial loss and, as has been said above, must spring directly out of it and must really be incidental to the business itself.
It is not sufficient that it falls on the trader in some 'other capacity or is merely connected with his business.
Counsel for the respondent relied upon a judgment of this Court in Badridas Daga vs The Commissioner of Income tax (1).
In that case an agent of the assessee engaged for the purpose of carrying on of the assessee 's business had authority to operate a bank account.
Acting under such authority the agent withdrew from the bank monies and put them to his personal use.
The assessee was able to recover from the agent only a part of the amount misappropriated and the balance was written off as irrecoverable debt and it was held that it was not allowable under section 10(2)(xi) or 10(2)(xv) of the Act but it was a loss deductible in computing the profits under section 10(1) of the Act as a loss incidental to the carrying on of his business.
Counsel relied on the following observation of Venkatarama Ayyar, J., at p. 695: "The result is that when a claim is made for a deduction for which there is no specific provision in section 10(2), whether it is admissible or not will depend on whether having regard to accepted commercial practice and trading principles it can be said to arise out of the carrying on of the business and to be incidental to it.
,, That passage has to be read in the circumstances of (1)[1959] S.C.R. 690.
954 that case where the employment of agents was incidental to the carrying on of the business and it was observed that it logically followed that the losses which were incidental to such employment were also incidental to the carrying on of the business.
At page 696, it was observed: "At the same time it should be emphasised that the loss for which a deduction could be made under section 10(1) must be one that springs directly from the carrying on of the business and is incidental to it and not any loss sustained by the assessee, even if it has some connection with his business." Reference may also be made to an English decision in Curtis vs J. & G. Oldfield Ltd. (1).
In that case the managing director of a company of wine and spirit merchants embezzled monies of the ' company and that.
was claimed as a loss as a bad debt and it was held that it was not a trading loss and was therefore not an admissible deduction.
In that case the contention of the Crown *as that the sum was not an ordinary trading debt and therefore could not be a bad debt and that the loss was not connected with, and did not arise out of the trade.
Rowlatt, J., said at p. 330: "When the Rule speaks of a bad debt it means a debt which is a debt that would have come into the balance sheet as a trading debt in the trade that is in question and that it is bad.
It does not really mean any bad debt which, when it was a good debt, would not have come in to swell the profit.
" In the present case the liability was imposed upon the respondent firm because it was treated as an agent within the meaning of section 42(1) of the Act and the liability was imposed because of the deeming provision in sub section
(2) of section 42 of the Act.
can it be said, in the present case, that the liability imposed upon the respondent firm was a business debt arising out of the business of the respondent or to use the words of Venkatarama Ayyar, J., "springs directly from the carrying on of the business and is incidental to it or is a trading debt in the business of the respondent firm.
" As we have said above, that condition has not (1)(1925) 955 been fulfilled and the loss which the respondent has incurred is not in its own business but the liability arose because of the business of another person and that is not a permissible deduction within section 10(1) of the Act.
It is not a loss which has to be deducted in respect of the business of the respondent from the profits and gains of the respondent 's business.
Counsel for the respondent also relied on Lord 's Dairy Farm Ltd. vs Commissioner of Income tax, Bombay(1).
That 'was a case of embezzlement by an employee and it was held that the loss directly arose from the necessity of employing cashiers and therefore the loss by embezzlement was a trading loss but in that very case it was held that before a claim could be made for deduction of a debt as bad debt it must be a debt in law.
That case is not applicable to the facts of the present case and is of little assistance in the decision of the question before us.
Counsel for the respondent next relied on Calcutta Co., Ltd. vs The Commissioner of Income tax (2).
It was held in that case that the expression "profits and gains" has to be understood in its commercial sense and that there could be no computation of profits and gains until the expenditure necessary for earning those profits and gains is deducted therefrom and that when there is no specific provision in section 10(2) in regard to claim made, its allowability will depend on accepted commercial practice and trading principles and it will be allowed if it can be said to arise out of the carrying on of the business and is incidental to it.
As a principle it is unexceptionable but it does not carry the matter any further.
It was next contended that the matter falls within section 10(2)(xi) of the Act, i.e., it is in respect of the busi ness.
This contention has even less substance than the claim of deduction under section 10(1).
Under cl.
(xi) also a debt is only allowable when it is a debt and arises out of and as an incident to the trade.
Except in money lending trade debts can only be so described (1) (2) [1959] 37 I.T.R. 956 if they are due from customers for goods supplied or loans toconstituents or transactions of a similar kind.
In every case the test is, was the debt due as an incident to the business; if it is not of that character it will be a capital loss.
Thus a loan advanced by a firm of Solicitors to a company in the formation of which it acted as legal adviser is not deductible on its becoming irrecoverable because that is not a part of the profession of a Solicitor: C. I. R. vs Hagart & Burn Murdoch (1).
In our opinion the High Court 'was in error in answering the question in favour of the respondent.
We therefore allow this appeal, set aside the judgment and order of the High Court and answer the question against the respondent.
The appellant will have his costs in this Court and in the High Court.
Appeal allowed. | The respondent was a registered firm carrying on business as commission agents, and for the purpose of income tax it was treated as the agent of a non resident principal doing business outside India.
Under section 42(1) of the Indian Income tax Act the respondent was deemed to be the assessee and had to pay Rs. 3,78,49r as income tax on behalf of the non resident principal.
After allowing for the amounts lying with the respondentfirm the account of the non resident principal showed a debit balance of RS.
3,20,162.
The respondent treated this amount as a bad debt and claimed it as a deductible loss.
The Incometax Officer and the Appellate Assistant Commissioner disallowed the respondent 's claim but the Income Tax Appellate Tribunal held it to be an allowable deduction being a bad debt incurred as a result of the respondent 's business activities with the nonresident principal.
The High Court treating the amount as a deductible business loss incurred by the respondent affirmed the decision of the Income tax Tribunal.
On appeal by the Commissioner of Income tax, Held, that the respondent was not entitled to the reduction claimed by it.
The liability to pay imposed upon it under section 42(2) of the Income tax Act did not arise directly from the carrying on of the business nor was it incidental to the business.
The loss was not a commercial loss incurred in the respondentfirm 's own business but it arose out of the business of another person and that was not a permissible deduction within section io(1) or section 10(2)(Xi) of the Act.
Gresham Life Assurance Society vs Styles, L.), referred to.
Commissioner of Income tax vs Sir section M. Chitnavis, (1932) L. R 59 I. A. 290, followed.
Badridas Daga vs Commissioner of Income tax, [1959] S.C.R. 690 and Curtis vs I. and G. Oldfield, Ltd., (1925) 9 T. C. 319, discussed.
Lord 's Dairy Farm Ltd. vs Commissioner of Income tax, Bom bay, , Calcutta Co., Ltd. vs Commissioner of Income tax, and C.I.R. vs Hagart and Burn Murdoch; ; , not applicable '.
120 950 |
urt was not warranted in law, being contrary to the special provisions of the 1952 Act, was also not in conformity with the principles of natural justice and that unless the direction can be justified with reference to section 407 of the Cr.
P.C., the petitioner 's fundamental rights under Articles 14 and 21 of the Constitution can be said to have been infringed by reason of this direction.
[142C] However, this is not one of those cases in which it is considered appropriate to recall the earlier direction and order a re trial of the appellant de novo before a Special Judge.
[169D] & CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 468 of 1986.
From the Judgement and order dated 24.7.86 of the Bombay High Court in Special Cash No. 24/82.
P.P. Rao, R.D. Ovlekar.
M.N. Dwevedi (Not in WP.
No. 542) 36 Sulman Khurshid, N.V. Pradhan, D.R. Gadgil, R.S. Desai, M.N. Shroff K.V. Sreekumar and P.S. Pradhan for the Petitioner Ram Jethmalani, Miss Rani Jethmalani and Ashok Sharma for the Respondents.
A.M. Khanwilkar and A.S.Bhasme for the Respondents State.
The majority Judgment of Sabyasachi Mukharji, G.L. Oza and section Natarajan, JJ.
was delivered by Mukharji, J. Ranganath Misra and B.C. Ray, JJ.
gave separate concurring opinions.
G.L. Oza, J. also gave a separate opinion.
M.N. Venkatachaliah, J. delivered a dissenting opinion section Ranganathan, j was a partly concurring and partly dissenting opinion: SABYASACHI MUKHARJI, J.
The main question involved in this appeal, is whether the directions given by this Court on 16th February, 1984.
as reported in R.S. Nayak vs A.R. Antulay; , at 557 were legally proper.
The next question is, whether the action and the trial proceedings pursuant to those directions, are legal and valid.
Lastly, the third consequential question is, can those directions be recalled or set aside or annulled in those proceedings in the manner sought for by the appellant.
In order to answer these questions certain facts have to be borne in mind.
The appellant became the Chief Minister of Maharashtra on or about 9th of June, 1980.
On 1st of September, 1981, respondent No. 1 who is a member of the Bharatiya Janta Party applied to the Governor of the State under section 197 of the Criminal Procedure Code, 1973 (hereinafter referred to as the Code) and section 6 of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) for sanction to prosecute the appellant.
On 11th of September, 1981, respondent No. 1 filed a complaint before the Additional Metropolitan Magistrate, Bombay against the appellant and other known and unknown persons for alleged offence under sections 161 and 165 of the Indian Penal Code and section 5 of the Act as also under sections 384 and 420 read with sections 109 and 120B of the Indian Penal Code.
The learned Magistrate refused to take cognizance of the offences under the Act without the sanction for prosecution.
Thereafter a criminal revision application being C.R.A. No. 1742 of 1981 was filed in the High Court of Bombay, by respondent No. 1. 37 The appellant thereafter on 12th of January, 1982 resigned from the position of Chief Minister in deference to the judgment of the Bombay High Court in a writ petition filed against him.
In CRA No. 1742 of 1981 filed by respondent No. 1 the Division Bench of the High Court held that sanction was necessary for the prosecution of the appellant and the High Court rejected the request of respondent No. 1 to transfer the case from the Court of the Additional Chief Metropolitan Magistrate to itself.
On 28th of July, 1982, the Governor of Maharashtra granted sanction under section 197 of the Code and section 6 of the Act in respect of five items relating to three subjects only and refused sanction in respect of all other items.
Respondent No. 1 on 9th of August, 1982 filed a fresh complaint against the appellant before the learned Special Judge bringing in many more allegations including those for which sanction was refused by the Governor.
It was registered as a Special Case No. 24 of 1982.
It was submitted by respondent No. 1 that there was no necessity of any sanction since the appellant had ceased to be a public servant after his resignation as Chief Minister.
The Special Judge, Shri P.S. Bhutta issued process to the appellant without relying on the sanction order dated 28th of July, 1982.
On 20th of October, 1982, Shri P.S. Bhutta overruled the appellants objection to his jurisdiction to take cognizance of the complaint and to issue process in the absence of a notification under section 7(2) of the Criminal Law Amendment Act, 1952 (hereinafter referred to as 1952 Act) specifying which of the three Special Judges of the area should try such cases.
The State Government on 15th of January, 1983 notified the appointment of Shri R.B. Sule as the Special Judge to try the offences specified under section 6(1) of the 1952 Act.
On or about 25th of July 1983, it appears that Shri R.B. Sule, Special Judge discharged the appellant holding that a member of the Legislative Assembly is a public servant and there was no valid sanction for prosecuting the appellant.
On 16th of February, 1984, in an appeal filed by respondent No. 1 directly under Article 136, a Constitution Bench of this Court held that a member of the Legislative Assembly is not a public servant and set aside the order of Special Judge Sule.
Instead of remanding the 38 case to the Special Judge for disposal in accordance with law, this Court suo motu withdrew the Special Cases No. 24/82 and 3/83 (arising out of a complaint filed by one P.B. Samant) pending in the Court of Special Judge, Greater Bombay, Shri R.B. Sule and transferred the same to the Bombay High Court with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court for holding the trial from day to day.
These directions were given, according to the appellant, without any pleadings, without any arguments, without any such prayer from either side and without giving any opportunity to the appellant to make his submissions before issuing the same.
It was submitted that the appellant 's right to be tried by a competent court according to the procedure established by law enacted by Parliament and his rights of appeal and revision to the High Court under section 9 of the 1952 Act had been taken away.
The directions of this Court mentioned hereinbefore are contained in the decision of this Court in R.S. Nayak vs A.R. Antulay; , at 557.
There the Court was mainly concerned with whether sanction to prosecute was necessary.
It was held that no such sanction was necessary in the facts and circumstances of the case.
This Court further gave the following directions: "The accused was the Chief Minister of a premier State the State of Maharashtra.
By a prosecution launched as early 'as on September 11, 1981, his character and integrity came under a cloud.
Nearly two and a half years have rolled by and the case has not moved an inch further.
An expeditious trial is primarily in the interest of the accused and a mandate of Article 21.
Expeditious disposal of a criminal case is in the interest of both the prosecution and the accused.
Therefore, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special judge, Greater Bombay Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court.
On being so assigned, the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day.
" The appellant as mentioned hereinbefore had appeared before the Special Judge and objected to the jurisdiction of the learned Judge on the ground that the case had not been properly allocated to him by the State Government.
The Special Judge Bhutta after hearing 39 the parties had decided the case was validly filed before him and he had properly taken cognizance.
He based his order on the construction of the notification of allocation which was in force at that time.
Against the order of the learned Special Judge rejecting the appellant 's contention, the appellant filed a revision application in the High Court of Bombay.
During the pendency of the said revision application, the Government of Maharashtra issued a notification appointed Special Judge R.B. Sule, as the Judge of the special case.
it is the contention of the respondents before us that the appellant thereafter did not raise any further objection in the High Court against cognizance being taken by Shri Bhutta.
It is important to take note of this contention because one of the points urged by Shri Rao on behalf of the appellant was that not only we should set aside the trial before the High Court as being without jurisdiction but we should direct that no further trial should take place before the Special Judge because the appellant has suffered a lot of which we shall mention later but also because cognizance of the offences had not been taken properly.
In order to meet the submission that cognizance of the offences had not been taken properly, it was urged by Shri Jethmalani that after the Government Notification appointing Judge Sule as the Special Judge, the objection that cognizance of the offences could not be taken by Shri Bhutta was not agitated any further.
The other objections that the appellant raised against the order passed by Judge Bhutta were dismissed by the High Court of Bombay.
Against the order of the Bombay High Court the appellant filed a petition under Article 136 of the constitution.
The appeal after grant of leave was dismissed by a judgment delivered on 16th February, 1984 by this Court in A.R. Antulay vs Ramdas Sriniwas Nayak and another; , There at page 954 of the report, this Court categorically observed that a private complaint filed by the complaint was clearly maintainable and that the cognizance was properly taken.
This was the point at issue in that appeal.
This was decided against the appellant.
On this aspect therefore, the other point is open to the appellant.
We are of the opinion that this observation of this Court cannot by any stretch of imagination be considered to be without jurisdiction.
Therefore, this decision of this Court precludes any scope for argument about the validity of the cognizance taken by Special Judge Bhutta.
Furthermore, the case had proceeded further before the Special Judge, Shri Sule and the learned Judge passed an order of discharge on 25th July, 1983.
This order was set aside by the Constitution Bench of this Court on 16th February, 1984, in the connected judgment (vide ; The order of taking cognizance had therefore become final and cannot be reagitated.
Moreover section 460(e) of the Code expressly provides that if any Magistrate not empowered by law 40 to take cognizance of an offence on a complaint under section 190 of the Code erroneously in good faith does so his proceedings shall not be set aside merely on the ground that he was not so empowered.
Pursuant to the directions of this Court dated 16th February, 1984, on 1st of March, 1984, the Chief Justice of the Bombay High Court assigned the cases to S.N. Khatri, J.
The appellant, it is contended before us, appeared before Khatri, J. and had raised an objection that the case could be tried by a Special Judge only appointed by the Government under the 1952 Act.
Khatri, J. On 13th of March, 1984, refused to entertain the appellant 's objection to jurisdiction holding that he was bound by the order of this Court.
There was another order passed on 16th of March, 1984 whereby Khatri, J. dealt with the other contentions raised as to his jurisdiction and rejected the objections of the appellant.
Being aggrieved the appellant came up before this Court by filing special leave petitions as well as writ petition.
This Court on 17th April, 1984, in Abdul Rehman Antulay vs Union of India and others etc.
; , at 483 held that the learned Judge was perfectly justified and indeed it was the duty of the learned Judge to follow the decision of this Court which was binding on him.
This Court in dismissing the writ petition observed, inter alia, as follows: "In my view, the writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise incorrect cannot be entertained.
I wish to make it clear that the dismissal of this writ petition will not pre judice the right of the petitioner, to approach the Court with an appropriate review petition or to file any other application which he may be entitled in law to file.
" D.N. Mehta, J. to whom the cases were transferred from Khatri, J. framed charges under 21 heads and declined to frame charges under 22 other heads proposed by respondent No. 1.
This Court allowed the appeal by special leave preferred by respondent No. 1 except in regard to three draft charges under section 384, I.P.C. (extortion) and directed the Court below to frame charges with regard to all other offences alleged.
This Court requested the Chief Justice of the Bombay High Court to nominate another Judge in place of D.N. Mehta, J. to take up the trial and proceed expeditiously to dispose of the case finally.
See in this connection R. section Nayak vs A .R. Antulay and another; , 41 P.S. Shah, J. to whom the cases were referred to from D.N. Mehta, J.
On 24th of July, 1986 proceeded to frame as many as 79 A charges against the appellant and decided not to proceed against the other named co conspirators.
This is the order impugned before us.
Being aggrieved by the aforesaid order the appellant filed the present Special leave Petition (Crl.) No. 2519 of 1986 questioning the jurisdiction to try the case in violation of the appellant 's fundamental rights conferred by Articles 14 and 21 and the provisions of the Act of 1952.
The appellant also filed Special leave Petition (Crl.) No. 2518 of 1986 against the judgment and order dated 21st of August, 1986 of P.S. Shah, J. holding that none of the 79 charges framed against the accused required sanction under section 197(1) of the Code.
The appellant also filed a Writ Petition No. 542 of 1986 challenging a portion of section 197(1) of Code as ultra vires Articles 14 and 21 of the Constitution.
This Court granted leave in Special Leave Petition (Crl. ) No. 2519 of 1986 after hearing respondent No. 1 and stayed further proceedings in the High Court.
This Court issued notice in Special Leave Petition (Crl.) No. 2518 and Writ Petition (Crl.) No. 542 of 1986 and directed these to be tagged on with the appeal arising out of Special Leave Petition (Crl. ) No. 2519 of 1986.
On 11th of October, 1986 the appellant filed a Criminal Miscellaneous Petition for permission to urge certain additional grounds in support of the plea that the origination of the proceedings before the Court of Shri P.S. Bhutta, Special Judge and the process issued to the appellant were illegal and void ab initio.
This Court on 29th October, 1986 dismissed the application for revocation of special leave petition filed by respondent No. 1 and referred the appeal to a Bench of 7 Judges of this Court and indicated the points in the note appended to the order for consideration of this Bench.
So far as SLP (Crl.) No. 2518/86 against the judgment and order dated 21st August, 1986 of P.S. Shah, J. Of the Bombay High Court about the absence of sanction under section 197 of the Code is concerned, we have by an order dated 3rd February, 1988 delinked that special leave petition inasmuch as the same involved confederation of an independent question and directed that the special leave petition should be heard by any appropriate Bench after disposal of this appeal, Similarly, Writ Petition (Crl.) No. 542 of 1986 challenging a H 42 portion of section 197(1) of the Criminal Procedure Code as ultra vires Articles 14 and 21 of the Constitution had also to be delinked by our order dated 3rd February, 1988 to be heard along with special leave petition no 2518 of 1986.
This judgment therefore, does not cover these two matters.
In this appeal two questions arise, namely, (1) whether the directions given by this Court on 16th of February, 1984 in R.S. Nayak vs A.R. Antulay, ; withdrawing the Special Case No. 24/82 and Special Case No. 3/83 arising out of the complaint filed by one shri P.B. Samant pending in the Court of Special Judge, Greater Bombay, Shri R.B. Sule, and transferring the same to the High Court of Bombay with a request to the Chief Justice to assign these two cases to a sitting Judge of the High Court, in breach of section 7(1) of the Act of 1952 which mandates that offences as in this case shall be tried by a Special Judge only thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution and whether such directions were at all valid or legal and (2) if such directions were not at all valid or legal in view.
Of the order dated 17th.
Of April, 1984 referred to hereinbefore, is this appeal sustainable or the grounds therein justiciable in these proceedings.
In other words, are 711 the said directions in a proceedings inter parties binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such are immune from correction by this Court even though they cause prejudice and do injury? These are the basic questions which this Court must answer in this appeal.
The contention that has been canvassed before us was that save as provided in sub section (1) of section 9 of the Code the provisions thereof corresponding to section 9(1) of the Criminal Procedure Code, 1898) shall so far as they are not inconsistent with the Act apply to the proceedings before the Special Judge and for purposes of the said provisions the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting the prosecution before a Special Judge shall be deemed to be a public prosecutor.
It was submitted 'before us that it was a private complaint and the prosecutor was not the public prosecutor.
This was another infirmity which this trial suffered, it was pointed out.
In the background of the main issues involved in this appeal we do not propose to deal with this subsidiary point which is of not any significance.
The only question with which we are concerned in this appeal is, 43 whether the case which is triable under the 1952 Act only by a Special Judge appointed under section 6 of the said Act could be transferred to the High Court for trial by itself or by this Court to the High Court for trial by it.
Section 406 of the Code deals with transfer of criminal cases and provides power to this Court to transfer cases and appeals whenever it is made to appear to this Court that an order under this section is expedient for the ends of justice.
The law provides that this Court may direct that any particular case or appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
Equally section 407 deals with the power of High Court to transfer cases and appeals.
Under section 6 of the 1952 Act, the State Government is authorised to appoint as many Special Judges as may be necessary for such area or areas for specified offences including offences under the Act.
Section 7 of the 1952 Act deals with cases triable by Special Judges.
The question, therefore, is whether this Court under section 406 of the Code could have transferred a case which was triable only by a Special Judge to be tried by the High Court or even if an application had been made to this Court under section 406 of the Code to transfer the case triable by a Special Judge to another Special Judge could that be transferred to a High Court, for trial by it.
It was contended by Shri Rao that the jurisdiction to entertain and try cases is conferred either by the Constitution or by the laws made by Parliament.
He referred us to the powers of this Court under Articles 32, 131, 137, 138, 140, 142 and 145(1) of the Constitution.
He also referred to Entry 77 of List I of the Constitution which deals with the constitution of the courts.
He further submitted that the appellant has a right to be tried in accordance with law.
and no procedure which will deny the equal protection of law can be invented and any order passed by this Court which will deny equal protection of laws would be an order which is void by virtue of Article 13(2) of the Constitution.
He referred us to the previous order of this Court directing the transfer of cases to the High Court and submitted that it was a nullity because of the consequences of the wrong directions of this Court.
The enormity of the consequences warranted this Court 's order being treated as a nullity.
The directions denied the appellant the remedy by way of appeal as of right.
Such erroneous or mistaken directions should be corrected at the earliest opportunity, Shri Rao submitted.
Shri Rao also submitted that the directions given by the Court were without jurisdiction and as such void.
There was no jurisdiction, according to Shri Rao, or power to transfer a case from the Court of 44 the Special Judge to any High Court.
Section 406 Gf the Code only permitted transfer of cases from one High Court to another High Court or from a Criminal Court subordinate to one High Court to a Criminal Court subordinate to another High Court.
It is apparent that the impugned directions could not have been given under section 406 of the Code as the Court has no such power to order the transfer from the Court of the Special Judge to the High Court of Bombay.
Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offences under section 6(1) of the said Act.
The condition is that notwithstanding anything contained in the Code of Criminal Procedure or any other law, the said offences shall be triable by Special Judges only.
(Emphasis supplied).
Indeed conferment of the exclusive jurisdiction of the Special Judge is recognised by the judgment delivered by this Court in A.R. Antulay vs Ramdas Sriniwas Nayak and another; , where this Court had adverted to section 7(1) of the 1952 Act and at page 931 observed that section 7 of the 1952 Act conferred exclusive jurisdiction on the Special Judge appointed under section 6 to try cases set out in section 6(1)(a) and 6(1)(b) of the said Act.
The Court emphasised that the Special Judge had exclusive jurisdiction to try offences enumerated in section 6(1)(a) and (b).
In spite of this while giving directions in the other matter, that is, R.S. Nayak vs A.R. Antulay, ; at page 557, this Court directed transfer to the High Court of Bombay the cases pending before the Special Judge.
It is true that section 7(1) and Section 6 of the 1952 Act were referred to while dealing with the other matters but while dealing with the matter of directions and giving the impugned directions, it does not appear that the Court kept in mind the exclusiveness of the jurisdiction of the Special Court to try the offences enumerated in section 6.
Shri Rao made a point that the directions of the Court were given per incuriam, that is to say without awareness of or advertence to the exclusive nature of the jurisdiction of the Special Court and without reference to the possibility of the violation of the fundamental rights in a case of this nature as observed by a seven Judges Bench decision in The State of West Bengal vs AnwarAli Sarkar ; Shri Ram Jethmalani on behalf of the respondents submitted that the judgment of the Constitution Bench of this Court was delivered on 16th of February, 1984 and counsel for both sides were present and it was neither objected to nor stated by the appellant that he wanted to be heard in regard to the transfer of the trial forum.
He 45 submitted that the order of discharge was not only challenged by a special leave petition before this Court but also that a revision application before the High Court being Criminal Revision Application No. 354/83 was filed but the Criminal Revision Application by an order of this Court was withdrawn and heard along with the special leave petition.
That application contained a prayer to the effect that the order of discharge be set aside and the case be transferred to the High Court for trial.
Therefore, it was submitted that the order of transfer was manifestly just.
There was no review against this order.
It was submitted that the order of transfer to a superior court cannot in law or in fact ever cause any harm or prejudice to any accused.
It is an order made for the benefit of the accused and in the interests of justice.
Reliance was placed on Romesh Chandra Arora vs The State, at 927 and 934.
It was further submitted by Shri Jethmalani that a decision which has become final cannot be challenged.
Therefore, the present proceedings are an abuse of the process of the Court, according to him.
It was further submitted that all the attributes of a trial court were present in a Court of Appeal, an appeal being a continuation of trial before competent Court of Appeal and, therefore, all the qualifications of the trial court were there.
The High Court is authorised to hear an appeal from the judgment of the Special Judge under the Act of 1952.
It was submitted that a Special Judge except in so far as a specific provision to the contrary is made is governed by all the provisions of the Code and he is a Court subordinate to the High Court.
See A.R. Antulay vs R.S. Nayak and another, [1984] 2 S.C.R. 914 at 943 and 944.
It was submitted that power under section 526 of the old Code corresponding to section 407 of the new Code can be exercised qua a Special Judge.
This power, according to Shri Jethmalani, is exerciseable by the High Court in respect of any case under Section 407(1)(iv) irrespective of the Court in which it is pending.
This part of the section is not repealed wholly or pro tanto, according to the learned counsel, by anything in the 1952 Act.
The Constitution Bench, it was submitted, consciously exercised this power.
It decided that the High Court had the power to transfer a case to itself even from a Special Judge.
That decision is binding at least in this case and cannot be reopened, it was urged.
In this case what was actually decided cannot be undone, we were told repeatedly.
It will produce an intolerable state of affairs.
This Court sought to recognise the distinction between finality of judicial orders qua the parties and the reviewability for application to other cases.
Between the parties even a wrong decision can operate as res judicata.
The doctrine of res judicata is applicable even to criminal 46 trials, it was urged.
Reliance was placed on Bhagat Ram vs State of Rajasthan, [1972] 2 S.C.C.466.
A judgment of a High Court is binding in all subsequent proceedings in the same case; more so, a judgment which was unsuccessfully challenged before this Court.
It is obvious that if a case could be transferred under section 406 of the Code from a Special Judge it could only be transferred to another Special Judge or a court of superior jurisdiction but subordinate to the High Court.
No such court exists.
Therefore, under this section the power of transfer can only be from one Special Judge to another Special Judge.
Under section 407 however, corresponding to section 526 of the old Code, it was submitted the High Court has power to transfer any case to itself for being tried by it, it was submitted.
It appears to us that in Gurcharan Das Chadha vs State of Rajasthan, ; an identical question arose.
The petitioner in that case was a member of an All India Service serving in the State of Rajasthan.
The State Government ordered his trial before the Special Judge of Bharatpur for offences under section 120B/161 of the Indian Penal Code and under sections 5(1)(a) and (d) and 5(2) of the Act.
He moved this Court under section 527 of the old Code praying for transfer of his case to another State on various grounds.
Section 7(1) of the Act required the offences involved in that case to be tried by a Special Judge only, and section 7(2) of the Act required the offences to be tried by a Special Judge for the area within which these were committed which condition could never be satisfied if there was a transfer.
This Court held that the condition in sub section (1) of section 7 of the Act that the case must be tried by a Special Judge, is a sine qua non for the trial of offences under section 6.
This condition can be satisfied by transferring the case from one Special Judge to another Special Judge.
Sub section (2) of section 7 merely distributes, it was noted, work between Special Judges appointed in a State with reference to territory.
This provision is at par with the section of the Code which confers territorial jurisdiction on Sessions Judges and magistrates.
An order of transfer by the very nature of things must sometimes result in taking the case out of the territory.
The third sub section of section 8 of the Act preserves the application of any provision of the Code if it is not inconsistent with the Act save as provided by the first two sub sections of that Section.
It was held by this Court that section 527 of the old Code, hence, remains applicable if it is not inconsistent with section 7(2) of the Act.
It was held that there was no inconsistency between section 527 of the Code and 47 section 7(2) of the Act as the territorial jurisdiction created by the latter operates in a different sphere and under different circumstances.
Inconsistency can only be found if two provisions of law apply in identical circumstances, and create contradictions.
Such a situation does not arise when either this Court or the High Court exercises the power of transfer.
Therefore, this Court in exercise of its jurisdiction and power under section 521 of the Code can transfer a case from a Special Judge subordinate to one High Court to another Special Judge subordinate to another High Court.
It has to be emphasised that that decision was confined to the power under section 527 of the previous Code and to transfer from one Special to another Special Judge though of another State.
It was urged by Shri Jethmalani that Chadha 's case (supra) being one of transfer from one Special Judge to another the judgment is not an authority for the proposition that it cannot be transferred to a court other than that of a Special Judge or to the High Court.
But whatever be the position, this is no longer open at this juncture.
The jurisdiction, it was submitted, created by section 7 of the Act of 1952 is of exclusiveness qua the Courts subordinate to the High Court.
It is not exclusive qua a Court of superior jurisdiction including a Court which can hear an appeal against its decision.
The non obstante clause does not prevail over other provisions of the Code such as those which recognise the powers of the superior courts to exercise jurisdiction on transfer.
It was submitted that the power of transfer vested in the High Court is exercisable qua Special Judges and is recognised not merely by Chadha 's case but in earlier cases also, Shri Jethmalani submitted.
It was next submitted that apart from the power under sections 406 and 407 of the Code the power of transfer is also exercisable by the High Court under Article 228 of the Constitution.
There ' is no doubt that under this Article the case can be withdrawn from the Court of a Special Judge.
It is open to the High Court to finally dispose it of.
A chartered High Court can make orders of transfer under clause 29 of the Letters Patent.
Article 134(1)(b) of the Constitution expressly recognises the existence of such power in every High Court.
It was further submitted that any case transferred for trial to the High Court in which it exercises jurisdiction only by reason of the order of transfer is a case tried not in ordinary original criminal jurisdiction but in extraordinary original criminal jurisdiction.
Some High Courts had both ordinary criminal jurisdiction as well as extraordinary 48 criminal original jurisdiction.
The former was possessed by the High Courts of Bombay, Madras and Calcutta.
The first two High Courts abolished it in the 40 's and the Calcutta High Court continued it for quite some time and after the 50 's in a truncated form until it was finally done away with by the Code.
After the Code the only original criminal jurisdiction possessed by all the High Courts is extraordinary.
It can arise by transfer under the Code or the Constitution or under clause 29 of the Letters Patent.
It was submitted that it was not right that extraordinary original criminal jurisdiction is contained only in clause 24 of the Letters Patent of the Bombay High Court.
This is contrary to section 374 of the Code itself.
That refers to all High Courts and not merely all or any one of the three Chartered High Courts.
In P.P. Front, New Delhi vs KK.
Birla and others, , the Delhi High Court recognised its extraordinary original criminal jurisdiction as the only one that it possessed.
The nature of this jurisdiction is clearly explained in Madura, Tirupparankundram etc.
vs Alikhan Sahib and Ors, 35 Calcutta Weekly Notes, 1088 and Sunil Chandra Roy and another vs The State, A.I.R. 1954 Calcutta 305, paragraph 15.
Reference may also be made to the Law Commissioner 's 41st Report, paragraphs 3.1 to 3.6 at page 29 and paragraph 31.
10 at page 259.
The 1952 Act was passed to provide for speedier trial but the procedure evolved should not be so directed, it was submitted, that it would violate Article 14 as was held in Anwar Ali Sarkar 's case (supra).
Section 7 of the 1952 Act provides that notwithstanding anything contained in the Code of Criminal Procedure, or in any other law the offences specified in sub section (1) of section 6 shall be triable by Special Judges only.
So the law provides for a trial by Special Judge only and this is notwithstanding anything contained in sections 406 and 407 of the Code of Criminal Procedure, 1973.
Could it, therefore, be accepted that this Court exercised a power not given to it by Parliament or the Constitution and acted under a power not exercisable by it? The question that has to be asked and answered is if a case is tried by a Special Judge or a court subordinate to the High Court against whose order an appeal or a revision would lie to the High Court, is transferred by this Court to the High Court and such right of appeal or revision is taken away would not an accused be in a worse position than others? This Court in R.S. Nayak vs A.R. Antulay, ; did not refer either to section 406 or section 407 of the Code.
It is only made dear that if the application had been made to the 49 High Court under section 407 of the Code, the High Court might have transferred the case to itself The second question that arises here is if such a wrong direction has been given by this Court can such a direction inter parties be challenged subsequently.
This is really a value perspective judgement.
In Kiran Singh and others vs Chaman Paswan and others, l 19551 1 S.C.R. 117 at 121 Venkatarama Ayyar, J. Observed that the fundamental principle is well established that a decree passed by a Court without jurisdiction is a nullity, and that its validity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in collateral proceedings.
A defect of jurisdiction whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.
This question has been well put, if we may say so, in the decision of this Court in M.L. Sethi vs R.P. Kapur, ; where Mathew, J. Observed that the jurisdiction was a verbal coat of many colours and referred to the decision in Anisminic Ltd. vs Foreign Compensation Commission, ; where the majority of the House of Lords dealt with the assimilation of the concepts of 'lack ' and 'excess ' of jurisdiction or, in other words, the extent to which we have moved away from the traditional concept of jurisdiction.
The effect of the dicta was to reduce the difference between jurisdictional error and error of law within jurisdiction almost to a vanishing point.
What is a wrong decision on a question of limitation, he posed referring to an article of Professor H.W.R. Wade, "Constitutional and Administrative Aspects of the Anismanic case" and concluded; "it is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata would oust the jurisdiction of the Court in the primitive sense of the term and render the decision or decree embodying the decision a nullity liable to collateral attack .
And there is no yardstick to determine the magnitude of the error other than the opinion of the Court.
" (Emphasis supplied) While applying the ratio to the facts of the present controversy, it has to be borne in mind that section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offenders under section 6(1) of that Act.
In this connection, the offences specified under section 6(1) of the 1952 Act are those punishable under sections 161, 162, 50 163, 164 and 165A of the Indian Penal Code and section 5 of the 1947 Act.
Therefore, the order of this Court transferring the cases to the High Court on 16th February, 1984, was not authorised by law.
This Court, by its directions could not confer jurisdiction on the High Court of Bombay to try any case which it did not possess such jurisdiction under the scheme of the 1952 Act.
It is true that in the first judgment in A.R. Antulay vs Ramdas Sriniwas Nayak and another; , when this Court was analysing the scheme of the 1952 Act, it referred to sections 6 and 7 at page 931 of the Reports.
The arguments, however, were not advanced and it does not appear that this aspect with its remifications was present in the mind of the Court while giving the impugned directions.
Shri Jethmalani sought to urge before us that the order made by the Court was not without jurisdiction or irregular.
We are unable to agree.
It appears to us that the order was quite clearly per incuriam.
This Court was not called upon and did not decide the express limitation on the power conferred by section 407 of the Code which includes offences by public servants mentioned in the 1952 Act to be overridden in the manner sought to be followed as the consequential direction of this Court.
This Court, to be plain, did not have jurisdiction to transfer the case to itself.
That will be evident from an analysis of the different provisions of the Code as well as the 1952 Act.
The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal.
Parliament alone can do it by law and no Court.
whether superior or inferior or both combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision and appeal.
See in this connection the observations in M.L. Sethi vs R.P. Kapur (supra) in which Justice Mathew considered Anisminic; , and also see Halsbury 's Laws of England, 4th Edn.
10 page 327 at para 720 onwards and also Amnon Rubinstein 'Jurisdiction and Illegality ' (1965 Edn.
pages 16 50).
Reference may also be made to Raja Soap Factory vs section P. Shantaraj; , The question of validity, however, is important in that the want of jurisdiction can be established solely by a superior Court and that, in practice, no decision can be impeached collaterally by any inferior Court.
But the superior Court can always correct its own error brought to its notice either by way of petition or ex debito justitiae.
See Rubinstein 's Jurisdiction and Illegality ' (supra).
In the aforesaid view of the matter and the principle reiterated, it 51 is manifest that the appellant has not been ordered to be tried by a procedure mandated by law, but by a procedure which was violative of Article 21 of the Constitution.
That is violative of Articles 14 and 19 of the Constitution also, as is evident from the observations of the 7 Judges Bench judgment in Anwar Ali Sarkar 's case (supra) where this Court found that even for a criminal who was alleged to have committed an offence, a special trial would be per se illegal because it will deprive the accused of his substantial and valuable privileges of defences which, others similarly charged, were able to claim.
As Justice Vivian Bose observed in the said decision at page 366 of the report, it matters not whether it was done in good faith, whether it was done for the convenience of Government, whether the process could be scientifically classified and labelled, or whether it was an experiment for speedier trial made for the good of society at large.
Justice Bose emphasised that it matters not how lofty and laudable the motives were.
The question which must be examined is, can fair minded, reasonable, unbiased and resolute men regard that with equanimity and call it reasonable, just and fair, regard it as equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which are obtained in India today.
Judged by that view the singling out of the appellant in this case for a speedier trial by the High Court for an offence of which the High Court had no jurisdiction to try under the Act of 1952 was, in our opinion, unwarranted, unprecedented and the directions given by this Court for the said purpose, were not warranted.
If that is the position, when that fact is brought to our notice we must remedy the situation.
In rectifying the error, no procedural inhibitions should debar this Court because no person should suffer by reason of any mistake of the Court.
The Court, as is manifest, gave its directions on 16th February, 1984.
Here no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions.
In this connection, reference may be made to the decision of the Gujarat High Court in Soni Vrajlal Jethalal vs Soni Jadavji Govindji and others, A.I.R. 1972 Guj. 148.
Where D.A. Desai, J. speaking for the Gujarat High Court observed that no act of the court or irregularity can come in the way of justice being done and one of the highest and the first duty of all Courts is to take care that the act of the Court does no in jury to the suitors.
It appears that when this Court gave the aforesaid directions on 16th February, 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar 's case (supra).
52 See Halsbury 's Laws of England, 4th End, Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young vs Bristol Aeroplane Co. Ltd., at 300.
Also see the observations of Lord Goddard in Moore vs Hewitt, at 272 A and Penny vs Nicholas, [1950] 2 A.E.R. 89, 92A. "per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong.
See Morelle vs Wakeling, ; , 718F. Also see State of Orissa vs The Titaghur Paper Mills Co. Ltd., [19851 3 SCR 26.
We are of the opinion that in view of the clear provisions of section 7(2) of the Criminal Law Arnendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.
The principle that the size of the Bench whether it is comprised of two or three or more Judges does not matter, was enunciated in Young vs Bristol Aeroplane Co. Ltd. (supra) and followed by Justice Chinnappa Reddy in Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; where it has been held that a Division Bench of three Judges should not overrule a Division Bench of two Judges, has not been followed by our Courts.
According to wellsettled law and various decisions of this Court, it is also well settled that a Full Bench or a Constitution Bench decision as in Anwar Ali Sarkar 's case (supra) was binding on the Constitution Bench because it was a Bench of 7 Judjes.
The principle in England that the size of the Bench does not matter, is clearly brought out in the decision of Evershed M.R. in the case of Morelle vs Wakeling (supra).
The law laid down by this Court is somewhat different.
There is a hierarchy within the Court itself here, where larger Benches overrule smaller Benches.
See the observations of this Court in Mattulal vs Radhe Lal, ; , Union of India & Anr.
vs K.S. Subramanian, ; at page 92 and State of U.P. vs Ram Chandra Trivedi, ; at 473.
This is the practice followed by this Court and now it is a crystallised rule of law.
See in this connection, as mentioned hereinbefore, the observations of the State of Orissa vs Titagarh Paper Mills (supra) and also Union of India and others vs Godfrey Philips India Ltd., [1985] Suppl 3 SCR 123 at 145.
In support of the contention that a direction to delete wholly the 53 impugned direction of this Court be given, reliance was placed on Satyadhvan Ghoshal vs Deorajini Devi, ; The ratio of the decision as it appears from pages 601 to 603 is that the judgment which does not terminate the proceedings, can be challenged in an appeal from final proceedings.
It may be otherwise if subsequent proceedings were independent ones.
The appellant should not suffer on account of the direction of this Court based upon an error leading to conferment of jurisdiction.
In our opinion, we are not debarred from re opening this question and giving proper directions and correcting the error in the present appeal, when the said directions on 16th February, 1984, were violative of the limits of jurisdiction and the directions have resulted in deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of the Constitution.
The appellant has been treated differently from other offenders, accused of a similar offence in view of the provisions of the Act of 1952 and the High Court was not a Court competent to try the offence.
It was directed to try the appellant under the directions of this Court, which was in derogation of Article 21 of the Constitution.
The directions have been issued without observing the principle of audi alteram partem.
It is true that Shri Jethmalani has shown us the prayers made before the High Court which are at page 121 of the paper book.
He argued that since the transfers have been made under section 407, the procedure would be that given in section 407(8) of the Code.
These directions, Shri Jethmalani sought to urge before us, have been given in the presence of the parties and the clarificatory order of April 5, 1985 which was made in the presence of the appellant and his Counsel as well as the Counsel of the State Government of Maharashtra, expressly recorded that no such submission was made in connection with the prayer for grant of clarification.
We are of the opinion that Shri Jethmalani is not right when he said that the decision was not made per incuriam as submitted by the appellant.
It is a settled rule that if a decision has been given per incuriam the Court can ignore it.
It is also true that the decision of this Court in the case of The Bengal Immunity Co. Ltd. vs The State of Bihar & Ors.
at 623 was not regarding an order which had become conclusive inter parties.
The Court was examining in that case only the doctrine of precedents and determining the extent to which it could take a different view from one previously taken in a different case between different parties.
According to Shri Jethmalani, the doctrine of per incuriam has 54 no application in the same proceedings.
We are unable to accept this A contention.
We are of the opinion that this Court is not powerless to correct its error which has the effect of depriving a citizen of his fundamental rights and more so, the right to life and liberty.
It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application.
Powers of review can be exercised in a petition filed under Article 136 or Article 32 or under any other provision of the Constitution if the Court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner.
See the observations in Prem Chand Garg vs Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 S.C.R. 885.
In support of the contention that an order of this Court be it administrative or judicial which is violative of fundamental right can always be corrected by this Court when attention of the Court is drawn to this infirmity, it is instructive to refer to the decision of this Court in Prem Chand Garg vs Excise Commissioner, U.P., Allahabad (supra).
This is a decision by a Bench of five learned Judges.
Gajendragadkar, J. spoke for four learned Judges including himself and Shah, J. expressed a dissenting opinion.
The question was whether Rule 12 of order XXXV of the Supreme Court Rules empowered the Supreme Court in writ petitions under Article 32 to require the petitioner to furnish security for the costs of the respondent.
Article 145 of the Constitution provides for the rules to be made subject to any law made by Parliament and Rule 12 was framed thereunder.
The petitioner contended that the rule was invalid as it placed obstructions on the fundamental right guaranteed under Article 32 to move the Supreme Court for the enforcement of fundamental rights.
This rule as well as the judicial order dismissing the petition under Article 32 of the Constitution for non compliance with Rule 12 of order XXXV of the Supreme Court Rules were held invalid.
In order to appreciate the significance of this point and the actual ratio of that decision so far as it is relevant for our present purpose it is necessary to refer to a few facts of that decision.
The petitioner and 8 others who were partners of M/s. Industrial Chemical Corporation, Ghaziabad, had filed under Article 32 of the Constitution a petition impeaching the validity of the order passed by the Excise Commissioner refusing permission to the Distillery to supply power alcohol to the said petitioners.
The petition was admitted on 12th December, 1961 and a rule was ordered to be issued to the respondents, the Excise Commissioner of U.P., Allahabad, and the State of U.P.
At the time when the rule was issued, this Court directed under the impugned rule that the petitioners should deposit a security 55 Of Rs.2,500 in cash within six weeks.
According to the practice of this A Court prevailing since 1959, this order was treated as a condition precedent for issuing rule nisi to the impleaded respondents.
The petitioners found it difficult to raise the amount and so on January 24, 1962, they moved this Court for modification of the said order as to security.
This application was dismissed, but the petitioners were given further time to deposit the said amount by March 26, 1962.
This order was passed on March 15, 1962.
The petioners then tried to collect the requisite fund, but failed in their efforts and that led to the said petition filed on March 24, 1962 by the said petitioners.
The petitioners contended that the impugned rule, in so far as it related to the giving of security, was ultra vires, because it contravened the fundamental right guaranteed to the petitioners under Article 32 of the Constitution.
There were two orders, namely, one for security of costs and another for the dismissal of the previous application under Article 32 of the Constitution.
This Court by majority held that Rule 12 of order XXXV of the Supreme Court Rules was invalid in so far as it related to the furnishing of security.
The right to move the Supreme Court, it was emphasised, under Article 32 was an absolute right and the content of this right could not be circumscribed or impaired on any ground and an order for furnishing security for the respondent 's costs retarded the assertion or vindication of the fundamental right under Article 32 and contravened the said right.
The fact that the rule was discretionary did not alter the position.
Though Article 142(1) empowers the Supreme Court to pass any order to do complete justice between the parties, the Court cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the Constitution.
No question of inconsistency between Article 142(1) and Article 32 arose.
Gajendragadkar, J. speaking for the majority of the Judges of this Court said that Article F 142(1) did not confer any power on this Court to contravene The provisions of Article 32 of the Constitution.
Nor did Article 145 confer power upon this Court to make rules, empowering it to contravene the provisions of the fundamental right.
At page 899 of the Reports, Gajendragadkar, J. reiterated that the powers of this Court are no doubt very wide and they are intended and "will always be exercised in the interests of justice." But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution.
It was emphasised that an order which this Court could make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent 56 with the substantive provisions of the relevant statutory laws (Emphasis A supplied).
The Court therefore, held that it was not possible to hold that Article 142(1) conferred upon this Court powers which could contravene the provisions of Article 32.
It follows, therefore, that the directions given by this Court on 16th February, 1984, on the ground of expeditious trial by transferring Special Case No. 24 of 1982 and Special Case No. 3 of 1983 pending in the Court of Special Judge, Greater Bombay, Shri S.B. Sule, to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court was contrary to the relevant statutory provision, namely, section 7(2) of the Criminal law Amendment Act, 1952 and as such violative of Article 21 of the Constitution.
Furthermore, it violates Article 14 of the Constitution as being made applicable to a very special case among The special cases, without any guideline as to which cases required speedier justice.
If that was so as in Prem Chand Garg 's case, that was a mistake of so great a magnitude that it deprives a man by being treated differently of his fundamental right for defending himself in a criminal trial in accordance with law.
If that was so then when the attention of the Court is drawn the Court has always the power and the obligation to correct it ex debito justitiae and treat the second application by its inherent power as a power of review to correct the original mistake.
No suitor should suffer for the wrong of the Court.
This Court in Prem Chand Garg 's case struck down not only the administrative order enjoined by Rule 12 for deposit of security in a petition under Article 32 of the Constitution but also struck down the judicial order passed by the Court for non deposit of such security in the subsequent stage of the same proceeding when attention of the Court to the infirmity of the rule was drawn.
It may be mentioned that Shah, J. was of the opinion that rule 12 was not violative.
For the present controversy it is not necessary to deal with this aspect of the matter.
The power of the Court to correct an error subsequently has been reiterated by a decision of a bench of nine Judges of this Court in Naresh Shridhar Mirajkar and others vs State of Maharashtra and another; , The facts were different and not quite relevant for our present purposes but in order to appreciate the contentions urged, it will be appropriate to refer to certain portions of the same.
There was a suit for defamation against the editor of a weekly newspaper, which was filed in the original side of the High Court.
One of the witnesses prayed that the Court may order that publicity should not be given to his evidence m the press as his business would be affected.
After hearing arguments, the trial Judge passed an oral order 57 prohibiting the publication of the evidence of the witness.
A reporter of the weekly along with other journalists moved this Court under Article 32 of the Constitution challenging the validity of the order.
It was contended that: (1) the High Court did not have inherent power to pass the order; (2) the impugned order violated the fundamental rights of the petitioners under Article 19(1)(a); and (3) the order was amenable to the writ jurisdiction of this Court under Article 32 of the constitution It was held by Gajendragadkar, C.J. for himself and five other learned Judges that the order was within the inherent power of the High Court.
Sarkar, J. was of the view that the High Court had power to prevent publication of proceedings and it was a facet of the power to hold a trial in camera and stems from it.
Shah, J. was, however, of the view that the Code of Civil Procedure contained no express provision authorising the Court to hold its proceedings in camera, but if excessive publicity itself operates as an instrument of injustice, the Court has inherent jurisdiction to pass an order excluding the public when the nature of the case necessitates such a course to be adopted.
Hidayatullah, J. was, however, of the view that a Court which was holding a public trial from which the public was not excluded, could not suppress the publication of the deposition of a witness, heard not in camera but in open Court, on the request of the witness that his business would suffer.
Sarker, J. further reiterated that if a judicial tribunal makes an order which it has jurisdiction to make by applying a law which is valid in all respects, that order cannot offend a fundamental right.
An order which is within the jurisdiction of the tribunal which made it, if the tribunal had jurisdiction to decide the matters that were litigated before it and if the law which it applied in making the order was a valid law, could not be interfered with.
It was reiterated that the tribunal having this jurisdiction does not act without jurisdiction if it makes an error in the application of the law.
Hidayatullah, J. Observed at page 790 of the report that in Prem Chand Garg 's case the rule required the furnishing of security in petition under Article 32 and it was held to abridge the fundamental rights.
But it was said that the rule was struck down and not the judicial decision which was only revised.
That may be so.
But a judicial decision based on such a rule is not any better and offends the fundamental rights just the same and not less so because it happens to be a judicial order.
If there be no appropriate remedy to get such an order removed because the Court has no superior, it does not mean that the order is made good.
When judged under the Constitution it is still a 58 void order although it may bind parties unless set aside.
Hidayatullah, J. reiterated that procedural safeguards are as important as other safeguards.
Hidayatullah, J. reiterated that the order committed a breach of the fundamental right of freedom of speech and expression.
We are, therefore, of the opinion that the appropriate order would be to recall the directions contained in the order dated 16th February, 1984.
In considering the question whether in a subsequent proceeding we can go to the validity or otherwise of a previous decision on a question of law inter parties, it may be instructive to refer to the decision of this Court in Smt.
Ujjam Bai vs State of Uttar Pradesh, [1963] 1 S.C.R. 778.
There, the petitioner was a partner in a firm which carried on the business of manufacture and sale of hand made bidis.
On December 14, 1957, the State Government issued a notification under section 4(1)(b) of the U.P. Sales Tax Act, 1948.
By a subsequent notification dated 25th November, 1958, hand made and machine made bidis were unconditionally exempted from payment of sales tax.
The Sales Tax officer had sent a notice to the firm for the assessment of tax on sale of bidis during the assessment period 1st of April, 1958 to June 30, 1958.
The firm claimed that the notification dated 14th December, 1957 had exempted bidis from payment of sales tax and that, therefore, it was not liable to pay sales tax on the sale of bidis.
This position was not accepted by the Sales Tax officer who passed certain orders.
The firm appealed under section 9 of the Act to the Judge (Appeals) Sales Tax, but that was dismissed.
The firm moved the High Court under Article 226 of the Constitution.
The High Court took the view that the firm had another remedy under the Act and the Sales Tax officer had not committed any apparent error in interpreting the notification of December 14, 1957.
The appeal against the order of the High Court on a certificate under Article 133(1)(a) of the Constitution was dismissed by this Court for non prosecution and the firm filed an application for a restoration of the appeal and condonation of delay.
During the pendency of that appeal another petition was filed under Article 32 of the Constitution for the enforcement of the fundamental right under Articles 19(1)(g) and 31 of the Constitution.
Before the Constitution Bench which heard the matter a preliminary objection was raised against the maintainability of the petition and the correctness of the decision of this Court in Kailash Nath vs State of U.P., A.I.R. 1957 S.C. 790 relied upon by the petitioner was challenged.
The learned Judges referred the case to a larger Bench.
It was held by this Court by a majority of five learned Judges that the answer to the questions must be in the negative.
The case of Kailash Nath was not correctly decided and the decision was not sustainable on 59 the authorities on which it was based.
Das, J. speaking for himself observed that the right to move this Court by appropriate proceedings for the enforcement of fundamental rights conferred by Part III of the Constitution was itself a guaranteed fundamental right and this Court was not trammelled by procedural technicalities in making an order or issuing a writ for the enforcement of such rights.
The question, however, was whether, a quasi judicial authority which made an order in the undoubted exercise of its jurisdiction in pursuance of a provision of law which was intra vires, an error of law or fact committed by that authority could not be impeached otherwise than on appeal, unless the erroneous determination related to a matter on which the jurisdiction of that body depended.
It was held that a tribunal might lack jurisdiction if it was improperly constituted.
In such a case, the characteristic attribute of a judicial act or decision was that it binds, whether right or wrong, and no question of the enforcement of a fundamental right could arise on an application under Article 32.
Subba Rao, J. was, however, unable to agree.
Shri Jethmalani urged that the directions given on 16th February, 1984, were not per incuriam.
We are unable to accept this submission.
It was manifest to the Bench that exclusive jurisdiction created under section 7(1) of the 1952 Act read with section 6 of the said Act, when brought to the notice of this Court, precluded the exercise of the power under section 407 of the Code.
There was no argument, no submission and no decision on this aspect at all.
There was no prayer in the appeal which was pending before this Court for such directions.
Furthermore, in giving such directions, this Court did not advert to or consider the effect of Anwar Ali Sarkar 's case (supra) which was a binding precedent.
A mistake on the part of the Court shall not cause prejudice to any one.
He further added that the primary duty of every Court is to adjudicate the cases arising between the parties.
According to him, it is certainly open to a larger Bench to take a view different from that taken by the earlier Bench, if it was manifestly erroneous and he urged that the trial of a corrupt Chief Minister before a High Court, instead of a Judge designated by the State Government was not so injurious to public interest that it should be overruled or set aside.
He invited us to consider two questions: (1) does the impugned order promote justice? and (2) is it technically valid? After considering these two questions, we are clearly of the opinion that the answer to both these questions is in the negative.
No prejudice need be proved for enforcing the fundamental rights.
Violation of a fundamental right itself renders the impugned action void.
So also the violation of the principles of natural justice renders 60 the act a nullity.
Four valuable rights, it appears to us, of the appellant have been taken away by the impugned directions; (i) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament.
(ii) The right of revision to the High Court under section 9 of the Criminal Law Amendment Act.
(iii)The right of first appeal to the High Court under the same section.
(iv) The.
right to move the Supreme Court under Article 136 thereafter by way of a second appeal, if necessary.
In this connection Shri Rao rightly submitted that it is no necessary to consider whether section 374 of the Criminal Procedure Code confers the right of appeal to this Court from the judgment of a learned Judge of the High Court to whom the case had been assigned inasmuch as the transfer itself was illegal.
One has to consider that section 407 of the Criminal Procedure Code was subject to the overriding mandate of section 7(1) of the 1952 Act, and hence, it does not permit the High Court to withdraw a case for trial to itself from the Court of Special Judge.
It was submitted by Shri Rao that even in cases where a case is withdrawn by the High Court to itself from a criminal court other than the Court of Special Judge, the High Court exercised transferred jurisdiction which is different from original jurisdiction arising out of initiation of the proceedings in the High Court.
In any event section 374 of Criminal Procedure Code limits the right to appeals arising out of clause 24 of the Letters Patent.
In aid of the submission that procedure for trial evolved in derogation of the right guaranteed under Article 21 of the Constitution would be bad, reliance was placed on Attorney General of India vs Lachma Devi and others; , In aid of the submission on the question of validity our attention was drawn to 'Jurisdiction and Illegality ' by Amnon Rubinstein (1965 Edn.).
The Parliament did not grant to the Court the jurisdiction to transfer a case to the High Court of Bombay.
However, as the superior Court is deemed to have a general jurisdiction, the law presumes that the Court acted within jurisdiction.
In the instant case that presumption cannot be taken, firstly because the question of jurisdiction was not agitated before the 61 Court, secondly these directions were given per incuriem as mentioned hereinbefore and thirdly the superior Court alone can set aside an error in its directions when attention is drawn to that error.
This view is warranted only because of peculiar facts and circumstances of the present case.
Here the trial of a citizen in a Special Court under special jurisdiction is involved, hence, the liberty of the subject is involved.
In this connection, it is instructive to refer to page 126 of Rubinstein 's aforesaid book.
It has to be borne in mind that as in Kuchenmeister vs Home office, here form becomes substance.
No doubt, that being so it must be by decisions and authorities, it appears to us patently clear that the directions given by this Court on 16th February, 1984 were clearly unwarranted by constitutional provisions and in derogation of the law enacted by the Parliament.
See the observations of Attorney General vs Herman James Sillem, [1864] 10 H.L.C. 703, where it was reiterated that the creation of a right to an appeal is an act which requires legislative authority, neither an inferior Court nor the superior Court or both combined can create such a right, it being one of limitation and extension of jurisdiction.
See also the observations of Isaacs vs Roberston, where it was reiterated by Privy Council that if an order is regular it can be set aside by an appellate Court; if the order is irregular it can be set aside by the Court that made it on the application being made to that Court either under the rules of that Court dealing expressly with setting aside orders for irregularity or ex debito justitiae if the circumstances warranted, namely, violation of the rules of natural justice or fundamental rights.
In Ledgard vs Bull, 13 I.A. 134, it was held that under the old Civil Procedure Code under section 25 the superior Court could not make an order of transfer of a case unless the Court from which the transfer was souht to be made, had jurisdiction to try.
In the facts of the instant case, the criminal revision application which was pending before the High Court even if it was deemed to be transferred to this Court under Article 139A of the Constitution it would not have vested this Court with power larger than what is contained in section 407 of Criminal Procedure Code.
Under section 407 of the Criminal Procedure Code read with the Criminal law Amendment Act, the High Court could not transfer to itself proceedings under sections 6 and 7 of the said Act.
This Court by transferring the proceedings to itself, could not have acquired larger jurisdiction.
The fact that the objection was not raised before this Court giving directions on 16th February, 1984 cannot amount to any waiver.
In Meenakshi Naidoo vs Subramaniya Sastri, 14 I.A. 160 it was held that if there was inherent incompetence in a High Court to deal with all questions before it then consent could not confer on the High Court any jurisdiction which it never possessed.
62 We are clearly of the opinion that the right of the appellant under Article 14 regarding equality before the law and equal protection of law in this case has been violated.
The appellant has also a right not to be singled out for special treatment by a Special Court created for him alone.
This right is implicit in the right to equality.
See Anwar Ali Sarkar 's case (supra).
Here the appellant has a further right under Article 21 of the Constitution a right to trial by a Special Judge under section 7(1) of the 1952 Act which is the procedure established by law made by the Parliament, and a further right to move the High Court by way of, revision or first appeal under section 9 of the said Act.
He has also a right not to suffer any order passed behind his back by a Court in violation of the basic principles of natural justice.
Directions having been given in this case as we have seen without hearing the appellant though it appears from the circumstances that the order was passed in the presence of the counsel for the appellant, these were bad.
In Nawabkhan Abbaskhan vs The State of Gujarat, [1974]3 S.C.R. 427, it was held that an order passed without hearing a party which affects his fundamental rights, is void and as soon as the order is declared void by a Court, the decision operates from its nativity.
It is proper for this Court to act ex debito justitiae, to act in favour of the fundamental rights of the appellant.
In so far as Mirajkar 's case (supra) which is a decision of a Bench of 9 Judges and to the extent it affirms Prem Chand Garg 's case (supra), the Court has power to review either under section 137 or suo motu the directions given by this Court.
See in this connection P.S.R. Sadhananatham vs Arunachalam, ; and Suk Das vs Union of Territory of Arunachal Pradesh, [1986] 2 S.C.C. 401.
See also the observations in Asrumati Debi vs Kumar Rupendra Deb Raikot and others; , , Satyadhyan Ghosal and others vs Smt.
Deorajin Debi and another; , , Sukhrani (dead) by L.Ls. and others vs Hari Shanker and others; , and Bejoy Gopal Mukherji vs Pratul Chandra Ghose, [1953] S.C.R. 930.
We are further of the view that in the earlier judgment the points for setting aside the decision, did not include the question of withdrawal of the case from the Court of Special Judge to Supreme Court and transfer it to the High Court.
Unless a plea in question is taken it cannot operate as res judicata.
See Shivshankar Prasad Shah and others vs Baikunth Nath Singh and others; , , Bikan 63 Mahuri and others vs Mst.
Bibi Walian and others, A.I.R. 1939 Patna 633.
See also section L. kapoor vs Jagmohan and others; , on the question of violation of the principles of natural justice.
Also see Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621 at pages 674 68 1.
Though what is mentioned hereinbefore in the Bengal Immunity Co. Ltd. vs The State of Bihar and others (supra), the Court was not concerned with the earlier decision between the same parties.
At page 623 it was reiterated that the Court was not bound to follow a decision of its own if it was satisfied that the decision was given per incuriam or the attention of the Court was not drawn.
It is also well settled that an elementary rule of justice is that no party should suffer by mistake of the Court.
See Sastri Yagnapurushadji and others vs Muldas Bhudardas Vaishya and another; , , Jang Singh vs Brijlal, l ; , Bhajahari Mondal vs The State of West Bengal, ; at 1284 1286 and Asgarali N. Singaporawalla vs The State of Bombay, ; at 692.
Shri Rao further submitted that we should not only ignore the directions or set aside the directions contained in the order dated 16th February, 1984, but also direct that the appellant should not suffer any further trial.
It was urged that the appellant has been deprived of his fundamental right guaranteed under Articles 14 and 21 as a result of the directions given by this Court.
Our attention was drawn to the observations of this Court in Suk Das 's case (supra) for this purpose.
He further addressed us to the fact that six and half years have elapsed since the first complaint was lodged against the appellant and during this long period the appellant has suffered a great deal.
We are further invited to go into the allegations and to held that there was nothing which could induce us to prolong the agony of the appellant.
We are, however, not inclined to go into this question.
The right of appeal under section 374 is limited to Clause 24 of Letters Patent.
It was further submitted that the expression 'Extraordinary original criminal jurisdiction ' under section 374 has to be understood having regard to the language used in the Code and other relevant statutory provisions and not with reference to decisions wherein Courts described jurisdiction acquired by transfer as extraordinary original jurisdiction.
In that view the decisions referred to by Shri Jethmalani being Kavasji Pestonji Dalal vs Rustomji Sorabji jamadar & Anr., AIR 1949 Bom.
42, Sunil Chandra Roy & Anr.
vs The State, AIR 1954 Cal.
305, Sasadhar Acharjya & Anr.
vs Sir Charles Tegart & Ors., [1935] Cal.
Weekly Notes 1088, Peoples ' Insurance Co. Ltd. vs Sardul Singh Caveeshgar & Ors., AIR 1961 Punj.
87 and P.P. Front, New 64 Delhi vs K. K. Birla, are not relevant.
It appears to us that there is good deal of force in the argument that section 411A of the old Code which corresponds to section 374 of the new Code contained the expression 'original jurisdiction '.
The new Code abolished the original jurisdiction of High Courts but retained the extraordinary original criminal jurisdiction conferred by clause 24 of the Letters Patent which some of the High Courts had.
The right of appeal is, therefore, confined only to cases decided by the High Court in its Letter Patent jurisdiction which in terms is `extraordinary original criminal jurisdiction '.
By the time the new Code of Criminal Procedure 1973 was framed, Article 21 had not been interpreted so as to include one right of appeal both on facts and law.
Shri Ram Jethmalani made elaborate submissions before us regarding the purpose of the Criminal Law Amendment Act and the constitution of the Special Court.
In our opinion, these submissions have no relevance and do not authorise this Court to confer a special jurisdiction on a High Court not warranted by the statute.
The observations of this Court in Re The Special Courts Bill, 1978, are not relevant for this purpose.
Similarly, the observations on right of appeal in V. C. Shukla vs Delhi Administration, ; , Shri Jethmalani brought to our notice certain facts to say that the powers given in the Criminal Law Amendment Act were sought to be misused by the State Government under the influence of the appellant.
In our opinion, these submissions are not relevant for the present purpose.
Mr. Jethmalani submitted that the argument that in so far as section 407 purports to authorise such a transfer it stands repealed by section 7(1) of the Criminal Law Amendment Act is wrong.
He said it can be done in its extraordinary criminal jurisdiction.
We are unable to accept this submission.
We are also unable to accept the submission that the order of transfer was made with full knowledge of section 7(1) of the Criminal Law Amendment Act and the so called exclusive jurisdiction was taken away from Special Judges and the directions were not given per incuriam.
That is not right.
He drew our attention to the principles of interpretation of statutes and drew our attention to the purpose of section 7(1) of the Act.
He submitted that when the Amending Act changes the law, the change must be confined to the mischief present and intended to be dealt with.
He drew us to the Tek Chand Committee Report and submitted that he did not wish that an 65 occasional case withdrawn and tried in a High Court was because of delay in disposal of corruption cases.
He further submitted that interference with existing jurisdiction and powers of superior Courts can only be by express and clear language.
It cannot be brought about by a side wind.
Thirdly, the Act of 1952 and the Code have to be read and construed together, he urged.
The Court is never anxious to discover a repugnancy and infer apro tanto repeal.
Resort to the non obstante clause is permissible only when it is impossible to harmonise the two provisions.
Shri Jethmalani highlighted before us that it was for the first time a Chief Minister had been found guilty of receiving quid pro quo for orders of allotment of cement to various builders by a Single Judge of the High Court confirmed by a Division Bench of the High Court.
He also urged before us that it was for the first time such a Chief Minister did not have the courage to prosecute his special leave petition before this Court against the findings of three Judges of the High Court.
Shri Jethmalani also urged that it was for the first time this Court found that a case instituted in 1982 made no progress till 1984.
Shri Jethmalani also sought to contend that section 7(1) of the 1952 Act states "shall be triable by Special Judges only", but does not say that under no circumstances the case will be transferred to be tried by the High Court even in its Extraordinary original Criminal Jurisdiction.
He submitted that section 407(1)(iv) is very much in the statute and and it is not repealed in respect of the cases pending before the Special Judge.
There is no question of repealing section 407(1)(iv).
Section 407 deals with the power of the High Court to transfer cases and appeals.
Section 7 is entirely different and one has to understand the scheme of the Act of 1952, he urged.
It was an Act which provided for a more speedy trial of certain offences.
For this it gave power to appoint Special Judges and stipulated for appointment of Special Judges under the Act.
Section 7 states that notwithstanding anything contained in the Code, the offences mentioned in sub section (1) of section 6 shall be triable by Special Judges only.
By express terms therefore, it takes away the right to transfer cases contained in the Code to any other Court which is not a Special Court.
Shri Jethmalani sought to urge that the Constitution Bench had considered this position.
That is not so.
He submitted that the directions of this Court on 16th February, 1984 were not given per incuriam or void for any reason.
He referred us to Dias on jurisprudence, 5th Edition, page 128 and relied on the decision of Milianges vs George Frank (Textiles) Ltd., 66 at 821.
He submitted that the per incuriam rule A does not apply where the previous authority is alluded to.
It is true that previous statute is referred to in the other judgment delivered on the same date in connection with different contentions.
Section 7(1) was not referred to in respect of the directions given on 16th February, 1984 in the case of R.S. Nayak vs A.R. Antulay (supra).
Therefore, as mentioned hereinbefore the observations indubitably were per incuriam.
In this case in view of the specific language used in section 7, it is not necessary to consider the other submissions of Shri Jethmalani, whether the procedure for trial by Special Judges under the Code has stood repealed or not.
The concept of repeal may have no application in this case.
It is clear that words should normally be given their ordinary meaning bearing in mind the context.
It is only where the literal meaning is not clear that one resorts to the golden rule of interpretation or the mischief rule of interpretation.
This is well illustrated from the observations of Tindal, C.J. in Sussex Peerage Claim, [18441 ; at 143.
He observed: "The only rule for the construction of Acts of Parliament is that they should be construed according to the intent of the Parliament which passed the Act.
If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense.
The words themselves alone do, in such case, best declare the intention of the lawgiver.
But if any doubt arises from the terms employed by the legislature, it has always been held a safe means of collecting the intention, to call in aid the ground and cause of making the statute, and to have recourse to the preamble, which, according to Chief Justice Pyer, Stewell vs Lord Zouch, [1569] 1 Plowd 353 at 369 is a key to open the minds of the makers of the Act, and the mischiefs which they intend to redress".
This passage states the commonly accepted view concerning the relationship between the literal and mischief rules of interpretation of statutes.
Here there is no question as to what was the previous law and what was intended to be placed or replaced as observed by Lord Wilberforce in 274 House of Lords Debate, Col. 1294 on 16th November, 1966, see Cross; Statutory Interpretation, second edition, page 36.
He observed that the interpretation of legislation is just a part of the process of being a good lawyer; a multi faceted thing, calling for many varied talents; not a subject which can be confined in rules.
67 When the words are clear nothing remains to be seen.
If words are as such ambiguous or doubtful other aids come in.
In this context, the submission of controversy was whether the Code repealed the Act of 1952 or whether it was repugnant or not is futile exercise to undertake.
Shri Jethmalani distinguished the decision in Chadha 's case, which has already been discussed.
It is not necessary to discuss the controversy whether the Chartered High Courts contained the Extraordinary original Criminal Jurisdiction by the Letters Patent.
Article 134(1)(b) does not recognise in every High Court power to withdraw for trial cases from any Court subordinate to its authority.
At least this Article cannot be construed to mean where power to withdraw is restricted, it can be widened by virtue of Article 134(1)(b) of the Constitution.
Section 374 of the Code undoubtedly gives a right of appeal.
Where by a specific clause of a specific statute the power is given for trial by the Special Judge only and transfer can be from one such Judge to another Special Judge, there is no warrant to suggest that the High Court has power to transfer such a case from a Judge under section 6 of the Act of 1952 to itself.
It is not a case of exclusion of the superior Courts.
So the submissions made on this aspect by Shri Jethmalani are not relevant.
Dealing with the submission that the order of the Constitution Bench was void or non est and it violated the principles of natural justice, it was submitted by Shri Jethmalani that it was factually incorrect.
Inspite of the submissions the appellant did not make any submission as to directions for transfer as asked for by Shri Tarkunde.
It was submitted that the case should be transferred to the High Court.
The Court merely observed there that they had given ample direction.
No question of submission arose after the judgment was delivered.
In any case, if this was bad the fact that no objection had been raised would not make it good.
No question of technical rules or res judicata apply, Shri Jethmalani submitted that it would amount to an abuse of the process of the Court.
He referred us to Re Tarling, at 987; Ali vs Secretary of State for the Home Department, at 1014 and Seervai 's Constitutional Law, Vol. 1, pages 260 to 265.
We are of the opinion that these submissions are not relevant.
There is no abuse of the process of the Court.
Shri Jethmalani submitted that there was no prejudice to the accused.
There was prejudice to the accused in being singled out as a special class of accused for a special dispensation without room for any appeal as of right and without power of the revision to the High Court.
There .
prejudice in that.
Reliance placed on the decision of this Court in 68 Ramesh Chandra Arora vs The State, at 927 was not proper in the facts of this case.
If a discrimination is brought about by judicial perception and not by executive whim, if it is unauthorised by law, it will be in derogation of the right of the appellant as the special procedure in Anwar Ali Sarkar 's case (supra) curtailed the rights and privileges of the accused.
Similarly, in this case by judicial direction the rights and privileges of the accused have been curtailed without any justification in law.
Reliance was placed on the observations of the seven Judges Bench in Re: Special Courts Bill, 1978 (supra).
Shri Jethmalani relied on the said observations therein and emphasised that purity in public life is a desired goal at all times and in all situations and ordinary Criminal Courts due to congestion of work cannot reasonably be expected to bring the prosecutions to speedy termination.
He further submitted that it is imperative that persons holding high public or political office must be speedily tried in the interests of justice.
Longer these trials last, justice will tarry, assuming the charges to be justified, greater will be the impediments in fostering democracy, which is not a plant of easy growth.
All this is true but the trial even of person holding public office though to be made speedily must be done in accordance with the procedure established by law.
The provisions of section 6 read with section 7 of the Act of 1952 in the facts and circumstances of this case is the procedure established by law; any deviation even by a judicial direction will be negation of the rule of law.
Our attention was drawn to Article 145(e) and it was submitted that review can be made only where power is expressly conferred and the review is subject to the rules made under Article 145(e) by the Supreme Court.
The principle of finality on which the Article proceeds applies to both judgments and orders made by the Supreme Court.
But directions given per incuriam and in violation of certain constitutional limitations and in derogation of the principles of natural justice can always be remedied by the court ex debite justitiae.
Shri Jethmalani 's submission was that ex debite justitiae, these directions could not be recalled.
We are unable to agree with this submission.
The Privy Council in Isaacs vs Robertson, held that orders made by a Court of unlimited jurisdiction in the course of contentious litigation are either regular or irregular.
If an order is regular it can only be set aside by an appellate Court; if it is irregular it can be set aside by the Court that made it on application being made to that Court either under rules of Court dealing expressly 69 with setting aside orders for irregularity or ex debite justitiae if the circumstances warranted, namely, where there was a breach of the rules of natural justice etc.
Shri Jethmalani urged before us that Lord Diplock had in express terms rejected the argument that any orders of a superior Court of unlimited jurisdiction can over be void in the sense that they can be ignored with impunity.
We are not concerned with that.
Lord Diplock delivered the judgment.
Another Judge who sat in the Privy Council with him was Lord Keith of Kinkel.
Both these Law Lords were parties to the House of Lords judgment in Re Racal Communications Ltd . case ; and their Lordships did not extend this principle any further.
Shri Jethmalani submitted that there was no question of reviewing an order passed on the construction of law.
Lord Scarman refused to extend the Anisminic principle to superior Courts by the felicitous statement that this amounted to comparison of incomparables.
We are not concerned with this controversy.
We are not comparing incomparables.
We are correcting an irregularity committed by Court not on construction or misconstruction of a statute but on non perception of certain provisions and certain authorities which would amount to derogation of the constitutional rights of the citizen.
The directions given by the order of 16th February, 1984 at page 557 were certainly without hearing though in the presence of the parties.
Again consequential upon directions these were challenged ultimately in this Court and finally this Court reserved the right to challenge these by an appropriate application.
The directions were in deprival of Constitutional rights and contrary to the express provisions of the Act of 1952.
The directions were given in violation of the principles of natural justice.
The directions were without precedent in the background of the Act of 1952.
The directions definitely deprived the appellant of certain rights of appeal and revision and his rights under the Constitution.
We do not labour ourselves on the question of discretion to disobey a judicial order on the ground of invalid judicial order.
See discretion to Disobey by Mertimer R. Kadish and Sanford H. Kadish pages 111 and 112.
These directions were void because the power was not there for this Court to transfer a proceeding under the Act of 1952 from one Special Judge to the High Court.
This is not a case of collateral attack on judicial proceeding; it is a case where the Court having no Court superior to it rectifies its own order.
We recognise that the distinction between an error which entails absence of jurisdiction and 70 an error made within the jurisdiction is very fine.
So fine indeed that it is rapidly being eroded as observed by Lord Wilberforce in Anisminic Ltd. vs Foreign Compensation Commissioner, at 244.
Having regard to the enormity of the consequences of the error to the appellant and by reason of the fact that the directions were given suo motu, we do not find there is anything in the observations of Ittavira Mathai vs Varkey Varkey and another, [19641 1 S.C.R. 495 which detract the power of the Court to review its judgment ex debite justitiae in case injustice has been caused.
No court, however, high has jurisdiction to give an order unwarranted by the Constitution and, therefore, the principles of Bhatia Co operative Housing Society Ltd. vs D. C. Patel, [1953] S.C.R. 185 at 190 would not apply.
ln giving the directions this Court infringed the Constitutional safeguards granted to a citizen or to an accused and injustice results therefrom.
It is just and proper for the Court to rectify and recall that in justice, in the peculiar facts and circumstances of this case This case has caused us considerable anxiety.
The appellant accused has held an important position in this country, being the Chief Minister of a premier State of the country.
He has been charged with serious criminal offences.
His trial in accordance with law and the procedure established by law would have to be in accordance with the 1952 Act.
That could not possibly be done because of the directions of this Court dated 16th February, 1984, as indicated above.
It has not yet been found whether the appellant is guilty or innocent.
It is unfortunate, unfortunate for the people of the State, unfortunate for the country as a whole, unfortunate for the future working of democracy in this country which, though is not a plant of an easy growth yet is with deep root in the Indian polity that delay has occurred due to procedural wrangles.
The appellant may be guilty of grave offences alleged against him or he may be completely or if not completely to a large extent, innocent.
Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades.
What was unheard of before is common place today.
A new value orientation is being undergone in our life and in our culture.
We are at the threshold of the cross roads of values.
It is, for the sovereign people of the country to settle those conflicts yet the Courts have vital roles to play in such matters.
With the avowed object of speedier trial the case of the appellant had been transferred to the High Court but on grounds of expediency of trial he cannot be subjected to a procedure unwarranted by law, and contrary to the constitutional provisions.
The appellant may or may not be an ideal 71 politician.
It is a fact, however, that the allegations have been brought against him by a person belonging to a political party opposed to his but that is not the decisive factor.
If the appellant Shri Abdul Rehman Antulay has infringed law, he must be dealt with in accordance with the law.
We proclaim and pronounce that no man is above the law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws.
He has a right to be dealt with in accordance with the law and not in derogation of it.
This Court? in its anxiety to facilitate the parties to have a speedy trial gave directions on 16th February, 1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India.
That is the only procedure under which it should have been guided.
By reason of giving the directions on 16th February, 1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law.
When these factors are brought to the notice of this Court, even if there are any technicalities this Court should not feel shackled and decline to rectify that injustice or other vise the injustice noticed will remain forever a blot on justice.
It has been said long time ago that "Actus Curiae Neminem Gravabit" an act of the Court shall prejudice no man.
This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.
Lord Cairns in Alexander Rodger vs The Comptoir D 'escompte De Paris, (Law Reports Vol.
III 1869 71 page 465 at page 475) observed thus: "Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the Suitors, and when the expression 'the act of the Court ' is used, it does not mean merely the act of the Primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case.
It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.
" 72 This passage was quoted in the Gujarat High Court by D.A. Desai, J. speaking for the Gujarat High Court in Vrajlal vs Jadavji (supra) as mentioned before.
It appears that in giving directions on 16th February, 1984, this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar 's case (supra) which was not adverted to by this Court.
The basic fundamentals of the administration of justice are simple.
No man should suffer because of the mistake of the Court.
No man should suffer a wrong by technical procedure of irregularities.
Rules or procedures are the hand maids of justice and not the mistress of the justice.
Ex debite justitiae, we must do justice to him.
If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied.
This is a peculiar fact of this case which requires emphasis.
Shri Rao, learned counsel for the appellant has vehemently canvassed before us that the appellant has suffered a great wrong for over six and a half years.
He has undergone trials and proceedings because of the mistakes of the Court.
Shri Rao submitted that the appellant should be made not to suffer more.
Counsel urged that political battles must be fought in the political arena.
Yet a charge of infraction of law cannot remain uninvestigated against an erstwhile Chief Minister of a premier State of the country.
Shri Rao has canvassed before us on the authority of Hussainara Khatoon vs Home Secretary, State of Bihar, Patna, [1979] 3 S.C.R. 169 at 179 180; Kadra Pahadiyal (1) vs State of Bihar, A.I.R. 1981 S.C. 939; Kadra Pahadiya (II) vs State of Bihar, A.I.R. 1982 S.C. 1167 and Sheela Barse vs Union of India, ; He has, however, very strongly relied upon the observations of this Court in SukDas vs Union Territory of Arunachal Pradesh (supra).
In that case the appellant a government servant was tried and convicted to suffer imprisonment for two years for offences under Section 506 read with Section 34, I.P.C. He was not represented at the trial by any lawyer by reason of his inability to afford legal representation.
On appeal the High Court held that the trial was not vitiated since no application for legal aid was made by him.
On appeal this Court quashed the conviction and considered the question whether the appellant would have to be tried in accordance with law after providing legal assistance to him.
This Court felt that in the interests of justice the appellant should be reinstated in service without back wages and accordingly directed that no trial should take place.
Shri Rao submitted that we should in the 73 facts of this case in the interests of justice direct that the appellant should not be tried again.
Shri Rao submitted to let the appellant go only on this long delay and personal inconveniences suffered by the appellant, no more injury be caused to him.
We have considered the submission.
Yet we must remind ourselves that purity of public life is one of the cardinal principal which must be upheld as a matter of public policy.
Allegations of legal infractions and criminal infractions must be investigated in accordance with law and procedure established under the Constitution.
Even if he has been wronged, if he is allowed to be left in doubt that would cause more serious damage to the appellant.
Public confidence in public administration should not be eroded any further.
One wrong cannot be remedied by another wrong.
ln the aforesaid view of the matter and having regard to the facts and circumstances of the case, we are of the opinion that the legal wrong that has been caused to the appellant should be remedied.
Let that wrong be therefore remedied.
Let right be done and in doing so let no more further injury be caused to public purpose.
ln the aforesaid view of the matter the appeal is allowed; all proceedings in this matter subsequent to the directions of this Court on 16th February, 1984 as indicated before are set aside and quashed.
The trial shail proceed in accordance with law, that is to say under the Act of 1952 as mentioned hereinbefore.
RANGANATH MISRA, J: I have had the advantage of perusing the judgment proposed by my learned Brother Mukharji, J. While I agree with the conclusion proposed by my esteemed Brother, keeping the importance of the matter, particularly the consequences the decision may generate as also the fact that I was a party to the two Judge Bench decision of this Court reported in ; in view, I propose to express my opinion separately.
Abdul Rehman Antulay, the appellant, was the Chief Minister of the State of Maharashtra from 1980 till January 20, 1982, when he resigned his office but continued to be a member of the Maharashtra Legislative Assembly.
Ramdas Shrinivas Nayak, Respondent No. I herein, lodged a complaint in the Court of Chief Metropolitan Magistrate, 28th Esplanade, Bombay, on September ll, 1981, against Antulay alleging commission of several offences under the lndian Penal Code as also Section 5(2) of the Prevention of Corruption Act, 1947 ( '1947 Act ' for short).
The learned Magistrate was of the view that prosecution under Sections 161 and 165 of the Penal Code and 74 Section 5 of the 1947 Act required sanction as a condition precedent and in its absence the complaint was not maintainable.
The Governor of Bombay later accorded sanction and the Respondent No. 1 filed a fresh complaint, this time in the Court of the Special Judge of Bombay, alleging the commission of those offences which had formed the subject matter of the complaint before the Magistrate.
On receiving summons from the Court of the particular Special Judge, Antulay took the stand that the said Special Judge had no jurisdiction to entertain the complaint in view of the provisions of Section 7 of the Criminal Law Amendment Act, 1952 (hereinafter referred to as the 1952 Act) to take cognizance and such cognizance could not be taken on a private complaint.
These objections were overruled by the Special judge by order dated October 20, 1982, and the case was set down for recording evidence of the prosecution.
The Criminal Revision Petition of the accused against the order of the Special Judge was rejected by the Bombay High Court and it held that a private complaint was maintainable and in view of the notification specifying a particular Special Judge for the offences in question there was no basis for the objections.
This Court granted special leave to the accused against the decision of the High Court that a private complaint was maintainable.
Criminal Appeal No. 347 of 1983 thus came to be instituted.
ln the meantime, objection raised before the Special Judge that without sanction the accused who still continued to be a member of Legislative Assembly, could not be prosecuted came to be accepted by the Special Judge.
The complainant filed a criminal revision application before the High Court questioning that order.
This Court granted special leave against the decision that sanction was necessary, whereupon Criminal Appeal No. 356 of 1983 was registered and the pending criminal revision application before the High Court was transferred to this Court.
Both the criminal appeals and the transferred criminal revision were heard together by a five Judge Bench of this Court but the two appeals were disposed of by two separate judgments delivered on February 16, 1984.
The judgment in Criminal Appeal No. 347 of 1983 is reported in ; In the present appeal we are not very much concerned with that judgment.
The judgment of Criminal Appeal No. 356 of 1983 is reported in ; As already noticed the main theme of the criminal appeal was as to whether a member of the Legislative Assembly was a public servant for whose prosecution for the offences involved in the complaint sanction was necessary as a condition precedent.
This Court at page 557 of the Reports came to hold: "To sum up, the learned Special Judge was clearly in 75 error in holding that M.L.A. is a public servant within the meaning of the expression in Section 12(a) and further erred in holding that a sanction of the Legislative Assembly of Maharashtra or majority of the members was a condition precedent to taking cognizance of offences committed by the accused.
For the reasons herein stated both the conclusions are wholly unsustainable and must be quashed and set aside." Consequently this Court directed: "This appeal accordingly succeeds and is allowed.
The order and decision of the learned Special Judge Shri R.B. Sule dated July 25, 1983 discharging the accused in Special Case No. 24 of 1982 and Special Case No. 3/1983 is hereby set aside and the trial shall proceed further from the stage where the accused was discharged.
" This Court gave a further direction to the following effect: "The accused was the Chief Minister of a premier State the State of Maharashtra.
By a prosecution launched as early as on September 11, 1981, his character and integrity came under a cloud.
Nearly 2 1/2 years have rolled by and the case has not moved an inch further.
An expeditious trial is primarily in the interest of the accused and a mandate of Article 21.
Expeditious disposal of a criminal case is in the interest of both, the prosecution and the accused.
Therefore, Special Case No. 24 of 1982 and Special Case No. 3/83 pending in the Court of Special Judge, Greater Bombay Shri R.B. Sule are withdrawn and transferred to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court.
On being so assigned, the learned Judge may proceed to expeditiously dispose of the cases preferably by holding the trial from day to day.
" Pursuant to this direction, the two cases came to be posted for trial before Khatri J. Of the Bombay High Court and trial opened on April 9, 1984.
The appellant challenged Khatri J. 's jurisdiction on 12th March, 1984 when the matter was first placed before him but by two separate orders dated 13th March, 1984 and 16th March, 1984, the learned Judge rejected the objection by saying that he was bound by 76 this Court 's direction of the 16th February, 1984.
Antulay then moved A this Court by filing an application under Article 32 of the Constitution.
A two Judge Bench consisting of Desai and A.N. Sen. JJ.
by order dated 17th April, 1984 dismissed the applications by saying: Sen, J .: "There is no merit in this writ petition.
The writ petition is accordingly dismissed.
In my view, the writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise incorrect cannot be entertained.
I wish to make it clear that the dismissal of this writ petition will not prejudice the right of the petitioner to approach the Court with an appropriate review petition or to file any other application which he may be entitled in law to file.
" Desai, J.: "I broadly agree with the conclusion recorded by my brother.
The learned Judge in deciding the SLP (Crl.) Nos.
1949 50 of 1984 has followed the decision of this Court.
The learned Judge was perfectly justified and indeed it was the duty of the learned Judge to follow the decision of this Court which is binding on him.
Special leave petitions are dismissed.
" (1984(3) SCR 482).
16 witnesses were examined by Khatri J. by July 27, 1984.
Khatri J. was relieved of trying the case on his request, whereupon the learned Chief Justice nominated Mehta J. to continue the trial.
41 more witnesses were examined before him and at the stage when 57 witnesses in all had been examined for the prosecution, the Trial Judge invited the parties to consider the framing of charges.
43 draft charges were placed for his consideration on behalf of the prosecution and the learned Trial Judge framed 21 charges and recorded an order of discharge in respect of the remaining 22.
At the instance of the complainant, Respondent No. 1, the matter came before this Court in appeal on special leave and a two Judge Bench of which I happened to be one, by judgment dated April 17, 1986, in Criminal Appeal No. 658 of 1985 [(1962) 2 SCC 716] set aside the order of discharge in regard to the several offences excepting extortion and directed the learned Trial 77 Judge to frame charges for the same.
This Court requested the learned Chief Justice of the Bombay High Court to nominate another Judge to take up the matter from the stage at which Mehta J. had made the order of discharge.
Shah J. came to be nominated by the learned Chief Justice to continue the trial.
By order dated July 24, 1986, Shah J. rejected the application of the accused for proceeding against the alleged co conspirators by holding that there had been a long delay, most of the prosecution witnesses had already been examined and that if the co conspirators were then brought on record, a de novo trial would be necessitated.
The appellant challenged the order of Shah J. by filing a special leave petition before this Court wherein he further alleged that the High Court had no jurisdiction to try the case.
A two Judge Bench, of which Mukherji J., my learned brother, was a member, granted special leave, whereupon this Criminal Appeal (No. 468 of 1986) came to be registered.
The Respondent No. 1 asked for revocation of special leave in Criminal Miscellaneous Petition No. 4248 of 1986.
While rejecting the said revocation application, by order dated October 29, 1986, the two Judge Bench formulated several questions that arose for consideration and referred the matter for hearing by a Bench of seven Judges of the Court.
That is how this seven Judge Bench has come to be constituted to hear the appeal.
It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised otherwise.
So far as the position in this country is concerned conferment of jurisdiction is possible either by the provisions of the Constitution or by specific laws enacted by the Legislature.
For instance, Article 129 confers all the powers of a court of record on the Supreme Court including the power to punish for contempt of itself.
Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225, 226, 227, 228 and 230 deal with conferment of jurisdiction on the High Courts.
Instances of conferment of jurisdiction by specific law are very common.
The laws of procedure both criminal and civil confer jurisdiction on different courts.
Special jurisdiction is conferred by special statute.
It is thus clear that jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature.
Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts.
In support of judicial opinion for this view reference may be made to the permanent edition of 'Words and Phrases Vol.
23A ' at page 164.
It would be appropriate to refer to two small passages occurring at pages 174 and 175 of the Volume.
At page 174, referring to the decision in Carlile vs National 78 Oil & Development Co. it has been stated: "Jurisdiction is the authority to hear and determine, and in order that it may exist the following are essential: (1) A court created by law, organized and sitting; (2) authority given it by law to hear and determine causes of the kind in question; (3) power given it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired over the plaintiff by his appearance and submission of the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him; (5) authority over the thing adjudicated upon its being located within the court s territory, and by actually seizing it if liable to be carried away; (6) authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision." Article 139A of the Constitution authorises this Court to transfer cases from a High Court to itself or from one High Court to another and is, therefore, not relevant for our purpose.
Section 406 of the Code empowers this Court to transfer cases and appeals by providing: "(1) Whenever it is made to appear to the Supreme Court that an order under this section is expedient for the ends of justice, it may direct that any particular case of appeal be transferred from one High Court to another High Court or from a Criminal Court subordinate to one High Court to another Criminal Court of equal or superior jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the application of the Attorney General of India or of a party interested, and every such application shall be made by motion, which shall, except when the applicant is the Attorney General of India or the Advocate General of the State, be supported by affidavit or affirmation.
(3). . . .".
The offences alleged to have been committed by the accused here are either punishable under the Penal Code or under Act 2 of 1947, both 79 Of which could have been tried in an appropriate court under the Criminal Procedure Code; but Parliament by the Criminal Law Amendment Act 46 of 1952 (1952 Act for short) amended both the Penal Code as also the Criminal Procedure Code with a view to providing for a more speedy trial of certain offences.
The relevant sections of the 1952 Act are sections 6, 7, 8, 9 and 10.
For convenience, they are extracted below: "6.
Power to appoint special Judges (1) The State Government may, by notification in the Official Gazette, appoint as many special Judges as may be necessary for such area or areas as may be specified in the notification to try the following offences, namely, (a) an offence punishable under section 161, section 162, section 163, section 164, section 165 or section 165A of the Indian Penal Code (45 of 1860) or section 5 of the Prevention of Corruption Act, 1947 (2 of 1947); (b) any conspiracy to commit or any attempt to commit or any abetment of any of the offences specified in clause (a).
(2) A persorn shall not be qualified for appointment as a special Judge under this Act unless he is, or has been, a Sessions Judge or an Additional Sessions Judge or an assistant Sessions Judge under the Code of Criminal Procedure, 1898 (5 of 1898)." "7.
Class triable by Special Judges (1) Notwithstanding anything contained in the Code of Criminal Procedure? 1898 (5 of 1898) or in any other law the offences specified in sub section (1) of section 6 shall be triable by Special Judges only; (2) Every offence specified in sub section (l) of section 6 shall be tried by the Special Judge for the area within which it was committed.
Or where there are more Special Judges than one for such area.
by such one of them as may be specified in this behalf by the State Government.
(3) When trying any case, a Special Judge may also 80 try any offence other than an offence specified in section 6 A with which the accused may, under the Code of Criminal Procedure, 1898 (5 of 1898), be charged at the same trial".
Procedure and powers of Special Judges ( 1) A Special Judge may take cognizance of offences without the accused being committed to him for trial, and in trying the accused persons, shall follow the procedure prescribed by the Code of Criminal Procedure, 1898 (5 of 1898), for the trial of warrant cases by Magistrates.
(2) A special Judge, may, with a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in, or privy to, an offence, tender a pardon to such person on condition of his making a full and true disclosure of the whole circumstances within his knowledge relating to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof; and any pardon so tendered shall, for the purposes of sections 339 and 339 A of the Code of Criminal Procedure, 1898 (5 of 1898), be deemed to have been tendered under section 338 of that Code.
(3) Save as provided in sub section ( 1 ) or sub section (2), the provisions of the Code of Criminal Procedure 1898 (5 of 1898), shall, so far as they are not inconsistent with this Act, apply to the proceedings before a Special Judge; and for the purposes of the said provisions, the Court of the Special Judge shall be deemed to be a Court of Session trying cases without a jury or without the aid of assessors and the person conducting a prosecution before a Special Judge shall be deemed to be a public prosecutor.
(3 A) In particular, and without prejudice to the generality of the provisions contained in sub section (3), the provisions of sections 350 and 549 of the Code of Criminal Procedure, 1898 (5 of 1898), shall, so far as may be.
apply to the proceedings before a Special Judge, and for the purposes of the said provisions a special Judge shall be deemed to be a Magistrate.
(4) A special Judge may pass upon any person convicted by him any sentence authorized by law for punish 81 ment of the offence of which such person is convicted." "9.
Appeal and revision The High Court may exercise, so far as they may be applicable, all the powers conferred by Chapters XXXI and XXXII of the Code of Criminal Procedure, I898 (1; of 1898) on a High Court as if the Court of the special Judge were a Court of Session trying cases without a jury within the local limits of the jurisdiction of the High Court. ' "10.
Transfer of certain pending cases All cases triable by a special Judge under section 7 which, immediately before the commencement of this Act, were pending before any Magistrate shall, on such commencement, be forwarded for trial to the special Judge having jurisdiction over such cases.
" On the ratio of the seven Judge Bench decision of this Court in the Slate of West Bengal vs Anwar Ali Sarkar, [ ; the vires of this Act are not open to challenge.
The majority of the learned Judges in Anwar Ali Sarkar 's case expressed the view that it was open to the Legislature to set up a special forum for expedient trial of particular class of cases.
Section 7( l) has clearly provided that offences specified in sub section (1) of section 6 shall be triable by the Special Judge only and has taken away the power of the courts established under the Code of Criminal Procedure to try those offences.
Section 10 of the Act required all pending cases on the date of commencement of the Act to stand transferred to the respective Special Judge.
Unless there be challenge to the provision creating exclusive jurisdiction of the Special Judge, the procedural law in the Amending Act is binding on courts as also the parties and no court is entitled to make orders contrary to the law which are binding.
As long as section 7 of the Amending Act of 1952 hold the field it was not open to any court including the apex Court to act contrary to section 7(1) of the Amending Act.
The power to transfer a case conferred by the Constitution or by section 406 of the Code of Criminal Procedure does not specifically relate to the special Court.
Section 406 of the Code could perhaps be applied on the principle that the Special Judge was a subordinate court for transferring a case from one special Judge to another special Judge.
That would he so because such a transfer would not contravene the mandate of section 7( l ) of the Amending Act of 1952 .
While that may be so, the provisions for transfer, already referred to.
do not authorise H 82 transfer of a case pending in the court of a special Judge first to the Supreme Court and then to the High Court for trial.
A four Judge Bench in Raja Soap Factory vs S.P. Santharaj, was considering the jurisdiction of the High Court to deal with a matter Shah J., as he then was, spoke for the court thus: "But if the learned Judge, as reported in the summary of the judgment, was of the opinion that the High Court is competent to assume to itself jurisdiction which it does not otherwise possess, merely because an 'extra ordinary situation ' has arisen, with respect to the learned Judge, we are unable to approve of that view.
By 'jurisdiction ' is meant the extent of the power which is conferred upon the court by its Constitution to try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extra ordinary situation 'requires ' the Court to exercise it".
Brother Mukharji in his elaborate judgment has come to the conclusion that the question of transferring the case from the court of the special Judge to the High Court was not in issue before the five Judge Bench.
Mr. Jethmalani in course of the argument has almost accepted the position that this was not asked for on behalf of the complainant at the hearing of the matter before the Constitution Bench.
From a reading of the judgment of the Constitution Bench it appears that the transfer was a suo motu direction of the court.
Since this particular aspect of the matter had not been argued and counsel did not have an opportunity of pointing out the legal bar against transfer, the learned Judges of this Court obviously did not take note of the special provisions in section 7(1) of the 1952 Act.
I am inclined to agree with Mr. Rao for Antulay that if this position had been appropriately placed, the direction for transfer from the court of exclusive jurisdiction to the High Court would not have been made by the Constitution Bench.
It is appropriate to presume that this Court never ' intends to act contrary to law.
There is no doubt that after the Division Bench of Desai and Sen, JJ. dismissed the writ petition and the special leave petitions on 17th April, 1984, by indicating that the petitioner could file an appropriate review petition or any other application which he may be entitled in law to file.
no further action was taken until charges Were framed on the basis of evidence of 57 witnesses and a mass of documents.
After a gap of more than three years.
want of jurisdiction of the High Court was sought to be reagitated before the two Judge Bench 83 in the present proceedings.
During this intervening period of three years or so a lot of evidence was collected by examining the prosecution witnesses and exhibiting documents.
A learned Judge of the High Court devoted his full time to the case.
Mr. Jethmalani pointed out to us in course of his argument that the evidence that has already been collected is actually almost three fourths of what the prosecution had to put in.
Court 's time has been consumed, evidence has been collected and parties have been put to huge expenses.
To entertain the claim of the appellant that the transfer of the case from the Special Judge to the High Court was without authority of law at this point of time would necessarily wipe out the evidence and set the clock back by about four years.
It may be that some of the witnesses may no longer be available when the de novo trial takes place.
Apart from these features, according to Mr. Jethmalani to say at this stage that the DIRECTION given by a five Judge Bench is not binding and, therefore, not operative will shake the confidence of the litigant public in the judicial process and in the interest of the system it should not be done.
Long arguments were advanced on either side in support of their respective stands the appellant pleading that the direction for transfer of the proceedings from the Special Judge to the High Court was a nullity and Mr. Jethmalani contending that the apex Court had exercised its powers for expediting the trial and the action was not contrary to law.
Brother Mukharji has dealt with these submissions at length and I do not find any necessity to dwell upon this aspect in full measure.
In the ultimate analysis I am satisfied that this Court did not possess the power to transfer the proceedings from the Special Judge to the High Court.
Antulay has raised objection at this stage before the matter has been concluded.
In case after a full dressed trial, he is convicted, there can be no doubt that the wise men in law will raise on his behalf, inter alia, the same contention as has been advanced now by way of challenge to the conviction.
If the accused is really guilty of the offences as alleged by the prosecution there can be no two opinions that he should be suitably punished and the social mechanism of punishing the guilty must come heavily upon him.
No known loopholes should be permitted to creep in and subsist so as to give a handle to the accused to get out of the net by pleading legal infirmity when on facts the offences are made out.
The importance of this consideration should not be overlooked in assessing the situation as to whether the direction of this Court as contained in the five Judge Bench decision should be permitted to be questioned at this stage or not.
Mr. Rao for Antulay argued at length and Brother Mukharji has noticed all those contentions that by the change of the forum of the 84 trial the accused has been prejudiced.
Undoubtedly, by this process he misses a forum of appeal because if the trial was handled by a Special Judge, the first appeal would lie to the High Court and further appeal by special leave could come before this Court.
If the matter is tried by the High Court there would be only one forum of appeal being this Court, whether as of right or by way of special leave.
The appellant has also contended that the direction violates Article 14 of the Constitution because he alone has been singled out and picked up for being treated differently from similarly placed accused persons.
Some of these aspects cannot be overlooked with ease.
I must, however, indicate here that the argument based upon the extended meaning given to the contents of Article 21 of the Constitution, though attractive have not appealed to me.
One of the well known principles of law is that decision made by a competent court should be taken as final subject to further proceedings contemplated by the law of procedure.
In the absence of any further proceeding, the direction of the Constitution Bench of 16th of February, 1984 became final and it is the obligation of everyone to implement the direction of the apex Court.
Such an order of this Court should by all canons of judicial discipline be binding on this Court as well and cannot be interfered with after attaining finality.
Brother Mukharji has referred to several authorities in support of his conclusion that an order made without jurisdiction is not a valid one and can be ignored, overlooked or brushed aside depending upon the situation.
I do not propose to delve into that aspect in my separate judgment.
It is a well settled position in law that an act of the court should not injure any of the suitors.
The Privy Council in the well known decision of Alexander Rodger vs The Comptori D ' Escompte De Paris, [1871] 3 P.C. 465 observed: "One of the first and highest duties of all courts is to take care that the act of the court does no injury to any of the suitors, and when the expression act of the court is used, it does not mean merely the act of the primary court, or of any intermediate court of appeal, but the act of the court as a whole, from the lowest court which entertains jurisdiction over the matter upto the highest court which finally disposes of the case.
It is the duty of the aggregate of those Tribunals, if I may use the expression, to take care that no act of the court in the course of the whole of the proceed 85 ings does an injury to the suitors in courts.
" Brother Mukharji has also reffered to several other authorities which support this view.
Once it is found that the order of transfer by this Court dated 16th of February, 1984, was not within jurisdiction by the direction of the transfer of the proceedings made by this Court, the appellant should not suffer.
What remains to be decided is the procedure by which the direction of the 16th of February, 1984, could be recalled or altered.
There can be no doubt that certiorari shall not lie to quash a judicial order of this Court.
That is so on account of the fact that the Benches of this Court are not subordinate to larger Benches thereof and certiorari is, therefore, not admissible for quashing of the orders made on the judicial side of the court.
Mr. Rao had relied upon the ratio in the case of Prem Chand Garg vs Excise Commissioner, U.P., Allahabad, Brother Mukharji has dealt with this case at considerable length.
This Court was then dealing with an Article 32 petition which had been filed to challenge the vires of rule 12 of order 35 of this Court 's Rules.
Gajendragadkar, J., as the learned Judge then was, spoke for himself and three of his learned brethren including the learned Chief Justice.
The facts of the case as appearing from the judgment show that there was a judicial order directing furnishing of security of Rs.2,500 towards the respondent 's costs an(l the majority judgment directed "In the result, the petition is allowed and the order passed against the petitioners on December 12, 1961, calling upon them to furnish security of Rs.2,500 is set aside.
" Shah, J. who wrote a separate judgment upheld the vires of the rule and directed dismissal of the petition.
The fact that a judicial order was being made the subject matter of a petition under Article 32 of the Constitution was not noticed and whether such a proceeding was tenable was not considered.
A nine Judge Bench of this Court in Naresh Shridhar Mirajkar & Ors.
vs State of Maharashtra & Anr.
, ; referred to the judgment in Prem Chand Garg 's case (supra).
Gajendragadkar, CJ., who delivered the leading and majority judgment stated at page 765 of the Reports: "ln support of his argument that a judicial decision 86 can be corrected by this Court in exercise of its writ jurisdiction under Article 32(2), Mr. Setalvad has relied upon another decision of this Court in Prem Chand Garg vs Excise Commissioner, U. P. Allahabad (supra) .
In that case, the petitioner had been required to furnish security for the costs of the respondent under rule 12 of order 35 of the Supreme Court Rules.
By his petition filed under Article 32, he contended that the rule was invalid as it placed obstructions on the fundamental right guaranteed under Article 32 to move the Supreme Court for the enforcement of fundamental rights.
This plea was upheld by the majority decision with the result that the order requiring him to furnish security was vacated.
In appreciating the effect of this decision, it is necessary to bear in mind the nature of the contentions raised before the Court in that case.
The rule itself, in terms, conferred discretion on the court.
while dealing with applications made under Article 32, to impose such terms as to costs as to the giving of security as it thinks fit.
The learned Solicitor General who supported the validity of the rule, urged that though the order requiring security to be deposited may be said to retard or obstruct the fundamental right of the citizen guaranteed by Article 32(1), the rule itself could not be effectively challenged as invalid, because it was merely discretionary; it did not impose an obligation on the court to demand any security; and he supplemented his argument by contending that under Article 142 of the Constitution, the powers of this court were wide enough to impose any term or condition subject to which proceedings before this Court could be permitted to be conducted.
He suggested that the powers of this Court under Article 142 were not subject to any of the provisions contained in Part III including Article 32(1).
On the other hand, Mr. Pathak who challenged the validity of the rule, urged that though the rule was in form and in substance discretionary, he disputed the validity of the power which the rule conferred on this Court to demand security .
It would thus be seen that the main controversy in the case of Prem Chand Garg centered round the question as to whether Article 145 conferred powers on this Court to make rules, though they may be inconsistent with the constitutional provisions prescribed by Part III.
Once it was held that the powers under Article 142 had to be read subject not only to the fundamental 87 rights, but to other binding statutory provisions, it became clear that the rule which authorised the making of the impugned order was invalid.
It was in that context that the validity of the order had to be incidentally examined.
The petition was made not to challenge the order as such, but to challenge the validity of the rule under which the order was made.
Once a rule was struck down as being invalid, the order passed under the said rule had to be vacated.
It is difficult to see how this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself . ".
In view of this decision in Mirajkar 's case (supra) it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof.
On behalf of the appellant, at one stage, it was contended that the appeal may be taken as a review.
Apart from the fact that the petition of review had to be filed within 30 days and here there has been inordinate delay the petition for review had to be placed before the same Bench and now that two of the learned Judges of that Constitution Bench are still available, it must have gone only before a Bench of five with those two learned Judges.
Again under the Rules of the Court a review petition was not to be heard in Court and was liable to be disposed of by circulation.
In these circumstances.
the petition of appeal could not he taken as a review petition.
The question, therefore, to be considered now is what is the modality to be followed for vacating the impugned direction.
This being the apex Court, no litigant has any opportunity of approaching any higher forum to question its decisions.
Lord Buckmaster in ; stated: "All rules of court are nothing but provisions intended to secure proper administration of justice.
It is, therefore, essential that they should be made to serve and be subordinate to that purpose." This Court in Gujarat vs Ram Prakash, reiterated the position by saying: "Procedure is the handmaid and not a mistress of 88 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 Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers.
Judicial opinion heavily leans in favour of this view that a mistake of the Court can be corrected by the Court itself without any fetters.
This is on the principle as indicated in Alexander Rodger 's case (supra).
l am of the view that in the present situation, the Court 's inherent powers can be exercised to remedy the mistake.
Mahajan, J. speaking for a four Judge Bench in Kishan Deo vs Radha Kissen, [ ; , at page 153 stated: "The Judge had jurisdiction to correct his own error without entering into a discussion of the grounds taken by the decree holder or the objections raised by the judgment debtors . " The Privy Council in Debi vs Habib, ILR 35 All. 331, pointed out that an abuse of the process of the Court may be committed by the court or by a party.
Where a court employed a procedure in doing something which it never intended to do and there is an abuse of the process of the court it can be corrected.
Lord Shaw spoke for the Law lords thus: "Quite apart from section 151, any court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made.
" It was pointed out by the Privy Council in Murtaza vs Yasin, AIR 1916 PC 8:.
that: "Where substantial injustice would othenwise result, the court has, in their Lordships opinion, an inherent power to set aside its own judgments of condemnation so as to let in bona fide claims by parties . ".
Indian authorities are in abundance to support the view that injustice done should be corrected by applying the principle actus curiae neminem gravabit an act of the court shall prejudice no one.
89 To err is human, is the off quoted saying.
Courts including the apex one are no exception.
To own up the mistake when judicial satisfaction is reached does not militate against its status or authority.
Perhaps it would enhance both.
It is time to sound a note of caution.
This Court under its Rules of Business ordinarily sits in divisions and not as a whole one.
Each Bench, whether small or large, exercises the powers vested in the Court and decisions rendered by the Benches irrespective of their size are considered as decisions of the Court.
The practice has developed that a larger Bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court.
That principle, however, would not apply in the present situation and since we are sitting as a Bench of Seven we are not entitled to reverse the decision of the Constitution Bench.
Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case.
Antulay, therefore, is not entitled to take advantage of the matter being before a larger Bench.
In fact, if it is a case of exercise of inherent powers to rectify a mistake it was open even to a five Judge Bench to do that and it did not require a Bench larger than the Constitution Bench for that purpose.
Mr. Jethmalani had told us during arguments that if there was interference in this case there was possibility of litigants thinking that the Court had made a direction by going out of its way because an influential person like Antulay was involved.
We are sorry that such a suggestion was made before us by a senior counsel.
If a mistake is detected and the apex Court is not able to correct it with a view to doing justice for fear of being misunderstood, the cause of justice is bound to suffer and for the apex Court the apprehension would not be a valid consideration.
Today it is Abdul Rehman Antulay with a political background and perhaps some status and wealth but tomorrow it can be any ill placed citizen.
This Court while administering justice does not take into consideration as to who is before it.
Every litigant is entitled to the same consideration and if an order is warranted in the interest of justice, the contention of Mr. Jethmalani cannot stand in the way as a bar to the making of that order.
There is still another aspect which should be taken note of.
Finality of the orders is the rule.
By our directing recall of an order the well settled propositions of law would not be set at naught.
Such a 90 situation may not recur in the ordinary course of judicial functioning and if there be one certainly the Bench before which it comes would appropriately deal with it.
No strait jacket formula can be laid down for judicial functioning particularly for the apex Court.
The apprehension that the present decision may be used as a precedent to challenge judicial orders of this Court is perhaps misplaced because those who are familiar with the judicial functioning are aware of the limits and they would not seek support from this case as a precedent.
We are sure that if precedent value is sought to be derived out of this decision, the Court which is asked to use this as an instrument would be alive to the peculiar facts and circumstances of the case in which this order is being made.
I agree with the ultimate conclusion proposed by my earned brother Mukharji.
OZA, J. I had the opportunity to go through opinion prepared by learned brother Justice Mukharji and I agree with his opinion.
I have gone through these additional reasons prepared by learned brother Justice R.N. Misra.
It appears that the learned brother had tried to emphasise that even if an error is apparent in a judgment or an order passed by this Court it will not be open to a writ of certiorari and I have no hesitation in agreeing with this view expressed.
At the same time I have no hesitation in observing that there should be no hesitation in correcting an error in exercise of inherent jurisdiction if it comes to our notice.
It is clear from the opinions of learned brothers Justice Mukharji and Justice Misra that the jurisdiction to try a case could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it does not exist in law and it is this error which is sought to be corrected.
Although it is unfortunate that it is being corrected after long lapse of time.
I agree with the opinion prepared by Justice Mukharji and also the additional opinion prepared by Justice Misra .
RAY, J. I have the privilege of going through the judgment prepared by learned brother Mukharji, J and I agreed with the same.
Recently, I have received a separate judgment from brother R.N. Misra, J and I have decipherred the same.
In both the judgments it has been clearly observed that judicial order of this court is not amenable to a writ of certiorari for correcting 91 any error in the judgment.
It has also been observed that the jurisdiction or power to try and decide a cause is conferred on the courts by the Law of the Lands enacted by the Legislature or by the provisions of the Constitution.
It has also been highlighted that the court cannot confer a jurisdiction on itself which is not provided in the law.
It has also been observed that the act of the court does not injure any of the suitors.
It is for this reason that the error in question is sought to be corrected after a lapse of more than three years.
I agree with the opinion expressed by Justice Mukharji in the judgment as well as the additional opinion given by Justice Misra in his separate judgment.
VENKATACHALIAH, J. Appellant, a former Chief Minister of Maharashtra, is on trial for certain offences under Sections 161, 165, Indian Penal Code and under the Prevention of Corruption Act, 1947.
The questions raised in this appeal are extra ordinary in many respects touching, as they do, certain matters fundamental to the finality of judicial proceedings.
It also raises a question of far reaching consequences whether, independently of the review jurisdiction under Article 137 of the Constitution, a different bench of this Court, could undo the finality of earlier pronouncements of different benches which have, otherwise, reached finality.
If the appeal is accepted, it will have effect of blowing off, by a side wind as it were, a number of earlier decisions of different benches of this Court, binding inter parties, rendered at various stages of the said criminal prosecution including three judgments of 5 judge benches of this Court.
What imparts an added and grim poignance to the case is that the appeal, if allowed, would set to naught all the proceedings taken over the years before three successive Judges of the High Court of Bombay and in which already 57 witnesses have been examined for the prosecution all these done pursuant to the direction dated 16.12.1984 issued by a five judge Bench of this Court.
This by itself should be no deterrant for this Court to afford relief if there has been a gross miscarriage of justice and if appropriate proceedings recognised by law are taken.
Lord Atkin said "Finality is a good thing, but justice is a better".
[See 60 Indian Appeals 354 PC].
Considerations of finality are subject to the paramount considerations of justice; but the remedial action must be appropriate and known to law.
The question is whether there is any such gross miscarriage of justice in this case, if so whether relief can be granted in the manner now sought.
The words of caution of the judicial committee in Venkata Narasimha Appa Row vs The Court of Wards & Ors.
(at page 664) are worth recalling: 92 "There is a salutary maxim which ought to be observed by all courts of last resort interest reipublicae ut sit finis litium.
Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions of such a tribunal as this." (emphasis supplied).
I have had the opportunity, and the benefit, of reading in draft the learned and instructive opinions of my learned Brothers Sabyasachi Mukharji J., and Ranganath Misra J.
They have, though for slightly differing reasons, proposed to accept the appeal.
This will have the effect of setting aside five successive earlier orders of different benches of the Court made at different stages of the criminal prosecution, including the three judgments of Benches of five Judges of this Court in R.S. Nayak vs A.R. Antulay; , and A .
R. Antulay vs R. section Nayak, ; and R. section Nayak vs A. R. Antulay, ; I have bestowed a respectful and anxious consideration to the weighty opinion of my brothers with utmost respect, I regret to have to deny myself the honour of agreeing with them in the view they take both of the problem and the solution that has commended itse1f to them.
Apart from other things, how can the effect and finality of this Court 's order dated 17.4.1984 in Writ Petition No. 708 of 1984 be unsettled in these proceedings? Admittedly, this order was made after hearing and does not share the alleged vitiating factors attributed to the order dated 16.2.1984.
That order concludes everything necessarily inconsistent with it.
In all humility, I venture to say that the proposed remedy and the procedure for its grant are fraught with far greater dangers than the supposed injustice they seek to relieve: and would throw open an unprecedented procedural flood gate which might, quite ironically, enable a repetitive challenge to the present decision itself on the very grounds on which the relief is held permissible in the appeal.
To seek to be wiser than the law, it is said, is the very thing by good laws forbidden.
Well trodden path is the best path.
Ranganath Misra J. if I may say so with respect, has rightly recognised these imperatives: "It is time to sound a note of caution.
This Court 93 under its rules of business ordinarily sits in divisions and not as a whole one.
Each Bench, whether small or large, exercises the powers vested in the Court and decisions rendered by the Benches irrespective of their size are considered as decisions of the Court.
The practice has developed that a larger bench is entitled to over rule the decision of a small bench notwithstanding the fact that each of the decisions is that of the Court.
That principle, however, would not apply in the present situation and since we are sitting as a Bench of Seven we are not entitled to reverse the decision of the Constitution Bench.
" Learned brother, however, hopes this case to be more an exception than the Rule C "Finality of the orders is the rule.
By our directing recall of an order the well settled propositions of law would not be set at naught.
Such a situation may not recur in the ordinary course of judicial functioning and if there be one, certainly the bench before which it comes would appropriately deal with it.
A brief advertence to certain antecedent events which constitute the back drop for the proper perception of the core issue arising in this appeal may not be out of place: Appellant was the Chief Minister of Maharashtra between 9.6.1980 and 12.1.1982 on which latter date he resigned as a result of certain adverse findings made against him in a Court proceeding.
On 9.8.1982, Ramdas Srinivas Nayak, respondent No. 1, with the sanction of the Governor of Maharashtra, accorded on 28.7.1982, filed in the Court of Special Judge, Bombay, a criminal Case No. 24 of 1982 alleging against the appellant certain offences under Section 161 and 165 of Indian Penal Code and Section 6 of the Prevention of Corruption Act, 1947, of which the Special Judge took cognisance.
Appellant questioned the jurisdiction of Special Judge to take cognisance of those offences on a private complaint.
On 20.10.1982, the Special Judge over ruled the objection.
On 7.3.1983, the High Court dismissed appellant 's revision petition in which the order of the Special Judge was assailed.
The criminal case thereafter stood transferred to another Special Judge, Shri R.B. Sule.
Appellant did not accept the order of the High Court dated 7.3.1983 against which he 94 came up in appeal to this court, by Special leave, in Criminal appeal No. 347 of 1983.
During the pendency of this appeal, however, another important event occurred.
The Special Judge, Shri R.B. Sule, by his order dated 25.7.1983, discharged the appellant, holding that the prosecution was not maintainable without the sanction of the Maharashtra Legislative Assembly, of which the appellant continued to be a member, notwithstanding his ceasing to be Chief Minister.
Respondent No. 1 challenged this order of discharge in a Criminal Revision Petition No. 354 of 1982 before the High Court of Bombay.
Respondent No. 1 also sought, and was granted, special leave to appeal against Judge Sule 's order directly to this court in Criminal appeal No. 356 of 1983.
This Court also withdrew to itself the,said criminal revision application No. 354 of 1982 pending before the High Court.
All the three matters the two appeals (Crl. A. 347 of 1983 and 356 of 1983) and Criminal Revision Petition so withdrawn to this Court were heard by a five Judge bench and disposed of by two separate Judgments dated 16.2.1984.
By Judgment in Crl.
appeal No. 356 of 1983 R. section Nayak vs A. R. Antulay, ; this Court, while setting aside the view of the Special Judge that sanction of the Legislative Assembly was necessary, further directed the trial of the case by a Judge of the Bombay High Court.
This Court observed that despite lapse of several years after commencement of the prosecution the case had "not moved an inch further", that "expeditious trial is primarily necessary in the interest of the accused and mandate of Article 21", and that "therefore Special case No. 24 of 1982 and Special Case No. 3 of 1983 pending in the Court of Special Judge, Greater Bombay, Shri R.B. Sule" be withdrawn and transferred to the High Court of Bombay, with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court.
The Judge so designated was also directed to dispose of the case expeditiously, preferably "by holding the trial from day to day".
Appellant, in these proceedings, does not assail the correctness of the view taken by the 5 Judge Bench on the question of the sanction.
Appellant has confined his challenge to what he calls the constitutional infirmity and the consequent nullity of the directions given as to the transfer of the case to a Judge of the High Court.
In effctuation of the directions dated 16.2.1984 of this Court the trial went on before three successive learned Judges of the High Court.
It is not necessary here to advert to the reasons for the change of 95 Judges.
It is, however, relevant to mention that when the matter was before Khatri J. who was the first learned Judge to be designated by the Chief Justice on the High Court, the appellant challenged his jurisdiction, on grounds which amounted to a challenge to the validity of directions of this Court for the transfer of the case.
Khatri J. quite obviously, felt bound to repel the challenge to his jurisdiction.
Learned Judge said appellant 's remedy, if any was to seek a review of the directions dated 16.2.1984 at the hands of this Court.
Learned Judge also pointed out in his order dated 14.3.1984 what, according to him, was the true legal position permitting the transfer of the case from the Special Judge to be tried by the High Court in exercise of its extra ordinary original criminal jurisdiction.
In his order dated 16.3.1984, Khatri J. Observed: ". .
Normally it is the exclusive jurisdiction of a Special Judge alone to try corruption charges.
This position flows from Section 7 of the 1952 Act.
However, this does not mean that under no circumstances whatever, can trial of such offences be not tried by a Court of superior jurisdiction than the Special Judge.
I have no hesitation in contemplating at three situations in which a Court of Superior jurisdiction could try such offence . " "8.
The third situation can be contemplated under the Code of Criminal Procedure itself where a Court of superior jurisdiction may have to try the special cases.
Admittedly, there are no special provisions in the 1952 Act or 1947 Act relating to the transfer of special cases from one Court to the other.
So by virtue of the combined operation of Sec.
8(3) of the 1952 Act and Section 4(2) of the Code of Criminal Procedure, the High Court will have jurisdiction under Sec 407 of the Code in relation to the special cases also.
An examination of the provisions of Section 407 leaves no doubt that where the requisite conditions are fulfilled, the High Court will be within its legitimate powers to direct that a special case be transferred to and tried before itself.
" Appellant did not seek any review of the directions at the hands of the Bench which had issued them, but moved in this Court a Writ Petition No. 708 of 1984 under Article 32 of the Constitution assailing taken by Khatri J. as to jurisdiction which in substance meant 96 a challenge to the original order dated 16.2.1984 made by this court.
A A division Bench consisting of D.A. Desai and A.N. Sen, JJ. dismissed the writ petition on 17.4.1984.
Sen, J. speaking for the bench said: "In my view, the writ petition challenging the validity of the order and judgment passed by this Court as nullity or otherwise is incorrect, cannot be entertained.
I wish to make it clear that the dismissal of this writ petition will not prejudice the right of the petitioner to approach the Court with an appropriate review petition or to file any other application which he may be entitled in law to file." (emphasis supplied) [A.R. Antulay vs Union, []984] 3 SCR 482] This order has become final.
Even then no review was sought.
It is also relevant to refer here to another pronouncement of a five Judge bench of this Court dated 5.4.1984 in R.S. Nayak vs A.R. Antulay, ; in Criminal misc.
petition No. 1740 of 1984 disposing of a prayer for issue of certain directions as to the procedure to be followed before the designated Judge of the High Court.
The bench referred to the provisions of law, which according to it, enabled the transfer of the trial of the criminal case to the High Court.
The view taken by my two learned Brothers, it is needless to emphasise, has the effect of setting at naught this pronouncement of the five Judge Bench as well.
The five Judge bench considered the legal foundations of the power to transfer and said: " . .
To be precise, the learned Judge has to try the case according to the procedure prescribed for cases instituted otherwise than on police report by Magistrate.
This position is clearly an unambiguous in view of the fact that this Court while allowing the appeal was hearing amongst others Transferred case No. 347 of 1983 being the Criminal Revision Application No. 354 of 1983 on the file of the High Court of the Judicature at Bombay against the order of the learned Special Judge, Shri R.B. Sule discharging the accused.
If the criminal revision application was not withdrawn to this Court, the High Court while hearing criminal revision application could have under sec.
407(8), Code of Criminal Procedure, 1973, would have to follow the same procedure which the Court of Sr" 97 Judge would have followed if the case would not have been so transferred . (emphasis supplied) According to the Bench, the High Court 's power under Section 407, Criminal Procedure Code for withdrawing to itself the case from a Special Judge, who was, for this purpose, a Sessions Judge, was preserved notwithstanding the exclusivity of the jurisdiction of the Special Judge and that the Supreme Court was entitled to and did exercise that, power as the Criminal Review application pending in the High Court had been withdrawn to the Supreme Court.
The main basis of appellant 's case is that all this is per incurriam, without jurisdiction and a nullity .
In the meanwhile Mehta J. was nominated by the Chief Justice of the High Court in place of Khatri.
In addition to the 17 witnesses already examined by Khatri J. 41 more witnesses were examined for the prosecution before Mehta J. of the 43 charges which the prosecution required to be framed in the case, Mehta J. declined to frame charges in respect of 22 and discharged the appellant of those alleged offences.
Again respondent No. 1 came up to this Court which by its order dated 17.4.1986 in Criminal Appeal No. 658 of 1985, [reported in set aside the order of discharge in regard to 22 offences and directed that charges be drawn in respect of them.
This Court also suggested that another Judge be nominated to take up the case.
It is, thus, that Shah J came to conduct the further trial.
I may now turn to the occasion for the present appeal.
In the further proceedings before Shah J. the appellant contended that some of the alleged co conspirators, some of whom had already been examined as prosecution witnesses, and some others proposed to be so examined should also be included in the array of accused persons.
This prayer, Shah J had no hesitation to reject.
It is against this order dated 24.7.1986 that the present appeal has come up.
With this appeal as an opening, appellant has raised directions of the five Judges Bench, on 16.2.1984; of the serious violations of his constitutional rights; of a hostile discrimination of having to face a trial before a Judge of the High Court instead of the Special Judge, etc.
A Division Bench consisting of E.S. Venkataramiah and Sabyasachi Mukharji JJ.
in view of the seriousness of the grievances aired in the appeal, referred it to be heard by a bench of seven Judges.
The actual decision of Shah J in the appeal declining to pro 98 ceed against the alleged co conspirators is in a short compass.
But the appeal itself, has assumed a dimension far beyond the scope of the order it seeks to be an appeal against.
The appeal has become significant not for its pale determined by the order under appeal; but more for the collateral questions for which it has served as a spring board in this Court.
Before going into these challenges, it is necessary to say something on the merits of the order under appeal itself.
An accused person cannot assert any right to a joint trial with his co accused.
Normally it is the right of the prosecution to decide whom it prosecutes.
It can decline to array a person as a co accused and, instead, examine him as a witness for the prosecution.
What weight is to be attached to that evidence, as it may smack of the testimony of a guilty partner, in crime, is a different matter.
Prosecution can enter Nolle proseque against any accused person.
It can seek to withdraw a charge against an accused person.
These propositions are too well settled to require any further elaboration.
Suffice it to say that the matter is concluded by the pronouncement of this Court in Choraria vs Maharashtra; , where Hidayathullah J referred to the argument that the accomplice, a certain Ethyl Wong in that case, had also to be arrayed as an accused and repelled it, observing: ".
Mr. Jethmalani 's argument that the Magistrate should have promptly put her in the dock because of her incriminating answers overlooks section 132 (proviso)". ".
The prosecution was not bound to prosecute her, if they thought that her evidence was necessary to break a smugglers ' ring.
Ethyl Wong was prosecuted by section 132 (proviso) of the Indian Evidence Act even if she gave evidence incriminating herself.
She was a competent witness although her evidence could only be received with the caution necessary in all accomplice evidence . " On this point, really, appellant cannot be heard to complain.
Of the so called co conspirators some have been examined already as prosecution witnesses; some others proposed to be so examined; and two others, it would appear, had died in the interregnum.
The appeal on the point has no substance and would require to be dismissed.
We must now turn to the larger issue raised in the appeal.
While Shri P.P. Rao, learned Senior Counsel for the appel 99 lant, handling an otherwise delicate and sensitive issue, deployed all the legal tools that a first rate legal smithy could design, Shri Ram Jethmalani, learned Senior Counsel, however, pointed out the impermissibility both as a matter of law and propriety of a different bench embarking upon the present exercise which, in effect, meant the exertion of an appellate and superior jurisdiction over the earlier five Judge Bench and the precedential problems and anomalies such a course would create for the future.
The contentions raised and urged by Shri P.P. Rao admit of being summarised and formulated thus: (a) That Supreme Court has, and can, exercise only such jurisdiction as is invested in it by the Constitution and the laws; that even the power under Article 142(1) is not unfettered, but is confined within the ambit of the jurisdiction otherwise available to it; that the Supreme Court, like any other court, cannot make any order that violates the law; that Section 7(1) of the Criminal Law (Amendment) Act, 1952, (1952 Act) envisages and sets up a special and exclusive forum for trial of certain offences; that the direction for trial of those offences by a Judge of the High Court is wholly without jurisdiction and void; and that 'Nullity ' of the order could be set up and raised whenever and wherever the order is sought to be enforced or effectuated; (b) That in directing a Judge of the High Court to try the case the Supreme Court virtually sought to create a new jurisdiction and a new forum not existent in and recognised by law and has, accordingly, usurped Legislative powers, violating the basic tenets of the doctrine of separation of powers; (c) That by being singled out for trial by the High Court, appellant is exposed to a hostile discrimination, violative of his fundamental rights under Articles 14 and 21 and if the principles in State of West Bengal vs Anwar Ali Sarkar, ; The law applicable to Anwar Ali Sarkar should equally apply to Abdul Rahman Antulay.
(d) That the directions for transfer were issued without affording an opportunity to the appellant of being hear,, and therefore void as violative of Rules of Natural Justice.
100 (e) That the transfer of the case to the High Court deprived appellant of an appeal, as of right, to the High Court.
At least one appeal, as of right is the minimal constitutional safeguard.
(f) That any order including a judicial order, even if it be of the highest Court, which violates the fundamental rights of a person is a nullity and can be assailed by a petition under Article 32 of the Constitution on the principles laid down in Prem Chand Garg vs Excise Commissioner, UP.
, [1963] J 1 SCR 885.
(g) That, at all events, the order dated 16.2.1984 in so far as the impugned direction is concerned, is per incuriam passed ignoring the express statutory provisions of Section 7(1) of Criminal Law (Amendment) Act, 1952, and the earlier decision of this Court in Gurucharan Das Chadha vs State of Rajasthan; , (h) That the direction for transfer of the case is a clear and manifest case of mistake committed by the Court and that when a person is prejudiced by a mistake of Court it is the duty of the Court to correct its own mistake: Actus Curiae Nominem Gravabit. 9.
Courts are as much human institutions as any other and share all human susceptibilities to error.
Justice Jackson said: ".
Whenever decisions of one Court are reviewed by another, a percentage of them are reversed.
That reflects a difference in outlook normally found between personnel comprising different courts.
However, reversal by a higher court is not proof that justice is thereby better done.
There is no doubt that if there were a super Supreme Court a substantial proportion of our reversals of state Courts would also be reversed.
We are not final because we are infallible, but we are infallible only because we are final . " (See Brown vs Allen, at 540.
In Broom vs Cassel, ; (at 1131) Lord Diplock said: 101 " .
It is inevitable in a hierarchical system of courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary.
When I sat in Court of Appeal I sometimes thought the House of Lords was wrong in over ruling me.
Even since that time there have been occasions, of which the instant appeal itself is one, when, alone or in company, I have dissented from a decision of the majority of this House.
But the judicial system only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted.
" Judge Learned Hand, referred to as one of the most profound legal minds in the jurisprudence of the English speaking world, commended the Cromwellian intellectual humility and desired that these words of Cromwell be written over the portals of every church, over court house and at every cross road in the nation: "I beseech ye . . . . . think that ye may be mistaken." As a learned author said, while infallibility is an unrealisable ideal, "correctness", is often a matter of opinion.
An erroneous decision must be as binding as a correct one.
It would be an unattainable ideal to require the binding effect of a judgment to defend on its being correct in the absolute, for the test of correctness would be resort to another Court the infallibility of which is, again subject to a similar further investigation.
No self respecting Judge would wish to act if he did so at the risk of being called a usurper whenever he failed to anticipate and predict what another Judge thought of his conclusions.
Even infallibility would not protect him he would need the gift of prophecy ability to anticipate the fallibilities of others as well.
A proper perception of means and ends of the judicial process, that in the interest of finality it is inevitable to make some compromise between its ambitions of ideal justice in absolute terms and its limitations.
Re: Contentions (a) ar.d (b): In the course of arguments we were treated to a wide ranging, and no less interesting, submissions on the concept of "jurisdiction" and "nullity" in relation to judicial orders.
Appellant contends that the earlier bench had no jurisdiction to issue the impugned directions which were without any visible legal support, that they are 'void ' as violative of the constitutional rights of the appellant, and, also as violating the Rules of natural justice.
Notwithstanding these appeal to high sounding and emotive appellateous; I have serious reservations about both the permissibility in these 102 proceedings of an examination of the merits of these challenges.
Shri Rao 's appeal to the principle of "nullity" and reliance on a collateral challenge in aid thereof suffers from a basic fallacy as to the very concept of the jurisdiction of superior courts.
In relation to the powers of superior courts, the familiar distinction between jurisdictional issues and adjudicatory issues appropriate to Tribunals of limited jurisdiction, has no place.
Before a superior court there is no distinction in the quality of the decision making process respecting jurisdictional questions on the one hand and adjudicatory issues or issues pertaining to the merits, on the other.
The expression "jurisdiction" or the power to determine is, it is said, a verbal cast of many colours.
In the case of a Tribunal, an error of law might become not merely an error in jurisdiction but might partake of the character of an error of jurisdiction.
But, otherwise, jurisdiction is a 'legal shelter ' a power to bind despite a possible error in the decision.
The existence of jurisdiction does not depend on the correctness of its exercise.
The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function.
The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong.
In Malkarjun vs Narahari, [1900] 27 I.A. 216 the executing Court had quite wrongly, held that a particular person represented the estate of the deceased Judgment debtor and put the property for sale in execution.
The judicial committee said: "In doing so, the Court was exercising its jurisdiction.
It made a sad mistake, it is true; but a court has jurisdiction to decide wrong as well as right.
If it decides wrong, the wronged party can only take the course prescribed by law for setting matters right and if that course is not taken the decision, however wrong.
cannot be disturbed.
" In the course of the arguments there were references to the Anisminic case.
In my view, reliance on the Anisminic principle is wholly misplaced in this case.
That case related to the powers of Tribunals of limited jurisdiction.
It would be a mistake of first magnitude to import these inhibitions as to jurisdiction into the concept of the jurisdiction of superior courts.
A finding of a superior court even on a question of its own jurisdiction, however grossly erroneous it may, otherwise be, is not a nullity; nor one which could at all be said to have been reached without jurisdiction, susceptible to be ignored or to admit of any collateral attack.
Otherwise, the adjudications of 103 superior courts would be held up to ridicule and the remedies generally arising from and considered concomitants of such classification of judicial errors would be so seriously abused and expanded as to make a mockery of those foundational principles essential to the stability of administration of justice.
The superior court has jurisdiction to determine its own jurisdiction and an error in that determination does not make it an error of jurisdiction.
Holdsworth (History of English Law vol.
6 page 239) refers to the theoritical possibility of a judgment of a superior court being a nullity if it had acted coram non judice.
But who will decide that question if the infirmity stems from an act of the Highest Court in the land? It was observed: ".
It follows that a superior court has jurisdiction to determine its own jurisdiction; and that therefore an erroneous conclusion as to the ambit of its jurisdiction is merely an abuse of its jurisdiction, and not an act outside its jurisdiction . " .
ln the second place, it is grounded upon the fact that, while the judges of the superior courts are answerable only to God and the king, the judges of the inferior courts are answerable to the superior courts for any excess of jurisdiction .
" E "Theoritically the judge of a superior court might be liable if he acted coram non judice; but there is no legal tribunal to enforce that liability.
Thus both lines of reasoning led to the same conclusion the total immunity of the judges of the superior courts.
" F Rubinstein in his "Jurisdiction and Illegality" says: " .
In practice, every act made by a superior court is always deemed valid (though, possibly, voidable) wherever it is relied upon.
This exclusion from the rules of validity is indispensable.
Superior courts knew the final arbiters of the validity of acts done by other bodies; their own decisions must be immune from collateral attack unless confusion is to reign.
The superior courts decisions lay down the rules of validity but are not governed by these rules.
" (See P. 12) 104 A clear reference to inappositeness and limitations of the Anisminic Rule in relation to Superior Court so to be found in the opinion of Lord Diplock in Re Racal Communications Ltd. [ 198() 2 All E.R. 634], thus: "There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity.
The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws.
There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined.
There is simply no room for error going to his jurisdiction, or as is conceded by counsel for the respondent, is there any room for judicial review.
Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only.
Mistakes of law made by judges of the High Court acting in their judicial capacity as such can be corrected only by means of appeal to an appellate court and if, as in the instant case, the statute provides that the judge 's deci sion shall not be appealable, they cannot be corrected at all." [See page 639 & 640l.
In the same case, Lord Salmon, said: "The Court of Appeal, however, relied strongly on the decision of your Lordship 's House in Anisminic Ltd. vs Foreign Compensation Commission, That decision however was not, in my respectful view in any way relevant to the present appeal.
It has no applica tion to any decision or order made at first instance in the High Court of Justice.
It is confined to decisions made by commissioners, tribunals or inferior courts which can now be reviewed by the High Court of Justice, just as the decision of inferior courts used to be reviewed by the old Court of King 's Bench under the prerogative writs.
If and when 105 any such review is made by the High Court.
it Can be A appealed to the court of Appeal and hence, by lave, to your Lordship 's House.
[See page 6411.
Again in Issac vs Robertson, the Privy Council reiterated the fallacy of speaking in the language of Nullity void, etc., in relation to Judgement of superior courts.
lt Was pointed out that it could only be called 'irregular '.
Lord Diplock observed: "Their L,ordships would, however, take this opportunity to point out that in relation to orders of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between orders that are. " void ' in the sense that they can be ignored with impunity by those persons to whom they are addressed, and orders that arc "voidable ' and may be enforced unless and until they are set aside.
Dicta that refers to the possibility of these being such a distinction between orders to which the description 'void ' and 'void.
able ' respectively have been applied can be found in the opinion given by the judicial committee of the Privy Council in Marsh vs Marsh, at 284 and Maxfoy vs United Africa Co. Ltd., [19611] All EWR 1169.
, but in neither of those appeals not in any other case to which counsel has been able to refer their Lordships has any order of a court of unlimited jurisdiction been held to fall in a category of court orders that can simply be ignored because they are void ipso facto without there being any need for proceeding to have them set aside.
The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind . ' F "The contrasting legal concepts of voidness and voidability form part of the English Law of contract.
They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentious litigation.
Such an order is either irregular or regular.
if it is irregular it can be sel aside by the court that made it on application to High court.
if it is regular it can only be set aside by an appellate court on appeal if there is one to which an appeal lies. "[See page 143] Superior courts apart, even the ordinary civil courts of the land 106 have jurisdiction to decide questions of their own jurisdiction.
This Court, in the context of the question whether the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, was not attracted to the premises in question and whether, consequently, the exclusion under Section 28 of that Act, of the jurisdiction of all courts other than the Court of Small Causes in Greater Bombay did not operate, observed: ".
The crucial point, therefore, in order to determine the question of the jurisdiction of the City Civil Court to entertain the suit, is to ascertain whether, in view of Section 4 of the Act, the Act applies to the premises at all.
If it does, the City Civil Court has no jurisdiction but if it does not then it has such jurisdiction.
The question at once arises as to who is to decide this point in controversy.
It is well settled that a Civil Court has inherent power to decide the question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has no jurisdiction over the suit.
Accordingly, we think, in agreement with High Court that this preliminary objection is not well founded in principle or on authority and should be rejec ted." [See AIR 1953 (SC) 16 at 19.
Bhatia Co operative Housing Society Ltd. vs D. C. Patel] It would, in my opinion, be wholly erroneous to characterise the directions issued by the five Judge bench as a nullity, amenable to be ignored or so.
declared in a collateral attack.
A judgment, inter parties, is final and concludes the parties.
In Re Hastings (No. 3) [ 1959] l All ER 698, the question arose whether despite the refusal of a writ of Habeas Corpus by a Divisional Court of the Queen 's bench, the petitioner had, yet, a right to apply for the writ in the Chancery Division.
Harman J. called the supposed right an illusion: "Counsel for the applicant, for whose argument I for one am much indebted, said that the clou of his case as this, that there still was this right: to go from Judge to Judge, and that if that were not so the whole structure would come to the ground . " "I think that the Judgment of the Queen 's bench Divisional Court did make it clear that this supposed right 107 was an illusion.
If that be right, the rest follows.
No body doubts that there was a right to go from court to court, as my Lord has already explained.
There are no different courts now to go to.
The courts that used to sit in banc have been swept away and their places taken by Divisional Courts, which are entirely the creatures of statute and rule.
Applications for a writ of habeas corpus are assigned by the rule to Divisional Courts of the Queen 's Bench Division, and that is the only place to which a applicant may go . " [See page 701] In Daryao vs State of U. P., ; it was held: "It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation.
If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32".
[See page 583].
In Trilok Chand vs H. B. Munshi, Bachawat J. recognised the same limitations even in matter pertaining to the conferment of fundamental rights. ".
The right to move this Court for enforcement of fundamental rights is guaranteed by Article 32.
The writ under Article 32 issues as a matter of course if a breach of a fundamental right is established.
But this does not mean that in giving relief under Article 32 the Court must ignore and trample under foot all laws of procedure, evidence.
limitation, res judicata and the like . ". the object of the statutes of limitation was to give effect to the maxim 'interest reipublicate ut sit finislitium ' (Cop Litt 303) the interest of the State requires that there should be a limit to litigation.
The rule of res judicata is founded upon the same rule of public policy . " [See page 842 and 843] It is to be recalled that an earlier petition, W.P. No. 7()8 of 1984 108 under Article 32 moved before this Court had been dismissed, reserving leave to the appellant to seek review.
The words of Venkataramiah J in Sheonandan Paswan vs State of Bihar, [1987]1 SCC 288 at 343 are apt and are attracted to the present case: "The reversal of the earlier judgment of this court by this process strikes at the finality of judgments of this Court and would amount to the abuse of the power of review vested in this Court, particularly in a criminal case.
It may be noted that no other court in the country has been given the power of review in criminal cases.
I am of the view that the majority judgment of Baharul Islam and R.B. Misra, JJ. should remain undisturbed.
This case cannot be converted into an appeal against the earlier decision of this Court. " (Emphasis supplied) 13.
The exclusiveness of jurisdiction of the special judge under Section 7(1) of 1952 Act, in turn, depends on the construction to be placed on the relevant statutory provision.
If on such a construction, however erroneous it may be, the court holds that the operation of Sec. 407, Cr.
P.C. is not excluded, that interpretation will denude the plenitude of the exclusivity claimed for the forum.
To say that the court usurped legislative powers and created a new jurisdiction and a new forum ignores the basic concept of functioning of courts.
The power to interpret laws is the domain and function of courts.
Even in regard to the country 's fundamental law as a Chief Justice of the Supreme Court of the United States said: "but the Constitution is what the judges say it is".
In Thomas vs Collins, ; it was said: "The case confronts us again with the duty our system places on this Court to say where the individual 's freedom ends and the State 's power begins.
Choice on that border, now as always is, delicate . " I am afraid appellant does himself no service by resting his case on these high conceptual fundamentals.
The pronouncements of every Division Bench of this Court are pronouncements of the Court itself.
A larger bench, merely on the strength of its numbers, cannot un do the finalily of the decisions of 109 Other division benches.
If the decision suffers from an error the only A way to correct it, is to go in Review under Article 137 read with order 40 Rule I framed under Article 145 before "as far as is practicable" the same judges.
This is not a matter merely of some dispensable procedural 'form ' but the requirement of substance.
The reported decisions on the review power under the (Civil Procedure Code when it had a similar provision for the same judges hearing the matter demonstrate the high purpose sought to be served thereby.
In regard to the concept of Collateral Attack on Judicial Proceedings it is instructive to recall some observations of Van Fleet on the limitations and their desirability on such actions.
"one who does not understand the theory of a science, who has no clear conception of its principles, cannot apply it with certainty to the problems; it is adapted to solve.
In order to understand the principles which govern in determining the validity of RIGHTS AND TITLES depending upon the proceedings of judicial tribunals, generally called the doctrine of COLLATERAL ATTACK ON JUDG MENTS, it is necessary to have a clear conception of the THEORY OF JUDICIAL PROCEEDINGS . . " .
And as no one would think of holding a judgmenf of the court of last resort void if its jurisdiction were debatable or even colorable, the same rule must be applied to the judgments of all judicial tribunals.
This is the true theory of judicial action when viewed collaterally.
If any jurisdictional question is debatable or colorable, the tribunal must decide it; and an erroneous conclusion can ony be corrected by some proceeding provided by law for so doing, com monly called a Direct Attack.
It is only where it can be shown lawfully, that some matter or thing essential to jurisdiction is wanting, that the proceeding is void, collaterally.
It is the duty of the courts to set their faces against all collateral assaults on judicial proceedings for two reasons, namely: First.
Not one case in a hundred has any merits in it ". Second.
Thc second reason why the courts should reduce the chances for a successful collateral attack to the H 110 lowest minimum is, that they bring the courts themselves into disrepute.
Many people look upon the courts as placed where jugglery and smartness are substituted for justice ". such things tend to weaken law and order and to cause men to settle their rights by violence.
For these reasons, when the judgment rendered did not exceed the possible power of the court7 and the notice was sufficient to put the defendant upon inquiry, a court should hesitate long before holding the proceedings void collaterally (emphasis supplied) 16.
But in certain cases, motions to set aside Judgments are permitted where,,for instance a judgment was rendered in ignorance of the fact that a necessary party had not been served at all, and was wrongly shown as served or in ignorance of the fact that a necessaryD party had died, and the estate was not represented.
Again, a judgment obtained by fraud could be subject to an action for setting it aside.
Where such a judgment obtained by fraud tended to prejudice a non party, as in the case of judgments in rem such as for divorce, or jactita tion or probate etc.
everl a person, not eo nomine a party to the proceedings, could seek a setting aside of the judgment.
Where a party nas naa no nonce ana a aecree ls maae agamst him, he can approach the court for setting aside the decision.
In such a case the party is said to become entitled to relief ex debito justitiae, on proof of the fact that there was no service.
This is a class of cases where there is no trial at all and the judgment is for default.
D.N. Gordan, in his "Actions to set aside judgments." says: "The more familiar applications to set aside judgments are those made on motion and otherwise summarily.
But there are judgments obtained by default, which do not represent a judicial determination.
In general, Judgments rendered after a trial are conclusive between the parties unless and until reversed on appeal.
Certainly in general judgments of superior courts cannot be overturned or questioned bet ween the parties in collateral actions.
Yet there is a type of collateral action known as an action of review, by which even a superior court 's judgment can be questioned, even between the parties, and set aside 111 Cases of such frank failure of natural justice are obvious cases where relief is granted as of right.
Where a person is not actually served but is held erroneously, to have been served, he can agitate that grievance only in that forum or in any further proceeding therefrom.
In Issac 's case [ privy council referred to: " . . , . a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in exercise of the inherent jurisdiction of the court without needing to have recourse to the Rules that deal expressly with proceedings to setaside orders for irregularity and give to the judge a discretion as to the order he will make".
In the present case by the order dated 5.4.1984 a five judge bench set out, what according to it, was, the legal basis and source of jurisdiction to order transfer.
On 17.4.1984 appellant 's writ petition challenging that transfer as a nullity was dismissed.
These orders are not which appellant is entitled to have set aside ex debito justitiae by another bench.
Reliance on the observations in Issac 's case is wholly misplaced.
The decision of the Privy Council in Rajunder Narain Rae vs Bijai Govind Singh, [2 NIA 181] illustrates the point.
Referring to the law on the matter, Lord Brougham said: E "It is unquestionably the strict rule, and ought to be distinctly understood as such, that no cause in this Court can be re heard, and that an order once made, that is, a report submitted to His Majesty and adopted, by being made an order in Council, is final, and cannot be altered.
The same is the case of the judgments of the House of Lords, that is, of the Court of Parliament, or of the King in Parliament as it is sometimes expressed, the only other supreme tribunal in this country.
Whatever, therefore, has been really determined in these Courts must stand, there being no power of re hearing for purpose of changing the judgment pronounced; nevertheless, if by misprision in embodying the judgments, errors have been introduced, these Courts possess, by common law, the same power which the Courts of Record and Statute have of rectifying the mistakes which have crept in.
The Courts of Equity may correct the Decrees made while they are in minutes; when they are 112 complete they can only vary them by re hearing; and when they are signed and enrolled they can no longer be reheard, but they must be altered.
if at all, by Appeal.
The Courts of Law, after the term in which the judgments are given can only alter them so as to correct misprisions, a power given by the Statutes of Amendment.
The House of Lords exercises a similar power of rectifying mistakes made in drawing up its own judgments, and this Court must possess the same authority.
The Lords have, however, gone a step further, and have corrected mistakes introduced through inadvertence in the details of judgments; or have supplied manifest defects, in order to enable the Decrees to be enforced, or have added explanatory matter, or have reconciled inconsistencies.
But with the exception of one case in 1669.
Of doubtful authority, here, and another in Parliament of still less weight in 1642 (which was an Appeal from the Privy Council to Parliament, and at a time when the Government was in an unsettled state), no instance, it is believed, can be produced of a rehearing upon the whole cause.
, and an entire alteration of the judgment once pronounced. " 17.
The second class of cases where a judgment is assailed for fraud, is illustrated by the Duchess of Kingston s case ( 13th Ed.).
ln that case, the Duchess was prosecuted for bigamy on the allegation that she entered into marriage while her marriage to another person, a certain Hervey, was still subsisting.
In her defence, the Duchess relied upon a decree of jactitation from an ecclesiastical court which purported to show that she had never been married to Hervey.
The prosecution sought to get over this on the allegation the decree was obtained in a sham and collusive proceeding.
The House of lords held the facts established before Court rendered the decree nugatory and was incapable of supplying that particular defence.
De Grey CJ said that the collusive decree was not be impeached from within; yet like all other acts of the highest authority, it is impeachable from without, although it is not permitted to show that the court was mistaken, it may be shown that they were misled.
Fraud which affected the judgment with described by the learned Chief Justice as an "extrinsic collateral act.
which vitiates the most solemn proceedings of courts of justice. ' 18.
The argument of nullity is too tall and has no place in this case.
The earlier direction proceeded on a construction of Section 7(1) 113 Of the Act and Section 407 Cr.
P.C. We do not sit here in appeal over what the five Judge bench said and proclaim how wrong they were.
We are, simply, not entitled to embark, at a later stage, upon an investigation of the correctness of the very same decision.
The same bench can, of course, reconsider the matter under Article 137.
However, even to the extent the argument goes that the High Court under Section 407 Cr.
P.C. could not withdraw to itself a trial from Special Judge under the 1952 Act, the view of the earlier bench is a possible view.
The submissions of Shri Ram Jethmalani that the exclusivity of the jurisdiction claimed for the special forum under the 1952 Act is in relation to Courts which would, otherwise, be Courts of competing or co ordinate jurisdictions and that such exclusivity does not effect the superior jurisdiction of the High Court to withdraw, in appropriate situations, the case to itself in exercise of its extraordinary original criminal jurisdiction; that canons of Statutory construction, appropriate to the situation, require that the exclusion of jurisdiction implied in the 1952 amending Act should not be pushed beyond the purpose sought to be served by the amending law; and that the law while creating the special jurisdiction did not seek to exclude the extra ordinary jurisdiction of the High Court are not without force.
The argument, relying upon Kavasji Pestonji Dalal vs Rustor, Sorabji Jamadar & Anr., AIR 1949 Bombay 42 that while the ordinary competing jurisdictions of other Courts were excluded, the extraordinary jurisdiction of the High Court was neither intended to be.
nor, in fact, affected, is a matter which would also bear serious examination.
In Sir Francis Bennion 's Statutory Interpretation, there are passages at page 433 which referring to presumption against implied repeal, suggest that in view of the difficulties in determining whether an implication of repeal was intended in a particular situation it would be a reasonable presumption that where the legislature desired a repeal, it would have made it plain by express words.
In Sutherland Statutory construction the following passages occur: "Prior statutes relating to the same subject matter are to be compared with the new provisions; and if possible by reasonable construction, both are to be so construed that effect is given to every provision of each.
Statutes in pari materia although in apparent conflict, are so far as reasonably possible constructed to be in harmony with each other." (Emphasis supplied) 114 "When the legislature enacts a provision, it has before it a 11 the other provisions relating to the same subject matter which it enacts at that time, whether in the same statute or in a separate Act.
It is evident that it has in mind the provisions of a prior Act to which it refers, whether it phrases the later Act as amendment or an independent Act.
Experience indicates that a legislature does not deliberately enact inconsistent provisions when it is rec ogzant of them both, without expressly recognizing the inconsistency.
(emphasis supplied) Reliance by Shri Ram Jethmalani on these principles to support his submission that the power under Section 407 was unaffected and that the decision in State of Rajasthan vs Gurucharan Das Chadda (supra), can not also be taken to have concluded the matter, is not un arguable.
I would, therefore, hold contentions (a) and (b) against appellant.
19 Re: contention (c): The fundamental right under Article 14, by all reckoning, has a very high place in constitutional scale of values.
Before a person is deprived of his personal liberty, not only that the Procedure established by law must strictly be complied with and not departed from to the disadvantage or detriment of the person but also that the procedure for such deprivation of personal liberty must be reasonable, fair and just.
Article 21 imposes limitations upon the procedure and requires it to conform to such standards of reasonableness, fairness and justness as the Court acting as sentinel of fundamental rights would in the context, consider necessary and requisite.
The court will be the arbiter of the question whether the procedure is reasonable, fair and just.
If the operation of Section 407, Cr.
P.C. is not impliedly excluded and therefore, enables the withdrawal of a case by the High Court to itself for trial as, indeed, has been held by the earlier bench, the argument based on Article 14 would really amount to a challenge to the very vires of Section 407.
All accused persons cannot claim to be tried by the same Judge.
The discriminations inherent in the choice of one of the concurrent jurisdictions are not brought about by an inanimate statutory rule or by executive fiat.
The withdrawal of a case under Section 407 is made by a conscious judicial act and is the result of judicial discernment.
If the law permits the withdrawal of the trial to 115 the High Court from a Special Judge, such a law enabling withdrawal would not, prima facie, be bad as violation of Article 14.
The five Judge bench in the earlier case has held that such a transfer is permissible under law.
The appeal to the principle in Anwar Ali Sarkar 's case (supra), in such a context would be somewhat out of place.
If the law did not permit such a transfer then the trial before a forum which is not according to law violates the rights of the accused person.
In the earlier decision the transfer has been held to be permissible.
That decision has assumed finality.
If appellant says that he is singled out for a hostile treatment on the ground alone that he is exposed to a trial before a Judge of the .
High Court then the submission has a touch of irony.
Indeed that a trial by a Judge of the High Court makes for added re assurance of justice, has been recognised in a number of judicial pronouncement.
The argument that a Judge of the High Court may not necessarily possess the statutory qualifications requisite for being appointed as a Special Judge appears to be specious.
A judge of the High Court hears appeals arising from the decisions of the Special Judge, and exercises a jurisdiction which includes powers co extensive with that of the trial court.
There is, thus, no substance in contention (c).
Re: Contention(d): This grievance is not substantiated on facts; nor, having regard to the subsequent course of events permissible to be raised at this stage.
These directions, it is not disputed, were issued on 16.2.1984 in the open Court in the presence of appellant 's learned counsel at the time of pronouncement of the judgment.
Learned counsel had the right and the opportunity of making an appropriate submission to the court as to the permissibility or otherwise of the transfer.
Even if the submissions of Shri Ram Jethmalani that in a revision application Section 403 of the Criminal Procedure Code does not envisage a right of being heard and that transfer of a case to be tried by the Judge of the High Court cannot, in the estimate of any right thinking person, be said to be detrimental to the accused person is not accepted, however, applicant, by his own conduct, has disentitled himself to make grievance of it in these proceedings.
It cannot be said that after the directions were pronounced and before the order was signed there was no opportunity for the appellant 's learned counsel to make any submissions in regard to the alleged illegality or impropriety of the directions.
Appellant did 116 not utilise the opportunity.
That apart, even after being told by two A judicial orders that appellant, if aggrieved, may seek a review he did not do so.
Even the grounds urged in the many subsequent proceedings appellant took to get rid of the effect of the direction do not appear to include the grievance that he had no opportunity of being heard.
Where, as here, a party having had an opportunity to raise a grievance in the earlier proceedings does not do so and makes it a technicality later he cannot be heard to complain.
Even in respect of so important jurisdiction as Habeas Corpus, the observation of Gibson J in Re.
Tarling l 19791 at 987 are significant: "Firstly, it is clear to the Court that an applicant for habeas corpus is required to put forward on his initial application then whole of the case which is then fairly available to him he is not free to advance an application on one ground, and to keep back a separate ground of application as a basis for a second or renewed application to the Court.
The true doctrine of estoppel known as res judicata does not apply to the decision of this Court on an application for habeas corpus we refer to the words of Lord Parket CJ delivering the Judgment of the Court in Re. Hastings (No. 2).
There is, however, a wider sense in which the doctrine of res judicata may be applicable, whereby it becomes an abuse of process to raise in subsequent proceedings matters which could, and therefore, should have been litigated in earlier proceedings . " This statement of the law by Gibson J was approved by Sir John Donaldson MR in the Court of appeal in Ali vs Secretary of State for the Home Department, at 1019.
Rules of natural justice embodies fairness in action.
By all standards, they are great assurances of Justice and fairness.
But they should not be pushed to a breaking point.
It is not inappropriate to recall what Lord Denning said in R. vs Secretary of State for the Home Department ex parte Mughal, " .
The rules of natural justice must not be stretched too far.
Only too often the people who have done wrong seek to invoke the rules of natural justice so as to avoid the consequences .
" Contention (d) is insubstantial.
117 22.
Contention (e): A The contention that the transfer of the case to the High Court involves the elimination of the appellant 's right of appeal to the High Court which he would otherwise have and that the appeal under Article 136 of the Constitution is not as of right may not be substantial in view of Section 374, Cr. P.C. which provides such an appeal as of right, when the trial is held by the High Court.
There is no substance in contention (e) either.
Contention (f): The argument is that the earlier order of the five Judge bench in so far as it violates the fundamental rights of the appellant under Article 14 and 21 must be held to be void and amenable to challenge under Article 32 in this very Court and that the decision of this Court in Premchand Garg 's case (supra) supports such a position.
As rightly pointed out by Ranganath Misra, J. Premchand Garg 's case needs to be understood in the light of the observations made in Naresh Sridhar Mirajkar & Ors.
vs State of Maharashtra & Anr.
, [ In Mirajkar 's case, Gajendragadkar, CJ., who had himself delivered the opinion in Garg 's case, noticed the contention based on Garg 's case thus: "ln support of his argument that a judicial decision can be corrected by this Court in exercise of its writ jurisdiction under Article 32(2), Mr. Setalvad has relied upon another decision of this Court in Prem Chand Garg vs Excise Commissioner, UP, Allahabad (supra) . " Learned Chief Justice referring to the scope of the matter that fell for consideration in Garg 's case stated: ".
It would thus be seen that the main controversy in the case of Prem Chand Garg centered round the question as to whether Article 145 conferred powers on this Court to make rules, though they may be inconsistent with the constitutional provisions prescribed by part III.
Once it as held that the powers under Article 142 had to be read subject not only to the fundamental rights, but to other binding statutory provisions, it became clear that the ruler which authorised the making of the impugned order was invalid.
It was in that context that the validity of the 118 order had to be incidentally examined.
The petition was A made not to challenge the order as such, but to challenge the validity of the rule under which the order was made Repelling the contention learned Chief Justice said: ".
It is difficult to see now this decision can be pressed into service by Mr. Setalvad in support of the argument that a judicial order passed by this Court was held to be subject to the writ jurisdiction of this Court itself . " A passage from Kadish & Kadish "Discretion to Disobey", 1973 Edn. may usefully by recalled: "on one view, it would appear that the right of a citizen to defy illegitimate judicial authority should be the same as his right to defy illegitimate legislative authority.
After all, if a rule that transgresses the Constitution or is otherwise invalid is no law at all and never was one, it should hardly matter whether a court or a legislature made the rule.
Yet the prevailing approach of the courts has been to treat invalid court orders quite differently from invalid statutes.
The long established principle of the old equity courts was that an erroneously issued injunction must be obeyed until the error was judicially determined.
Only where the issuing court could be said to have lacked jurisdiction in the sense of authority to adjudicate the cause and to reach the parties through its mandate were disobedient contemnors permitted to raise the invalidity of the order as a full defence.
By and large, American courts have declined to treat the unconstitutionality of a court order as a jurisdictional defect within this traditional equity principle, and in notable instances they have qualified that principle even where the defect was jurisdiction in the accepted sense.
" (See 111).
Indeed Ranganath Misra, J. in his opinion rejected the contention of the appellant in these terms: "In view of this decision in Mirajkar 's case, supra, it must be taken as concluded that judicial proceedings in this Court are not subject to the writ jurisdiction thereof.
" 119 There is no substance in contention (f) either.
Contention (g): It is asserted that the impugned directions issued by the five Judge Bench was per incuriam as it ignored the Statute and the earlier Chadda 's case.
B But the point is that the circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value.
Such a decision would not be binding as a judicial precedent.
A co ordinate bench can disagree with it and decline to follow it.
A larger bench can over rule such decision.
When a previous decision is so overruled it does not happen nor has the overruling bench any jurisdiction so to do that the finality of the operative order, inter parties, in the previous decision is overturned.
In this context the word 'decision ' means only the reason for the previous order and not the operative order in the previous decision, binding inter parties.
Even if a previous decision is overruled by a larger bench, the efficacy and binding nature, of the adjudication expressed in the operative order remains undisturbed inter parties.
Even if the earlier decision of the five Judge bench is per incuriam the operative part of the order cannot be interfered within the manner now sought to be done.
That apart the five Judge bench gave its reason.
The reason, in our opinion, may or may not be sufficient.
There is advertence to Section 7(1) of the 1952 Act and to the exclusive jurisdiction created thereunder.
There is also reference to Section 407 of the Criminal Procedure Code.
Can such a decision be characterised as one reached per incurium? Indeed, Ranganath Misra, J. says this on the point: "Overruling when made by a larger bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case.
Antulay, therefore, is not entitled to take advantage of the matter being before a larger bench . " I respectfully agree.
Point (g) is bereft of substance and merits.
Re: Contention (h): The argument is that the appellant has been prejudiced by a mistake of the Court and it is not only within power but a duty as well, H 120 of the Court to correct its own mistake, so that no party is prejudiced by the Court 's mistake: Actus Curiae Neminem Gravabid.
I am afraid this maxim has no application to conscious conclusions reached in a judicial decision.
The maxim is not a 'source of a general power to reopen and rehear adjudication which have otherwise assumed finality.
The maxim operates in a different and narrow area.
The best illustration of the operation of the maxim is provided by the application of the rule of nunc pro tunc.
For instance, if owing to the delay in what the court should, otherwise, have done earlier but did later, a party suffers owing to events occurring in the interrugnum, the Court has the power to remedy it.
The area of operation of the maxim is.
generally, procedural.
Errors in judicial findings, either of facts or law or operative decisions consciously arrived at as a part of the judicial exercise cannot be interfered with by resort to his maxim.
There is no substance in contention (h).
lt is true that the highest court in the land should No., by technicalities of procedure forge fetters on its own feet and disable itself in cases of serious miscarriages of justice.
It is said that "Life of law is not logic; it has been experience.
" But it is equally true as Cordozo said: But Holmes did not tell us that logic is to be ignored when experience is silent.
Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not.
Judicial vacillations fall in the latter category and undermine respect of the judiciary and judicial institutions, denuding thereby respect for law and the confidence in the even handedness in the administrating of justice by Courts.
It would be gross injustice, says an author, (Miller 'data of jurisprudence ') to decide alternate cases on opposite principles.
The power to alter a decision by review must be expressly conferred or necessarily inferred.
The power of review and the limitations on the power under Article 137 are implicit recognitions of what would, otherwise, be final and irrevocable.
No appeal could be made to the doctrine of inherent powers of the Court either.
Inherent powers do not confer, or constitute a source of, jurisdiction.
They are to be exercised in aid of a jurisdiction that is already invested.
The remedy of the appellant, if any, is recourse to Article 137; no where else.
This appears to me both good sense and good law.
The appeal is dismissed.
RANGANATHAN, J. 1.
I have had the benefit of perusing the 121 drafts of the judgments proposed by my learned brothers Sabyasachi Mukharji, Ranganath Misra and Venkatachaliah, JJ.
On the question whether the direction given by this Court in its judgment dated 16.2.1984 should be recalled, I find myself in agreement with the conclusion of Venkatachaliah, J. (though for slightly different reasons) in preference to the conclusion reached by Sabyasachi Mukharji, J. and Ranganath Misra, J.
I would, therefore, like to set out my views separately on this issue.
THE ISSUES 1.
This is an appeal by special leave from a judgment of Shah J., of the Bombay High Court.
The appellant is being tried for offences under Ss. 120B, 420, 161 and 165 of the Indian Penal Code (I.P.C.) read with section 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947.
The proceedings against the appellant were started in the Court of Sri Bhutta, a Special Judge, appointed under section 6(1) of the Criminal Law (Amendment) Act, 1952 (hereinafter referred to as 'the 1952 Act ').
The proceedings have had a chequered career as narrated in the judgment of my learned brother Sabyasachi Mukharji, J. Various issues have come up for consideration of this Court at the earlier stages of the proceedings and the judgments of this Court have been reported In ; , , , , and ; At present the appellant is being tried by a learned Judge of the Bombay High Court nominated by the Chief Justice of the Bombay High Court in pursuance of the direction given by this Court in its order dated 16.2.1984 (reported in ; By the order presently under appeal, the learned Judge (s) framed as many as 79 charges against the appellant and (b) rejected the prayer of the appellant that certain persons, named as co conspirators of the appellant in the complaint on the basis of which the prosecution has been launched should be arrayed as co accused along with him.
But the principal contention urged on behalf of the appellant before us centres not round the merits of the order under appeal on the above two issues but round what the counsel for the appellant has described as a fundamental and far reaching objection to the very validity of his trial before the learned Judge.
As already stated, the trial is being conducted by the learned Judge pursuant to the direction of this Court dated 16.2.1984.
The contention of the learned counsel is that the said direction is per incuriam, illegal, invalid, contrary to the principles of natural justice and violative of the fundamental rights of the petitioner.
This naturally raises two important issues for our consideration: A. Whether the said direction is inoperative, invalid or illegal, as alleged; and 122 B.
Whether, if it is, this Court can and should recall, withdraw, revoke or set aside the same in the present proceedings.
Since the issues involve a review or reconsideration of a direction given by a Bench of five judges of this Court, this seven judge Bench has been constituted to hear the appeal.
It is not easy to say which of the two issues raised should be touched upon first as, whichever one is taken up first, the second will not arise for consideration unless the first is answered in the affirmative.
However, as the correctness of the direction issued is impugned by the petitioner, as there is no detailed discussion in the earlier order on the points raised by the petitioner, and as Sabyasachi Mukharji, J. has expressed an opinion on these contentions with parts of which I am unable to agree, it will be perhaps more convenient to have a look at the first issue as if it were coming up for consideration for the first time before us and then, depending upon the answer to it, consider the second issue as to whether this Court has any jurisdiction to recall or revoke the earlier order.
The issues will, therefore, be discussed in this order.
A. ARE THE DIRECTIONS ON 16.2.1984 PROPER, VALID AND LEGAL? 3.
For the appellant, it is contended that the direction given in the last para of the order of the Bench of five Judges dated 16.2.1984 (extracted in the judgment of Sabyasachi Mukharji, J.) is vitiated by illegality, irregularity and lack of jurisdiction on the following grounds: (i) Conferment of jurisdiction on courts is the function of the legislature.
It was not competent for this Court to confer jurisdiction on a learned Judge of the High Court to try the appellant, as, under the 1952 Act, an offence of the type in question can be tried only by a special Judge appointed thereunder.
This has been overlooked while issuing the direction which is, therefore, per incuriam.
(ii) The direction above mentioned (a) relates to an issue which was not before the Court (b) on which no arguments were addressed and (c) in regard to which the appellant had no opportunity to make his submissions.
It was nobody 's case before the above Bench that the trial of the accused should no 123 longer be conducted by a Special Judge but should be before a High Court Judge.
(iii) In issuing the impugned direction, the Bench violated the principles of natural justice, as mentioned above.
It also overlooked that, as a result thereof, the petitioner (a) was discriminated against by being put to trial before a different forum as compared to other public servants accused of similar offences and (b) lost valuable rights of revision and first appeal to the High Court which he would have had, if tried in the normal course.
The direction was thus also violative of natural justice as well as the fundamental rights of the petitioner under Article 14 and 21 of the Constitution.
Primary Jurisdiction 4.
There can be and, indeed, counsel for the respondent had no quarrel with the initial premise of the learned counsel for the appellant that the conferment of jurisdiction on courts is a matter for the legislature.
Entry 77 of List I, entry 3 of List II and entries 1, 2, 11A and 46 of List III of the Seventh Schedule of the Constitution set out the respective powers of parliament and the State Legislatures in that regard.
It is common ground that the jurisdiction to try offences of the type with which are concerned here is vested by the 1952 Act in Special Judges appointed by the respective State Governments.
The first question that has been agitated before us is whether this Court was right in transferring the case for trial from the Court of a Special Judge, to a Judge nominated by the Chief Justice of Bombay.
High Court 's Power of Transfer 5.
The power of the Supreme Court to transfer cases can be traced, in criminal matters, either to article 139A of the Constitution or Section 406 of the Code of Criminal Procedure ("Cr. P.C.), 1973.
Here, again, it is common ground that neither of these provisions cover the present case.
Sri Jethmalani, learned counsel for the respondent, seeks to support the order of transfer by reference to Section 407 (not Section 406) of the Code and cl. 29 of the Letters Patent of the Bombay High Court.
Section 407 reads thus: (1) Whenever it is made to appear to the High Court 124 (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise, or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order (i) that any offence be inquired into or tried by any Court not qualified under Section 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offences; (ii) that any particular case or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction; (iii) that any particular case be committed for trial to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself.
(2) the High Court may act either on the report of the lower court or on the application of a party interested or on its own initiative: XXX XXX XXX XXX XXX XXX XXX XXX XXX (9) Nothing in this section shall be deemed to affect any order of Government under Section 197." And cl. 29 of the Letters Patent of the Bombay High Court runs thus: "And we do further ordain that the said High Court shall have power to direct the transfer of any criminal case or 125 appeal from any Court to any other Court of appeal or superior jurisdiction, and also to direct the preliminary investigation of trial of any criminal case by any officer of Court otherwise competent to investigate or try it though such case belongs, in ordinary course, to the jurisdiction of some other officer, of Court.
" The argument is that this power of transfer vested in the High Court can well be exercised by the Supreme Court while dealing with an appeal from the High Court in the case.
For the appellant, it is contended that the power of transfer under section 407 cannot be invoked to transfer a case from a Special Judge appointed under the 1952 Act to the High Court.
Learned counsel for the appellant contends that the language of section 7(1) of the Act is mandatory; it directs that offences specified in the Act can be tried only by persons appointed, under section 6(2) of the Act, by the State Government, to be special judges, No other Judge, it is said, has jurisdiction to try such a case, even if he is a Judge of the High Court.
In this context, it is pointed out that a person, to be appointed as a special Judge, under section 6(2) of the 1952 Act, should be one who is, or has been, a Sessions Judge (which expression in this context includes an Additional Sessions Judge and/or an Assistant Sessions Judge).
All High Court Judges may not have been Sessions Judges earlier and, it is common ground, Shah, J. who has been nominated by the Chief Justice for trying this case does not fulfill the qualifications prescribed for appointment as a Special Judge.
But, that consideration apart, the argument is that, while a High Court can transfer a case from one special judge to another, and the Supreme Court, from a special judge in one State to a special judge in another State, a High Court cannot withdraw a case from a Special Judge to itself and the Supreme Court cannot transfer a case from a Special Judge to the High Court.
On the other hand, it is contended for the respondent that the only purpose of the 1952 Act is to ensure that cases of corruption and bribery do not get bogged up in the ordinary criminal courts which are over burdened with all sorts of cases.
Its object is not to create special courts in the sense of courts manned by specially qualified personnel or courts following any special type of procedure.
All that is done is to earmark some of the existing sessions judges for trying these offences exclusively.
The idea is just to segregate corruption and bribery cases to a few of the sessions judges so that they could deal with them 126 effectively and expeditiously.
It is a classification in which the emphasis is on the types of offences and nature of offenders rather than on the qualifications of judges.
That being so, the requirement in section 7(1) that these cases should be tried by special judges only is intended just to exclude their trial by the other normal criminal courts of coordinate jurisdiction and not to exclude the High Court.
Before dealing with these contentions, it may be useful to touch upon the question whether a judge of a High Court can be appointed by the State Government as a special judge to try offences of the type specified in section 6 of the 1952 Act.
It will be seen at once that not all the judges of the High Court (but only those elevated from the State subordinate judiciary) would fulfill the qualifications prescribed under section 6(2) of the 1952 Act.
Though there is nothing in sections 6 and 7 read together to preclude altogether the appointment of a judge of the High Court fulfilling the above qualifications as a special judge, it would appear that such is not the (atleast not the normal) contemplation of the Act.
Perhaps it is possible to argue that, under the Act, it is permissible for the State Government to appoint one of the High Court Judges (who has been a Sessions Judge) to be a Special Judge under the Act.
If that had been done, that Judge would have been a Special Judge and would have been exercising his original jurisdiction in conducting the trial.
But that is not the case here.
In response to a specific question put by us as to whether a High Court Judge can be appointed as a Special Judge under the 1952 Act, Shri Jethmalani submitted that a High Court Judge cannot be so appointed.
I am inclined to agree.
The scheme of the Act, in particular the provision contained in sections 8(3A) and 9, militate against this concept.
Hence, apart from the fact that in this case no appointment of a High Court Judge, as a Special Judge, has in fact been made, it is not possible to take the view that the statutory provisions permit the conferment of a jurisdiction to try this case on a High Court Judge as a Special Judge.
Turning now to the powers of transfer under section 407, one may first deal with the decision of this Court in Gurucharan Das Chadha vs State of Rajasthan, [1966] 2 S.C.R. 678 on which both counsel strongly relied.
That was a decision by three judges of this Court on a petition under section 527 of the 1898 Cr.
P.C. (corresponding to section 406 of the 1973 Cr.P.C.).
The petitioner had prayed for the transfer of a case pending in the court of a Special Judge in Bharatpur, Rajasthan to another criminal court of equal or superior jurisdiction subordinate to a High Court other than the High Court of 127 Rajasthan.
The petition was eventually dismissed on merits.
But the Supreme Court dealt with the provisions of section 527 of the 1898 A Cr.
P.C. in the context of an objection taken by the respondent State that the Supreme Court did not have the jurisdiction to transfer a case pending before the Special Judge, Bharatpur.
The contention was that a case assigned by the State Government under the 1952 Act to a Special Judge cannot be transferred at all because, under the terms of that Act, which is a self contained special law, such a case must be tried only by the designated Special Judge.
The Court observed that the argument was extremely plausible but not capable of bearing close scrutiny.
After referring to the provisions of section 6, 7 and 8 of the 1952 Act, the Court set out the arguments for the State thus: "The Advocate General, Rajasthan, in opposing the petition relies principally on the provisions of section 7(1) and 7(2) and contends that the two sub sections create two restrictions which must be read together.
The first is that offences specified in section 6(1) can be tried by Special Judges only.
The second is that every such offence shall be tried by the Special Judge for the area within which it is committed and if there are more special judges in that area by the Special Judge chosen by the Government.
These two conditions, being statutory, it is submitted that no order can be made under section 527 because, on transfer, even if a special judge is entrusted with the case, the second condition is bound to be broken.
" Dealing with this contention the Court observed: "This condition, if literally understood, would lead to the conclusion that a case once made over to a special Judge in an area where there is no other special Judge, cannot be transferred at all.
This could hardly have been intended.
If this were so, the power to transfer a case intra state under section 526 of the Code of Criminal Procedure, on a parity of reasoning, must also be lacking.
But this Court in Ramachandra Parsad vs State of Bihar, ; unheld the transfer of a case by the High Court which took it to a special judge who had no jurisdiction in the area where the offence was committed.
In holding that the transfer was valid this Court relied upon the third sub section of Section 8 of the Act.
That sub section preserves the application of any provision of the Code of Criminal Procedure it it is not 128 inconsistent with the Act, save as provided in the first two sub sections of that section.
The question, therefore, resolves itself to this: Is there an inconsistency between section 527 of the Code and the second sub section of section 7? The answer is that there is none.
Apparently this Court in the earlier case found no inconsistency and the reasons appear to be there: The condition that an offence specified in section 6(2) shall be tried by a special Judge for the area within which it is committed merely specifies which of several special Judges appointed in the State by the State Government shall try it.
The provision is analogous to others under which the jurisdiction of Magistrates and Sessions Judges is deter mined on a territorial basis.
Enactments in the Code of Criminal Procedure intended to confer territorial jurisdiction upon courts and Presiding officers have never been held to stand in the way of transfer of criminal cases outside those areas of territorial jurisdiction.
The order of transfer when it is made under the powers given by the Code invests another officer with jurisdiction although ordinarily he would lack territorial jurisdiction to try the case.
The order of this Court, therefore, which transfer(s) a case from one special Judge subordinate to one High Court to another special Judge subordinate to another High Court creates jurisdiction in the latter in much the same way as the transfer by the High Court from one Sessions Judge in a Session Division to another Sessions Judge in another Sessions Division.
There is no comparison between the first sub section and the second sub section of Section 7.
The condition in the second sub section of section 7 is not of the same character as the condition in the first sub section.
The first sub section creates a condition which is a sine qua non for the trial of certain offences.
That condition is that the trial must be before a special Judge.
The second sub section distributes the work between special Judges and lays emphasis on the fact that trial must be before a special Judge appointed for the area in which the offence is committed.
This second condition is on a par with the distribution of work territorially between different Sessions Judges and Magistrates.
An order of transfer, by the very nature of things must, some times, result in taking the case out of the territory and the provisions of the Code which are preserved by the third sub 129 section of section 8 must supervene to enable this to be done and the second sub section of section 7 must yield.
We do not consider that this creates any inconsistency because the territorial jurisdiction created by the second sub section of section 7 operates in a different sphere and under different circumstances.
Inconsistency can only be found if two provisions of law apply in identical circumstances and create contradictions.
Such a situation does not arise when either this Court or the High Court exercises its powers of transfer.
We are accordingly of the opinion that the Supreme Court in exercise of its jurisdiction and power under section 527 of the Code of Criminal Procedure can transfer a case from a Special Judge subordinate to the High Court to another special Judge subordinate to another High Court. " (emphasis added) 10.
The attempt of Sri Jethmalani is to bring the present case within the scope of the observations contained in the latter part of the extract set out above.
He submits that a special judge, except insofar as a specific provision to the contrary is made, is a court subordinate to the High Court, as explained in ; (at pages 943 4) and proceedings before him are subject to the provisions of the 1973 Cr.
P.C.; the field of operation of the first sub section of section 7 is merely to earmark certain Sessions Judges for purposes of trying cases of corruption by public servants and this provision is, in principle, not different from the earmarking of cases on the basis of territorial jurisdiction dealt with by sub section 2 of section 7.
The argument is no doubt a plausible one.
It does look somewhat odd to say that a Sessions Judge can, but a High Court Judge cannot, try an offence under the Act.
The object of the Act, as rightly pointed out by counsel, is only to segregate certain cases to special courts which will concentrate on such cases so as to expedite their disposal and not to oust the superior jurisdiction of the High Court or its powers of superintendencet over subordinate courts under article 227 of the Constitution, an aspect only of which is reflected in section 407 of the Cr.
P.C. However, were the matter to be considered as res integra, I would be inclined to accept the contention urged on behalf of the appellant, for the following reasons.
In the first place, the argument of the counsel for the respondent runs counter to the observations made by the Supreme Court in the earlier part of the extract set out above that the first sub section of section 7 and the second sub section are totally different in character.
The first sub section deals with a sine qua non for the trial of certain offences, whereas the second sub section is only of a pro 130 cedural nature earmarking territorial jurisdiction among persons competent to try the offence.
They are, therefore, vitally different in nature.
The Supreme Court has clearly held in the passage extracted above that the case can be transferred only from one special judge to another.
In other words, while the requirement of territorial jurisdiction is subordinate to section 406 or 407, the requirement that the trial should be by a special judge is not.
It is true that those observations are not binding on this larger Bench and moreover the Supreme Court there was dealing only with an objection based on sub section (2) of Section 7.
It is, however, clear that the Bench, even if it had accepted the transfer petition of Gurcharan Das Chadha, would have rejected a prayer to transfer the case to a court other than that of a Special Judge appointed by the transferee State.
I am in respectful agreement with the view taken in that case that there is a vital qualitative difference between the two sub sections and that while a case can be transferred to a special judge who may not have the ordinary territorial jurisdiction over it, a transfer cannot be made to an ordinary magistrate or a court of session even if it has territorial jurisdiction.
If the contention of the learned counsel for the respondent that section 7(1) and section 407 operate in different fields and are not inconsistent with each other were right, it should be logically possible to say that the High Court can, under section 407, transfer a case from a special judge to any other Court of Session.
But such a conclusion would be clearly repugnant to the scheme of the 1952 Act and plainly incorrect.
It is, therefore, difficult to accept the argument of Sri Jethmalani that we should place the restriction contained in the first sub section of section 7 also as being on the same footing as that in the second sub section and hold that the power of transfer contained in the Criminal Procedure Code can be availed of to transfer a case from a Special Judge to any other criminal court or even the High Court.
The case can be transferred only from one special judge to another special judge; it cannot be transferred even to a High Court Judge except where a High Court Judge is appointed as a Special Judge.
A power of transfer postulates that the court to which transfer or withdrawal is sought is competent to exercise jurisdiction over the case.
(vide, Raja Soap Factory vs Shantaraj, ; 11.
This view also derives support from two provisions of section 407 itself.
The first is this.
Even when a case is transferred from one criminal court to another, the restriction as to territorial jurisdiction may be infringed.
To obviate a contention based on lack of territorial jurisdiction in the transferee court in such a case, clause (ii) of section 407 provides that the order of transfer will prevail, lack of jurisdiction 131 under Ss. 177 to 185 of the Code notwithstanding.
The second difficulty arises, even under the Cr.
P.C. itself, by virtue of section 197 which not only places restriction on the institution of certain prosecutions against public servants without Government sanction but also empowers the Government, inter alia, to determine the court before which such trial is to be conducted.
When the forum of such a trial is transferred under section 407 an objection may be taken to the continuance of the trial by the transferee court based on the order passed under section 197.
This eventuality is provided against by section 407(9) of the Act which porvides that nothing in section 407 shall be deemed to affect an order passed under section 407.
Although specifically providing for these contingencies, the section is silent in so far as a transfer from the court of a Special Judge under the 1952 Act is concerned though it is a much later enactment.
On the contrary, the language of section 7(1) of the 1952 Act places a definite hurdle in the way of construing section 407 of the Cr.
P.C. as overriding its provisions.
For, it opens with the words: "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 or in any other law".
In view of this non obstanti clause also, it becomes difficult to hold that the provisions of section 407 of the 1973 Cr.
P.C. will override, or even operate consistently with, the provisions of the 1952 Act.
For the same reason it is not possible to hold that the power of transfer contained in clause 29 of the Letters Patent of the Bombay High Court can be exercised in a manner not contemplated by section 7(1) of the 1952 Act.
Thirdly, whatever may be the position where a case is transferred from one special judge to another or from one ordinary subordirate criminal court to another of equal or superior jurisdiction, the withdrawal of a case by the High Court from such a Court to itself for trial places certain handicaps on the accused.
It is true that the court to which the case has been transferred is a superior court and in fact, the High Court.
Unfortunately, however, the high Court judge is not a person to whom the trial of the case can be assigned under section 7(1) of the 1952 Act.
As pointed out by the Supreme Court in Surajmal Mohta vs Viswanatha Sastry, ; at pp.
464 in a slightly different context, the circumstance that a much superior forum is assigned to try a case than the one normally available cannot by itself be treated as a "sufficient safeguard and a good substitute" for the 132 normal forum and the rights available under the normal procedure.
The accused here loses his right of coming up in revision or appeal to the High Court from the interlocutory and final orders of the trial court.
He loses the right of having two courts a subordinate court and the High Court adjudicate upon his contentions before bringing the matter up in the Supreme Court.
Though, as is pointed out later, these are not such handicaps as violate the fundamental rights of such an accused, they are circumstances which create prejudice to the accused and may not be overlooked in adopting one construction of the statute in preference to the other.
Sri Jethmalani vehemently contended that the construction of section 407 sought for by the appellant is totally opposed to well settled canons of statutory construction.
He urged that the provisions of the 1952 Act should be interpreted in the light of the objects it sought to achieve and its amplitude should not be extended beyond its limited objective.
He said that a construction of the Act which leads to repugnancy with, or entails pro tanto repeal of, the basic criminal procedural law and seeks to divest jurisdiction vested in a superior court should be avoided.
These aspects have been considered earlier.
The 1952 Act sought to expedite the trial of cases involving public servants by the creation of courts presided over by experienced special judges to be appointed by the State Government.
There is however nothing implausible in saying that the Act having already earmarked these cases for trial by experienced Sessions Judges made this provision immune against the applicability of the provisions of other laws in general and the Cr.
P.C. in particular.
Effect is only being given to these express and specific words used in section 7(1) and no question arises of any construction being encouraged that is repugnant to the Cr.
P.C. Or involves an implied repeal, pro tanto, of its provisions.
As has already been pointed out, if the requirement in section 7(1) were held to be subordinate to the provisions contained in section 406 7, then in principle, even a case falling under the 1952 Act can be transferred to any other Sessions Judge and that would defeat the whole purpose of the Act and is clearly not envisaged by it.
Supreme Court 's power of transfer 15.
It will have been noticed that the power of transfer under section 407 or cl. 29 of the Letters Patent which has been discussed above is a power vested in the High Court.
So the question will arise whether, even assuming that the High Court could have exercised such power, the Supreme Court could have done so.
On behalf of the 133 respondent, it was contended that, as the power of the High Court under section 407 can be exercised on application of a party or even suo motu and can be exercised by it at any stage irrespective of whether any application or matter in connection with the case is pending before it or not, the Supreme Court, as an appellate Court, has a co equal jurisdiction to exercise the power of transfer in the same manner as the High Court could.
In any event, the Supreme Court could exercise the power as one incidental or ancillary to the power of disposing of a revision or appeal before it.
The appellants, however, contend that, as the power of the Supreme Court to order transfer of cases has been specifically provided for in section 406 and would normally exclude cases of intra state transfer covered by section 407 of the Code, the statute should not be so construed as to imply a power of the Supreme Court, in appeal or revision, to transfer a case from a subordinate court to the High Court.
The argument also is that what the Supreme Court, as an appellate or revisional court, could have done was either (a) to direct the High Court to consider whether this was a fit case for it to exercise its power under section 407(1)(iv) to withdraw the case to itself and try the same with a view to expeditiously dispose it of or (b) to have withdrawn the case to itself for trial.
But, it is contended, no power which the Supreme Court could exercise as an appellate or revisional court could have enabled the Supreme Court to transfer the case from the Special Judge to the High Court.
Here also, the contentions of both parties are nicely balanced but I am inclined to think that had the matter been res integra and directions for transfer were being sought before us for the first time, this Court would have hesitated to issue such a direction and may at best have left it to the High Court to consider the matter and exercise its own discretion.
As already pointed out, the powers of the Supreme Court to transfer cases from one court to another are to be found in Article 139 A of the Constitution and section 406 of the Cr.
The provisions envisaged either inter state transfers of cases i.e. from a court in one State to a court in another State or the withdrawal of a case by the Supreme Court to itself.
Intra State transfer among courts subordinate to a High Court inter se or from a court subordinate to a High Court to the High Court is within the jurisdiction of the appropriate High Court.
The attempt of counsel for the resondent is to justify the transfer by attributing the powers of the High Court under section 407 to the Supreme Court in its capacity as an appellate or revisional court.
This argument overlooks that the powers of the Supreme Court, in disposing of an appeal or revision, are circumscribed by the scope of the proceedings before it.
In this 134 case, it is common ground that the question of transfer was not put in issue before the Supreme Court.
The reliance placed in this context on the provisions contained in articles 140 and 142 of the Constitution and section 401 read with section 386 of the Cr.
P.C. does not also help.
Article 140 is only a provisions enabling Parliament to confer supplementary powers on the Supreme Court to enable it to deal more effectively to exercise the jurisdication conferred on it by or under the Constitution.
Article 142 is also not of much assistance.
In the first place, the operative words in that article, again are "in the exercise of its jurisdiction.
" The Supreme Court was hearing an appeal from the order of discharge and connected matters.
There was no issue or controversy or discussion before it as to the comparative merits of a trial before a special judge vis a vis one before the High Court.
There was only an oral request said to have been made, admittedly, after the judgment was announced.
Wide as the powers under article 141 are, they do not in my view, envisage an order of the type presently in question.
The Nanavati case ; , to which reference was made by Sri Jethmalani, involved a totally different type of situation.
Secondly, it is one of the contentions of the appellant that an order of this type, far from being necessary for doing complete justice in the cause or matter pending before the Court, has actually resulted in injustice, an aspect discussed a little later.
Thirdly, however wide and plenary the language of the article, the directions given by the Court should not be inconsistent with, repugnant to or in violation of the specific provisions of any statute.
If the provisions of the 1952 Act read with article 139 A and Ss.406 407 of the Cr.
P.C. do not permit the transfer of the case from a special judge to the High Court, that effect cannot be achieved indirectly.
it is, therefore, difficult to say, in the circumstances of the case, that the Supreme Court can issue the impugned direction in exercise of the powers under Article 142 or under section 407 available to it as an appellate court.
Learned counsel for the complainant also sought to support the order of transfer by reference to section 386 and 401 of the 1973 Cr.
P.C. He suggested that the Court, having set aside the order of discharge, had necessarily to think about consequential orders and that such directions as were issued are fully justified by the above provisions.
He relied in this context on the decision of the Privy Council in Hari vs Emperor, AIR 1935 P.C.122.
It is difficult to accept this argument.
Section 401 provides that, in the revision pending before it, the High Court can exercise any of the powers conferred on a 135 court of appeal under section 386.
Section 386, dealing with the powers of the appellate court enables the court, in a case such as this: (i) under clause (a), to alter or reverse the order under appeal/revision; or (ii) under clause (e), to make any amendment or any consequential or incidental order that may be just or proper.
The decision relied on by counsel, Hari vs Emperor, AIR 1935 P.C. 122, is of no assistance to him.
In that case, the Additional Judicial Commissioner, who heard an appeal on a difference of opinion between two other judicial commissioner had come to the conclusion that the conviction had to be set aside.
Then he had the duty to determine what should be done and section 426 of the 1898 Cr.
P.C. (corresponding to section 386 of the 1973 Cr.P.C.) exactly provided for the situation and empowered him: "to reverse the finding and sentence and acquit or discharge the accused or order him to be retried by a court of competent jurisdiction subordinate to such apellate Court.
" In the present case, the Special Judge.
Sri Sule, had discharged the accused because of his conclusion, that the prosecution lacked the necessary sanction.
The conclusion of the Supreme Court that this conclusion was wrong meant, automatically, that the prosecution had been properly initiated and that the proceedings before the Special Judge should go on.
The direction that the trial should be shifted to the High Court can hardly be described as a consequential or incidental order.
Such a direction did not flow, as a necessary consequence of the conclusion of the court on the issues and points debated before it.
I am, therefore, inclined to agree with counsel for the appellant that this Court was in error when it directed that the trial of the case should be before a High Court Judge.
It follows from the above discussion that the appellant, in consequence of the impugned direction, is being tried by a 'Court which has no jurisdiction and which cannot be empowered by the Supreme Court to try him.
The continued trial before the High Court, therefore, infringes Article 21 of the Constitution.
Denial of equality and violation of Article 21.
It was vehemently contended for the appellant that, by giving the impugned direction, this Court has deprived the appellant of his fundamental rights.
He has been denied a right to equality, 136 inasmuch as his case has been singled out for trial by a different, though higher, forum as compared to other public servants.
His fundamental right under Article 21, it is said, has been violated, inasmuch as the direction has deprived him of a right of revision and first appeal to the High Court which he would have had from an order or sentence had he been tried by a Special Judge and it is doubtful whether he would have a right to appeal to this Court at all.
It is pointed out that a right of first appeal against a conviction in a criminal case has been held, by this Court, to be a part of the fundamental right guaranteed under Article 21 of the Constitution.
It is not necessary for me to consider these arguments in view of my conclusion that the High Court could not have been directed to try the petitioner 's case.
I would, however, like to say that, in my opinion, the arguments based on Articles 14 and 21 cannot be accepted, in case it is to be held for any reason that the transfer of the apellant 's case to the High Court was valid and within the competence of this Court.
I say this for the following reason: If the argument is to be accepted, it will be appreciated, it cannot be confined to cases of transfer to the High Court of cases under the 1952 Act but would also be equally valid to impugn the withdrawal of a criminal case tried in the normal course under the Cr.
P.C. from a subordinate court trying it to the High Court by invoking the powers under section 407.
To put it in other words, the argument, in substance, assails the validity of secion 407 of the 1973 Cr.
In my opinion, this attack has to be repelled.
The section cannot be challenged under Article 14 as it is based on a reasonable classification having relation to the objects sought to be achieved.
Though, in general, the trial of cases will be by courts having the normal jurisdiction over them, the exigencies of the situation may require that they be dealt with by some other court for various reasons.
Likewise, the nature of a case, the nature of issues involved and other circumstances may render it more expedient, effective, expeditious or desirable that the case should be tried by a superior court or the High Court itself.
The power of transfer and withdrawal contained in section 407 of the Cr.
P.C. is one dictated by the requirements of justice and is, indeed, but an aspect of the supervisory powers of a superior court over courts subordinate to it: (see also sections 408 to 411 of the Cr.P.C.).
A judicial discretion to transfer or withdraw is vested in the highest court of the State and is made exercisable only in the circumstances set out in the section.
Such a power is not only necessary and desirable but indispensable in the cause of the administration of justice.
The accused will continue to be tried by a court of equal or superior jurisdiction.
Section 407(8) read with section 474 of the Cr.
P.C. and section 8(3) of the 1952 Act makes it clear that he will be 137 tried in accordance with the procedure followed by the original Court or ordinarily by a Court of Session.
The accused will, therefore, suffer no prejudice by reason of the application of section 407.
Even if there is a differential treatment which causes prejudice, it is based on logical and acceptable considerations with a view to promote the interest of justice.
The transfer or withdrawal of a case to another court or the High Court, in such circumstances, can hardly be said to result in hostile discrimination against the accused in such a case.
Considerable reliance was placed on behalf of the appellant on State vs Anwar Ali Sarkar, ; This decision seems to have influenced the learned judges before whom this appeal first came up for hearing in referring the matter to this larger Bench and has also been aplied to the facts and situation here by my learned brother, Sabyasachi Mukharji, J.
But it seems to me that the said decision has no relevance here.
There, the category of cases which were to be allocated to a Special Judge were not well defined; the selection of cases was to be made by the executive; and the procedure to be followed by the special courts was different from the normal criminal procedure.
As already pointed out, the position here is entirely different.
The 1952 legislation has been enacted to give effect to the Tek Chand Committee and to remedy a state of affairs prevalent in respect of a well defined class of offences and its provisions constituting special judges to try offences of corruption is not under challenge.
Only a power of transfer is being exercised by the Supreme Court which is sought to be traced back to the power of the High Court under section 407.
The vires of that provision also is not being challenged.
What is perhaps being said is that the Supreme Court ought not to have considered this case a fit one for withdrawal for trial to the High Court.
That plea should be and is being considered here on merits but the plea that Article 14 has been violated by the exercise of a power under section 407 on the strength of Anwar Ali Sarkar 's case wholly appears to be untenable.
Reference may be made in this context to Kathi Raning Rawat vs The State of Saurashtra, and Re: Special Courts Bill, 1978, and Shukla vs Delhi Administration, ; , which have upheld the creation of special judges to try certain classes of offences.
It may be convenient at this place to refer to certain observations by the Bench of this Court, while referring this matter to the larger Bench, in a note appended to their order on this aspect.
The learned Judges have posed the following questions in paragraphs 4 and 6 of their note: 138 "4.
The Criminal Law Amendment Act, 1952 as its preamble says is passed to provide for speedier trial? Does not further speeding up of the case by transferring the case to the High Court for speedy disposal violate the principle laid down by seven learned Judges of this Court in Anwar Ali Sarkar 's case ; and result in violation of Article 14 of the Constitution? The following observations of Vivian Bose, J. in Anwar Ali Sarkar 's case at pages 366 387 of the Report are relevant: 'Tested in the light of these considerations, I am of opinion that the whole of the West Bengal Special Courts Act of 1950 offends the provisions of Article 14 and is therefore bad.
When the froth and the foam of discussion is cleared away and learned dialectics placed on one side, we reach at last the human element which to my mind is the most important of all.
We find men accused of heinous crimes called upon to answer for their lives and liberties.
We find them picked out from their fellows, and however much the new procedure may give them a few crumbs of advantage, in the bulk they are deprived of substantial and valuable privileges of defence which others, similarly charged, are able to claim.
It matters not to me, nor indeed to them and their families and their friends, whether this be done in good faith, whether it be done for the convenience of government, whether the process can be scientifically classified and labelled, or whether it is an experiment in speedier trials made for the good of society at large.
It matters now how lofty and laudable the motives are.
The question with which I charge myself is, can fair minded, reasonable, unbiassed and resolute men, who are not swayed by emotion or prejudice, regard this with equanimity and call it reasonable, just and fair, regard it as that equal treatment and protection in the defence of liberties which is expected of a sovereign democratic republic in the conditions which obtain in India today? I have but one answer to that.
On that short and simple ground I would decide this case and hold the Act bad. ' (Underlining by us) Do not the above observations apply to judicial orders also? 139 6.
Does the degree of heinousness of the crime with which an accused is charged or his status or the influence that he commands in society have any bearing on the applicability or the constriction of Article 14 or Article 21.?" 23.
In my opinion, the answers to the questions posed will, again, depend on whether the impugned direction can be brought within the scope of section 407 of the 1973 Cr.
P.C. Or not.
If I am right in my conclusion that it cannot, the direction will clearly be contrary to the provisions of the Cr.
P.C. and hence violative of Article 21.
It could also perhaps be said to be discriminatory on the ground that, in the absence of not only a statutory provision but even any well defined policy or criteria, the only two reasons given in the order namely, the status of the petitioner and delay in the progress of the trial are inadequate to justify the special treatment meted out to the appellant.
On the other hand, if the provisions of section 407 Cr.
P.C. are applicable, the direction will be in consonance with a procedure prescribed by law and hence safe from attack as violative of Article 21.
The reasons given, in the context of the developments in the case, can also be sought to be justified in terms of clauses (a), (b) or (c) of Section 407(1).
In such an event, the direction will not amount to an arbitrary discrimination but can be justified as the exercise of a choice of courses permitted under a valid statutory classification intended to serve a public purpose.
The argument of infringment of article 21 is based essentially on the premise that the accused will be deprived, in cases where the trial is withdrawn to the High Court of a right of first appeal.
This fear is entirely unfounded.
I think Sri Jethmalani is right in contending that where a case is thus withdrawn and tried by the Court, the High Court will be conducting the trial in the exercise of its extraordinary original criminal jurisdiction.
As pointed out by Sabyasachi Mukharji, J., the old Presidency town High Courts once exercised original jurisdiction in criminal matters but this has since been abolished.
One possible view is that now all original criminal jurisdiction exercised by High Court is only extraordinary original criminal jurisdiction.
Another possible view is that still High Courts do exercise ordinary original criminal jurisdiction in habeas corpus and contempt of court matters and also under some specific enactments (e.g. Companies ' Act Ss. 454 and 633).
They can be properly described as exercising extraordinary original criminal jurisdiction, where though the ordinary original criminal jurisdiction is vested in a subordinate criminal court or special Judge, a case is withdrawn by the High Court to itself for trial.
The 140 decision in Madura Tirupparankundram etc.
vs Nikhan Sahib, , Kavasji Pestonji vs Rustomji Sorabji, AIR 1949 Bombay 42, Sunil Chandra Roy and another vs The State, AIR 1954 Calcutta 305, People 's Insurance Co. Ltd. vs Sardul Singh Caveeshar and others, AIR 1961 Punjab 87 and People 's Patriotic Front vs K.K. Birla and others, [1984] Crl. L.J .
545 cited by him amply support this contention.
If this be so, then Sri Jethmalani is also right in saying that a right of first appeal to the Supreme Court against the order passed by the High Court will be available to the accused under section 374 of the 1973 Cr.
In other words, in the ordinary run of criminal cases tried by a Court of Sessions, the accused will be tried in the first instance by a court subordinate to the High Court; he will then have a right of first appeal to the High Court and then can seek leave of the Supreme Court to appeal to it under Article 136.
In the case of a withdrawn case, the accused has the privilege of being tried in the first instance by the High Court itself with a right to approach the apex Court by way of appeal.
The apprehension that the judgment in the trial by the High Court, in the latter case, will be final, with only a chance of obtaining special leave under article 136 is totally unfounded.
There is also some force in the submission of Sri Jethmalani that, if that really be the position and the appellant had no right of appeal against the High Court 's judgment, the Supreme Court will consider any petition presented under Article 136 in the light of the inbuilt requirements of Article 21 and dispose of it as if it were itself a petition of appeal from the judgment.
(see, in this context, the observations of this Court in Sadananthan vs Arunachalam, That, apart it may be pointed out, this is also an argument that would be valid in respect even of ordinary criminal trials withdrawn to the High Court under section 407 of the Cr.
P.C. and thus, like the previous argument regarding Article 14, indirectly challenges the validity of S.407 itself as infringing Article 21.
For the reasons discussed, I have come to the conclusion that an accused, tried directly by the High Court by withdrawal of his case from a subordinate court, has a right of appeal to the Supreme Court under section 374 of the Cr.
The allegation of an infringement of Article 2 1 in such cases is.
therefore.
unfounded.
Natural Justice 25.
The appellant 's contention that the impugned direction is sued by this Court on 16.2.1984 was in violation of the principles of natural justice appears to be well founded.
It is really not in dispute before us that there was no whisper or suggestion in the proceedings before this Court that the venue of the trial should be shifted to the High Court.
This direction was issued suo motu by the learned Judges without putting it to the counsel for the parties that this was what they 141 proposed to do.
The difficulties created by observations or directions on issues not debated before the Court have been highlighted by Lord Diplock in Hadmor Productions Ltd. vs Hamilton, In that case, Lord Denning, in the Court of Appeal, had in his judgment, relied on a certain passage from the speech of Lord Wedderburn in Parliament as reported in Hansard (Parliamentary Reports) in support of the view taken by him.
The counsel for the parties had had no inkling or information that recourse was likely to be had by the Judge to this source, as it had been authoritatively held by the House of Lords in Davis vs Johns; , that these reports should not be referred to by counsel or relied upon by the court for any purpose.
Commenting on this aspect, Lord Diplock observed: "Under our adversary system of procedure, for a judge to disregard the rule by which counsel are bound has the effect of depriving the parties to the action of the benefit of one of the most fundamental rules of natural justice: the right of each to be informed of any point adverse to him that is going to be relied upon by the judge and to be given an opportunity of stating what his answer to it is.
In the instant case, counsel for Hamilton and Bould complained that Lord Denning M.R. had selected one speech alone to rely upon out of many that had been made . and that, if he has counsel had known that (Lord Denning) was going to do that, not only would he have wished to criticise what Lord Wedderburn had said in his speech . . but he would also have wished to rely on other speeches disagreeing with Lord Wedderburn if he, as counsel, had been entitled to refer to Hansard . ." The position is somewhat worse in the present case.
Unlike the Hamilton case (supra) where the Judge had only used Hansard to deal with an issue that arose in the appeal, the direction in the present case was something totally alien to the scope of the appeal, on an issue that was neither raised nor debated in the course of the hearing and completely unexpected.
Shri Jethmalani submitted that, when the judgment was announced, counsel for the complainant (present respondent) had made an oral request that the trial be transferred to the High Court and that the Judges replied that they had already done that.
He submitted that, at that time and subsequently, the appellant could have protested and put forward his objections but did not and had thus 142 acquiesced in a direction which was, in truth, beneficial to him as this Court had only directed that he should be tried by a High Court Judge, a direction against which no one can reasonably complain.
This aspect of the respondent 's arguments will be dealt with later but, for the present, all that is necessary is to say that the direction must have come as a surprise to the appellant and had been issued without hearing him on the course proposed to be adopted.
Conclusion 27.
To sum up, my conclusion on issue A is that the direction issued by the Court was not warranted in law, being contrary to the special provisions of the 1952 Act.
was also not in conformity with the principles of natural justice and that, unless the direction can be justified with reference to section 407 of the Cr. P.C., the petitioner 's fundamental rights under Articles 14 and 21 can be said to have been infringed by reason of this direction.
This takes me on to the question whether it follows as a consequence that the direction issued can be, or should be, recalled, annulled, revoked or set aside by us now.
B. CAN AND SHOULD THE DIRECTION OF 16.2.84 BE RECALLED? 28.
It will be appreciated that, whatever may be the ultimate conclusion on the correctness, propriety or otherwise of the Court 's direction dated 16.2.1984, that was a direction given by this Court in a proceeding between the same parties and the important and farreaching question that falls for consideration is whether it is at all open to the appellant to seek to challenge the correctness of that direction at a later stage of the same trial.
Is a review possible? 29.
The first thought that would occur to any one who seeks a modification of an order of this Court, particularly on the ground that it contained a direction regarding which he had not been heard, would be to seek a review of that order under Article 137 of the Constitution read with the relevant rules.
Realising that this would be a direct and straight forward remedy, it was contended for the appellant that the present appeal may be treated as an application for such review.
The power of review is conferred on this Court by Article 137 of the Constitution which reads thus: 143 "Subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.
" It is subject not only to the provisions of any law made by Parliament (and there is no such law so far framed) but also to any rules made by this Court under Article 145.
This Court has made rules in pursuance of article 145 which are contained in order XL in Part VIII of the Supreme Court Rules.
Three of these rules are relevant for our present purposes.
They read as follows: "(1) The Court may review its judgment or order, but no appliction for review will be entertained in a civil proceeding except on the ground mentioned in order XLVII, rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record.
(Z) An application for review shall be by a petition.
and shall be filed within thirty days from the date of the judgment or order sought to be reviewed.
It shall set out clearly its grounds for review.
(3) Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments.
The court may either dismiss the petition or direct notice to the opposite party.
An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed.
It is contended on behalf of the respondent that the present pleas of the appellant cannot be treated as an application for review, firstly, because they do not seek to rectify any error apparent on the face of the record; secondly, because the prayer is being made after the expiry of the period of thirty days mentioned in rule 2 and there is no sufficient cause for condoning the delay in the making of the application and thirdly, for the reason that a review petition has to be listed as far as practicable before the same Judge or Bench of Judges that delivered the order sought to be reviewed and in this case at least two of the learned Judges, who passed the order on 16.2.1984, are still available to consider the application for review.
These grounds may now be considered.
144 32.
For reasons which I shall later discuss, I am of opinion that the order dated 16.2.1984 does not suffer from any error apparent on the face of the record which can be rectified on a review application.
So far as the second point is concerned, it is common ground that the prayer for review has been made beyond the period mentioned in Rule 2 of order XL of the Supreme Court Rules.
No doubt this Court has power to extend the time within which a review petition may be filed but learned counsel for the respondent vehemently contended that this is not a fit case for exercising the power of condonation of delay.
It is urged that, far from this being a fit case for the entertainment of the application for review beyond the time prescribed, the history of the case will show that the petitioner has deliberately avoided filing a review petition within the time prescribed for reasons best known to himself .
In support of his contention, learned counsel for the respondent invited our attention to the following sequence of events and made the following points: (a) The order of this Court was passed on 16.2.1984.
At the time of the pronouncement of the said order, counsel for the present respondent had made a request that the trial of the case may be shifted to the High Court and the Court had observed that a direction to this effect had been included in the judgment.
Even assuming that there had been no issues raised and no arguments advanced on the question of transfer at the time of the hearing of the appeals, there was nothing to preclude the counsel for the appellant, when the counsel for the complainant made the above request, from contending that it should not be done, or, at least, that it should not be done without further hearing him and pointing out this was not a matter which had been debated at the hearing of the appeal.
But no, the counsel for the accused chose to remain quiet and did not raise any objection at that point of time.
He could have filed a review application soon thereafter but he did not do so.
Perhaps he considered, at that stage, that the order which after all enabled him to be tried by a High Court Judge in preference to a Special Judge was favourable to him and, therefore, he did not choose to object.
(b) The matter came up before the trial judge on 13th March, 1984.
The accused, who appeared in person, stated that he 145 did not want to engage any counsel "at least for the present '.
A He would not put down his arguments in writing and when he argued the gravemen of his attack was that this Court 's order transferring the trial from the Special Judge to the High Court was wrong on merits.
Naturally, the learned Judge found it difficult to accept the contention that he should go behind the order of the Supreme Court.
He rightly pointed out that if the accused had any grievance to make, his proper remedy was to move the Supreme Court for review of its judgment or for such further directions or clarifications as may be expedient.
Thus, as early as 13th March, 1984, Khatri, J., had given a specific opportunity to the accused to come to this Court and seek a review of the direction.
it can perhaps be said that on 16.2.1984, when this Court passed the impugned direction, the appellant was not fully conscious of the impact of the said direction and that, therefore, he did not object to it immediately.
But, by the 13th March, 1984, he had ample time to think about the matter and to consult his counsel.
The appellant himself was a barrister.
He chose not to engage counsel but to argue himself and, even after the trial court specifically pointed out to him that it was bound by the direction of this Court under articles 141 and 144 of the Constitution and that, if at all, his remedy was to go to the Supreme Court by way of review or by way of an application for clarification, he chose to take no action thereon.
c) on 16th March, 1984, Khatri, J. disposed of the preliminary objections raised by the accused challenging the jurisdiction and competence of this Court to try the accused.
Counsel for the respondent points out that, at the time of the hearing, the appellant had urged before Khatri, J. all the objections to the trial, which he is now putting forth.
These objections have been summarised in paragraph 3 of the order passed by the learned Judge and each one of them has been dealt with elaborately by the learned Judge.
It has been pointed out by him that the Supreme Court was considering not only the appeals preferred by the accused and the complainant, namely, Crl.
Appeal Nos.
246, 247 and 356 of 1983 but also two revision petitions being C.R. Nos. 354 'and 359 of 1983 which had been withdrawn by the Supreme Court to itself for disposal along with Crl.
Appeal No. 356 of 1983.
A little later in the order the learned Judge pointed out that, even 146 assuming that in the first instance the trial can be conducted only by a Special Judge, the proceedings could be withdrawn by the high Court to itself under powers vested in it under Article 228(a) of the Constitution as well as section 407 of the Cr.
When the criminal revisions stood transferred to the Supreme Court (this was obviously done under Article 139 A though that article is not specifically mentioned in the judgment of the Supreme Court), the Supreme Court could pass the order under Article 139 A read with Article 142.
The learned Judge also disposed of the objections based on Article 21.
He pointed out that as against an ordinary accused person tried by a special judge, who gets a right of appeal to the High Court, a court of superior jurisdiction, with a further right of appeal to the Supreme Court under section 374 of the Cr.
P.C. and that an order of transfer passed in the interest of expeditious disposal of a trial was primarily in the interests of the accused and could hardly be said to be pre judicial to the accused.
Despite the very careful and fully detailed reasons passed by the High Court, the appellant did not choose to seek a review of the earlier direction.
(d) Against the order of the learned Judge dated 16.3.1984 the complainant came to the Court because he was dissatisfied with certain observations made by the trial Judge in regard to the procedure to be followed by the High Court in proceeding with the trial.
This matter was heard in open court by same five learned Judges who had disposed of the matter earlier on 16.2.1984.
The accused was represented by a senior counsel and the Government of Maharashtra had also engaged a senior counsel to represent its case.
Even at this hearing the counsel for the appellant did not choose to raise any objection against the direction given in the order dated 16.2.1984.
The appeal before the Supreme Court was for getting a clarification of the very order dated 16.2.1984.
This was a golden opportunity for the appellant also to seek a review or clarification of the impugned direction, if really he had a grievance that he had not been heard by the Court before it issued the direction and that it was also contrary to the provisions of the 1952 Act as well as violative of the rights of the accused under article 21 of the Constitution.
(e) The petitioner instead filed two special leave petitions and a writ petition against the orders of Khatri.
J. dated 13.3.1984 147 and 16.3.1984.
In the writ petition, the petitioner had mentioned that the impugned direction had been issued without hearing him.
In these matters counsel for the accused made both oral and written submissions and all contentions and arguments, which have now been put forward, had been raised in the written arguments.
The appeals and writ petition were disposed of by this Court.
This Court naturally dismissed the special leave petitions pointing out that the High Court was quite correct in considering itself bound by the directions of the Court.
The Court also dismissed the writ petition as without merit.
But once again it observed that the proper remedy of the petitioner was elsewhere and not by way of a writ petition.
These two orders, according to the learned counsel for the respondent, conclude the matter against the appellant.
The dismissal of the writ petition reminded the petitioner of his right to move the Court by other means and, though this advice was tendered as early as 17.4.1984, the petitioner did nothing.
So far as the special leave petition was concerned, its dismissal meant the affirmation in full of the decision given by Justice Khatri dismissing and disposing of all the objections raised by the petitioner before him.
Whatever may have been the position on 16.2.1984 or 16.3.1984, there was absolutely no explanation or justification for the conduct of the petitioner in failing to file an application for review between 17.4.1984 and october, 1986.
Recounting the above history, which according to him fully explained the attitude of the accused, learned counsel for the respondent submitted that in his view the appellant was obviously trying to avoid a review petition perhaps because it was likely to go before the same learned Judges and he did not think that he would get any relief and perhaps also because he might have felt that a review was not an adequate remedy for him as, under the rules, it would be disposed of in chamber without hearing him once again.
But, whatever may be the reason, it is submitted, the delay between April 1984 and october, 1986 stood totally unexplained and even now there was no proper review petition before this Court.
In the circumstances, it is urged that this present belated prayer for review.
There is substance in these contentions.
The prayer for review is being made very belatedly, and having regard to the circumstances outlined above there is hardly any reason to condone the 148 delay in the prayer for review.
The appellant was alive to all his present contentions as is seen from the papers in the writ petition.
At least when the writ petition was dismissed as an inappropriate remedy, he should have at once moved this Court for review.
The delay from April 1984 to october 1986 is totally inexplicable.
That apart, there is also validity in the respondent 's contention that.
even if we are inclined to condone the delay, the application will have to be heard as far as possible by the same learned Judges who disposed of the earlier matter.
In other words, that application will have to be heard by a Bench which includes the two learned Judges who disposed of the appeal on 16.2.1984 and who are still available in this Court to deal with any proper review application, that may be filed.
However, since in my view, the delay has not been satisfactorily explained, I am of opinion that the prayer of the appellant that the present pleas may be treated as one in the nature of a review application and the appellant given relief on that basis has to be rejected.
Is a writ maintainable? 36.
This takes one to a consideration of the second line of attack by the appellant 's counsel.
His proposition was that a judicial order of a court even the High Court or this Court may breach the principles of natural justice or the fundamental rights and that, if it does so, it can be quashed by this Court in the exercise of its jurisdiction under Article 32.
In other words, the plea would seem to be that the present proceedings may be treated as in the nature of a writ petition to quash the impugned order on the above ground.
The earliest of the cases relied upon to support this contention is the decision in Prem Chand Garg vs Excise Commissioner, [1963] Supp. 1 S.C.R. 885, which may perhaps be described as the sheet anchor of the appellant 's contentions on this point.
The facts of that case have been set out in the judgment of Sabyasachi Mukharji, J. and need not be repeated.
The case was heard by a Bench of five judges.
Four of them, speaking through Gajendragadkar, J. held that Rule 12 of order XXXV of the Supreme Court Rules violated Article 32 and declared it invalid.
This also set aside an earlier order dated 12.12.1961 passed by the Court in pursuance of the rule calling upon the petitioner to deposit cash security.
Sri Rao contended that this case involved two separate issues for consideration by the Court: (a) the validity of the rule and (b) the validity of the order dated 12.12.1961; and that the decision is authority not only for the proposition that a writ petition under Article 32 could be filed to Impugn the constitutional validity of a rule but also for the proposition that the Court could entertain a writ petition to set aside a judicial 149 Order passed by the Court earlier on discovering that it is inconsistent with the fundamental rights of the petitioner.
Counsel submitted that an impression in the minds of some persons that the decision in Prem Chand Garg is not good law after the decision of the nine Judge Bench in Naresh Sridhar Mirajkar vs State, [1966]3 S.C.R. 744 is incorrect.
He submitted that, far from Garg 's case being overruled, it has been confirmed in the later case.
Mirajkar was a case in which the validity of an interlocutory order passed by a judge of the Bombay High Court pertaining to the publication of reports of the proceedings in a suit pending before him was challenged by a journalist as violating his fundamental rights under Article 19 of the Constitution.
The matter came to the Supreme Court by way of a writ petition under Article 32.
The validity of the order was upheld by the majority of the Judges while Hidayatullah J. dissented.
In this connection it is necessary to refer to a passage at p. 767 in the judgment of Gajendragadkar, C.J. "Mr. Setalvad has conceded that if a court of competent jurisdiction makes an order in a proceeding before it, and the order is inter partes, its validity cannot be challenged by invoking the jurisdiction of this Court under article 32, though the said order may affect the aggrieved party 's fundamental rights.
His whole argument before us has been that the impugned order affects the fundamental rights of a stranger to the proceeding before the Court; and that, he contends, justifies the petitioners in moving this Court under Artc.
It is necessary to examine the validity of this argument.
The question before the Supreme Court was thus as to whether, even at the instance of a stranger to the earlier proceedings, the earlier order could be challenged by means of a writ petition under Article 32.
One of the questions that had to be considered by the Court was whether the judicial order passed by the learned judge of the High Court was amenable to be writ jurisdiction of the Court under Article 32.
On this question, the judges reacted differently: (i) Gajendragadkar, CJ and Wanchoo, Mudholkar, Sikri and Ramaswamy, JJ.
had this to say: "The High Court is a superior Court of Record and it is for it to consider whether any matter falls within its jurisdiction 150 Or not.
The order is a judicial order and if it is erroneous, a person aggrieved by it, though a stranger, could move this Court under Article 136 and the order can be corrected in appeal but the question about the existence of the said jurisdiction as well as the validity or the propriety of the order cannot be raised in writ proceedings under article 32. ', (ii) Sarkar J. also concurred in the view that this Court had no power to issue a certiorari to the High Court.
He observed: "I confess the question is of some haziness.
That haziness arises because the courts in our country which have been given the power to issue the writ are not fully analogous to the English courts having that power.
We have to seek a way out for ourselves.
Having given the matter my best consideration, I venture to think that it was not contemplated that a High Court is an inferior court even though it is a court of limited jurisdiction.
The Constitution gave power to the High Court to issue the writ.
In England, an inferior court could never issue the writ.
I think it would be abhorrent to the principle of certiorari if a Court which can itself issue the writ is to be made subject to be corrected by a writ issued by another court.
When a court has the power to issue the writ, it is not according to the fundamental principles of certiorari, an inferior court or a court of limited jurisdiction.
It does not cease to be so because another Court to which appeals from it lie has also the power to issue the writ.
That should furnish strong justification for saying that the Constitution did not contemplate the High Courts to be inferior courts so that their decisions would be liable to be quashed by writs issued by the Supreme Court which also had been given power to issue the writs.
Nor do I think that the cause of justice will in any manner be affected if a High Court is not made amenable to correct by this Court by the issue of the writ.
In my opinion, therefore, this Court has not power to issue a certiorari to a High Court.
" (iii) Bachawat J. held: "The High Court has jurisdiction to decide if it could restrain the publication of any document or information relating to the trial of a pending suit or concerning which the 151 suit is brought, if it erroneously assume a jurisdiction not vested in it, its decision may be set aside in appropriate proceedings but the decision is not open to attack under Article 32 on the ground that it infringes the fundamental right under Article 19(1)(a).
If a stranger is prejudiced by an order forbidding the publication of the report of any proceeding, his proper course is only to apply to the Court tn lift the ban " (iv) Justice Shah thought that, in principle, a writ petition could perhaps be filed to challenge an order of a High Court on the ground that it violated the fundamental rights of the petitioner under Articles 20, 21 and 22 but he left the question open.
He, however, concluded that an order of the nature in issue before the Court could not be said to infringe Article 19.
Hidayatullah J., as His Lordship then was, however, dissented.
He observed: "Even assuming the impugned order means a temporary suppression of the evidence of the witness, the trial Judge had no jurisdiction to pass the order.
As he passed no recorded order, the appropriate remedy (in fact the only effective remedy) is to seek to quash the order by a writ under Article 32.
There may be action by a Judge which may offend the fundamental rights under articles 14, 15, 19, 20, 21 and 22 and an appeal to this Court will not only be practicable but will also be an ineffective remedy and this Court can issue a writ to the High Court to quash its order under Article 32 of the Constitution.
Since there is no exception in Article 32 in respect of the High Courts there is a presumption that the High Courts are not excluded.
Even with the enactment of Article 226, the power which is conferred on the High Court is not in every sense a coordinate power and the implication of reading articles 32, 136 and 226 together is that there is no sharing of the powers to issue the prerogative writs possessed by this Court.
Under the total scheme of the Constitution, the subordination of the High Courts to the Supreme Court is not only evident but is logical." His Lordship proceeded to meet an objection that such a course might 152 cast a slur on the High Courts or open the floodgates of litigation.
He observed: "Article 32 is concerned with Fundamental Rights and Fundamental Rights only.
It is not concerned with breaches of law which do not involve fundamental rights directly.
The ordinary writs of certiorari, mandamus and prohibition can only issue by enforcement of Fundamental Rights.
A clear cut case of breach of Fundamental Right alone can be the basis for the exercise of this power.
I have already given examples of actions of courts and judges which are not instances of wrong judicial orders capable of being brought before this court only by appeal but breaches of Fundamental Rights clear and simple.
Denial of equality as for example by excluding members of a particular party or of a particular community from the public court room in a public hearing without any fault, when others are allowed to stay on would be a case of breach of fundamental right of equal protection given by this Constitution.
Must an affected person in such a case ask the Judge to write down his order, so that he may appeal against it? or is he expected to ask for special leave from this Court? If a High Court judge in England acted improperly, there may be no remedy because of the limitations on the rights of the subject against the Crown.
But in such circumstances in England the hearing is considered vitiated and the decision voidable.
This need not arise here.
The High Court in our country in similar circumstances is not immune because there is a remedy to move this court for a writ against discriminatory treatment and this Court should not in a suitable case shirk to issue a writ to a High Court Judge, who ignores the fundamental rights and his obligations under the Constitution.
Other cases can easily be imagined under Article 14, 15, 19, 20, 21 and 22 of the Constitution, in which there may be action by a Judge which may offend the fundamental rights and in which an appeal to this Court will not only be not practicable but also quite an ineffective remedy.
We need not be dismayed that the view I take means a slur on the High Courts or that this Court will be flooded with petitions under Article 32 of the Constitution.
Although the High Courts possess a power to interfere by way of high 153 prerogative writs of certiorari, mandamus and prohibition, such powers have not been invoked against the normal and routine work of subordinate courts and tribunals.
The reason is that people understand the difference between an approach to the High Court by way of appeals etc.
and approach for the purpose of asking for writs under Article 226.
Nor have the High Courts spread a Procrustean bed for high prerogative writs for all actions to lie.
Decisions of the courts have been subjected to statutory appeals and revisions but the losing side has not charged the Judge with a breach of fundamental rights because he ordered attachment of property belonging to a stranger to the litigation or by his order affected rights of the parties or even strangers.
This is because the people understand the difference between normal proceedings of a civil nature and proceedings in which there is a breach of fundamental rights.
The courts acts, between parties and even between parties and strangers, done impersonally and objectively are challengeable under the ordinary law only.
But acts which involve the court with a fundamental right are quite different.
" One more passage from the judgment needs to be quoted.
Observed the learned Judge: "I may dispose of a few results which it was suggested, might flow from my view that this Court can issue a high prerogative writ to the High Court for enforcement of fundamental rights.
It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another judge or Bench in the same Court.
This is an erroneous assumption.
To begin with High Courts cannot issue a writ to the Supreme Court because the writ goes down and not up.
Similarly, a High Court cannot issue a writ to another High Court.
The writ does not go to a court placed on an equal footing in the matter of jurisdiction XX XX XX I must hold that this English practice of not issuing writs in the same court is in the very nature of things.
One High Court will thus not be able to issue a writ to another High 154 Court nor even to a court exercising the powers of the High Court.
In so far as this Court is concerned, the argument that one Bench or one Judge might issue a writ to another Bench or Judge, need hardly be considered.
My opinion gives no support to such a view and I hope I have said nothing to give countenance to it.
These are imaginary fears which have no reality either in law or in fact.
I have set out at length portions from the judgment of Hidayatullah, J. as Shri Rao placed considerable reliance on it.
From the above extracts, it will be seen that the majority of the Court was clearly of opinion that an order of a High Court cannot be challenged by way of a writ petition under Article 32 of the Constitution on the ground that it violates the fundamental rights, not even at the instance of a person who was not at all a party to the proceedings in which the earlier order was passed.
Even Hidayatullah, J. has clearly expressed the view that, though a writ of certiorari might issue to quash the order of a High Court in appropriate case, it cannot lie from a Bench of one court to another Bench of the same High Court.
Subba Rao, C.J. has also made an observation to like effect in regard to High Court Benches inter se in Ghulam Sarwar vs Union; , The decision in Prem Chand Garg, seems to indicate to the contrary.
But it is clearly distinguishable and has been distinguished by the nine judge Bench in Mirajkar.
The observations of Gujendragadkar, C.J. (at p. 766), and Sarkar, J. (at p. 780), be seen in this context.
In that case, it is true that the order passed by the Court directing the appellant to deposit security was also quashed but that was a purely consequential order which followed on the well founded challenge to the validity of the rule.
Hidayatullah, J. also agreed that this was so and explained that the judicial decision which was based on the rule was only revised.
(p.790).
Sri Rao also referred to Sadhanatham vs Arunachalam; , In that case, the petitioner was acquitted by the High Court, in appeal, of charges under section 302 and 148 of the Indian Penal Code.
The brother of the deceased, not the State or the informant, petitioned this court under Article 136 of the Constitution for special leave to appeal against the acquittal.
Leave was granted and his appeal was eventually allowed by the High Court.
The judgment of the High Court was set aside and the conviction and sentence imposed by the trial court under section 302 was upheld by the Supreme Court in his earlier decision reported in ; Thereupon, the petitioner filed a writ petition under Article 32 of the Constitution, 155 challenging the validity of the earlier order of this Court.
Eventually, the petition was dismissed on the merits of the case.
However, learned counsel for the appellant strongly relied on the fact that in this case a Bench of five judges of this Court entertained a petition under Article 32 to reconsider a decision passed by it in an appeal before the Court.
He submitted that it was inconceivable that it did not occur to the learned judges who decided the case that, after Mirajkar, a writ petition under Article 32 was not at all entertainable.
He, therefore, relied upon this judgment as supporting his proposition that in an appropriate case this court can entertain a petition under Article 32 and review an earlier decision of this court passed on an appeal or on a writ petition or otherwise.
This decision, one is constrained to remark, is of no direct assistance to the appellant.
It is no authority for the proposition that an earlier order of the court could be quashed on the ground that it offends the Fundamental Right.
As the petition was eventually dismissed on the merits, it was not necessary for the court to consider whether, if they had come to the conclusion that the earlier order was incorrect or invalid, they would have interfered therewith on the writ petition filed by the petitioner.
Two more decisions referred to on behalf of the appellant may be touched upon here.
The first was the decision of this Court in Attorney General vs Lachma Devi, AIR 1986 S.C. 467.
In that case the High Court had passed an order that certain persons found guilty of murder should be hanged in public.
This order was challenged by a writ petition filed under article 32 by the Attorney General of India, on the ground that it violated Article 21 of the Constitution.
This petition was allowed by this Court.
The second decision on which reliance was placed is that in Sukhdas vs Union Territory, ; In that case the petitioner, accused of a criminal offence had not been provided with legal assistance by the court.
The Supreme Court pointed out that this was a constitutional lapse on the part of the court and that the conviction on the face of the record suffered from a fatal infirmity.
These decisions do not carry the petitioner any further.
Sukhdas was a decision on an appeal and Lachma Devi does not go beyond the views expressed by Hidayatullah, J. and Shah, J. in Mirajkar.
On a survey of these decisions, it appears to me that Prem Chand Garg cannot be treated as an authority for the proposition that an earlier order of this Court could be quashed by the issue of a writ on the ground that it violated the fundamental rights.
Mirajkar clearly precludes such a course.
It is, therefore, not possible to accept the 156 appellant 's plea that the direction dated 16.2.1984 should be quashed on the grounds put forward by the petitioner.
Inherent power to declare orders to be null and void 43.
The next line of argument of learned counsel for the appellant is that the order dated 16.2.1984, in so far as it contained the impugned direction, was a complete nullity.
Being an order without jurisdiction, it could be ignored by the person affected or challenged by him at any stage of the proceedings before any Court, particularly in a criminal case, vide Dhirendra Kumar vs Superintendent, ; Counsel also relied on the following observations made in Kiran Singh v .
Chaman Paswan, [AIR ; "The answer to these contentions must depend on what the position in law is when a Court entertains a suit or an appeal over which it has no jurisdiction, and what the effect of Section 11 of the Suits Valuation Act is on that position.
It is a fundamental princple well established that a decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings.
A defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such a defect cannot be cured even by consent of parties.
If the question now under consideration fell to be determined only on the application of general principles governing the matter, there can be no doubt that the District Court of Monghyr was coram non judice, and that its judgments and decree would be nullities.
(emphasis added) He also extensively quoted from the dicta of this Court in M. L. Sethi vs R.P. Kapur, ; , where after setting out the speeches of Lord Reid and Lord Pearce in Anisminic Ltd. vs Foreign Compensation Commissioner, ; this Court observed: "The dicta of the majority of the House of Lords in the above case would show the extent to which 'lack ' and 'excess ' of jurisdiction have been assimilated or, in other words, the extent to which we have moved away from the 157 traditional concept of "jurisdiction".
The effect of the dicta in that case is to reduce the difference between jurisdictional error and error of law within jurisdiction almost to vanishing point.
The practical effect of the decision is that any error of law can be reckoned as jurisdictional.
This comes perilously close to saying that there is jurisdiction if the decision is right in law but none if it is wrong.
Almost any misconstruction of a statute can be represented as "basing their decision on a matter with which they have no right to deal", "impose an unwarranted condition" or "addressing themselves to a wrong question.
" The majority opinion in the case leaves a Court or Tribunal with virtually no margin of legal error.
Whether there is excess or jurisdiction or merely error within jurisdiction can be determined only by construing the empowering statute, which will give little guidance.
It is really a question of how much latitude the Court is prepared to allow.
In the end it can only be a value judgment (see R.W.R. Wade, "Constitutional and Administrative Aspects of the Anisintic case", Law Quarterly Review, Vo. 85, 1969 p. 198).
Why is it that a wrong decision on a question of limitation or res judicata was treated as a jurisdictional error and liable to be interfered with in revision? It is a bit difficult to understand how an erroneous decision on a question of limitation or res judicata could oust the jurisdiction of the Court in the primitive sense of the term and render the decision or a decree embodying the decision a nullity liable to collateral attack.
The reason can only be that the error of law was considered as vital by the Court.
And there is no yardstick to determine the magnitude of the error other than the opinion of this Court.
" He also referred to Badri Prasad vs Nagarmal, [1959] 1 Supp.
S.C.R. 769 which followed the clear law laid down in Surajmul Nagarmul vs Trilon Insurance Co. Ltd., [1924] L.R. 52 I.A. 126, Balai Chandra Hazra vs Shewdhari Jadav, ; which followed Ledgard vs Bull, (L.R. 13 I.A. 134; Meenakshi Naidu vs Subramaniya Sastri, L.R. 14 I.A. 140 and Sukhrani vs Hari Shankar, ; Sri Rao, citing a reference from Halsbury 's Laws of England (4th Edition) Vol.
X, para 713, pages 321 2, contended that the High Court 's jurisdiction clearly stood excluded by section 7(1) of the 1952 Act and, hence, the direction of the Supreme Court was also one without jurisdiction.
158 44.
In dealing with this contention, one important aspect of the concept of jurisdiction has to be borne in mind.
As pointed out by Mathew J. in Kapur vs Sethi, (supra), the word "jurisdiction is a verbal coat of many colours.".
It is used in a wide and broad sense while dealing with administrative or quasi judicial tribunals and subordinate courts over which the superior courts exercise a power of judicial review and superintendence.
Then it is only a question of "how much latitude the court is prepared to allow" and "there is no yardstick to determine the magnitude of the error other than the opinion of the court.
" But the position is different with superior courts with unlimited jurisdiction.
These are always presumed to act with jurisdiction and unless it is clearly shown that any particular order is patently one which could not, on any conceivable view of its jurisdiction, have been passed by such court, such an order can neither be ignored nor even recalled, annulled, revoked or set aside in subsequent proceedings by the same court.
This distinction is well brought out in the speeches of Lord Diplock, Lord Edmund Devier and Lord Scarman in Re. Racal Communications Ltd.; , In the interests of brevity, I resist the temptation to quote extracts from the speeches here.
In the present case, the order passed is not one of patent lack of jurisdiction, as I shall explain later.
Though I have come to the conclusion, on considering the arguments addressed now before us, that the direction in the order dated 16.2.1984 cannot be justified by reference to Article 142 of the Constitution or section 407 of the 1973 Cr.
P.C., that is not an incontrovertible position.
It was possible for another court to give a wider interpretation to these provisions and come to the conclusion that such an order could be made under those provisions.
If this Court had discussed the relevant provisions and specifically expressed such a conclusion, it could not have been modified in subsequent proceedings by this Bench merely because we are inclined to hold differently.
The mere fact that the direction was given, without an elaborate discussion, cannot render it vulnerable to such review.
Shri P.P. Rao then placed considerable reliance on the observations of the Privy Council in Isaacs vs Robertson, [1984] 3 A.E.R.140 an appeal from a decision of the Court of Appeal of St. Vincent and the Grenadines.
Briefly the facts were that Robertson had obtained an interim injunction against Isaacs and two others on 31.5.1979 which the latter refused to obey.
The respondents motion for committal of the appellant for contempt was dismissed by the High Court of Saint Vincent.
The Court of Appeal allowed the respondents 159 application; the appellants were found to be in contempt and also asked to pay respondents costs.
However, no penalty was inflicted because the appellant would have been entitled to succeed on an application for setting aside the injunction, has he filed one.
The main attack by the appellant on the Court of Appeal 's judgment was based on the contention that, as a consequence of the operation of certain rules of the Supreme Court of St. Vincent, the interlocutory injunction granted by the High Court was a nullity: so disobedience to it could not constitute a contempt of court.
Lord Diplock observed: Glosgow J. accepted this contention, the Court of Appeal rejected it, in their Lordships ' view correctly, on the short and well established ground that an order made by a court of unlimited jurisdiction, such as the High Court of Saint Vincent must be obeyed unless and until it has been set aside by the court.
For this proposition Robotham AJA cited the passage in the judgment of Romer L.J. in Hadkinson vs Hadkinson, at at 288.
It is the plain and unqualified obligation of every person against, or in respect of whom an order is made by a Court of competent jurisdiction to obey it unless and until that order is discharged.
The uncompromising nature of this obligation is shown by the fact that it extends even to cases where the person affected by an order believes it to be irregular or even void.
Lord Cotteniiam, Leven to cases where the person affected by an order believes it to be irregular or even void.
Lord Cotteniiam, L.C. said in Chuck vs Cremer, ; at 342, 47 E.R.884 at 855: "A party, who knows of an order, whether null or valid, regular or irregular, cannot be permitted to disobey it .
It would be most dangerous to hold that the suitors, or their solicitors, could themselves judge whether an order was null or valid whether it was regular or irregular.
That they should come to the court and not take upon themselves to determine such a question.
That the course of a party knowing of an order, which was null or irregular, and who might be affected by it, was plain.
He should apply to the Court that it might be discharged.
As long as it existed it must not be obeyed.
" Such being the nature of this obligation, two consequences will, in general, follow from its breach.
The first is that anyone who dis 160 obeys an order of the court. .is in contempt and may be published by committal or attachment or otherwise.
It is in their Lordships view, says all that needs to be said on this topic.
It is not itself sufficient reason for dismissing this appeal.
Having said this, the learned Law Lord proceeded to say: "The cases that are referred to in these dicta do not support the proposition that there is any category of orders of a court of unlimited jurisdiction of this kind, what they do support is the quite different proposition that there is a category of orders of such a court which a person affected by the order is entitled to apply to have set aside ex debito justitiae in the exercise of the inherent jurisdiction of the court without his needing to have recourse to the rules that deals expressly with proceedings to set aside orders for irregularity and give to the Judge a discretion as to the order he will make.
The judges in the case that have drawn the distinction between the two types of orders have cautiously refrained from seeking to lay down a comprehensive definition of defects that bring an order in the category that attracts ex debito justitiae the right to have it set aside save that specifically it includes orders that have been obtained in breach of rules of natural justice.
The contrasting legal concepts of voidness and voidability form part of the English law of contract.
They are inapplicable to orders made by a court of unlimited jurisdiction in the course of contentions litigation.
Such an order is either irregular or regular.
If it is irregular it can be set aside by the court that made it on application to that court, if it is regular it can only be set aside by an appellate court on appeal if there is one to which an appeal lies.
" Sri Rao strongly relied on this passage and, modifying his earlier, somewhat extreme, contention that the direction given on 16.2.1984 being a nullity and without jurisdiction could be ignored by all concerned even by the trial judge he contended, on the strength of these observations, that he was at least entitled ex debito justitiae to come to this Court and request the court, in the interests of justice, to set aside the earlier order "without his needing to have recourse to the rules that deal expressly with proceedings to set aside orders for irre 161 gularity", if only on the ground that the order had been made in breach of the principles of natural justice.
Violation of the principles of natural justice, he contended, renders the direction a nullity without any further proof of prejudice (see Kapur vs Jagmohan, ; at 766) .
Learned counsel contended, in this context, that the fact the direction had been given in the earlier proceedings in this very case need not stand in the way of our giving relief, if we are really satisfied that the direction had been issued per incuriam, without complying with the principles of natural justice and purported to confer a jurisdiction on the High Court which it did not possess.
In this context he relied on certain decisions holding that an erroneous decision on a point of jurisdiction will not constitute res judicata.
In Mathura Prasad vs Dossibai, ; , this Court observed: "A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court.
If by an erroneous interpretation of the statute, the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata.
Similarly, by an erroneous decision, if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment.
The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be re opened.
A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties.
0 xxxxx xxxxx Where, however the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the court sanctioning something which is illegal, by resor to the rule of res judicata a party affected by the decision will not 162 be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.
" Counsel also relied on the decision of this Court in Ghulam Sarwar vs Union of India, [1956] 2 S.C.C.271, where it was held that the principle of constructive res judicata was not applicable to habeas corpus proceedings.
He also referred to the observations of D.A. Desai J. in Soni Vrijlal Jethalal vs Soni Jadavji Govindji, AIR 1972 Guj. 148 that no act of the court or irregularity can come in the way of justice being done and one of the highest and the first duty of all courts is to take care that the act of the court does no injury to the suitors.
He also made reference to the maxim that an act of, or mistake on the part, of a court shall cause prejudice to no one, vide: Jang Singh vs Brij Lal, ; at p. 159.
Relying on these decisions and passages from various treatises which I do not consider it necessary to set out in in extenso here, Sri Rao contended that this court should not consider itself bound by the earlier order of the Bench or any kind of technicality where the liberty of an individual and the rights guaranteed to him under Articles 14 and 21 of the Constitution are in issue.
It is urged that, if this Court agrees with him that the direction dated 16.2.1984 was an illegal one, this Court should not hesitate nay, it should hasten to set aside the said order and repair the injustice done to the appellant without further delay.
On the other hand, Sri Jethmalani vehemently urged that the present attempt to have the entire matter reopened constitutes a gross abuse of the process of court, that it is well settled that the principle of res judicata is also available in criminal matters (vide Bhagat Ram vs State, [1972] 2 S.C.C. 466 and State vs Tara Chand, [1973] S.C.c.
774) that in the United States the principle of res judicata governs even jurisdictional issues and that "the slightest hospitality to the accused 's pleas will lead to a grave miscarriage of justice and set up a precedent perilous to public interest.
I have given careful thought to these contentions.
The appellant 's counsel has relied to a considerable extent on the maxim "actus curiae neminem gravabit" for contending that it is not only within the power, but a duty as well, of this Court to correct its own mistakes in order to see that no party is prejudiced by a mistake of the Court.
I am not persuaded that the earlier decision could be reviewed on the application of the said maxim.
I share the view of my learned brother Venkatachaliah, J. that this maxim has very limited application and that it cannot be availed of to correct or review specific conclusions 163 arrived at in a judicial decision.
brother Venkatachaliah, J. has further taken the view that this Court cannot exercise any inherent powers for setting right any injustice that may have been caused as a result of an earlier order of the Court.
While alive to the consideration that "the highest court in the land should not, by technicalities of procedure, forge fetters on its own feet and disable itself in cases of serious miscarriages of justice", he has, nevertheless, come to the conclusion that "the remedy of the appellant, if any, is by recourse to article 137 and nowhere else.
" It is at this point that I would record a dissent from his opinion.
In my view, the decisions cited do indicate that situations can and do arise where this Court may be constrained to recall or modify an order which has been passed by it earlier and that when ex facie there is something radically wrong with the earlier order, this Court may have to exercise its plenary and inherent powers to recall the earlier order without considering itself bound by the nice technicalities of the procedure for getting this done.
Where a mistake is committed by a subordinate court or a High Court, there are ample powers in this Court to remedy the situation.
But where the mistake is in an earlier order of this Court, there is no way of having it corrected except by approaching this Court.
Sometimes, the remedy sought can be brought within the four comers of the procedural law in which event there can be no hurdle in the way of achieving the desired result.
But the mere fact that, for some reason, the conventional remedies are not available should not, in my view, render this Court powerless to give relief.
As pointed out by Lord Diplock in Isaac vs Robertson, [ 19841 3 A.E.R. 140, it may not be possible or prudent to lay down a comprehensive list of defects that will attract the ex debito justitiae relief.
Suffice it to say that the court can grant relief where there is some manifest illegality or want of jurisdiction in the earlier order or some palpable injustice is shown to have resulted.
Such a power can be traced either to article 142 of the Constitution or to the powers inherent in this Court as the apex court and the guardian of the Constitution.
It is, however, indisputable that such power has to be exercised in the "rarest of rare" cases.
As rightly pointed out by Sri Jethmalani, there is great need for judicial discipline of the highest order in exercising such a power, as any laxity in this regard may not only impair the eminence, dignity and integrity of this Court but may also lead to chaotic consequences.
Nothing should be done to create an impression that this Court can be easily persuaded to alter its views on any matter and that a larger Bench of the Court will not only be able to reverse the precedential effect of an earlier ruling but may also be 164 inclined to go back on it and render it ineffective in its application and binding nature even in regard to subsequent proceedings in the same case.
In Bengal Immunity Company Limited vs The State of Bihar and Ors., , this Court held that it had the power, in appropriate cases, to reconsider a previous decision given by it.
While concurring in this conclusion, Venkatarama Ayyar, J. sounded a note of warning of consequences which is more germane in the present context: "The question then arises as to the principles on which and the limits within which this power should be exercised.
It is of course not possible to enumerate them exhaustively, nor is it even desirable that they should not crystallised into rigid and inflexible rules.
But one principle stands out prominently above the rest, and that is that in general, there should be finality in the decisions of the highest courts in the land, and that is for the benefit and protection of the public.
In this connection, it is necessary to bear in mind that next to legislative enactments, it is decisions of Courts that form the most important source of law.
It is on the faith of decisions that rights are acquired and obligations incurred, and States and subjects alike shape their course of action.
It must greatly impair the value of the decisions of this Court, if the notion came to be entertained that there was nothing certain or final about them, which must be the consequence if the points decided therein came to be re considered on the merits every time they were raised.
It should be noted that though the Privy Council has repeatedly declared that it has the power to reconsider its decisions, in fact, no instance has been quoted in which it did actually reverse its previous decision except in ecclesiastical cases.
If that is the correct position, then the power to reconsider is one which should be exercised very sparingly and only in exceptiona1 circumstances, such as when a material provision of law had been overlooked, or where a fundamental assumption on which the decision is base(1 turns out to be mistaken.
In the present case, it is not suggested that in deciding the question of law as they did in The State of Bombay vs The United Motors (India) Ltd., [1953] S.C.R. l069 the learned Judges ignored any material provisions of law, or were under any misapprehension as to a matter fundamental to the decision.
The arguments for the appellant before us were in fact only a repetition of the 165 very contentions which were urged before the learned Judges and negatived by them.
The question then resolves itself to this.
Can we differ from a previous decision of this Court, because a view contrary to the one taken therein appears to be preferable? I would unhesitatingly answer it in the negative, not because the view previously taken must necessarily be infallible but because it is important in public interest that the law declared should be certain and final rather than that it should be declared in one sense.
Or the other.
That, I conceive, in the reason behind article 141.
There are questions of law on which it is not possible to avoid difference of opinion, and the present case is itself a signal example of it.
The object of article 141 is that the decisions of this Court on these questions should settle the controversy, and that they should be followed as law by all the Courts, and if they are allowed to be reopened because a different view appears to be the better one, then the very purpose with which article 141 has been enacted will be defeated, and the prospect will have been opened of litigants subjecting our decisions to a continuous process of attack before successive Benches in the hope that with changes in the personnel of the Court which time must inevitably bring, a different view might find acceptance.
I can imagine nothing more damaging to the prestige of this Court or to the value of its pronouncements.
In James vs Commonwealth, 18 C.L.R.54, it was observed that a question settled by a previous decision should not be allowed to be reopened "upon a mere suggestion that some or all of the Members of the later Court might arrive at a different conclusion if the matter was res integra.
Otherwise, there would be grave danger of want of continuity in the interpretation of the law" (per Griffiths, C.J. at p. 58).
It is for this reason that article 141 invests decisions of this Court with special authority, but the weight of that authority can only be what we ourselves give to it.
" Even in the context of a power of review, properly so called, Ven kataramiah, J. had this to say in Sheonandan Paswan vs State of Bihar & Ors., ; "The review petition was admitted after the appeal had been dismissed only because Nandini Satpathy cases, (1987 1 S.C.C.269 and 1987 lS.C.C.279) had been subsequently 166 referred to a larger bench to review the earlier decisions.
When the earlier decisions are allowed to remain intact, there is no justification to reverse the decision of this Court by which the appeal had already been dismissed.
There is no warrant for this extraordinary procedure to be adopted in this case.
The reversal of the earlier judgment of this Court by this process strikes at the finally of judgments of this Court and would amount to the abuse of the power of review vested in this Court, particularly in a criminal case.
It may be noted that no other court in the country has been given the power of review in criminal cases.
I am of the view that the majority judgment of Baharul Islam and R.B. Misra, JJ. should remain undisturbed.
This case cannot be converted into an apeal against the earlier decision of this Court " The attempt of the appellant here is more far reaching.
He seeks not the mere upsetting of a precedent of this Court nor the upsetting of a decision of a High Court or this Court in accordance with the normal procedure.
What he wants from us is a declaration that an order passed by a five judge Bench is wrong and that it should, in effect, be annulled by us.
This should not be done, in my view, unless the earlier order is vitiated by a patent lack of jurisdiction or has resulted in grave injustice or has clearly abridged the fundamental rights of the appellant.
The question that arises is whether the present case can be brought within the narrow range of exceptions which calls for such interference.
I am inclined to think that it does not.
I have indicated earlier, while discussing the contentions urged by Shri P.P. Rao that some of them were plausible and, that, if I were asked to answer these questions posed by counsel for the first time, I might agree with his answers.
But I have also indicated that, in my view, they do not constitute the only way of answering the questions posed by the learned counsel.
Thus, to the question: did this Court have the jurisdiction to issue the impugned direction, a plausible answer could well be that it did, if one remembers that one of the transferred cases before this Court was the revision petition before the Bombay High Court in which a transfer of the case to the High Court has been asked for and if one gives a wide interpretation to the provisions of Article 142 of the Constitution.
On the question whether this Court could transfer the case to a High Court Judge, who was not a Special Judge, a court could certainly accept the view urged by Sri Ram Jethmalani that section 7(1) of the 1952 Act should not be so construed 167 as to exclude the application of the procedural provisions of the Cr.
P.C. in preference to the view that has found favour with me.
Though the order dated 16.2.1984 contains no reference to, or discussion of, section 407 Cr.
P.C., this line of thinking of the judges who issued the direction does surface in their observations in their decision of even date rendered on the complainant 's special leave petition; , at page 943 4.I have already pointed out that, if the transfer is referable to section 407 of the 1973 Cr.
P.C., it cannot be impugned as offending Article 14 and 21 of the Constitution.
The mere fact that the judges did not discuss at length the facts or the provisions of section 407 Cr.
P.C. vis a vis the 1952 Act or give a reasoned order as to why they thought that the trial should be in the High Court itself cannot render their direction susceptible to a charge of discrimination.
A view can certainly be taken that the mere entrustment of this case to the High Court for trial does not perpetrate manifest or grave injustice.
On the other hand, prima facie, it is something beneficial to the accused and equitable in the interest of justice.
Such trial by the High Court, in the first instance, will be the rule in cases where a criminal trial is withdrawn to the High Court under section 407 of the Cr.
P.C. Or where a High Court judge has been constituted as a Special Judge either under the 1952 Act or some other statute.
The absence of an appeal to the High Court with a right of seeking for further leave to appeal to the Supreme Court may be considered outweighed by the consideration that the original trial will be in the High Court (as in Sessions cases of old, in the Presidency Towns) with a statutory right of appeal to the Supreme Court under section 374 of the Cr.
In this situation, it is difficult to say that the direction issued by this Court in the impugned order is based on a view which is manifestly incorrect, palpably absurd or patently without jurisdiction.
Whether it will be considered right or wrong by a different Bench having a second look at the issues is a totally different thing.
It will be agreed on all hands that it will not behove the prestige and glory of this Court as envisaged under the Constitution if earlier decisions are revised or recalled solely because a later Bench takes a different view of the issues involved.
Granting that the power of review is available, it is one to be sparingly exercised only in extraordinary or emergent situations when there can be no two opinion about the error or lack of jurisdiction in the earlier order and there are adequate reasons to invoke a resort to an unconventional method of recalling or revoking the same.
In my opinion, such a situation is not present here.
The only question that has been bothering me is that the appellant had been given no chance of being heard before the 168 impugned direction was given and one cannot say whether the Bench A would have acted in the same way even if he had been given such opportunity.
However, in the circumstances of the case, I have come to the conclusion that this is not a fit case to interfere with the earlier order on that ground.
It is true that the audi altarem partem rule is a basic requirement of the rule of law.
But judicial decisions also show that the degree of compliance with this rule and the extent of consequences flowing from failure to do so will vary from case to case.
Krishna Iyer, J. Observed thus in Nawabkhan Abbaskhan vs State, [1974]3 S.C.R. 4/7 thus: "an order which infringed a fundamental freedom passed in violation of the audi alteram partem rule was a nullity.
A determination is no determination if it is contrary to the constitutional mandate of article 19.
On this footing the externment order was of no effect and its violation was not offence.
Any order made without hearing the party affected is void and ineffectual to bind parties from the beginng if the injury is to a constitutionally guaranteed right.
May be that in ordinary legislation or at common law a Tribunal having jurisdiction and failing to hear the parties may commit an illegality which may render the proceedings voidable when a direct attack was made thereon by way of appeal, revision or review but nullity is the consequence of unconstitutionality and so the order of an administrative authority charged with the duty of complying with natural justice in the exercise of power before restricting the fundamental right of a citizen is void ab initio and of no legal efficacy.
The duty to hear menacles his jurisdictional exercise and any act is, in its inception, void except when performed in accordance with the conditions laid down in regard to hearing. " (emphasis added) So far as this case is concerned, I have indicated earlier that the direction Of 16.2.1984 cannot be said to have infringed the fundamental rights of the appellant or caused any miscarriage of justice.
As pointed out by Sri Jethmalani, the appellant did know, on 16.2.84, that the judges were giving such a direction and yet he did not protest.
Perhaps he did think that being tried by a High Court Judge would be more beneficial to him, as indeed was likely to be.
That apart, as discussed earlier, several opportunities were available for the appellant to set this right.
He did not move his little finger to obtain a variation of this 169 direction from this Court.
He is approaching the Court nearly after two years of his trial by the learned judge in the High Court.
Volumes of testimony, we are told, have been recorded and numerous exhibits have been admitted as evidence.
Though the trial is only at the stage of the framing charges, the trial being according to the warrant procedure, a lot of evidence has already gone in and the result of the conclusions of Sabyasachi Mukharji, J. would be to wipe the slate clean.
To take the entire matter back at this stage to square No. 1 would be the very negation of the purpose of the 1952 Act to speed up all such trials and would result in more injustice than justice from an objective point of view.
As pointed out by Lord Denning in R. vs Secretary of State for the Home Departrnent ex parte Mughal, l 19731 , the rules of natural justice must not be stretched too far.
They should not be allowed to be exploited as a purely technical weapon to undo a decision which does not in reality cause substantial injustice and which, had the party been really aggrieved thereby, could have been set right by immediate action.
After giving my best anxious and deep thought to the pros and cons of the situation I have come to the conclusion that this is not one of those cases in which I would consider it appropriate to recall the earlier direction and order a retrial of the appellant de novo before a Special Judge.
I would, therefore, dismiss the appeal.
O R D E R In view of the majority judgments the appeal is allowed; all proceedings in this matter subsequent to the directions of this Court on 16th February, 1984 as indicated in the judgment are set aside and quashed.
The trial shall proceed in accordance with law, that is to say, under the Act of 1952. | The appellant was the Chief Minister of Maharashtra between June 9, 1980 and January 12, 1982, when he resigned that office in deference to the judgment of High Court in a writ petition filed against him, but continued as an MLA.
On August 9, 1982, respondent No. 1, a member of a political party filed a complaint before a Special Judge against the appellant and others for offences under sections 161 and 165 of the Indian Penal Code and section 5 of the Criminal Law Amendment Act, 1952 and also under sections 384 and 420 read with sections 109 and 120B of the Indian Penal Code.
The Special Judge issued process to the appellant.
Later, the Special Judge over ruled the objection of the appellant to take cognizance of the offences on a private complaint, and to issue process, in the absence of notification under section 7(2) of the Criminal Law Amendment Act, 1952, specifying as to which of the three special Judges of the area should try such cases.
Against this, the appellant filed a revision application in the High Court, which dismissed it subsequently.
The appellant 's Special Leave Petition against this was dismissed by the Supreme Court which held that the complaint filed by respondent No. 1 was clearly maintainable and cognizance was properly taken of it.
During the pendency of the revision application in the High Court, the State Government notified the Special Judge to try the off 3 ences specified under section 6(1) of the Act and appointed another Special Judge, who discharged the appellant, holding that a member of the Legislative Assembly was a public servant and there was no valid sanction for prosecuting the appellant.
Against this order of discharge.
respondent No. 1 filed a Criminal Revision Application in the High Court, which was subsequently withdrawn to this Court.
On an appeal filed by respondent No. 1 directly under Article 136 of the Constitution against the order of discharge, the Supreme Court held on 16.2.1984, that a member of the Legislative Assembly was not a public servant, and set aside the order of the Special judge.
The Court observed that though nearly 2 1/2 years had rolled by since prosecution against the accused, who was Chief Minister of a State, was launched and his character and integrity came under cloud, the case had not moved an inch further and that an expeditious trial was primarily in the interest of the accused and mandate of Article 21.
It further observed that expeditious disposal of a criminal case was in the interest of both the prosecution and the accused.
It, therefore, suo motu withdrew this special case and another one filed against the appellant by another person and transferred them to the High Court, with the request to the Chief Justice to assign these two cases to a sitting Judge of the High Court, who should proceed to expeditiously dispose of the cases, preferably by holding trial from day to day.
Pursuant to the directions of this Court dated February 16, 1984 the Chief Justice of the High Court assigned the cases to one of the Judges of that Court.
The appellant appeared before him and raised an objection that the case could be tried only by a Special Judge appointed by the Government under the 1952 Act.
The Judge rejected this and other objections holding that he was bound by the order of the Supreme Court .
Special Leave Petitions as well as a writ petition filed by the appellant against the aforesaid decision were dismissed by this Court on April 17, 1984, holding that the Judge was perfectly justified, and indeed it was his duty to follow the decision of this Court which was binding on him.
It also observed that the writ petition challenging the validity of the order and judgment of this Court as nullity or otherwise could not be entertained, and that the dismissal of the writ petition would not prejudice the petitioner 's right to approach this Court, with an appropriate review petition or any other application, which he may be entitled to in law.
4 Thereafter, the cases were transferred to another Special Judge, who framed 21 charges and declined to frame 22 other charges proposed by respondent No. 1.
This Court allowed respondent No.1`s appeal by special leave except in regard to three draft charges under section 384 IPC, and requested the High Court to nominate another Judge to try the cases.
The Judge, to whom the cases were transferred, framed 79 charges against the appellant, and refused to proceed against the other named conspirators.
Against the aforesaid order, the appellant filed a Special Leave Petition before this Court questioning the jurisdiction of the Special Judge to try the case in violation of the appellant 's fundamental rights conferred by Articles 14 and 21 and the provisions of the Criminal Law Amendment Act of 1952.
The appellant also filed a Special Leave Petition against the decision of the Judge, holding that none of the 79 charges framed against the accused required sanction under section 197(1) of the Cr.
P.C., and a writ petition challenging a portion of section 197(1) as ultra vires Articles 14 and 21 of the Constitution.
This Court granted special leave in the Special Leave Petition questioning the jurisdiction of the Special Judge to try the case and stayed further proceedings in the High Court.
It also issued notice in the other Special Leave Petition and the writ petition, and directed these to be tagged on to the appeal.
An application filed by respondent No. 1 for revocation of the Special Leave was dismissed and the appeal was referred to a Bench of seven Judges.
The other Special Leave Petition and the writ petition were delinked, to be heard after the disposal of the appeal.
In the appeal, two questions arose, namely, (1) whether the directions given by this Court on 16th February, 1984, withdrawing the special cases pending in the Court of Special Judge and transferring the same to the High Court with the request to the Chief Justice to assign these cases to a sitting Judge of that High Court in breach of section 7(1) of the Criminal Law Amendment Act, 1952 which mandated that the offences, as in this case, should be tried only by a Special Judge, thereby denying at least one right of appeal to the appellant was violative of Articles 14 and 21 of the Constitution and whether such direction were at all valid or legal and (2) if such directions were not at all valid or legal in view of the Court 's order of April 17, 1984, whether the present 5 appeal was sustainable or the grounds therein justiciable in these proceedings.
In other words, whether the said directions in a proceeding inter parties were binding even if bad in law or violative of Articles 14 and 21 of the Constitution and as such, immune from correction by this Court even though they caused prejudice and injury.
Allowing the appeal, and setting aside and quashing all the proceedings subsequent to the directions of the Court on 16.2.1984 and directing that the trial should proceed in accordance with law, i.e. Criminal Law Amendment Act, 1952.
^ HELD: Majority: Sabyasachi Mukharji, Oza and Natarajan, JJ.
Per Sabyasachi Mukharji.
Section 7(1) of the Criminal Law Amendment Act, 1952 creates a condition which is sine qua non for the trial of offences under section 6(1) of the said Act.
The condition is that notwithstanding anything contained in the Code of Criminal Procedure or any other law, the said offences shall be triable by Special Judges only.
The offences specified under section 6(1) of the 1952 Act are those punishable under sections 161, 162, 163, 164 and 165A of the Indian Penal Code and section 5 of the Prevention of Corruption Act, 1947.
[44B C,49H,A] Gurcharan Das Chadha vs State of Rajasthan, ; referred to.
Therefore, the order of this Court transferring the cases to the High Court on 16th February, 1984 was not authorised by law.
This Court, by its directions could not confer jurisdiction on the High Court to try any case, when it did not possess such jurisdiction under the scheme of the 1952 Act.
[49A B] Kiran Singh and others vs Chaman Paswan & Others, ; at 121 and M. L. Sethi vs R. P. Kapur, ; relied on.
2.1 The power to create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or to take away a right of appeal.
Parliament alone can do it by law.
No Court, whether superior or inferior or both combined can enlarge the jurisdiction of the Court or divest a person of his rights of revision and appeal.
[50E] 6 M.L. Sethi vs R.P. Kapur, ; and Raja Soap Factory vs section P. Shantara;, ; referred to.
Halsbury 's Laws of England, 4th Vol.10 page at para 720 and Ammon Rubinstein 's Jurisdiction and Illegality, [1965] Edn.
16 50 referred to.
2.2 Want of jurisdiction can be established solely by superior court and in practice, no decision can be impeached collaterally by any interior court, but the superior court can always correct its own error brought to its notice either by way of petition or ex debito justitiae.[50G] Rubinstein 's jurisdiction and illegality(1965 Edn.) referred to.
2.3 The distinction between an error which entails absence of jurisdiction and an error made within the jurisdiction is so fine that it is rapidly being eroded.
[69H.70A] Anismatic Ltd. vs Foreign Compensation Commissioner, [1969] 1 All E.R.208 at 241 referred to.
This is not a case of collateral attack on judicial proceedings; it is a case where the Court having no court superior to it rectifies its own order.
[69] The impugned directions were void because power was not there for this Court to transfer a proceeding under the Act of 1952 from one Special Judge to the High Court.
[69G] The singling out of the appellant for a speedier trial by the High Court for an offence which the High Court had no jurisdiction to try under the Act of 1952 was unwarranted, unprecedented and directions given by this Court for the said purposes were not warranted.
When that fact is brought to the notice of the court, it must remedy the situation.
[51D E] 2.4 In rectifying the error, no personal inhibitions should debar this Court because no person should suffer by reason of any mistake of this Court.
Here no rule of res judicata would apply to prevent this Court from entertaining the grievance and giving appropriate directions.[51E F] Soni Vrajlal Jethalal vs Soni Jadavji and Govindji & Ors.
AIR 1972 Gujarat 148 approved.
7 In the earlier judgment, the points for setting aside the decision did not include the question of withdrawal of the case from the Court of Special Judge to the Supreme Court and transfer of it to the High Court.
Unless a plea in question is taken it cannot operate as res judicata.[62G H] Shivshankar Prasad Shah and others v Baikunth Nath Singh and others; , ; Bikan Mahuri and others vs Mst.
Bibi Walian and others, A.I.R. 1939 Patna 633; S.L. Kapoor vs Jagmohan and others, [1981] 1 S.C.C. 746; Maneka Gandhi vs Union of India, [1978] 2 S.C.R. 621 at pages 674 681 and Bengal Immunity Co. Ltd. vs The State of Bihar and others, and 623 referred to.
3.1 Section 407 of the Criminal Procedure Code was subject to over riding mandate of section 7(1) of the 1952 Act and, hence it does not permit the High Court to withdraw a case for trial to itself from the Court of Special Judge.[60D E] 3.2 Article 134(1)(b) of the Constitution does not recognise in every High Court power to withdraw for trial cases from any Court subordinate to its authority.
At least this Article cannot be construed to mean that where power to withdraw is restricted, it can be widened by virtue of Article 134(1)(b) of the Constitution.
[67B C] 3.3 Where by a specific clause of a specific statute the power is given for trial by the Special Judge only and transfer can be from one such Judge to another Special Judge, there is no warrant to suggest that the High Court has power to transfer Such a case from a Judge under section 6 of the Act of 1952 to itself.
It is not a case of exclusion of the superior Courts.
[67C] In the facts of the instant case, the criminal revision application which was pending before the High Court even if it was deemed to be transferred to this Court under Article 139A of the Constitution, it would not have vested this Court with power larger than what is contained in section 407 of Criminal Procedure Code.
Under section 407 of the Criminal Procedure Code read with the Criminal Law Amendment Act, the High Court could not transfer to itself proceedings under sections 6 and 7 of the said Act.
This Court, by transferring the proceedings tb itself, could not have acquired larger jurisdiction.
The fact that the objection was not raised before this Court gave directions on 16th February, 1984 cannot amount to any waiver.
[161F G] 8 Ledgard vs Bull, 131 A 134, Meenakshi Naidoo vs Subramaniya A Sastri, 141 A 160 referred to.
3.4 The Parliament did not grant to the Court the jurisdiction to transfer a case to the High Court.
However, as the superior Court is deemed to have a general jurisdiction, the law presumes that the Court acted within jurisdiction.
[60G] In the instant case, the presumption cannot be taken, firstly, because the question of jurisdiction was not agitated before the Court; secondly, these directions were given per incuriam and thirdly, the superior Court alone can set aside an error in its directions when attention is drawn to that error.
This view is warranted only because of the peculiar facts and circumstances of the present case.
Here the trial of a citizen in a Special Court under special jurisdiction is involved; hence the liberty of the subject is involved.
[60H,61A B] Kuchenmeister vs Home office, ; Attorney General vs Herman James Sillam, [1864] 10 H.L.C. 703 and Issacs vs
Robertson, [1984] 3 A.I.R. 140 referred to.
Jurisdiction and Illegality by Amnon Rubinstein, [1965] Edn.
referred to.
4.1 Per incuriam are those decisions given in ignorance or forget fulness of some inconsistent statutory provision or some authority binding on the Court concerned so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account to be demonstrably wrong.
If a decision is given per in curiam, the Court can ignore it.
[52A B, 53G] Morelle vs Wakeling, ; ; State of Orissa vs The Titaghur Paper Mills Co. Ltd., ; and Bengal Immunity Co. Ltd. vs State of Bihar , 623 referred to.
In the instant case, when this Court gave directions on 16th February 1984, for disposal of the case against the appellant by the High Court, it was oblivious of the relevant provisions of the law and the decision in Anwar Ali Sarkar 's case, which is a binding precedent [51G H] 4.2 A Full Bench or a Constitution Bench decision was binding on the Constitution Bench because it was a Bench of seven Judges.
There is 9 a hierarchy in this Court itself where larger Benches over rule smaller Benches which is the crystallised rule of law.
[52E,F] State of West Bengal vs Anwar Ali Sarkar, ; ; Nattulal vs Radhe Lal, ; ; Union of lndia and Anr.
vs KS.
Subramaniam, ; at p. 92; State of U.P. vs Ram Chandra Trivedi, ; at 473; Halsbury 's Laws of England, 4th Edn.
26 page 297, para 578 and page 300, relevant notes on 8.11 and 15; Dias on Jurisprudence, 5th Edn.
pages 128 and 130; Young vs Bristol Aeroplane Co. Ltd. at 300; Moore vs Hewitt at 272A; Penny vs Mcholas, and Javed Ahmed Abdul Hamid Pawala vs State of Maharashtra, ; referred to.
It was manifest to the Bench that exclusive jurisdiction created under section 7(1) of the 1952 Act read with section 6 of the said Act, when brought to the notice of the Court, precluded the exercise of power under section 407 of the Code.
There was no argument, no submission and no decision on this appeal at all.
There was no prayer in the appeal which was pending before this Court for such directions.
[59D E] The order of this Court was clearly per incuriam.
The Court was not called upon to and did not, decide the express limitation on the power conferred by section 407 of the Code.
which includes offences by public servants mentioned in the 1952 Act to be over ridden in the manner sought to be followed as a consequential direction of this Court.
This Court did not have jurisdiction to transfer the case to itself.
That will be evident from an analysis of different provisions of the Code as well as the 1952 Act [50C D] Therefore, in view of the clear provisions of section 7(2) of the Act of 1952 and Articles 14 and 21 of the Constitution these directions were legally wrong.
[52C] 4.3 Though the previous statute is referred to in the other judgment delivered on the same date, in connection with other contentions, section 7(1) was not referred to in respect of the impugned directions.
Hence these observations were indubitably per incuriam.
[66A] Miliangos vs George Frank (Textiles) Ltd, at 821 referred to.
This Court is not powerless to correct its error which has the 10 effect of depriving a citizen of his fundamental rights and more so, the A right to life and liberty.
It can do so in exercise of its inherent jurisdiction in any proceeding pending before it without insisting on the formalities of a review application.
[54A B] Powers of review can be exercised in a petition file under Article 136 or Article 32 or under any other provision of the Constitution if the Court is satisfied that its directions have resulted in the deprivation of the fundamental rights of a citizen or any legal right of the petitioner.
[54B C] The Supreme Court has the power to review either under Article 137 or suo motu the directions given by this Court.
[62E] Prem Chand Garg vs Excise Commissioner, U.P. Allahabad, [1963] Suppl.1 SCR 885; Naresh Shridhar Mirajkar and others vs State of Maharashtra and another; , and Smt.
Ujjam Bai vs State of U.P., [1963] 1 S.C.R. 778; Kailash Nath vs State of U.P. AIR 1957 (SC) 790; P.S.R. Sadhananatham vs Arunachalam, ; ; Suk Das vs Union Territory of Arunachal Pradesh, [1986] 2 S.C.C. 401; Asrumati Devi vs Kumar Rupendra Deb Raikot and others; , ; Satyadhyan Ghosal and others vs Smt.
Deorajin Debi and another; , ; Sukhrani (dead) by L.Rs.
and others vs Hari Shanker and others; , and Bejoy Gopal Mukherji vs Pratul Chandra Ghose, ; referred to.
It is also well settled that an elementary rule of justice is that no party should suffer by mistake of the Court.
[63B] Sastri Yagnapurushadji and others vs Muldas Bhudardas Vaishya and another; , ; Jang Singh vs Brijlal ; ;Bhajahari Mondal vs
The State of West Bengal; , at 1284 1286 and Asgarali N. Singaporawalle vs The State of Bombay ; at 692 referred to.
It was a mistake of so great a magnitude that it deprives a man by being treated differently of his fundamental right for defending himself in a criminal trial in accordance with law.
Therefore, when the attention of the Court is drawn, the Court has always the power and the obligation to correct it ex debito justitiae and treat the second application by its inherent power, as a power of review to correct the original mistake.
[56C D] The directions have been issued without observing the principle of audi alteram partem.[53D] 11 This Court is not debarred from re opening this question and giving proper directions and correcting the error in the present appeal.
[53C] The appellant should not suffer on account of the direction of this Court based upon an error leading to conferment of jurisdiction.
[53B] 7.
The principle of finality on which Article 145(e) proceeds applies to both judgments and orders made by the Supreme Court.
But directions given per incuriam in violation of certain constitutional limitations and in derogation of the principles of natural justice can always be remedied by the court ex debite justitiae.
[68F G] In the instant case, this Court is correcting an irregularity committed by the Court not on construction or misconstruction of a statute but on non perception of certain provisions and certain authorities which would amount to derogation of the constitutional rights of the citizen.
[69C D] Issacs vs Robertson, and Re Recal Communications Ltd. Case, ; referred to.
No prejudice need be proved for enforcing the fundamental rights.
Violation of a fundamental right itself renders the impugned action void.
So also, the violation of the principles of natural justice renders the act a nullity.[59H] 9.1 Four valuable rights of the appellant have been taken away by the impugned directions.
i) The right to be tried by a Special Judge in accordance with the procedure established by law and enacted by Parliament.
ii) The right of revision to the High Court under section 9 of the Criminal Law Amendment Act.
iii) The right of first appeal to the High Court under the same section iv) The right to move the Supreme Court under Article 136 thereafter by way of a second appeal, if necessary.
The right of the appellant under Article 14 regarding equality 12 before the law and equal protection of law has been violated.
The appellant has also a right not to be singled out for special treatment by a Special Court created for him alone.
This right is implicit in the right to equality.
[60A C,62A B] State of West Bengal vs Anwar Ali Sarkar, ; relied on.
The appellant has a further right under Article 21 of the Constitution a right to trial by a Special Judge under section 7(1) of the 1952 Act which is the procedure established by law made by the Parliament and a further right to move the High Court by way of revision or first appeal under section 9 of the said Act.
He has also a right not to suffer any order passed behind his back by a Court in violation of the basic principles of natural justice.
Directions having been given in this case without hearing the appellant, though the order was passed in the presence of the counsel for the appellant, these are bad.
[62B Dl It is proper for this Court to act ex debito justitiae, in favour of the fundamental rights of the appellant.
[62E] Nawabkhan Abbas Khan vs The State of Gujarat, ; referred to.
9.2 There was prejudice to the accused in being singled out as a special class of accused for a special dispensation witbout any room for any appeal as of right and without power of revision to the High Court.
[67G] Romesh Chandra Arora vs The State, at 927 distinguished.
9.3 The trial even of person holding public office though to be made speedily must be done in accordance with the procedure estab lished by law.
The provisions of section 6 read with section 7 of the Act of 1952 in the facts and circumstances of this case is the procedure established by law, and any deviation even by a judicial direction will be negation of the rule of law.
[68D E] By judicial direction, the rights and previliges of the accused have been curtailed without any justification in law.
[ 68B] State of West Bengal vs Anwar Ali Sarkar, ; relied on.
13 Re: Special Courts Bill, [1978] referred to.
9.4 The right of appeal under section 374 of the Cr.
P.C. is confined only to cases decided by the High Court in its Letters Patent jurisdiction which in terms is extraordinary original criminal jurisdiction ' under clause 27 of Letters Patent.
[63F] Kavasji Pestonji Dalal vs Rustomji Sorabji Jamadar & Anr., AIR 1949 Bom.
42, Sunil Chandra Roy & Anr.
vs The State AIR 1954 Cal. 305; Sasadhar Acharjya & Anr.
vs Sir Charles Tegart & Ors., [1935] Cal.
Weekly Notes1089;People insurance Co. Ltd. vs Sardul Singh Caveeshgar & Ors.
J AIR 1961 Punj.
87 and P.P. Front, New Delhi vs K. K Birla.
referred to.
9.5 By the time the Code of Criminal Procedure 1973 was framed, Article 21 had not been interpreted so as to include one right of appeal both on facts and law.
[64C] 10.
Words should normally be given their ordinary meaning bearing in mind the context.
It is only where the literal meaning is not clear that one resorts to the golden rule of interpretation or the mischief rule of interpretation.
[66C] Sussex Peerage Claim, ; at 143 referred to.
Cross: Statutory Interpretation, p. 36.
In view of the specific language used in section 7 of the 1952 Act, it is not necessary to consider whether the procedure for trial by Special Judges under the Code has stood repealed or not.
The concept of repeal may have no application in this case.
[66B] 11.
No man is above the law, but at the same time, no man can be denied his rights under the Constitution and the laws.
He has a right to be dealt with in accordance with the law and not in derogation of it.
[71B] This Court, in its anxiety to facilitate the parties to have a speedy trial, gave direction on 16th February, 1984 without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India.
That is the only procedure under which it should have been guided.
[71B C] 14 By reason of giving the impugned directions, this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special procedure not provided for by law.
[71C D] When these factors are brought to the notice of this Court, even if there are any technicalities, this Court should not feel shackled and decline to rectify that injustice; or otherwise, the injustice noticed will remain forever a blot on justice.
[71D] 12.1 The basic fundamentals of the administration of justice are simple.
No man should suffer because of the mistake of Court.
No man should suffer a wrong by technical procedure of irregularities.
Rules or procedures are the hand maids of justice and not the mistress of the justice.
If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied.
[72B C] 12.2 The maxim "Actus Curiae Neminem Gravabit" An act of the Court shall prejudice no man is founded upon justice and good sense and affords a safe and certain guide for the administration of the law.
[71E] Alaxander Rodger vs The Comptoir Dlescompte De Paris Cham Reports, Vol.
III 1869 71 p. 465 at 475 referred to. 13.
Purity of public life is one of the cardinal principles which t. must be upheld as a matter of public policy.
Allegations of legal infractions and criminal infractions must be investigated in accordance with law and procedure established under the Constitution.
[73B] Even if the accused has been wronged, if he is allowed to be left in doubt that would cause more serious damage to him.
Public confidence in public administration should not be eroded any further.
One wrong cannot be remedied by another wrong.
[73B] The legal wrong that has been done to the appellant should be remedied and right should be done.
In doing so, no more further injury should be caused to the public purpose.
[73C] The impugned directions were in deprival of the Constitutional rights and contrary to the express provisions of the Criminal Law 15 Amendment Act, 1952, in violation of the principles of natural justice, and without precedent in the background of the Act of 1952.
The directions definitely deprived the appellant of certain rights of appeal and revision and his rights under the Constitution.
[69F] Having regard to the enormity of the consequences of the error to the appellant and by reason of the fact that the directions were given suo motu, there is nothing which detracts the power of the Court to review its judgment ex debito justitiae in case injustice has been caused.
No Court however high has jurisdiction to give an order unwarranted by the Constitution.
[70A B] Ittavira Mathai vs Varke,P Varkey and others; , referred to.
Bhatia Cooperative Housing Society Ltd. vs D.C. Patel, ; at 190 distinguished.
Since this Court infringed the Constitutional safeguards granted to a citizen or to an accused, in giving the directions and injustice results therefrom, it is just and proper for the Court to rectify and recall that injustice in the peculiar facts and circumstances of this case.
Therefore, all the proceedings in the matter subsequent to the directions of this Court on February 16, 1984, are set aside and quashed and the trial should proceed in accordance with law, that is to say, under the Act of 1952.
[70C,73D E] R.S. Nayak vs A.R. Antulay, ; ; A.R. Antulay vs Ramdas Sriniwas Nayak and another; , ; Abdul Rehman Antulay vs Union of India and others etc. ; at 483; Kailash Nath vs State of U.P., AIR 1957 SC 790; Sukdas vs Union Territory of Arunachal Pradesh Discretion to Disobey by Mortimer R. Kadish and Sanford H. Kadish pages 111 and 112 referred to.
Per Ranganath Misra, J. (Concurring) 14.
Section 7(1) has clearly provided that offences specified in sub section (1) of section 6 shall be triable by the Special Judge only and has taken away the power of the courts established under the Code of Criminal Procedure to try those offences.
As long as section 7 of the Amending Act of 1952 holds the field it was not open to any court including the Apex Court to act contrary to section 7(1) of the Amending Act.[81E F] 16 State of West Bengal vs Anwar Ali Sarkar, ; referred to.
The power to transfer a case conferred by the Constitution or by section 406 of the Code of Criminal Procedure does not specifically relate to the Special Court.
Section 406 of the Code could be applied on the principle that the Special Judge was a subordinate court for transferring a case from one Special Judge to another Special Judge because such a transfer would not contravene the mandate of section 7(1) of the Amending Act of 1952.
While that may be so, the provisions for transfer, do not authorise transfer of a case pending in the court of a Special Judge first to the Supreme Court and then to the High Court for trial.
This Court did not possess the power to transfer the proceedings from the Special Judge to the High Court.
[81G H,82A] Raja Soap Factory vs S.P. Santharaj, ; referred to.
16.1 It is the settled position in law that jurisdiction of courts comes solely from the law of the land and cannot be exercised other wise.
[77E] 16.2 Jurisdiction can be exercised only when provided for either in the Constitution or in the laws made by the Legislature.
Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts.
[77G] 17.
By the change of forum of trial the accused has been pre judiced.
By this process he misses a forum of appeal because if the trial was handled by a Special Judge, the first appeal would lie to the High Court and a further appeal by special leave could come before this Court.
If the matter is tried by the High Court there would be only one forum of appeal being this Court, whether as of right or by way of special leave.
[83H, 84A B] 18.
The transfer was a suo motu direction of the court.
Since this particular aspect of the matter had not been argued and counsel did not have an opportunity of pointing out the legal bar against transfer, the Judges of this Court obviously did not take note of the special provisions In section 7(1) of the 1952 Act.
If this position had been appropriately placed, the direction for transfer from the court of exclusive jurisdiction to the High Court would not have been made by the Constitution Bench.
It is appropriate to presume that this Court never intends to act contrary to law.
[82E F] 17 19.
One of the well known principles of law is that decision made by a competent court should be taken as final subject to further proceedings contemplated by the law of procedure.
In the absence of any further proceedings, the direction of the Constitution Bench on 16th of February, 1984 became final and it is the obligation of everyone to implement the direction of the apex Court.
Such an order of this Court should by all canons of judicial discipline he binding on this Court as well and cannot be interfered with after attaining finality.
[84C D] 20.1 It is a well settled position in law that an act of the court should not injure any of the suitors.
[84F] Alexander Rodger vs The Comptori D 'Escompte De Paris, [1871] 3 PC 465 referred to.
Once it is found that the order of transfer by this Court was not within jurisdiction by the direction of the transfer of the proceedings made by this Court, the appellant should not suffer.
[85B] 20.3 This being the apex Court, no litigant has any opportunity of approaching any higher forum to question its decisions.
Once judicial satisfaction is reached that the direction was not open to be made and it is accepted as a mistake of the court, it is not only appropriate but also the duty of the Court to rectify the mistake by exercising inherent powers.
A mistake of the Court can be corrected by the Court itself without any fetters.
In the present situation, the Court 's inherent powers can be exercised to remedy the mistake.
[87F,88B C] Gujarat vs Ram Prakash ; Alexander Rodger vs The Comptori D 'Escompte De Paris, [1871] 3 PC 465 and Krishna Deo vs Radha Kissan, ; ; Debi vs Habib lLR 35 All 331 and Murtaza vs Yasin.
AIR 191 PC 857 referred to.
20.4 The injustice done should be corrected by applying the principle actus curiae neminem gravabit, an act of the court shall prejudice no one.[88H] 20.5 To err is human.
Courts including the apex one are no exception.
To own up the mistake when judicial satisfaction is reached does not militate against its status or authority.
Perhaps it would enhance both.
[89B] 21.
If a mistake is detected and the apex Court is not able to 18 correct it with a view to doing justice for fear of being misunderstood, the cause of justice is bound to suffer and for the apex Court the apprehension would not be a valid consideration.
This Court, while administering justice, does not take into consideration as to who is before it.
Every litigant is entitled to the same consideration and if an order is warranted in the interest of justice, the status or influence of the accused cannot stand in the way as a bar to the making of that order.
[89F G] 22.
Finality of the orders is the rule.
By directing recall of an order, the well settled propositions of law would not be set at naught.
Such a situation may not recur in the ordinary course of judicial functioning and if there be one, certainly the Bench before which it comes would appropriately deal with it.
Nn strait jacket formula can be laid down for judicial functioning particularly for the apex Court.
The apprehension that the decision to recall the earlier decision may be used as a precedent to challenge judicial orders of this Court is perhaps misplaced because those who are familiar with the judicial functioning are aware of the limits and they would not seek support from this case as a precedent.
This Court is sure that if precedent value is sought to be derived out of this decision, the Court which is asked to use this as an instrument would be alive to the peculiar facts and circumstances of the case in which this order is being made.
[87H, 90A B] 23.
Under the Rules of the Court a review petition was not to be heard in Court and was liable to be disposed of by circulation.
In these circumstances, the petition of appeal could not be taken as a review petition.
[87E] 24.
Benches of this Court are not subordinate to larger Benches thereof and certiorari is, therefore, not admissible for quashing of the orders made on the judicial side of the Court.
[85C] Naresh Chandra Mirajkar & Ors.
vs State of Maharashtra Prem Chand Garg vs Excise Commissioner, U.P., Allahabad referred to.
Apart from the fact that the petition of review had to be filed within 30 days and here there has been inordinate delay the petition for review had to be placed before the same Bench and now that two of the learned judges of that Constitution Bench are still available, 19 it must have gone only before a Bench of five with those two learned Judges.
[87D E] 26.
It is time to sound a note of caution.
This Court under its Rules of Business ordinarily sits in divisions and not as a whole one.
Each Bench, whether small or large, exercises the powers vested in the Court and decisions rendered by the Benches irrespective of their size are considered as decisions of the Court.
The practice has developed that a larger Bench is entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the decisions is that of the Court.
That principle, however, would not apply in the present situation, and since this Court is sitting as a Bench of Seven this Court is not entitled to reverse the decision of the Constituffon Bench.
[89B C] 27.
Overruling when made by a larger Bench of an earlier decision of a smaller one is intended to take away the precedent value of the decision without affecting the binding effect of the decision in the particular case.
[89C] In the instant case, the appellant is, therefore, not entitled to take advantage of the matter being before a larger Bench.
In fact, if it is a case of exercise of inherent powers to rectify a mistake it was open even to a five Judge Bench to do that and it did not require a Bench larger than the Constitution Bench for that purpose.
[89D] Per Oza, J. (Supplementing) 28.
The jurisdiction to try a case could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it does not exist in law.
[90F] 29.
No doubt a judgment or an order passed by this Court will not be open to a writ of certiorari even if an error is apparent.
But at the same time, there should be no hesitation in correcting an error in exercise of inherent jurisdiction if it comes to the notice of the Court.
[90D E] In the instant case, it is this error which is sought to be corrected, although it is being corrected after long lapse of time.
[90F] Per Ray,J.(Concurring) 20 30.
The Jurisdiction or power to try and decide a cause is conferred on the courts by the Law of the Lands enacted by the Legislature or by the provisions of the Constitution and the court cannot confer a jurisdiction on itself which is not provided in the law and judicial order of this Court is not Emenable to a writ of certiorari tor correcting any error in the judgment.
However, since the act of the court should not injure any of the suitors, the error in question is sought to be corrected.
after a lapse of more than three years.
[90H,91A B] Per Venkatachaliah, J. (Dissenting) 31.1 The exclusiveness of jurisdiction uf the special judge under section 7(1) of 1952 Act depends on the construction to be placed on the relevant statutory provision.
If on such a construction, however erroneous it may be, the court holds that the operation of section 407 Cr.
P.C. is not excluded, that interpretation will denude the plenitude of the exclusivity claimed for the forum.
To say that the court usurped legislative powers and created a new jurisdiction and a new forum ignores the basic concept of functioning of courts.
The power to interpret laws is the domain and function of courts.
[108D E] Thomas vs Collins, ; referred to.
31.2 The earlier decision proceeded on a construction of section 7(1) of the Act and section 407 of Cr.
This bench does not sit in appeal over what the five Judge Bench said and proclaim how wrong they were.
This Bench is simply not entitled to embark, at a later stage, upon an investigation of the correctness of the very decision.
The same bench can, of course, reconsider the matter under Article 137.
32.1 The expression "jurisdiction" or the power to determine is a verbal cast of many colours.
In the case of a Tribunal, an error of law might become not merely an error m jurisdiction but might partake of the character of an error of jurisdiction.
But, otherwise jurisdiction is a 'legal shelter ', a power to bind despite a possible error in the decision.
[102C] 32.2.
In relation to the powers of superior courts, the familiar distinction between jurisdictional issues and adjudicatory issues approts priate to Tribunals of limited jurisdiction has no place.
[102A] 32.3 Before a superior court there is no distinction in the quality of the decision making process respecting jurisdictional questions on the one hand and adjudicatory issues or issues pertaining to the merits, on the other.
[102B] 21 32.4 The existence of jurisdiction does not depend on the correctness of its exercise.
The authority to decide embodies a privilege to bind despite error, a privilege which is inherent in and indispensable to every judicial function.
The characteristic attribute of a judicial act is that it binds whether it be right or it be wrong.
[102D] Mallikarjun vs Narhari, [1900] 27 I.A. 2 10 referred to.
Anismatic Ltd. vs Foreign Compensation Commission, ; distinguished.
32.5 A finding of a superior court even on a question of its own jurisdiction, however grossly erroneous it may otherwise be, is not a nullity nor one which could at all be said to have been reached without jurisdiction, susceptible to be ignored or to admit of any collateral attack.
Otherwise, the adjudications of superior courts would be held up to ridicule and the remedies generally arising from and considered concomitants of such classification of judicial errors would be so seriously abused and expanded as to make a mockery of those foundational principles essential to the stability of administration of justice.
[102G,103A] 32.6 The superior court has jurisdiction to determine its own jurisdiction and an error in that determination does not make it an error of jurisdiction.
[103B] Holdsworth (History of English Law) Vol.
6 page 239 and Rubinstein: Jurisdiction and Illegality referred to.
Re Racal Communications Ltd. ; and Issac vs Robertson, referred to.
32.7 Superior courts apart, even the ordinary civil courts of the land have jurisdiction to decide questions of their own jurisdiction.
[105H] It would be wholly erroneous to characterise the directions issued by the five Judge Bench as a nullity, amenable to be ignored or so declared in a collateral attack.
[106E] 33.
A judgment, inter parties, is final and concludes the parties.
[106F] Re Hastings (No. 3) ; Daryao vs State of UP; , ; Trilok Chand vs H.B. Munshi, and 22 Shiv Nandan Paswan vs State of Bihar, [ ; at 343 relied on 34.1 All accused persons cannot claim to be tried by the same Judge.
The discriminations inherent in the choice of one of the concurrent jurisdictions are not brought about by an inanimate statutory rule or by executive fiat.
The withdrawal of a case under section 407 is made by a conscious judicial act and is the result of judicial discernment.
If the law permits the withdrawal of the trial to the High Court from a Special Judge, such a law enabling withdrawal would not, prima facie, be bad as violation of Article 14.
[114G H, 115A] 34.2 No doubt, the fundamental right under Article 14 has a very high place in constitutional scale of values.
Before a person is deprived of his personal liberty, not only that the procedure established by law must strictly be complied with and not departed from to the disadvantage or detriment of the person but also that the procedure for such deprivation of personal liberty must be reasonable, fair and just.
Article 21 imposes limitations upon the procedure and requires it to conform to such standards of reasonableness, fairness and justness as the Court acting as sentinel of fundamental rights would in the context, consider necessary and requisite.
The Court will be the arbiter of the question whether the procedure is reasonable, fair and just.
[114D F] 34.3 The five judge bench in the earlier case has held that such a transfer is permissible under law.
That decision had assumed finality.
The appeal to the principle in Anwar Ali 's Sarcar 's case, in such a context would be out of place.
[115A] State of West Bengal vs Anwar Ali Sarkar, ; distinguished.
That a trial by a Judge of the High Court makes for added re assurance of justice, has been recognised in a number of judicial pronouncements.
The argument that a Judge of the High Court may not necessarily possess the statutory qualifications requisite for being appointed as a Special Judge appears to be specious.
A judge of the High Court hears appeals arising from the decisions of the Special Judge and exercises a jurisdiction which includes powers co extensive with that of the trial court.
[115C D] 36.
The plea that transfer of the case to the High Court involves the elimination of the appellant 's right of appeal to the High Court 23 which he would otherwise have and that the appeal under Article 136 of the Constitution as of right cannot be accepted in view of section 374, Cr. P.C. which provides such an appeal, as of right, when the trial is held by the High Court.
[117A B] 37.
Directions for transfer were issued on 16.2.1984 in the open court in the presence of appellant 's counsel at the time of pronouncement of the judgment and counsel had the right and the opportunity of making submission to the court as to the permissibility or otherwise of the transfer.
After the directions were pronounced and before the order was signed, though there was opportunity for the appellant 's counsel to make submission in regard to the alleged illegality or impropriety of the directions, appellant did not utilise the same.
That apart, even after being told by two judicial orders that appellant, if aggrieved, may seek a review, he did not do so.
Even the grounds urged in the many subsequent proceedings appellant took to get rid of the effect of the direction do not appear to include the grievance that he had no opportunity of being heard.
[115F, G H,116A B] Therefore, where a party having had an opportunity to raise a grievance in the earlier proceedings does not do so and makes it a technicality later, he cannot be heard to complain.
[116B] Rules of natural justice embodies fairness in action.
By all standards, they are great assurances of justice and fairness.
But they should not be Pushed to a breaking point.
[116F] R. vs Secretary of State for Home Deptt.
ex parte Mughal, , referred to.
38.1 The circumstance that a decision is reached per incuriam, merely serves to denude the decision of its precedent value.
Such a decision would not be binding as a judicial precedent.
A co ordinate bench can discharge with it and decline to follow it.
A larger bench can over rule such decision.
When a previous decision is so overruled it does not happen nor has the overruling bench any jurisdiction so to do that the finality of the operative order, inter parties, in the previous decision is over turned.
In this context the word 'decision ' means only the reason for the previous order and not the operative order in the previous decision, binding inter parties.
Even if a previous decision is over 24 ruled by a larger bench, the efficacy and binding nature, of the adjudication expressed in the operative order remains undisturbed interparties.
[119B D] 38.2 Even if the earlier decision of the five judge bench is perincuriam the operative part of the order cannot be interfered with in the manner now sought to be done.
That apart, the five judge bench gave its reason.
The reason may or may not be sufficient.
There is advertence to section 7(1) of the 1952 Act and to exclusive jurisdiction created thereunder.
There is also reference to section 407 of the Criminal Procedure Code.
[119D E] 39.1 An erroneous decision must be as binding as a correct one.
It would be an unattainable ideal to require the binding effect of a judgment to depend on its being correct in the absolute, for the test of correctness would be resort to another Court the infallibility of which is again subject to a similar further investigation.
[101D E] 39.2 However, motions to set aside the judgments are permitted where a judgment was rendered in ignorance of the fact that u necessary party had not been served at all, and was wrongly shown as served or in ignorance of the fact that a necessary party had died and the estate was not represented, or where a judgment was obtained by fraud, and it tended to prejudice a non party, as in the case of judgments in rem such as for divorce, or jactitation or probate etc.
even a person, not eo nomine a party to the proceedings, or where a party has had no notice and a decree is made against him in which case, the party is said to become entitled to relief ex debito justitiae, on proof of the fact that there was no service, since there is no trial at all and the judgment is for default.
[110C F] Cases of such frank failure of natural justice are obvious cases where relief is granted as of right.
[111A] Where a person is not actually served out but is held erroneously, to have been served, he can agitate that grievance only in that forum or in any further proceeding therefrom.
[111A] Issac vs Robertson, distinguished.
Rajunder Narain Rae vs Bijai Govind Singh, 2 MIA 181, referred to.
25 D.M. Gordan: Actions to set aside judgment, [1961] 77 Law quarterly Review 358 In the present case by the order dated 5.4.1984 a five judge bench set out, what according to it was the legal basis and source of jurisdiction to order transfer.
On 17.4.1984 appellant 's writ petition challenging that transfer as a nullity was dismissed.
These orders are not which appellant is entitled to have set aside ex debito justitiae by another Bench.
[111C D] 40.
The pronouncements of every Division Bench of this Court are pronouncements of the Court itself.
A larger bench, merely on the strength of its numbers, cannot un do the finality of the decisions of Other division benches.
[108H] 41.1 The power to alter a decision by review must be expressly conferred or necessarily inferred.
The power of review and the limitations on the power under Article 137 are implict recognitions of what would, otherwise, be final and irrevocable.
No appeal could be made to the doctrine of inherent powers of the Court either.
Inherent powers do not confer, or constitute a source of jurisdiction :.
They are to be exercised in aid of a e that is already invested.
[120F G] 41.2 If the decision suffers from an error, the only way to correct it, is to go in Review under Article 137 read with order 40 Rule 1 framed under Article 145 before "as far as is practicable" the same judges.
This is not a matter merely of some dispensable procedural 'form ' but the requirement of substance.
[109A] In the instant case, the remedy of the appellant is recourse to Article 137, no where else.
This is both in good sense and good law.
[120G] Judicial proceedings of this Court are not subject to writ jurisdiction thereof.
[118H] Naresh Sridhar Mirajkar & Ors.
vs State of Maharashtra & Anr., followed.
Prem Chand Garg vs Excise Commissioner, UP, , referred to.
Kadesh & Kadesh: Discretion to Disobey, [1973] edn.
P. 111, referred to.
26 42.
The maxim Actus Curiae Neminem Gravabid had no application to conscious conclusions reached in a judicial decision.
The maxim is not a source of a general power to reopen and rehear adjudication which have otherwise assumed finality.
The maximum operates in a different and narrow area.
The best illustration of the operation of the maxim is provided by the application of the rule of nunc pro tunc.
For instance, if owing to the delay in what the court should, otherwise, have done earlier but did later, a party suffers owing to events occurring in the interrugnum, the Court has the power to remedy it.
The area of operation of the maxim is, generally, procedural.
Errors in judicial findings, either of facts or law or operative decisions consciously arrived at as a part of the judicial exercise cannot be interfered with by resort to this maxim.
[120B C] 43.
Those who do not put the teachings of experience and the lessons of logic out of consideration would tell what inspires confidence in the judiciary and what does not.
Judicial vacillations fall in the latter category and undermine respect of the judiciary and judicial institutions, denuding thereby respect for law and the confidence in the even handedness in the administration of justice by Courts.
[120E] This Court had, therefore, the jurisdiction and power to with draw and transfer the cases from Special Judge to the High Court, and the directions for trial of the offences by a Special Judge are not void and these directions could not be challenged in a collateral attack.
This Court had not created a new jurisdiction and usurped legislative power violating the basic tenet of doctrine of separation of powers.
[99C F, 114D, 106E] 44.
An accused person cannot assert any right to a joint trial with his co accused.
Normally it is the right of the prosecution to decide whom it prosecutes.
It can decline to array a person as a co accused and, instead examine him as a witness for the prosecution.
What weight is to be attached to that evidence, as it may smack of the testimony of a guilty partner in crime, is a different matter.
Prosecution can enter Nolle proseque against any accused person.
It can seek to withdraw a charge against an accused person.
These propositions are too well settled to require any further elaboration.
[98B D] Choraria vs Maharashtra, , referred to.
In the instant case, the appellant cannot be heard to complain.
Of the so called co conspirators some have been examined already as pro 27 secution witnesses; some others proposed to be so examined; and two others, had died in the interregnum.
The appeal, on the point, has no substance and would require to be dismissed.
[98G] Per Ranganathan, J. (partly concurring/dissenting) 45.1 The language of section 7(1) of the 1952 Act places a definite hurdle in the way of construing section 407 of the Cr.
P.C. as overriding its provisions.
In view of non obstante clause also, it cannot be held that the provisions of section 407 of the 1973 Cr.
P.C. will override, or even operate consistently with, the provisions of the 1952 Act.
Similarly, the power of transfer contained m clause 29 of the letters Patent of the High Court cannot be exercised in a manner not contemplated by section 7(1) of the 1952 Act.
[131D E] 45.2 A power of transfer postulates that the court to which transfer or withdrawal is sought is competent to exercise jurisdiction over the case.
[130F] Raja Soap Factory vs Shantaraj, [ 1965] 2 SCR, relied on.
45.3 The power of transfer contained in the Code of Criminal Procedure cannot be availed of to transfer a criminal case from a Special Judge to any other criminal court or even to the High Court.
The case can be transferred only from one special judge to another special judge; it cannot be transferred even to a High Court Judge except where a High Court Judge is appointed as a Special Judge.
[130E F] Gurcharan Das Chadha vs State of Rajasthan, [1966] 2 SCR, referred to.
45.4 Not all the judges of the High Court (but only those elevated from the State subordinate judiciary) would fulfil the qualifications prescribed under section 6(2) of the 1952 Act.
Though there is nothing in sections 6 and 7 read together to preclude altogether the appointment of a judge of the High Court fulfilling the above qualifications as a special judge such is not the (atleast not the normal) contemplation of the Act.
The scheme of the Act, in particular the provisions contained in sections 8(3A) and 9, militate against this concept.
[126C, E] Hence, in the instant case apart from the fact that no appointment of a High Court Judge, as a Special Judge, has in fact been made, it is not possible to take the view that the statutory provisions permit the 28 conferment of a jurisdiction to try this case on a High Court Judge as a Special Judge.
[126F] 45.5 The 1952 Act sought to expedite the trial of cases involving public servants by the creation of courts presided over by experienced special judges to be appointed by the State (government.
Effect is only 13 being given to the express and specific words used in section 7(1) and no question arises of any construction being encouraged that is repugnant to the Cr.
P.C. Or involves an implied repeal, pro tanto, of its provisions.
[132D. E] 46.1 The word "jurisdiction is a verbal coat of many colours.
" It is used in a wide and broad sense while dealing with administrative or quasi judicial tribunals and subordinate courts over which the superior courts exercise a power of judicial review and superintendence.
Then it is only a question of "how much latitude the court is prepared to allow" and "there is no yardstick to determine the magnitude of the error other than the opinion of the court. " [158A B] M. L. Sethi vs Kapur, [ 1973] I SCR 697, referred to.
46.2 The Superior Courts, with unlimited jurisdiction are always presumed to act with jurisdiction and unless it is clearly shown that any particular order is patently one which could not, on any conceivable view of its jurisdiction, have been passed by such court, such an order can neither be ignored nor even recalled, annulled, revoked or set aside in subsequent proceedings by the same court.
[158B C ] Dhirendera Kumar vs Superintendent, [1955] I SCR 224; Kiran Singh vs Chaman Paswan, AIK ; ; Anisminic Ltd. vs Foreign Compensation Commissioner, [1969] 2 A.C. 147; Badri Prasad vs Nagarmal, [1959] 1 Supp.
S.C.R. 769; Surajmul Nagarmul vs Triton Insurance Co. Ltd., [1924] L.R. 52 I.A. 126; Balai Chandra Hazra vs Shewdhari Jadhav, ; ; Ledgard vs Bull, L.R. 13 I.A. 134; Meenakshi Naidu vs Subramaniya Sastri, L.R. 14 I.A. 140; Sukhrani vs Hari Shankar; , ; Re: Recal Communications Ltd.; , and lssacs vs Robertson, referred to.
In the present case, the order passed is not one of patent lack of jurisdiction.
Though the direction in the order dated 16.2.1984 cannot be justified by reference to Article 142 of the Constitution of section 407 of the 1973 Cr.
P.C., that is not an incontrovertible position.
It was 29 possible for another court to give a wider interpretation to these provisions and come to the conclusion that such an order could be made under those provisions.
If this Court had discussed the relevant provisions and specifically expressed such a conclusion, it could not have been modified in subsequent proceedings by this Bench merely because it was inclined to hold differently.
The mere fact that the direction was given, without an elaborate discussion, cannot render it vulnerable to such review .
[158D F] 47.
Unless the earlier order is vitiated by a patent lack of jurisdiction or has resulted in grave injustice or has clearly abridged the fundamental rights of the appellant, this Court should not declare that an order passed by a five Judge Bench is wrong, and annul it.
The present case cannot be brought within the narrow range of exceptions which calls for such interference.
[166E] The direction issued by this Court in the impugned order cannot be said to be based on a view which is manifestly incorrect, palpably absurd or patently without jurisdiction.
Whether it will be considered right or wrong by a different Bench having a second look at the issue is a totally different thing.
[167E] 48.1 The powers of the Supreme Court to transfer cases from one court to another are to be found in Article 139 A of the Constitution and section 406 of the Cr.
The provisions envisage either inter state transfers of cases i.e. from a court in one State to a court in another State or the withdrawal of a case by the Supreme Court to itself.
Intra State transfer among courts subordinate to a High Court to inter se or from a court subordinate to a High Court to the High Court is within the jurisdiction of the appropriate High Court.
[133F G] 48.2 The powers of the Supreme Court, in disposing of an appeal or revision, are circumscribed by the scope of the proceedings before it.
[133H] In the instant case, the question of transfer was not put in issue before the Supreme Court.
The Court was hearing an appeal from the order of discharge and connected matters.
There was no issue or controversy or discussion before it as to the comparative merits of a trial before a special judge vis a vis one before the High Court.
There was only an oral request said to have been made, admittedly after the judgment was announced.
Wide as the powers under Article 141 are, they do not envisage an order of the type presently in question.
[134A, C D] K.M. Nanavati vs The State of Bombay, ; distinguished.
30 48.3 If the provisions of the 1952 Act read with Article 139 A and sections 406 407 of the Cr.
P.C. do not permit the transfer of the case from a special judge to the High Court, that effect cannot be achieved indirectly.
In the circumstances of the case, the Supreme Court cannot issue the impugned direction in exercise of the powers under Article 142 or under section 407 available to it as an appellate court.
[l34F] Hari vs Emperor, AIR 1935 PC 122, referred to.
The direction that the trial should be shifted to the High Court can hardly be described as a consequential or incidental order.
Such a direction did not flow, as a necessary consequence of the conclusion of the court on the issues and points debated before it.
Therefore, this Court was in error when it directed that the trial of the case should be before a High Court Judge, in consequence of which the appellant is being tried by a Court which has no jurisdiction and which cannot be empowered by the Supreme Court to try him.
The continued trial before the High Court, therefore, infringes Article 21 of the Constitution.
[135E GI 49.1 Section 407 cannot be challenged under Article 14 as it is based on a reasonable classification having relation to the objects sought to be achieved.
Though, in general, the trial of cases will be by courts having the normal jurisdiction over them, the exigencies of the situation may require that they be dealt with by some other court for various reasons.
Likewise, the nature of a case, the nature of issues involved and other circumstances may render it more expedient, effective, expeditious or desirable that the case should be tried by a superior court or the High Court itself.
[136E F3] 49.2 The power of transfer and withdrawal contained in section 407 of the Cr.
P.C. is one dictated by the requirements of justice and is, indeed, but an aspect of the supervisory powers of a superior Court over courts subordinate to it.
[136FJ] 49.3 A judicial discretion to transfer or withdraw is vested in the highest court of the State and is made exercisable only in the circumstances set out in the section.
Such a power is not only necessary and desirable but indispensable in the cause of the administration of justice.
The accused will continue to be tried by a or equal or superior jurisdiction.
[136G] The accused will, therefore, suffer no prejudice by reason of the 31 application of section 407.
Even if there is a differential treatment which causes prejudice, it is based on logical and acceptable considerations with a view to promote the interests of justice.
The transfer or withdrawal of a case to another court or the High Court, in such circumstances, can hardly be said to result in hostile discrimination against the accused in such a case.
[137A B] 49.4 only a power of transfer is being exercised by the supreme Court which is sought to be traced back to the power of the High Court under section 407.
[137E] State vs Anwar Ali Sarkar, ; , distinguished.
Kathi Raning Rawat vs The State of Saurashtra, , Re: Special Courts Bill, [1978] and Shukla vs Delhi Administration, ; , referred to.
l Where a case is withdrawn and tried by the Court, the High Court will be conducting the trial in the exercise of its extraordinary original criminal jurisdiction.
Here though the ordinary original criminal jurisdiction is vested in a subordinate criminal court or special judge, a case is withdrawn by the High Court to itself for trial.
[139F, H] Madura Tirupparankundram etc.
vs Nikhan Sahib, ; Kavasji Pestonji vs Rustomji Sorabji, AIR 1949 Bombay 42; Sunil Chandra Roy and another vs The State, AIR 1954 Calcutta 305; Peoples Insurance Co. Ltd. vs Sardul Singh Caveeshar and others, AIR 1961 Punjab 87 and People 's Patriotic Front vs K. K. Birla and others, [ 1984] Crl.
L.J. 545, referred to.
50.2 In a withdrawn case, right of first appeal to the Supreme Court against the order passed by the High Court will be available to the accused under section 374 of the 1973 Cr. P.C., and the accused has the privilege of being tried in the first instance by the High Court itself with a right to approach the apex Court by way of appeal.
The apprehension that the judgment in the trial by the High Court, will be final, with only a chance of obtaining special leave under Article 136 is totally unfounded.
The Supreme Court will consider any petition presented under Article 136 in the light of the in built requirements of Article 21 and dispose it of as if it were itself a petition of appeal from the judgment.
Therefore an accused tried directly by the High Court by withdrawal of his case from a subordinate court, has a right of appeal to the Supreme Court under section 374 of the Cr.
The allegation of an in 32 fringement of Article 21 in such cases is, therefore, unfounded.
[140B F] Sadanathan vs Arunachalam, , distinguished.
50.3 The court to which the case has been transferred is a superior court and in fact the High Court.
However, the High Court Judge is not a person to whom the trial of the case can be assigned under s.7(1) of the 1952 Act.
The circumstances that a much superior forum is assigned to try a case than the one normally available cannot by itself be treated as a "sufficient safeguard and a good Substitute" for the normal forum and the rights available under the normal procedure.
[131G H] Surajmal Mohta vs Vishwanath Sastry, [1955] 1 SCR, referred to.
50.4 The accused here loses his right of coming up in revision or appeal to the High Court from the interlocutory and final orders of the trial court, and the right of having two courts subordinate court and the High Court adjudicate upon his contentions before bringing the matter up in the Supreme Court.
Though these are not such caps as violate the fundamental rights of such an accused, they are circumstances which create prejudice to the accused and may not be Overlooked in adopting one construction of the statue in preference to the other.
[132A B] 51.1 t It is true that the audi altarem partem rule is a basic requirement of the rule of law.
But the degree of compliance with this rule and the extent or consequences flowing from failure to do so will vary from case to case.
[168B] Nawabkhan Abbaskhan vs State, ; , referred to.
In the instant case the appellant had been given no chance of being heard before the impugned direction was given and it cannot be said whether the Bench would have acted in the same way even if he had been given such opportunity.
However, in the circumstances of the case.
this is not a fit case to interfere with the earlier order on that ground.
[167H, 168A] 51.2 The rules of natural justice must not be stretched too far.
They should not be allowed to be exploited as a purely technical weapon to undo a decision which does not in reality cause substantial injustice and which, had the party been really aggrieved thereby, could live been set right by immediate action.
[169C] 33 R. vs Secretary of State for Home Department ex parte Mughal, , referred to.
The direction of 16.2.1984 cannot be said to have infringed the fundamental rights of the appellant or caused any miscarriage of justice.
The appellant did know on 16.2.1984 that the judges were giving such a direction and yet he did not protest.
Perhaps he did think that being tried by a High Court Judge would be more beneficial to him, as indeed it was likely to be.
That apart, several opportunities were available for the appellant to set this right.
He did not move his little finger to obtain a variation of this direction from this Court.
He is approaching the Court nearly after two years of his trial by the learned judge in the High Court.
Volumes of testimony have been recorded and numerous exhibits have been admitted as evidence.
Though the trial is only at the stage of the framing of charges, the trial being according to the warrant procedure, a lot of evidence has already gone in and if the directions of this Court are re called, it would wipe the slate clean.
To take the entire matter back at this stage to square No. 1 would be the very negation of the purpose of the 1952 Act to speed up all such trials and would result in more injustice than justice from an objective point of view.
[168G H, 169A B] 52.1 Situations can and do arise where this Court may be constrained to recall or modify an order which has been passed by it earlier and that when ex facie there is something radically wrong with the earlier order, this Court may have to exercise its plenary and inherent powers to recall the earlier order without considering itself bound by the nice technicalities of the procedure for getting this done.
[163C] 52.2 Where a mlstake is committed by a subordinate court or a High Court, there are ample powers in this Court to remedy the situation.
But where the mistake is in an earlier order of this Court, there is no way of having it corrected except by approaching this Court.
Sometimes, the remedy sought can be brought within the four corners of the procedural law in which event there can be hurdle in the way of achieving the desired result.
But the mere fact that, for some reason, the conventional remedies are not available should not render this Court powerless to give relief.
[163D E] Ghulam Sarwar vs Union of India, ; Soni Vrijlal Jethalal vs Soni Jadavji Govindji, AIR 1972 Guj.
148; Jang Singh vs Brij Lal ; at p. 159; Bhagat Ram vs State, ; and State vs Tara Chand, [1973] S.C.C. Cr. 774, referred to.
34 52.3 lt may not be possible or prudent to lay down comprehensive list of defects that will attract the ex debito justiae relief.
[163E] 52.4 Suffice it to say that the court can grant relief where there is some manifest illegality or want of jurisdiction in the earlier order or some palpable in Justice is shown to have resulted.
Such a power can be traced either to Article 142 of the Constitution or to the powers inherent in this Court as the apex Court and the guardian of the Constitution.
[163F] Issac vs Robertson, referred to.
52.5 However, such power has to be exercised in the "rarest of rare" cases and there is great need for judicial discipline of the highest order in exercising such a power, as any laxity in this regard may not only impair the eminence, dignity and integrity of this Court but may also lead to chaotic consequences.
Nothing should be done to create an impression that this Court can be easily persuaded to alter its views on any matter and that a larger Bench of the Court will not only be able to reverse the precedential effect of an earlier ruling but may also be inclined to go back on it and render it ineffective in its application and binding nature even in regard to subsequent proceedings in the same case.
[163G H 164A] Bengal Immunity Company Ltd. vs The State of Bihar and ors., and Sheonandan Paswan vs State of Bihar & Ors., ; , referred to.
The power of review is conferred on this Court by Article 137 of the Constitution.
It is subject not on to the provisions of any law made by Parliament but also to rules made by this Court under article 145.
[142H] The order dated 16.2.1984 does not suffer from any error apparent on the face of the record which can be rectified on a review application.
The prayer for review has been made beyond the period mentioned in Rule 2 of order XL of the Supreme Court Rules.
No doubt this Court has power to extend the time within which a review petition may be filed.
But having regard to the circumstances of the case there is hardly any reason to condone the delay in the prayer for review.
[144A B,143B,147H] The appellant was alive to all his present contentions.
At least when the writ petition was dismissed as an inappropriate remedy, he should have at once moved this Court for review.
[148A] 35 That apart even if the Court is inclined to condone the delay, the application will have to be heard as far as possible by the same Judges who disposed of the earlier matter.
[148B] 54.
It will not behove the prestige and glory of this Court as envisaged under the Constitution if earlier decisions are revised or recalled solely because a later Bench takes a different view of the issues involved.
Granting that the power of review is available, it is one to be sparingly exercised only in extraordinary or emergent situations when there can be no two opinions about the error or lack of jurisdiction in the earlier order and there are adequate reasons to invoke a resort to an unconventional method of recalling or revoking the same.
Such a situation is not present in the instant case.
[167F G] 55.
Prem Chand Garg cannot be treated as an authority for the proposition that an earlier order of this Court could be quashed by the issue of a writ on the ground that it violated the fundamental rights.
Mirajkar clearly precludes such a course.
[155G H] Prem Chand Garg vs Excise Commissioner, [1963] Supp. 1 SCR 885, explained and distinguished.
Naresh Shridhar Mirajkar and others vs State of Maharashtra and another.
relied on. |
ivil Appeal No. 3006 of 1981.
From the Judgment and Order dated 28.7.1981 of the Himachal Pradesh High Court in C.W.P. No. 94 of 1981.
M.V. Goswami for the Appellant.
Nemo for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
"Nautor land" under Rule 3 of the Himachal Pradesh Nautor Land Rules, 1968 (hereinafter called 'Rules ') means the right to utilize with the sanction of the competent authority, waste land owned by the Government outside the towns, outside the reserved and demarcated protected forests, and outside such other areas as may be notified from time to time by the State Government.
Gopinder Singh applied for the grant of nautor land measuring 14 bighas 12 biswas situated in village Kanal for cultivation.
The Revenue Assistant Chopal vide his order dated June 29, 1972 sanctioned nautor land measuring 11 bighas 1 biswas situated in village Kanal to him on payment of Rs.552.50 as Nazarana.
The Forest Department filed an appeal against the said order before the Deputy Commissioner Simla which was accepted and the order of the Revenue As sistant Chopal sanctioning nautor land in favour of Gopinder Singh was set aside.
Gopinder Singh filed further appeal to Divisional Com missioner, Himachal Pradesh at Simla who accepted the same and vide his order dated September 9, 1974 restored the grant of nautor land to Gopinder Singh.
The Forest Depart ment filed revision petition before the Financial Commis sioner (Revenue Appeals) Himachal Pradesh who accepted the revision petition and set aside the order dated September 9, 1974 of the Divisional Commissioner sanctioning nautor land to Gopinder Singh.
He further ordered that the amount of Nazarana Should.
be refunded to Gopinder Singh and the land resumed to the State.
The Financial Commissioner accepted the appeal on the following two grounds: 799 (1) Gopinder Singh felled the trees on the land without waiting for necessary approval of the Divisional Forest Officer and as such he took the law in his own hands.
(2) Being a teacher in a Government school drawing month ly emoluments of more than Rs.650 p.m. his economic condi tion was reasonably good and as such he was not eligible for the grant of nautor land under the Rules.
Against the order of the Financial Commissioner Gopinder Singh filed Civil Writ Petition under Article 226 of the Constitution of India before the High Court of Himachal Pradesh at Simla which was dismissed in limine on July 28, 1981.
This appeal by special leave is by appellant Gopinder Singh against the orders of the Financial Commissioner and of the High Court.
Rule 7 of the Rules lays down the categories of persons eligible for the grant of nautor land.
The said rule is as under: "Eligibility for nautor land.
Save for the widow and the children of a member of an armed force or semi armed force, who has laid down his life for the country (whose widow and children will be eligible for grant anywhere within the Tehsil subject to the conditions mentioned in the Wajib ul arj in respect of the areas where the land applied for is situated) no one who is not the resident in the estate in which the land applied for is situate, shall be eligible for the grant.
Every resident of the estate in which the land applied for lies will be eligible in the following order of preference: (a) Such persons who have less than ten bighas of land, whether as owners, or as tenants, or as lessees, either individually or collectively, or have an income of less than Rs.2,000 per annum from all sources including lands.
Provid ed that in this category a dependent of one who has laid down his life for the defence of the country shall get preference over his counterparts; (b) Scheduled Castes and Scheduled Tribes applicants; (c) The dependants of those who have laid down their lives for the defence of the country.
Service for the defence of 800 the country will mean service in a uniformed force as well as in the capacity of civilian, so long as the death occurs on a front, be it military or civil; (d) Serving personnel in the armed forces and Ex servicemen; (e) Panchayats, and (f) others; Provided that a bona fide landless resident of Spite shall be eligible for the grant of land in Nautor within the spiti Sub Division.
" The learned counsel appearing for the appellant has relied on first part of clause (a) of Rule 7 to show that the appellant was having less than 10 bighas of land and as such as was eligible for the grant of nautor land.
He fur ther contended that even though he may be having an income of more than Rs.2,000 per annum as a teacher, he being eligible under the first part, the second part of clause (a) of Rule 7 is not attracted in his case.
According to him first and the second part of clause (a) of Rule 7 are inde pendent to each other and there being 'or ' in between the two parts these have to be read disjunctively.
He contends that 'or ' has to be given its ordinary meaning and it cannot be read as 'and '.
We have carefully examined the provisions of clause (a) of Rule 7 reproduced above.
The clause reads "such persons who have less than 10 bighas of land . or have an income of less than 2,000 per annum from all sources including lands.
" There is thus inherent evidence in the clause itself to show that the two parts cannot be read disjunctively.
The second part makes it clear that an income of less than Rs.2,000 per annum should be from all sources including lands.
It is thus obvious that a person who has got less than 10 bighas of land but has an income of more than Rs.2,000 from the said land, is not eligible for allotment of nautor land under clause (a).
Even otherwise if we inter pret the clause the way learned counsel for the appellant wants us to do it would produce absurd result.
A person have two bighas of land but otherwise earning Rs.20,000 per annum would be eligible for allotment of nautor land if we accept the appellant 's interpretation.
The object of granting nautor land under the rules is to help poor and unprovided for residents of Himachal Pradesh.
Considering the nature, scope and the clear intention of the framers of the Rules it is 801 necessary to read the word "or" in between the first and the second part of clause (a) as "and".
The appellant 's income was admittedly more than Rs.2,000 per annum and as such his claim for nautor land was rightly rejected.
We, therefore, do not agree with the contentions raised by the learned counsel for the appellant.
The appeal is, therefore, dismissed with no order as to costs.
P.S.S. Appeal dis missed. | Clause (a) of Rule 7 of the Himachal Pradesh Nautor Land Rules, 1968 makes every resident of the estate having less than ten bighas of land or having an income of less than Rs.2,000 per annum from all sources including lands, eligi ble for grant of land in nautor.
The grant of nautor land to the appellant teacher was set aside by the Financial Commissioner in revision.
The High Court dismissed the writ petition in limine.
In the appeal by special leave it was contended for the appellant that the word 'or ' occurring in between the first and the second part of cl.
(a) of Rule 7 has to be given its ordinary meaning and it cannot be read as 'and ' that the two parts of the clause were, therefore, independent of each other and had to be read disjunctively, and that he being eligible under the first part, even though having an income of more than Rs.2,000 per annum as a teacher, the second part of cl.
(a) was not attracted.
Dismissing the appeal, the Court, HELD: 1.
A person who has got less than 10 bighas of land but has an income of more than Rs.2,000 per annum from all sources including the said land is not eligible for allotment of nautor land under cl.
(a) of Rule 7 of the Himachal Pradesh Nautor Land Rules, 1968.
[800G] 2.
The object of granting nautor land under the Rules is to help poor and unprovided for residents of the State.
Considering the nature, scope and the clear intention of the framers of the Rules it is necessary to read the word 'or ' in between the first and the second part of clause (a) as 'and '.
The two parts cannot, therefore, be read disjunctive ly.
The second part makes it clear that an income of less than Rs.2,000 per annum should be from all sources including lands.
[800H; 801A] 798 3.
The appellant 's income in the instant case being more than Rs.2,000 per annum he was not entitled to the grant of nautor land.
[801A] |
Civil Appeal No. 1407 of 1983.
From the Judgment and Order dated 1.12.1983 of the Madras High Court in C.R.P. No. 2978 of 1981.
G. Ramaswamy and section Srinivasan for the Appellant.
A.T.M. Sampath for the Respondents.
The Judgment of the Court was delivered by VERMA, J.
Applications were invited by the Regional Transport Authority, Pudukkottai (in short 'the R.T.A. ') for grant of one stage carriage permit on the route, Pudukkot tai Kottaipattinam, the total length of the route being 70 kms.
There were in all 15 applicants including the appel lant, S.V. Sivaswami Servai, and respondent No. 1, Hafez Motor Transport (firm).
On 26.10.1979, the R.T.A. took up the case of all the applicants for consideration.
The R.T.A. rejected the application of respondent No. 1 and some other applicants on the only ground that each of them had been granted one other permit in the same sitting and, therefore, the R.T.A. did not deem it fit to consider their claim for grant of the permit.
Out of the remaining applicants who were allotted equal marks, the R.T.A. found the appellant more suitable for the grant.
Accordingly, the R.T.A. granted the permit to the appellant for a period of three years on 26.10.1979.
The respondent No. 1 and some others, feeling aggrieved by the R.T.A. 's Order in appellant 's favour, preferred the appeals to the State Transport Appellate Tribunal, Madras (in short 'the S.T.A.T. ').
By the Order dated 5.9.1981, the S.T.A.T. set aside the R.T.A. 's Order granting, the permit to the appellant and granted the permit in favour of respondent No. 1.
This led to two civil revi sion petitions in the High Court of Madras (hereinafter referred to as 'the High Court '), one by appellant and the other by another unsuccessful applicant.
The High Court, by an interim Order dated 22.9.1981, stayed operation of the S.T.A.T. 's Order and directed that the appellant as well as respondent No. 1 be allowed to operate on the route.
Ulti mately, the High Court dismissed 805 both the revision petitions by its Order dated 1.12.1983.
The appellant filed a petition for grant of special leave on 7.12.1983 which was allowed giving rise to this appeal.
By virtue of the interim Order of this Court, the situation existing during pendency of the revision in the High Court has been continued with the result that the appellant as well as respondent No. 1 have been continuing to operate on the route throughout obviously on account of renewal being granted to them from time to time because of this Court 's interim Order.
The result is that the permit granted in October 1979 for three years expired long back and yet not merely one of these claimants for the permit, but both of them have been operating on the route all these years.
It is obvious that the grant of permit by the R.T.A. to the appellant refusing to consider the claim of respondent No. 1 and some other applicants on merits solely on the ground that they had been granted one other permit in the same sitting is clearly untenable.
The grant of a permit for another route to the respondent No. 1 and some others could only be a relevant circumstance while assessing the compara tive merits of all the applicants, but by itself it could not be decisive or sufficient to refuse consideration Of their claim.
The S.T.A.T. would have been justified in interfering with the R.T.A. 's Order on this ground and either remanding the matter to the R.T.A. or considering the same itself on merits.
The S.T.A.T. missed this aspect, even though it made a comparison of the merits of all the appli cants.
Shri G. Ramaswamy, learned counsel for the appellant showed that the S.T.A.T. has committed several errors in making the comparison which include a misreading of the past operational record described as 'history sheet ' of the rival claimants.
The High Court, while deciding the revision petitions, has also not proceeded on the correct basis.
Shri A.T.M. Sampath, learned counsel for the respondent No. 1 made an attempt initially to support the S.T.A.T. 's Order granting the permit to the respondent No. 1 which was upheld by the High Court.
However, after some arguments, both counsel made a common request to remand the matter to the R.T.A. for a fresh decision on merits taking into account the comparative merits of all the applicants.
They also requested that in view of the remand to the R.T.A. for a fresh decision on merits, no observations need be made herein on the comparative merits of the claimants or the merits of the rival contentions initially advanced to us.
We are of the opinion that in the circumstances of this case, this would be the appropriate course to adopt.
We have, however, some difficulty in accepting the other common request made by both the learned counsel.
Both sides agreed that there is necessity for two permits on the route and, therefore, we may direct that both 806 parties, who have been operating on the route by Orders of the High Court or this Court, should be allowed to ply their stage carriages on the route.
Reliance is placed by them on M. Chinnaswarny vs
Dhandayuthanpani Roadways (P) Ltd., wherein a similar Order was made on the basis of an agreement of both the sides.
The Order made in this case is a brief order based entirely on the agreement of the parties, the relevant portion of which is as under: "It is represented by Shri M.K. Ramamurthi appearing for the appellant that from about 1960, for the last 16 years, both the parties had been plying their stage carriages on the said route.
Although the permit to be granted was only one, but by orders of court or other authority both the parties had been allowed to ply their buses.
It seems to be so obvious that in public interest if two stage carriages have been plying on the route for the last 16 years there is no reason to confine it to one.
Both sides agree that there is necessity for two permits on the route.
In that view we consider the dispute to be academic.
We direct that the status quo of both parties being allowed to ply their stage carriages on the route taking appropriate permits from the authorities concerned will continue.
With this direction, the appeal is dismissed.
" It was stated at the Bar that this decision was followed in Civil Appeal No. 1133 of 1970 decided on 9.12.1981 wherein the Order made is as under: "We have heard learned counsel for the parties and it seems to us that having regard to the particular circumstances of this case, the order should be that which was passed by this Court in M. Chinnaswamy vs M/s. Dhandayuthanpani Roadways (P) Ltd., AIR 1977 SC 2095.
During the pendency of the appeal in this Court, this Court made an order on April 21, 1970, directing that the appellant and respondent No. 1 should be permitted to ply their stage carriages on the route, and ever since the order of 1970 these two stage carriages have been plying continuously under permits which have been renewed from time to time under the .
There is every justification for permitting the present situation to continue.
In the circumstances, we direct that the status quo shall continue and both the parties will be allowed to ply their stage 807 carriages in accordance with law under appropriate permits issued in their favour pursuant to the interim order dated April 21, 1970." Recently, a similar Order has been passed in Civil Appeal No. 136 of 1980 decided on 13.7.1990 which reads as under: "The authorities concerned will consider the case of the parties herein for grant of permit in accordance with law and also in accordance with the directions in the decision of this Court in M. Chinnaswamy vs M/s. Dhandayuthanpani Roadways (P) Ltd., reported in AIR 1977 SC 2095.
In the meantime, status quo as on today will continue.
Both the parties will ply their vehicles on the route in question.
Counsel for both the parties are present here and they have no objection to the order passed above.
The appeal is disposed of in the above terms.
No costs.
" With respect, we are unable to accept this common re quest made to us in the present case.
It is obvious from the above quoted orders on which the common request is based that in none of them, any point of law was considered or decided and the Order permitting both the claimants to operate on the route, even though the permit to be granted was only one, was made without adverting to the legal impli cations of such an Order.
In the first place, grant of a permit is to be made primarily with reference to the object of serving the interests of the general public and it cannot be treated as a dispute relating to grant of a permit be tween the rival claimants only.
It is not in the nature of a lis for adjudication of conflicting interests of private individuals alone It is, therefore, not a matter which can be decided merely on the basis of an agreement between the two rival claimants who alone out of several claimants remain in the lis at this stage.
The question of grant of permit is to be decided primarily by the R.T.A. having regard primarily to the interests of the general public and other prescribed relevant factors.
That apart, under Section 47(3) of the , the R.T.A. is first required to determine the number of stage carriages for the route and then to grant permits according to that determina tion made earlier.
Grant of any permit in excess thereof was not permissible without first making a fresh determination and increasing the number, if necessary.
It is, therefore, obvious that an order of this kind cannot be made unless the grant of a permit to both the rival claimants would be within the limit fixed by 808 the R.T.A. at the relevant time.
There is nothing in any of these above quoted orders to indicate that this aspect was even adverted to or that there was material to indicate that the consent order so made was within.
the limit fixed by the R.T.A. If at all the indication is to the contrary that a permit which could be granted was for plying only one stage carriage on the route whereas the consent order made had the effect of permitting two stage carriages instead of one.
Moreover.
if the claimants had the benefit of plying their stage carriages for several years on the basis of interim orders of the Court or other authorities long after the period of the permit had expired, that does not appear to us to be a valid reason for perpetuating that act and confining the grant only to the litigants before us when claimants for the permit were many and are likely to be many in case the question of grant at this point of time is decided afresh.
With respect, we are, therefore, unable to accede to this common request and to confine the operation of this route only to the two claimants before us in a lis between them which commenced more than a decade earlier.
Admittedly, the applicants for permit before the R.T.A. were many more and when the matter is to be considered afresh by the R.T.A., everyone of them is entitled to a fresh consideration of his claim on merits.
As already stated, our inability to pass a consent order in terms of the above quoted orders is for some of the reasons already indicated.
For the reasons given by us, the above quoted consent orders cannot be treated as precedents for such a situation.
Consequently, the appeal is allowed, the impugned Orders of the R.T.A., the S.T.A.T. and the High Court are set aside and the matter is remanded to the R.T.A., Pudukkottai, for a fresh consideration and decision of the claim of all the applicants for grant of the permit on merits in accordance with law.
The interim orders, permitting the appellant and the respondent No. 1 to ply their stage carriages on the route, stand vacated.
However, it would be expedient that the R.T.A. decides the matter afresh at an early date and it also makes arrangement for operation of the route during the intervening period in accordance With law to avoid any inconvenience to the travelling public.
No costs. | The appellant and 14 others, including respondent No. 1 applied for grant of a stage carriage permit.
The R.T.A. rejected the applications of respondent No. 1 and some others on the only ground that each of them had been granted one other permit in the same sitting, and granted the permit to the appellant for a period of three years.
On appeal by respondent No. 1 and some others, the State Transport Appel late Tribunal, set aside the R.T.A. 's order and granted the permit in favour of respondent No. 1.
The appellant and another unsuccessful applicant filed two civil revision petitions.
The High Court, by an interim order, stayed the Tribunal 's order and directed that the appellant as well as respondent No. 1 be allowed to operate on the route, but ultimately dismissed both the revision petitions.
The appellant filed a special leave petition before this Court.
By virtue of this Court 's interim order, the appel lant and respondent No. 1 were continuing to operate on the route throughout; as a result, though the permit granted for three years expired long back, both the claimants had been operating on the route all these years.
On behalf of the parties common request was made for remanding the matter to the R.T.A. for fresh decision on merits and for a direction to allow both the parties to ply their stage carriages on the route on the ground that there was necessity for two permits on the route.
Allowing the appeal, this Court, HELD: 1.1 The grant of a permit is to be made by the R.T.A. primarily with reference to the object of serving the interests of the general public and other relevant factors.
It cannot be treated as a dispute relating to grant of a permit between the rival claimants only.
It is not in the nature of a lis for adjudication of conflicting interests of 803 private individuals alone.
That apart, under Section 47(3) of the , the R.T.A. is first re quired to determine the number of stage carriages for the route and then to grant permits according to that determina tion made earlier.
Grant of any permit in excess thereof was not permissible without first making a fresh determination and increasing the number, if necessary.
[807E G] 1.2 Therefore, an order allowing two claimants, to ply their stage carriages on a single route on the basis of agreement between them that there is necessity for two permits cannot be made unless the grant of a permit to both the rival claimants would be within the limit fixed by the R.T.A. at the relevant time.
The grant of a permit is not a matter which can be decided merely on the basis of an agree ment between the two rival claimants who alone out of sever al claimants remain in the lis at this stage.
[807H & F] M. Chinnaswamy vs M/s. Dhandayuthanpani Roadways (P) Ltd., ; Civil Appeal No. 1133 of 1970 decid ed on 9.12.1981 and Civil Appeal No. 136 of 1980 decided on 13.7.1990, distinguished.
1.3 The fact that the claimants had the benefit of plying their stage carriages for several years on the basis of interim orders of the Court or other authorities long after the period of the permit had expired, is not a valid reason for perpetuating that act and confining the grant only to the litigants before the court when claimants for the permit were many and are likely to be many in case the question of grant at this point of time is decided afresh.
Admittedly, the appellants for permit before the R.T.A. were many more and when the matter is to be considered afresh by the R.T.A. everyone of them is entitled to a fresh consider ation of his claim on merits.
[808B D] 1.4 The grant of permit by the R.T.A. to the appellant refusing to consider the claim of respondent No. 1 and some other applicants on merits solely on the ground that they had been granted one other permit in the same sitting is clearly untenable.
The grant of a permit for another route to the respondent No. 1 and some others could only be a relevant circumstance, while assessing the comparative merits of all the applicants, but by itself it could not be decisive or sufficient to refuse consideration of their claim.
The orders of the R.T.A. the Tribunal and the High Court are set aside and the matter remanded to the R.T.A. for a fresh consideration and decision of the claim of all the applicants on merits in accordance with law.
[805C D; 808F1 804 [The Court vacated the interim order permitting the appellant and respondent No. 1 to ply their stage carriages on the route and directed the R.T.A. to make arrangement for operation of the route till the matter is decided afresh, to avoid inconvenience to the traveling public.] [808F G] |
vil Appeals Nos. 578485 of 1983.
From the Judgment and Order dated 2.3.1983 of the Andhra Pradesh High Court in W.A. Nos. 170 and 171 of 1982.
WITH Special Leave Petition (Civil) No. 1679 of 1989 and Transfer case No. 29 of 1989.
From the Judgment and Order dated 13.6.1988 of the Andhra Pradesh High Court in Writ Petition No. 5498 of 1983.
T.S. Krishnamurthy lyer, Dr. V. Gouri Shankar, Meeraj Khayyam, R.N. Keshwani.
M. Qamaruddin, P.N. Mishra and Mrs M. Qamaruddin for the Appellant.
Dr. L.M. Singhvi, S.K. Shashtri, D.N. Mishra and T.V.S.N Chart for the Respondents.
C. Sitaramaiah and G. Prabhakar for the State of Andhra Pradesh.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
The appeals are by special leave 1he transferred writ petition by respondent No. 1 in the Civil Appeals is writ petition before the Andhra Pradesh High Court being 6500 of 1983 in a connected proceedings.
The special leave petition is by the 785 owner of some lands which form the subject matter of acqui sition.
On 5.6.1975 21.10 acres of land located at Bagh Amberpet in Hyderabad said to be belong to Syed Azam and members of his family were notified to be acquired under section 4(1) of the Land Acquisition Act for a housing project undertaken by the Hyderabad Municipal Corporation in collaboration with HUDCO.
Enquiry under section 5A of the Act was dispensed with by a separate notification issued along with the preliminary notification.
On 25.4.1978, notification under section 6 of the Land Acquisition Act was made.
Tulsi Cooperative Housing Society on the plea that it had entered into a contract of purchasing the very property from the owners had applied for exemption under the Urban Land Ceiling Act.
On 17.10.1978, prayer for exemption was refused.
On 11.9.1980 exemption was, however, granted.
Thereupon two writ petitions were filed before the High Court one by Tulsi Cooperative Hous ing Society and the other by the owners of the property for quashing of the acquisition proceedings.
The learned Single Judge upheld the acquisition but the writ appeal of Tulsi Cooperative Housing Society were allowed by a Full Bench of the High Court as a result of which the acquisition proceed ings were held to be inoperative.
Bagh Amberpet Welfare Society had entered into arrange ment with the Hyderabad Municipal Corporation for being assigned land for construction and was, therefore, interest ed in the acquisition.
The civil appeals are by that Society challenging the decision of the Full Bench of the High Court in the two writ appeals filed by Tulsi Cooperative Housing Society.
On 23.6.1983, the exemption which had been granted on 11.9.
1980 was withdrawn by the State Government.
Syed Azam, one of the owners, challenged the withdrawal of the exemption by filing a writ petition before the High Court.
The High Court took note of the position that the dispute was already pending in this Court and, therefore, by its order dated 13.6.1988, dismissed the petition without entering into the merits.
That has led the owner to move this Court by special leave.
Tulsi Cooperative Housing Society also moved the High Court by filing Writ Petition No. 6500/83 against the with drawal or ' the exemption.
That petition was pending adjudi cation before the High Court and at the instance of the parties this Court directed transfer of that case to this Court to be heard along with the pending matters.
This is how Transferred Writ Petition No. 29/89 forms part of this group of litigation.
786 On 7.8.1985, this Court desired that the dispute should be settled amicably and accordingly certain proposals were examined.
As already noticed, the acquisition was of 20.10 acres of land.
18 acres and 3 gunthas belonged to the Azam family and at one stage each of the two Cooperative Socie ties had agreed to take 9 acres and 1 1/2 gunthas thereof.
The Secretary to Andhra Pradesh Government in the Urban Development Department responded to the settlement by say ing: "Since the compromise is arrived at between both the ag grieved parties before the Requisitioning Officer based upon the opportunity given by the Supreme Court, the State Gov ernment need not intervene in regard to land acquisition.
Necessary and just orders under the circumstances of the case may be passed on the basis of the compromise deed filed by both the Societies at the earliest possible to enable them to build houses.
" This Court, however, gave time to the counsel for the State of Andhra Pradesh to take instructions as to the application of the Urban Land Ceiling Act as exemption granted under section 20 had been withdrawn in June, 1983.
The State of Andhra Pradesh thereafter did not accept the compromise by taking the stand that proceedings under the Urban Land Ceiling Act were pending and in view of the fact that there was no exemption, the property was liable to vest in Government under the Act as surplus land.
This Court on August 23, 1988, made an order, the rele vant part of which is extracted: "We are not impressed by the stand taken by the writ peti tioners that there was justification for their not approach ing the court for six years after the section 4(1) notification, when they wanted to challenge the denial of the hearing under section 5A of the Act and the proceedings itself otherwise.
We agree with the learned Single Judge that the explanation not being acceptable, the writ petition has been rightly dismissed.
On this analysis the appellate judgment of the High Court cannot be sustained and the acquisition proceed ings have to be revived.
" This order virtually disposed of the appeals but as the parties were negotiating a settlement the Court did not record a formal disposal of the dispute.
787 If the settlement does not fructify, the effect of our decision that the acquisition proceedings are to revive, would be that the claim to the land by Tulsi Cooperative Housing Society would come to an end.
In that event, at the most that Society would only be entitled to such compensa tion as may be awardable in law.
If the acquisition proceeds the Bagh Amberpet Welfare Society and the Municipal Corpora tion would have to work out their mutual rights.
Apart from these, the two writ petitions challenging the withdrawal of the exemption by order dated 23.6.1983 would also have to be disposed of on the merits.
The owner 's application has been dismissed upon the High Court taking the view that the matter was before this Court and, therefore, the High Court would not entertain the dispute.
The challenge by Tulsi Cooperative Housing Society against the said withdrawal was before the High Court for adjudication.
In view of the fact that the owner 's writ petition was dismissed not on merits but on other considerations, we are of the view that the said dismissal should be vacated and that writ petition should be heard along with Writ Petition No. 6500/83 as a common question arises for determination.
We, therefore, set aside the order of the High Court dated 13th of June, 1986, and direct that the said writ petition shall be disposed of afresh on merits.
We are of the view that the entire litigation should go back to the High Court for appropriate disposal.
The trans ferred writ petition, therefore, shall also go back to the High Court and shall be dealt with as Writ Petition No. 6500 of 1983.
The two petitions challenging the withdrawal of exemption shall be clubbed together and be heard.
The pro posals undertaken relating to a settlement in regard to the 18 acres and 3 gunthas of land may be considered by the High Court in the light of all relevant material and circum stances.
If the High Court is of the opinion that the matter should be settled and the entire land of the owners amount ing to 18 acres and 3 gunthas should be divided between the two Societies, it will be free to do so if Government also agrees thereto.
Since that arrangement would be with the consent of the State Government it would in such an event be open to the High Court to nullify the acquisition.
The observations which we have made at different stages during the pendency of the proceedings in this Court may not be taken to be expression of opinion on the merits and the High Court would be free to deal with the matter in its own discretion and in accordance with law.
In the event of the settlement not coming through the acquisition proceedings would continue under the law and be concluded by the Land Acquisition Officer in accordance with law.
In the event of the 788 acquisition working out, the two write petitions against the withdrawal of exemption would not be sustainable as the land would vest in Government as a result of acquisition.
It would be open to the Government or the acquiring authority to take into account the effect of the laws of urban ceil ing.
The civil appeals are remitted to the High Court limited to the consideration of the proposals for settlement in the light of the observations hereinabove.
Otherwise, they must be taken to have been concluded in this Court on our finding that acquisition proceedings are valid and shall be entitled to continue.
The special leave petition of Azam is disposed of with a direction that the writ petition in the High Court shall be re heard.
The transferred writ petition is remitted to the High Court to be disposed of as Writ Petition No. 6500 of 1983.
The hearing of the writ petitions would depend upon the fate of the settlement as indicated above.
There would be no order for costs in this Court.
Money, if any, in deposit in the Registry of this Court to the credit of the parties shall be transferred to the High Court and shall be subject to such directions as the High Court may issue upon a final decision of the relevant issues arising in the proceedings.
G.N. Appeals and Petitions disposed of. | For the purposes of a housing project, some land was acquired by way of a notification under the Land Acquisition Act.
The Respondent Society claiming that it had entered into a contract with the owners for purchasing the very property, applied for exemption under the Urban Ceiling Act.
The exemption prayed for was refused initially, but was granted later.
Both the Respondent Society and the owners of the said land filed Writ Petitions before the High Court for quashing of the acquisition proceedings.
The acquisition was upheld by Single Judge, but on appeal by Respondent Society, the Full Bench held the acquisition proceedings to be inopera tive.
Against these orders, the appellant Society which had entered into an agreement with the Municipal Corporation, and as such interested in the acquisition, has preferred the appeals.
Meanwhile, the State Government withdrew the exemption granted under the Urban Ceiling Act.
One of the owners filed a Writ Petition before the High Court challenging the with drawal.
The High Court took note of the fact that the mat ters were pending in this Court and dismissed the petition.
Aggrieved against the order of dismissal, a petition for special leave has been filed.
The Respondent Society also moved the High Court by way of a Writ Petition challenging the withdrawal of exemption, which was pending and this Court transferred the same to itself, to be heard with the pending cases.
On 7.8.1985, this Court gave time to Counsel to consider various compromise proposals.
However, the desired compro mise did not come through.
On 23.8.1988 this Court passed an order holding that the 783 acquisition proceedings have to be revived.
However, no formal disposal was recorded since a settlement was being negotiated.
Even after about 2 yrs.
the settlement did not fructify.
Remitting the matters to the High Court, HELD: 1.
If the settlement does not fructify, the effect of the decision that the acquisition proceedings are to revive, would be that the claim to the land by Respondent Society would come to an end.
In that event, at the most that Society would only be entitled to such compensation as may be awardable in law.
If the acquisition proceeds the appellant Society and the Municipal Corporation would have to workout their mutual rights.
Apart from these, the two writ petitions challenging the withdrawal of the exemption by order dated 23.6.1983 would also have to be disposed of on merits.
In view of the fact that the owner 's writ peti tion was dismissed not on merits but on other considera tions, the said dismissal should be vacated and that writ petition should be heard along with Writ Petition No. 6500/83 as a common question arises for determination.
The order of the High Court dated 13th of June, 1988, is set aside and the High Court is directed to dispose of the Writ Petition afresh on merits.
[787B D] 2.
If the High Court is of the opinion that the matter should be settled and the entire land of the owners amount ing to 18 acres and 3 gunthas should be divided between the two Societies, it will be free to do so if Government also agrees thereto.
Since that arrangement would be with the consent of the State Government it would in such an event be open to the High Court to nullify the acquisition.
The observations made at different stages during the pendency of the proceedings in this Court may not be taken to be expres sion of opinion on merits and the High Court would be free to deal with the matter on its own discretion and in accord ance with law.
[787F G] 3.
In the event of the settlement not coming through, the acquisition proceedings would continue under the law and be concluded by the Land Acquisition Officer in accordance with law.
In the event of the acquisition working out, the two writ petitions against the withdrawal of exemption would not be sustainable as the land would vest in Government as a result of acquisition.
It would be open to the Government or the acquiring authority to take into account the effect of the laws of urban ceiling.
[787H; 788A] 4.
The civil appeals are also remitted to the High Court limited to 784 the consideration of the proposals ' for settlement in the light of the observations made in this Judgment.
Otherwise, they must be taken to have been concluded in this Court on the finding that acquisition proceedings are valid and shall be entitled to continue.
The special leave petition is disposed of with a direction that the writ petition in the High Court shall be re heard.
The transferred writ petition remitted to the High Court for disposal, [788B C] 5.
Money, if any, in deposit in the Registry of this Court to the credit of the parties shall be transferred to the High Court and shall be subject to such directions as the High Court may issue upon a final decision of the rele vant issues arising in the proceedings.
[788D] |
ivil Appeal No. 4380 of 1990.
From the Judgment and Order dated 4th October, 1985 of the Patna High Court in C.W.J.C. No. 4065 of 1985.
R.K. Garg and A. Sharan for the Appellant.
K.K. Venugopal, P. Chidambaram, section Sukumaran, K.K. Lahiri, D. Partha Sarthy and S.N. Jha (N.P.) for the Re spondents.
The following Order of the Court was delivered: Special leave granted.
We have heard Mr. Garg for the appellant, Mr. Chidamba ram for the Principal Employer and Mr. Venugopal for the respondent Union.
A reference was made by the State Government of Bihar under section 10 of the to the Industrial Tribunal, Ranchi, on 9.7.81 referring to the following disputes for adjudication: (1) Whether the contract workers engaged by the management of the Tata Iron and Steel Company Ltd., Jamshedpur in the following permanent and regular nature of work before 11.2.
198 1 are entitled for permanent employment? (2) Transportation of materials within the plant which is not dependent on outside supply; (3) All processes connected with the manufacturing process; 979 (4) Removal and handling of waste product; and (5) Sweeping and cleaning the machines, conveyors, shops and offices.
The Tribunal by its Award dated 18.12.1984 , came to hold that the workmen constituted the contract labour and, there fore, the reference was not maintainable.
If further held that action, if any, had to be taken only under section 10 of the and the power to take steps under that statutory provision vested in the State Government and not in the Tribunal.
It may be pointed out that prior to the reference being made to the Tribunal, the matter had been taken before the Patna High Court and by judgment dated 4.9.1981 the writ petition was disposed of holding that a reference had al ready been made to the Industrial Tribunal and the Award was awaited and it was open to the State Government to take steps under section 10(1) of the .
The High Court in its ultimate conclusion indicated: "When the Award was finally made by the Industrial Tribunal, to the State Government, as the learned Advocate General assures us, shall determine the matter in accordance with law.
If after such an Award is made and no decision is taken by the State Government within a reasonable time, the peti tioners shall be at liberty to move this Court again . " The subsequent events have exposed the fallacy of the con clusion of the High Court.
In fact if the provisions of the had been properly kept in view; no reliance could have been placed on the fact that the Award was awaited.
When the Award was made challenge was raised before the High Court but it refused to entertain the writ petition.
The appeal by special leave is against the in limine dis missal of the writ petition.
We have heard learned counsel for the parties at some length and it has been brought to our notice by Mr. Chidam baram that in regard to Items 1, 2 and 4 of the heads of dispute as indicated in the reference, the contract labour system is no more vogue and contract labour is now 980 confined to Item 3 only.
In view of the changed situation and taking into consideration the background of the dispute as also the fact that the litigation has been pending for almost a decade now, we do not think it would be appropriate to take a technical view of the situation and endorse the decision of the Tribunal.
We are, therefore, inclined to substitute the terms of the reference to the Tribunal by indicating that the reference shall now read thus: "Whether the contract workers engaged by the Management of the Tata Iron and Steel Company Ltd., Jamshedpur in the permanent and regular nature of work before 11.2.
198 1 are entitled to permanent employment in regard to Items 1, 2 and 4 under the Principal Employer.
" In regard to Item No. 3 it shall be for the State Gov ernment to take its own decision under the provisions of the as to whether the contract labour employment should be terminated, and since the State Government had already been considering this matter for some time, we direct the State Government to take its decision in terms of the assurances held out by its learned Advocate General to the Patna High Court several years back within three months from now.
To regulate the matter in a more effective way before the Tribunal and keeping in view the submissions made by Mr. Venugopal we direct that 'the Tribunal shall initially devote attention to identify the workmen who are desirous of being permanently absorbed under the Principal Employer and after such identification is made, the matter should be proceeded with in accordance with law.
All parties should be given full opportunity to raise their contentions and sub stantiate the same with such evidence as they like to lead but the Tribunal shall ensure that the dispute is disposed of within six months from today.
If necessary, full atten tion should be given to this case so as to comply with the direction regarding disposal within the time limit set by us.
There would be no order for costs.
P.S.S. Appeal disposed of. | The contract workers engaged by the management of the Tata Iron and Steel Company Ltd., Jamshedpur in the perma nent and regular nature of work before February 11, 1981 in (1) transportation of materials within the plant which was not dependent on outside supply, (2) processes connected with manufacturing process, (3) removal and handling of waste products, and (4) sweeping and cleaning of machines etc., sought permanent employment under the principal em ployer.
The dispute was referred by the State Government under section 10 of the to the Industrial Tribunal.
The Tribunal held that the workmen constituted the contract labour and, therefore, the reference was not main tainable.
It further held that action, if any, had to be taken under section 10 of the , power to take steps for which vested in the State Government and not in the Tribunal.
The writ petition challenging the award was dismissed by the High Court in limine.
In the appeal by special leave it was brought to the notice of the Court on behalf of the management that con tract labour was now confined to item 3 only.
Disposing of the appeal, the Court ordered: 1.
The reference to the Tribunal shall now read: "Wheth er the contract workers engaged by the management of the Tata Iron and Steel Company Ltd., Jamshedpur in the perma nent and regular nature of work before 11.2.1981 are enti tled to permanent employment in 978 regard to items 1, 2 and 4 under the principal employer".
[980B C] 2.
The State Government to take its own decision within three months under the provisions of the in regard to item No. 3 as to whether the contract labour employment should be terminated.
[980D] 3.
The Tribunal to dispose of the dispute within six months.
[980F] |
: Criminal Appeal Nos.
452 53 of 1990.
From the Judgment and Order dated 23.3.1989 of the Rajasthan High Court in S.B. Cr. R. No. 426 and 325 of 1982.
Badridas Sharma, Manoj Jain, H. Shekhar, Anil Kumar Gupta, Indra Makwana, Prem Sunder Jha, Lahoty and Ms. Meeta Sharma for the Appearing Parties.
The Judgment of the Court was delivered by K.N. SAIKIA, J.
Special leave granted.
These two criminal appeals are from the common Judgment of 812 the High Court of Rajasthan dated 23.3.1989 in S.B. Criminal Revision No. 426 of 1982 filed by the appellants Nos. 1, 2 and 3 and S.B. Criminal Revision No. 325 of 1982 filed by the appellants Nos. 4 and 5 herein.
On 21.4.1980 one Shanti Lal lodged a report at Bikaner Police Station stating therein that the appellants and two others namely Uttam Chand and Hanuman Chand at about 2 P.M that day were pelting stones at the informant 's house caus ing damage to it and that Durgabai, Tara and Sunita who at the relevant time were sitting at the chowk of the house were injured.
After recording F.I.R. No. 22 dated 21.4.
1980 and on completion of investigation police framed charges under section 147, 323, 325, 336 and 427 I.P.C. and the charge sheet was forwarded to the Judicial Magistrate No. 2 Bikaner under section 173 Cr.
After taking cognizance and after hearing the arguments, the Judicial Magistrate, Bikaner by his order dated 3.10.1980 in Criminal Case No. 165 of 1980 had been pleased to discharge the appellants Nos. 4 and 5, namely, Bijya Bai and Jiya Bai of all the charges levelled against them.
Appellants Nos. 1, 2 and 3, namely, Sohan Lal, Padam Chand and Vishnu were ordered to be charged only under section 427 I.P.C. on the basis of site inspection and injury report: On 25.2.82 the Assistant Public Prosecutor submitted an application to the Magistrate under section 216 Cr.
P.C. signed by Durga Bai stating: "The accused have been charged under section 427 I.P.C., whereas from the entire evidence and the medical evidence prima facie case under various sections i.e. 147, 325 and 336 I.P.C. is made out.
Hence it is prayed that accused be charged in accordance with the evidence and the charge be amended in the light of the evidence.
" After recording the plea of the accused persons, prose cution led evidence and examined P.W. 1 Shanti Lal, P.W. 2 Sampat Lal, P.W. 3 Chagan Lal on 12.5.82 and P.W. 4 Durga Bai on 8.7.82.
The learned Magistrate on 8.9.82 after referring to the aforesaid application submitted by A.P.P. dated 25.2.82 and heating the A.P.P. and the learned advocate for the accused and discussing the evidence and observing that if any ac cused was discharged of any charge under any section then there would be no bar for taking fresh cognizance and recon sideration against him according to section 2 16 Cr.
P.C. and that 813 the provision of section 319 Cr.
P.C. was also clear in that connection, recorded the following order: "Hence cognizance for offences under sections 147, 427, 336, 323,325 I.P.C. is taken against accused Sohan Lal, Padam Chand, Smt.
Vijya Bai, Jiya Bai, Vishnu, Hanuman Chand and Uttam Chand.
Orders for framing the charges against accused Sohan Lal, Padam Chand, Vishnu under the aforesaid sections are passed and accused Smt.
Jiya Bai, Vijya Bai, Uttam Chand and Hanuman Chand be summoned through bailable warrants in the sum of Rs.500 each.
File to come on 20.10.82 for framing the amended charge against the accused present.
Exemption from appearance of accused Vishnu Chand and Padam Chand is canceled until further order.
The advocate for the accused shall present the said accused in the Court in future.
" The above order was challenged in the aforesaid two criminal revision petitions in the High Court of Rajasthan and the same were dismissed by the order under appeal.
According to the learned Single Judge the question that arose for consideration in those revision petitions was whether a Magistrate was competent to take cognizance of the offence after recording some evidence against the accused persons who had been earlier discharged of those offences.
It was urged by the revision petitioners that having once discharged them it was not open to the Magistrate to proceed against them and the only remedy was to go in revision and the Magistrate could not review his own order.
The learned Judge dismissed the petitions taking the view that it was not a case of reviewing the order of discharge passed by the Magistrate but was a case of taking cognizance of the of fence on the basis of the evidence recorded by the Magis trate himself which was not in any way prohibited in law, and that under the provisions of section 3 19 Cr.
P.C. the Magis trate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier.
Mr. B.D. Sharma, the learned counsel for the appellants, firstly, submits that the learned Magistrate while deciding the application dated 25.2.82 submitted by the A.P.P. under section 216 Cr.
P.C. committed error of jurisdiction in passing an order far beyond what was prayed in the application and could not have revised his own order of discharging the appellants.
Secondly, section 319 Cr.
P.C. was applicable only to a person not being the accused and the appellants having been 814 accused but discharged could not have been charged as was done in this case.
Counsel submits that the High Court having failed to notice this fact if this order is allowed to stand it will cause grave miscarriage of justice to the appellants.
The learned counsel for the State supports the impugned order submitting that the learned Magistrate found enough materials for taking cognizance and framing charges against the appellants after examining P. Ws. 1 to 4 and accordingly framed charges under sections 147, 323, 325 and 336 against them and summoned the appellants through bailable warrants and he had the jurisdiction to do so under section 3 19 Cr.
P.C. irrespective of the application under section 216 Cr.
P.C. filed by the A.P.P. We may now proceed to examine the contentions.
From the application submitted by the A.P.P. dated 25.5.82 there could be no doubt that what he prayed for was the charging the accused in addition to section 427 I.P.C. whereunder they were already charged, under sections 147, 323, 325 and 336 I.P.C. of which they were already discharged.
This application ex facie did not envisage the appellants Vijya Bai and Jiya Bai who were wholly discharged.under all the above sections.
Under section 219 Cr.
P.C. the court may alter charge.
It says: "2 16.
Court may alter charge.
(1) Any court may alter or add to any charge at any time before judgment is pronounced.
(2) Every such alteration or addition shall be read and explained to t. he accused.
(3) If the alteration or addition to a charge is such that proceeding immediately with the trial is not likely, in the opinion of the Court, to prejudice the accused in his de fence or the prosecutor in the conduct of the case, the Court may, in its discretion, after such alteration or addition has been made, proceed with the trial as if the altered or added charge had been the original charge.
(4) If the alteration or addition is such that proceeding immediately with the trial is likely, in the opinion of the court, to prejudice the accused or the prosecutor as 815 aforesaid, the Court may either direct a new trial or ad journ the trial for such period as may be necessary.
(5) xxxxx Add to any charge means the addition of a new charge.
An alteration of a charge means changing or variation of an existing charge or making of a different charge.
Under this section addition to and alteration of a charge or charges implies one or more existing charge or charges.
When the appellants Vijya Bai and Jiya Bai were discharged of all the charges and no charge existed against them, naturally an application under section 216 Cr.
P.C. was not maintainable in their case.
In cases of appellants Sohan Lal, Padam Chand and Vishnu against whom the charge under section 427 I.P.C. was already in existence there of course could arise the ques tion of addition to or alteration of the charge.
The learned Magistrate therefore while disposing of the application under section 216 Cr.
P.C. only had no jurisdiction to frame charges against the appellants Vijya Bai and Jiya Bai.
In his order the learned Magistrate did not say that he has proceeding suo motu against Vijya Bai and Jiya Bai though he said that section 319 Cr.
P.C. was also clear in this connection.
As regards the other three appellants, namely, Sohan Lal, Padam Chand and Vishnu they were already accused in the case.
Section 2 16 Cr.
P.C. envisages the accused and the additions to and alterations of charge may be done at any time before Judgment is pronounced.
The learned Magistrate on the basis of the evidence on record was satisfied that charges ought also to be framed under the other sections with which they were charged in the charge sheet.
That was also the prayer in the A.P.P. 's application.
However the learned Magistrate invoked his jurisdiction under section 3 19 Cr.
P.C. which says: "3 19.
Power to proceed against other persons appearing to be guilty of offence (1) Where, in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being the accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence which he appears to have committed.
(2) Where such person is not attending the Court, he may 816 be arrested or summoned, as the circumstances of the case may require, for the purpose aforesaid.
(3) Any person attending the Court, although not under arrest or upon a summons, may be detained by such Court for the purpose of the inquiry into, or trial of, the offence which he appears to have committed.
(4) Where the Court proceeds against any person under sub section (1) then (a) the proceedings in respect of such person shall be commenced afresh, and the witnesses reheard; (b) subject to the provisions of clause (a), the case may proceed at if such person had been an accused person when the Court took cognizance of the offence upon which the inquiry or trial was commenced.
" The crucial words in the section are, 'any person not being the accused. ' This section empowers the Court to proceed against persons not being the accused appearing to be guilty of offence.
Sub sections 1 and 2 of this section pro vide for a situation when a Court heating a case against certain accused person finds from the evidence that some person or persons, other than the accused before it is or are also connected in this very offence or any connected offence; and it empowers the court to proceed against such person or persons for the offence which he or they appears or appear to have committed and issue process for the pur pose.
It provides that the cognizance against newly added accused is deemed to have been taken in the same manner in which cognizance was first taken of the offence against the earlier accused.
It naturally deals with a matter arising from the course of the proceeding already initiated.
The scope of the section is wide enough to include cases insti tuted on private complaint.
There could be no doubt that the appellants 1, 2 and 3 were the accused in the case at the time of passing the impugned order by the Magistrate and as such section 319 Cr.
P.C. would not cover them.
Could appellants 4 and 5 be brought under that section.? Were they accused in the case? Precise ly when a person can be called the accused? Generally speaking, to accuse means to allege whether the person is really guilty of the crime or not.
Accusation according to 817 Black 's Law Dictionary means a formal charge against a person, to the effect that he is guilty of a punishable offence laid before a Court or Magistrate having jurisdic tion to inquire into the alleged crime.
In this sense accu sation may be said to be equivalent of information at common law which is mere allegation of prosecuting officer by whom it is preferred.
In the Code of Criminal Procedure 1973, hereinafter called the Code, the expression 'the accused ' has been used in a narrower sense.
Chapter XII of the Code deals with information to the police and their power to investigate.
Section 154 deals with information in cognizable cases and section 155 with information as to non cognizable cases and investigation of such cases.
Section 167, dealing with procedure when investigation cannot be completed in 24 hours, says: "(1) Whenever any person is arrested and detained in custody and it appears that the investigation cannot be completed within the period of 24 hours fixed by section 57, and there are grounds for believing that the accusation or information is well rounded, the officer in charge of the police station or the police officer making the investigation, if he is not below the rank of sub inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to case, and shall at the same time forward the accused to such Magistrate.
(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdic tion to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding 'fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnec essary, he may order the accused to be forwarded to a Magis trate having such jurisdiction." (Emphasis ours) Thus the words 'the accused ' have been used only in respect of a case where there are grounds for believing that the accusation or information is well founded. 'Information ' and 'accusation ' are synonymously used.
818 Chapter XV deals with complaints to Magistrate.
SectiOn 200 provides for examination of complainant.
Section 202 deals with postponement of issue of process and says in sub section (1) that any Magistrate, on receipt of a com plaint of an offence which he is authorised to take cogni zance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there sufficient ground for proceed ing.
Thus we find that the expression "the accused" has been used in relation to a complaint case under this section even before issue of process.
It also appears that in the Code the expression "the accused" is used after cognizance is taken by the Magistrate.
Chapter XVI of the Code deals with commencement of proceedings before Magistrates.
Section 204 dealing with issue of process uses the expression "the accused".
Under sub section (1) thereof if in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding and the case appears to be (a) a summon scase, he shall issue his summons for the attendance of the accused, or (b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magis trate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
Under sub section (2), no summons or warrant shall be issued against the accused under sub section (1) until a list of the prosecution witnesses has been filed.
Thereafter the expression 'the accused ' has been used in subsequent sections.
Thus one is referred to as 'the accused ' even before issue of process.
Section 273 provides for evidence to be taken in presence of the accused in the course of trial or other proceedings.
The explanation to the section says that "accused" includes a person in relation to whom any proceed ing under Chapter VIII (Security for keeping the peace and Good Behavior) has been commenced under this Code.
In Chandra Deo Singh vs Prokash Chandra Bose & Anr., ; , during the pendency of the first complaint on which the Magistrate directed an inquiry, the nephew of the deceased filed a complaint alleging that the respondent No. 1 had committed the murder.
The Sub Divisional Magis trate directed the First Class Magistrate to inquire into that complaint and also to report.
During the 819 inquiry, apart from the witness produced by the complainant respondent No. 1 was allowed to be represented by a counsel and two persons who had been named in the First Information Report alongwith respondent No. 1 were examined with court witnesses.
The First Class Magistrate after conducting the inquiry under section made a report stating that a prima facie case had been made out against the persons mentioned in the first complaint.
He made anoth er report on the second complaint stating that no prima facie case has been made against respondent No. 1.
The Sub Divisional Magistrate directed the initiation of committal proceedings against the persons mentioned in the first complaint.
On a revision application filed by the complain ant of the second complaint the Sessions Judge directed the Sub Divisional Magistrate to conduct further inquiry against respondent No. 1 who took the matter in revision to the High Court.
The Revision Applications by respondent No. 1 and three others were allowed wherefrom there was an appeal to this Court by certificate.
The main contentions of the appellant before this Court were that the respondent No. 1 had no locus standi to appear and contest a criminal case before the issue of process.
This Court held: "It seems to us clear from the entire scheme of Chapter XVI of the Code of Criminal Procedure (1898) that an accused person does not come into the picture at all till process is issued.
This does not mean that he is precluded from being present when an enquiry is held by a Magistrate.
He may remain present either in person or through a counsel or agent with a view to be informed of what is going on.
But since the very question for consideration being whether he should be called upon to face an accusation, he has no right to take part in the proceedings nor had the Magistrate any jurisdiction to permit him to do so." Joginder Singh & Anr.
vs State of Punjab and Anr., reported in ; is an authority for the propo sition that the expression "any person not being the ac cused" clearly covers any person who is not being tried already by the Court.
A criminal complaint was registered against 5 persons including the 2 appellants.
The police having found that the two appellants were innocent charge sheeted the remaining 3 persons and they were committed to trial.
At the trial evidence having shown the appellants ' involvement in the crime the prosecution moved an applica tion that they be tried along with the three accused and the Sessions Judge directed the appellants to stand trial to gether with other accused.
Their revision application in the 820 High Court was dismissed.
In their appeal in this Court it was inter alia submitted that Section 3 19 Cr.
P.C. was inapplicable to the facts of this case because the phrase "any person not being the accused" occurring in the section excluded from its operation an accused who had been released by the police.
This Court rejected the contention holding that the said expression clearly covered by person who has not been tried already by the Court and the very purpose of enacting such a provision like section 3 19 clearly showed that even a person who had been dropped by the police during investigation but against him evidence showing his involve ment in the offence came before the criminal court were included in the said expression.
In Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors., [ ; , under the Food Adulteration Act, the respondent No. 1 was Manager of the company and the respondent No. 2 to 5 were the directors of the company including the company.
The High Court quashed the proceed ings against the directors as also against the manager.
This court set aside a part of the Judgment of the High Court which quashed the proceedings against the manager respondent No. 1.
It was held that where the allegations set out in the complaint did not constitute any offence and the High Court quashed the order passed by the Magistrate taking cognizance of the offence there would be no bar to the Court 's discre tion under section 3 19 Cr.
P.C. if it was made out on the additional evidence laid before it.
Section 3 19 gives ample powers to any Court to take cognizance against any person not being an accused before it and try him along with the other accused.
This Court clearly observed: "In these circumstances, therefore, if the prosecution can at any stage produce evidence which satisfies the court that the other accused or those who have not been arrayed as accused against whom proceedings have been quashed have also committed the offence the Court can take cognizance against them and try them along with the other accused.
But we would hasten to add that this is really an extraordinary power which is conferred on the Court and should be used very sparingly and only if compelling reasons exist for taking cognizance against the other person against whom action has not been taken.
More than this we would not like to say anything further at this stage.
We leave the entire matter to the discretion of the Court concerned so that it may act according to law.
We would, however, make it plain that the mere fact that the proceedings have been 821 quashed against respondent Nos.
2 to 5 will not present the court from exercising its discretion if it is fully satis fied that a case for taking cognizance against them has been made out on the additional evidence led before it.
" It was pointed out that under the Cr.
P.C. 1973 the Court can take cognizance against persons who have not been made accused and try them in the same manner along with other accused.
In the old Code, Section 35 1 contained a lacuna in the mode of taking cognizance if a new person was to be added as an accused.
The Law Commission in its 41st Report (para 24.81) adverted to this aspect of the law and section 3 19 of the present Code gave full effect to the recommenda tion of the Law Commission by removing the lacuna which was found to exist in section 35 1 of the old Code.
In Dr. S.S. Khanna vs Chief Secretary, Patna & Ors., reported in ; this Court had to consider wheth er a person against whom a complaint was filed along with some other persons and who after an enquiry under section 202 of the Code was not proceeded against by the Court, could be summoned at a later stage under section 3 19 of the latter Code to stand trial for the same or a connected offence or of fences along with the other persons against whom process had been issued earlier by the Court.
It was held that having regard to the nature of the proceedings under section 202 of the Cr.
P.C. it may be difficult to hold that there is a legal bar based on the principle of issue estoppel to proceed under section 3 19 against a person complained against on the same material, if the Court has dismissed a complaint under section 203.
But the Court did not express any final opinion on the question.
In that case, however, the Magistrate decided to take action under section 3 19 of the Code on the basis of fresh evidence which was brought on record in the course of proceedings that took place after the enquiry contemplated under section 202 of the Code was over.
It was further held that even when an order of the Magistrate declining to issue process under section 202 was confirmed by a higher Court the jurisdiction of the Magistrate under section 3 19 remained unaf fected, if other conditions were satisfied and the autre low principle adumbrated in section 300 of the Code could not, howev er, apply to such a case.
In the instant case, Vijya Bai and Jiya Bai were dis charged by the Magistrate of all the charges and the three other appellants were discharged of the sections other than section 427 I.P.C. After the police submitted charge sheet against them the order of discharge, according to Mr. B.D. Sharma, could not be taken to be one under 822 section 203 but under section 245 which is included in Chapter XIX and deals with trial of warrant cases by the Magistrates.
This submission has not been refuted.
That section says: "245.
When accused shall be discharged. (1) If, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him.
(2) Nothing in this section shall be deemed to prevent a Magistrate from discharging the accused at any previous stage of the case if, for reasons to be recorded by such Magistrate, he considers the charge to be groundless.
" If that was so, the question is what would be the effect of the order of discharge? Should the protection resulting from such an order of discharge be allowed to be taken away by allowing the same Magistrate to take cognizance of the offence or offences against them at a later stage of the trial, without further enquiry where the order of discharge was not challenged or even if the order of discharge was taken in revision and the same was affirmed by the revision al court? Section 397 empowers the High Court or any Ses sions Judge to call for examining the records or any pro ceedings before any inferior criminal court within its jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed etc.
Section 398 empowers the High Court or the Sessions Judge to order inquiry.
It says: "On examining any record under section 397 or otherwise, the High Court or the Sessions Judge may direct the Chief Judicial Magistrate by himself or by any of the Magistrates subordi nate to him to make, and the Chief Judicial Magistrate may himself make or direct any subordinate Magistrate to make, further inquiry into any complaint which has been dismissed under section 203 or sub section (4) of section 204, or into the case of any person accused of an offence who has been discharged.
Provided that no Court shall make any direction under this section for inquiry into the case of any person who has been discharged unless such person has had an oppor tunity of showing cause why such direction should not be made." 823 Thus this provision empowers, the Courts to direct further inquiry into any complaint which has been dismissed under section 203 or sub section (4) of section 204 or in the case of any person accused of the offence who has been discharged and no such order shall be made unless such person has had an opportunity of showing cause why such direction should not be made.
The question therefore is whether the necessity of making a further inquiry as envisaged in section 398 could be obviated or circumvented by taking resort to section 319.
As has already been held by this Court, there is need for caution in resorting to section 3 19.
Once a person was an accused in the case he would be out of reach of this section.
The word "discharge" in section 398 means discharge of an offence relating to the charge within the meaning of sections 227,239,245 and 249.
Refusing to proceed further after issue of process is dis charge.
The discharge has to be in substance and effect though there is no formal order.
The language of the section does not indicate that the word "discharge" should be given a restricted meaning in the sense of absolute discharge where the accused is set at liberty after examination of the whole case.
The cases of appellants 4 and 5 would be one of total discharge.
But it could not be said that they were not some of the accused in the case, or that cognizance was not taken of the offences against them.
A personmay be accused of several offences and he may be discharged of some of fences and proceeded against for trial in respect of other offences.
This was the position regarding appellants 1, 2 & 3, who were partially discharged.
The High Court did not subscribe to the view taken in State vs Gangaram Kalite reported in AIR 1965 Assam and Nagaland 9.
Therein a chargesheet having been filed against 9 accused persons in his Court the Sub Divisional Magistrate called for report from the police and on receipt of the final report ordered the discharge of the accused persons on 26.6.1961.
Subsequently on 22.8.1961, without any fresh chargesheet or a complaint, Sub Divisional Magistrate decid ed to proceed afresh against the accused persons and ordered summons to be issued to them, fixing a later date for evi dence.
On a reference by the Additional District Magistrate, calling into question the procedure followed by the Sub Divisional Magistrate a single bench of the High Court of Assam and Nagaland on the basis of Section 241 A of the old Code of the Criminal Procedure held that assuming that the discharge order had been validly passed, the Magistrate became functus officio so far as the case was concerned and unless there was a fresh complaint or a fresh chargesheet no action in the matter could have been taken by the Sub Divi sional Magistrate.
It was observed that as the order 824 passed was an order of discharge and not one of acquittal, a fresh complaint could under law have been entertained by the Magistrate and in the absence of any such complaint, any attempt to go back on the order of discharge passed by him and to revive the case, as if the case had not been dis charged, would amount in law to a review of the Judgment of the Magistrate which was not permissible having regard to section 369 of the Code of Criminal Procedure.
Section 369 provided that no Court when it had signed its Judgment, shall alter or review the same, except to correct clerical errors.
The High Court in the instant case followed the decision in Saraswatiben vs Thakurlal Hitnatlal & Anr., reported in AIR 1967 Gujarat 263, holding that if at one stage on the evidence before him the Magistrate found that there was no prima facie case against the accused, subsequently on en quiry as a result of further evidence if he felt that there was prima facie case against the accused whom he had dis charged under section 251 A (2) Cr.
P.C., it was open to him to frame a charge against the accused and that it was not necessary to take cognizance again and the Magistrate did not become functus officio.
The same view was taken in Amarjit Singh @ Amba vs The State of Punjab, reported in Punjab Law Reporter Vol. 85 (1983) p. 324.
The above views have to yield to what is laid down by this Court in the decisions above referred to.
The provi sions of section 319 had to be read in consonance with the provi sions of section 398 of the Code.
Once a person is found to have been the accused in the case he goes out of the reach of section 3 19.
Whether he can be dealt with under any other provi sions of the Code is a different question.
In the case of the accused who has been discharged under the relevant provisions of the Code, the nature of finality to such order and the resultant protection of the persons discharged subject to revision under section 398 of the Code may not be lost sight of.
This should be so because the complainant 's desire for vengeance has to be tempered with though it may be, as Sir James Stephen says; "The Criminal law stands to the passion of revenge in much the same relation as marriage to the sexual appetite." (General view of the Criminal Law of England, p. 99).
The A.P.P. 's application under section 2 16, in so far as the appellants 1 to 3 were concerned could be dealt with under section 2 16.
Appellants 4 & 5 could be dealt with neither under section 2 16 nor under section 3 19.
In that view of the matter the impugned order of the Magistrate as well as that of the High Court in so far as the appellants 4 & 5, namely, Vijya Bai and Jiya Bai are concerned, have to be set aside which we hereby do.
The appeals are allowed to that extent.
G.N. Appeals allowed. | One 'S ' lodged a First Information Report alleging that the appellants and two others were pelting stones at the house of informant, thereby causing damage to it and injur ing three women who were sitting at the chowk of the house.
After completing investigation the police framed charges under sections 147, 323, 325, 335 and 427 IPC and forwarded the charge sheet to the Judicial Magistrate under section 173 Cr.
P.C. Taking cognizance and after hearing the argu ments, the Judicial Magistrate discharged appellants 4 and 5 of all the charges and ordered that appellants 1, 2 and 3 be charged only under section 427 IPC.
Later, the Assistant Public Prosecutor submitted an application to the Magistrate under Section 2 16 Cr.
P.C. signed by one of the Prosecution Witnesses, for amending the charge claiming that a prima facie case under sections 147, 325 and 336 IPC was made out.
After hearing the parties, the Magistrate allowed the said application.
This order was challenged before the High Court by way of Revision Peti tions.
The Petitions were dismissed by the High Court, holding that it was not a case of reviewing the order of discharge passed by the Magistrate, but was a case of taking cognizance of the offence on the basis of evidence recorded by the Magistrate himself, which was not prohibited in law.
It was also held that under section 319 Cr.
P.C. the Magis trate was fully competent to take cognizance of the offences on the basis of evidence recorded by him though for the same offences order of discharge was passed by him earlier.
Aggrieved at the aforesaid order of the High Court, the appellants have preferred these appeals, by special leave.
On behalf of the appellants it was contended that the Magis trate 810 committed error of jurisdiction in passing the subsequent order and that he could not have revised his own order discharging the appellants.
It was also contended that section 319 Cr.
P.C. was applicable only to a person not being the accused, and so the accused could not have been discharged.
The Respondent State contended that the Magistrate found enough materials for taking cognizance and framing charges under sections 147, 323, 325 and 336 IPC and he had juris diction to do so under section 319 Cr.
P.C. irrespective of the application under section 216 Cr.
P.C. filed by the Assistant Public Prosecutor.
Allowing the appeals, HELD: 1.1.
Under Section 216 Cr. P.C., 'and to any charge ' means the addition of a new charge.
An alteration of a charge means changing or variation of an existing charge or making of a different charge.
Addition to and alteration of a charge or charges implies one or more existing charge or charges.
When the appellants 4 and 5 were discharged of all the charges and no charge existed against them, natural ly an application under section 216 Cr.
P.C. was not maintainable in their case.
The Magistrate therefore while disposing of the application under section 216 Cr.
P.C. only had no jurisdic tion to frame charges against the appellants 4 and 5.
In his order the Magistrate did not say that he was proceeding suo motu against them though he said that section 319 Cr.
P.C. was also clear in this connection.
[815B D] 1.2.
As regards appellants 1, 2 and 3, they were already accused in the case.
Section 216 Cr.
P.C. envisages the accused and the additions to and alterations of charge may be done at any time before record was satisfied that charges ought also to be framed under the other sections with which they were charged in the charge sheet.
That was also the prayer in the Assistant Public Prosecutor 's application.
However, the Magistrate invoked his jurisdiction under section 319 Cr.
P.C. [815E F] 2.
The provisions of section 319 had to be read in consonance with the provisions of section 398 of the Code.
Once a person is found to have been the accused in the case he goes out of the reach of section 319.
Whether he can be dealt with under any other provisions of the Code is a different question.
In the case of the accused who has been discharged under the rele vant provisions of the Code, the nature of finality to such order 811 and the resultant protection ' of the persons discharged subject to revision under s, 398 of the Code may not be lost sight of.
This should be so because the complainant 's desire for vengeance has to be tempered with.
[824E F] Chandra Deo Singh vs Prokash Chandra Bose & Anr., ; ; Joginder Singh & Anr.
vs State of Punjab and Anr.
, ; ; Municipal Corporation of Delhi vs Ram Kishan Rohtagi & Ors., ; ; Dr. S.S. Khanna vs Chief Secretary, Patna & Ors., ; ; relied on.
State vs Gangaram Kalite, AIR 1965 Assam and Nagaland 91 approved.
Saraswatiben vs Thakurlal Himmatlal & Anr., AIR 1967 Gujarat 263: Amarjit Singh @ Amba vs The State of Punjab, Punjab Law Reporter Vols.
85 (1983) p. 324, disapproved.
General view of the Criminal Law of England by James Stephen, p. 99 referred to. 3.
The Assistant Public Prosecutor 's application under section 216, in so far as the appellants 1 to 3 were concerned, could be dealt with under section 216.
Appellants 3 & 5 could be dealt with neither under section 216 nor under section 319.
The order of the Magistrate as well as that of the High Court in so far as the appellants 4 and 5 are concerned, are set aside.
[824G H] |
Civil Appeal No. 5933 1983.
From the Judgment and Order dated 19.2.
1980 of the Allahabad High Court in Civil Misc.
Petition No. 5860 of 1978.
R.K. Jain, Ms. Abha R. Sharma and R.P. Singh, for the Appellant.
M .C. Dhingra for the Respondents.
This appeal by special leave involves the question as to the interpretation of the provisions of Section 29 A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act ').
967 The Act was enacted by the U .P.
State legislature to provide, 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 urban areas, and for matters connected therewith.
The Act, as originally enacted, was confined in its application to buildings only.
It was amended by U.P. Act XXVIII of 1976 whereby Section 29 A was inserted with a view to give pro tection against eviction to certain classes of tenants of land on which building exists.
The relevant provisions of Section 29 A read as under: "(2) This Section applies only to land let out, either before or after the commencement of this Section, where the tenant, with the landlord 's consent has erected any perma nent structure and incurred expenses in execution thereof.
XXX XXX XXX (4) The tenant of any land to which this Section applies shall be liable to pay to the landlord such rent as may be mutually agreed upon between the parties, and in the absence of agreement, the rent determined in accordance with sub section (5).
(5) The District Magistrate shall on the application of the landlord or the tenant determine the annual rent payable in respect of such land at the rate of ten per cent per annum of the prevailing market value of the land, and such rent shall be payable, except as provided in sub section (6) from the date of expiration of the term for which the land was let or from the commencement of this Section, whichever is later.
XXX XXX XXX (7) The provisions of this section shall have effect, not withstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force.
" The appellant is the owner of a plot of land measuring 30 x 65 sq.
situated at Garhmukteshwar Road (Azad Road) Meerut.
The said plot of land was let out by the appellant to the respondent No. 1 on March 20, 1957 at an annual rent of Rs. 170.
After the said plot of 968 land had been let out to him, respondent No. 1 with the consent of the appellant constructed a building over the said plot in 1965.
After the enactment of Section 29 A the appellant submitted an application on September 29, 1976, before the District Supply Officer/Delegated Authority, Meerut, for fixation of appropriate rent for the plot of land under sub section (5) of Section 29 A.
The said appli cation of the appellant was dismissed by the District Supply Officer Delegated Authority by order dated April 14, 1978 on the view that the provisions of sub section (5) of Section 29 A for fixation of rent are applicable to those cases only in which there is no agreed rent and that in this case both the parties have accepted that the rent of land is Rs. 170 per year has been fixed on the basis of mutual agreement and, therefore, the question of re fixation of rent does not arise.
Feeling aggrieved by the said order of the District Supply Officer the appellant filed a writ petition in the High Court of Judicature at Allahabad under Article 226 of the Constitution of India.
The said writ petition was dis missed by a Division Bench of the said High Court by order dated February 19, 1980.
The learned Judges have held that under Section 29 A the District Magistrate has jurisdiction to determine the rent only in those cases where there is no agreement relating to rent and if there is an agreement between the landlord and the tenant then the District Magis trate has no jurisdiction to determine the rent.
The learned Judges have further found that in the instant case admitted ly an agreement existed between the appellant and the tenant that the tenant shall pay rent at the rate of Rs. 170 per annum to the appellant and as such there could be no en hancement of the rent under sub section (5) of Section 29 A. Feeling aggrieved by the said decision of the High Court the appellant has filed this appeal after obtaining special leave to appeal.
Shri R.K. Jain, the learned counsel for the appellant has urged that sub section (4) of Section 29 A postulates determination of rent in accordance with sub section (5) in cases where the rent has not been mutually agreed upon between the parties.
The submission of Shri Jain is that the expression "such rent as may be mutually agreed upon between the parties" in sub section (4) of Section 29 A means rent which has been mutually agreed upon after the enactment of Section 29 A and any agreement prior to the said enactment would not preclude determination of rent under Section 29 A of the Act.
In support of this submission Shri Jain has invited our attention to the decision of the Full Bench of the Allahabad High Court in Trilok Chand vs Rent Control and Eviction Officer and Another, [ 969 In Trilok Chand vs Rent Control and Eviction Officer case (supra) a Full Bench of the High Court has considered the correctness of the decision of the Division Bench in the present case and has construed the provisions of Section 29 A of the Act.
In that case it has been held that sub section (4) of Section 29 A precludes determination of rent only in those cases where the agreement fixing the rent was entered into subsequent to the coming into force of Section 29 A.
It has been observed: "The reason is this, sub section (4) applies to the land to which Section 29 A applies.
It provides that the tenant shall be liable to pay to the landlord such rent as may be agreed between the parties.
In the absence of such agreed rent, the sub section further provides that the tenant is liable to pay the rent determined in accordance with subsec tion (5).
These terms are clear enough and indicate that the agreement envisaged thereunder is not the agreement, existed prior to coming into force of Section 29 A.
It refers to subsequent agreement only.
The words "such rent as may be mutually agreed upon between the parties" refers to future agreement and not the past agreement.
Subsection (4) again emphasises "such rent".
Such rent, in the context means the rent to be mutually agreed upon by parties.
Sub section (4) further states that in the absence of agreement, the rent has to be determined in accordance with sub section (5)." (p. 636) "Yet another reason to support our view could be found from sub section (7).
It provides that notwithstanding anything to the contrary contained in any contract or instrument or in any other law for the time being in force, the provisions of Section 29 A shall have effect.
It means clearly that the agreement if any existing on the date of coming into force of Section 29 A is no bar for enforcing the rights under sub section (5).
Sub sections (4) and (5) shall prevail and not the antecedent agreement, if any." (p. 636) The learned Judges of the Full Bench have overruled the decision of the Division Bench in the present case.
We are in agreement with the view propounded by the Full 970 Bench in Trilok Chand 's case (supra).
In our opinion, the words "such rent as may be mutually agreed upon between the parties" in subsection (4) of Section 29 A envisage an agreement with regard to rent entered by the landlord and tenant after the coming into force of Section 29 A. An agreement prior to the commencement of Section 29 A would not preclude determination of rent under sub section (5) of Section 29 A.
In this context it may be mentioned that the words "may be" used in sub section (4) of Section 29 A are much oftener used with reference to the future than the past or the present (Pollock C.B. in Brown vs Batchelor, 25 L .J. exhibit 299, Stroud 's Judicial Dictionary, 5th Edn. P. 1575).
In sub section (4) of Section 29 A the words "may be" are preceded by the word "as" and are followed by the words "mutually agreed upon" which indicate that the words are used with reference to the future.
The provisions of sub section (7) which give overriding effect to the provisions of Section 29 A over an existing contract also lend support to this construction.
We are, therefore, unable to uphold the view of the learned Judges of the Division Bench of the High Court in this case that there could be no enhancement of the rent under sub section (5) of Section 29 A in view of the agreement between the appellant and the tenant that the tenant shall pay rent at the rate of Rs. 170 per annum.
The appeal is, therefore, allowed.
The judgment and order of the High Court dated February 19, 1980 as well as the order dated April 14, 1978, passed by the District Supply Officer/Delegated Authority, Meerut, are set aside and the matter is remanded to the District Supply Officer/Delegated Authority, Meerut for consideration of the application submitted by the appellant for fixation of rent under Section 29 A of the Act in accordance with law.
No order as to costs.
G.N. Appeal allowed. | In 1957, the appellant let out a plot of land to Re spondent No. 1 at an annual rent of Rs. 170.
Respondent No. 1 constructed a building on the plot of land in 1968, with the consent of the appellant.
After the insertion in 1976 of Section 29 A in the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, appellant filed an application before the delegated authority under the Act for fixation of appropriate rent for the said land under Section 29 A(5) of the Act.
The application was dismissed by the authority on the ground that Section 29 A(5) was applicable only to those cases in which there was no agreed rent and since the parties, by mutual agreement, have accepted the annual rent at Rs. 170 there was no question of refixation of the rent.
Aggrieved, the appellant filed a Writ Petition in the High Court, which was dismissed.
The appellant has preferred this appeal, by special leave, against the said order of the High Court.
Allowing the appeal, HELD: 1.
The words "such rent as may be mutually agreed upon between the parties" in sub section (4) of Section 29 A of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 envisage an agreement with regard to rent entered by the landlord and tenant after the coming into force of Section 29 A. An agreement prior to the com mencement of Section 29 A would not preclude determination of rent under sub section (5) of Section 29 A.
Generally, the words 'may be ' are much oftener used with reference to the future than the 966 past or present.
In sub section (4) of Section 29 A the words 'may be ' are preceded by the word 'as ' and are allowed by the words 'mutually agreed upon ' which indicate that the words are used with reference to the future.
The provisions of sub section (7) which give overriding effect to the provisions of section 29 A over an existing contract also lend support to this construction.
The High Court was not correct in holding the view that there could be no enhance ment of the rent under subsection (5) of Section 29 A in view of the agreement between the appellant and the tenant that the tenant shall pay rent at the rate of Rs. 170 per annum.
[970A D] Trilok Chand vs Rent Control and Eviction Officer & Anr., ; approved.
Brown vs Batchelor, ; referred to.
Stroud 's Judicial Dictionary,, 5th Edn.
p. 1575; re|erred to.
The Judgment and order of the High Court dated Febru ary 19, 1990 as well as the order dated April 14, 1978 passed by the Delegated Authority are set aside and the matter is remanded to the Delegated Authority for considera tion of the application submitted by the appellant |or fixation of rent under Section 29 A of the Act in accordance with law.
[970E F] |
Appeal No. 513 of 1961.
Appeal by special leave from the judgment and order dated June 23, 1960, of the Kerala High Court in Second Appeal No. 103 1957.
551 S.T. Desai and V.A. Seyid Muhmmad, for the appellants.
Sardar Bahadur, for the respondents.
August 23, 1963.
The facts leading up to this question may now be stated.
One Mammotty was married to Seinaba and he made a gift of his properties including immovable property to Seinaba on April 7, 1944 by a registered deed.
Mammotty died on May 3, 1946 without an issue.
Seinaba also died soon afterwards on February 25, 1947, without leaving an issue.
At the time of the gift Seinaba was 15 years 9 months old.
It appears that Mammotty was ill for a long time and was in hospital and he was discharged uncured a month before the execution of the gift deed and remained in his mother in law 's house afterwards.
There are conflicting versions about the nature of the disease and a plea was taken in the case that the gift was made in contemplation of death and was voidable.
This plea need not detain us because the trial Judge and the first Appellate Judge did not accept it.
After the death of Seinaba, the present suit was brought by Kunhamu an eider brother of Mammotty for partition and possession of a 6/16 share of the property which he claimed as an heir under the Muhammadan Law, challenging the gift as invalid.
To the suit he joined his two sisters as defendants who he submitted were entitled to a 3/16 share each.
He also submitted that the first three defendants (the appellants) were entitled to the remaining 4/16 share as heirs of Seinaba.
In other words, Kunhamu 's contention was that when succession opened out on the death of Mammotty, his widow Seinaba was entitled to the enhanced share of 1/4 as there was no issue, and the remaining 3/4 was divisible between 552 Kunhamu and his two sisters, Kunhamu getting twice as much as each sister, These shares according to him were unaffected by the invalid gift in faVour of Seinaba and accepted on her behalf by her mother.
This contention has been accepted and it has been held in this case in all the three courts that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under the Muhammadan Law, that is to say, by the father or his executor or by the grand father or his executor.
As Katheesumma the mother of Seinaba was not a legal guardian of the property of Seinaba it was contended by the plaintiff that the gift was void.
It was admitted on behalf of the plaintiff that Mammotty could have himself taken over possession of the property as the guardian of his minor wife; but it was submitted that such was not the gift actually made.
These contentions raise the question which we have set out earlier in this Judgment.
Mr. S.T. Desai on.
behalf of the appellants contends that neither express acceptance nor transfer of possession is necessary for the completion of a gift, when the donor is himself the guardian or the de facto guardian or 'quasi guardian ' provided there is a real and bona fide intention on the donor 's part to transfer the ownership of the subject matter of the gift to the donee, and that even a change in the mode of enjoyment is sufficient evidence of such an intention.
He further contends that no delivery of possession is necessary in a gift by a husband to his minor wife provided such an intention as above described is clearly manifested.
According to him, the law is satisfied without an apparent change of possession and will presume that the subsequent holding of the property was on behalf of the minor wife.
Lastly he submits that in any view of the matter when a husband makes a gift to a minor wife and there is no legal guardian of property in existence, the gift can be completed by delivery of the property to and acceptance by any person in whose control the minor is at the time.
If there is no such person one can be chosen and appointed by the donor to whom possession can be made over to manifest the intention of departing from the property gifted.
Mr. Desai seeks to justify these submissions on authority as well as by de 553 ductions from analogous principles of Muhammadan Law relating to gifts to minors which are upheld though accepted by persons other than the four categories of legal guardian.
The other side contends that there is no rule of Muhammadan Law which permits such acceptance and that the decision of the High Court is right.
A gift (Hiba) is the conferring of a right of property in something specific without an exchange (ewaz).
The word Hiba literally means the donation of a thing from which the donee may derive a benefit.
The transfer must be ' immediate and complete (tamlik ul 'ain) for the most essential ingredient of Hiba is the declaration "I have given".
Since Muhammadan Law views the law of gifts as a part of the law of contract there must be a tender (ijab) and an acceptance (qabul) and delivery of possession (qabza).
There is, however, no consideration and this fact coupled with the necessity to transfer possession immediately distinguishes gifts from sales.
In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise.
In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact.
Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba.
Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living; (Durrul Mukhtar, Vol.
3 p. 104 and Fatawa i Alamgiri Vol.
239 240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman).
But Mammotty did not complete his gift in this way.
His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter.
A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor Wilayat ul Mal.
A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un 36 2 S.C. India/64 554 married and that of the husband if she is married ' and has gone to her husband.
Even under the Guardian and Wards Act, the husband is the guardian of the person after marriage of a girl unless he is considered unfit.
The mother was thus not the guardian of the person of Seinaba.
Seinaba 's mother was also not a guardian of the property of Seinaba.
Mahammadan Law makes a distinction between guardian of the person, guardian of the property and guardian for the purpose of marriage (Wilayat ulNikah) in the case of minor females.
Guardians of the property are father and grandfather but they include also executors (Wasi) of these two and even executors of the executors and finally the Kazi and the Kazi 's executor.
None of these were in existence except perhaps the Civil Court which has taken the place of the Kazi.
Now Muhammadan Law of gifts attaches great importance to possession or seisin of the property gifted (Kabz ul Kamil) especially of immovable property.
The Hedaya says that seisin in the case of gifts is expressly ordained and Baillie (Dig.
p. 508) quoting from the Inayah refers to a Hadis of the Prophet "a gift is not valid unless possessed".
In the Hedaya it is stated "Gifts are rendered valid by tender, acceptance and seisin" (p. 482) and in the Vikayah "gifts are perfected by complete seisin" (Macnaghten 202).
The question is whether possession can be given to the wife 's mother when the gift is from the husband to his minor wife and when the minor 's father and father 's father are not alive and there is no executor of the one or the other.
Is it absolutely necessary that possession of the property must be given to a guardian specially to be appointed by the Civil Court ? The parties are Hanafis.
No direct instance from the authoritative books on Hanafi law can be cited but there is no text prohibiting the giving of possession to the mother.
On the other hand there are other instances from which a deduction by analogy (Rai fi 'l qiyas) can be made.
The Hanafi law as given in the Kafaya recognises the legality of certain gifts which custom ( 'urf) has accepted.
This is because in deciding questions which are not covered by precedent Hanafi jurisprudence attaches to transfer possession immediately distinguishes gifts from sales.
In the present case there is a declaration and a tender by the donor Mammotty and as the gift is by a registered deed no question in this behalf can arise.
In so far as Mammotty was concerned there was delivery of possession and the deed also records this fact.
Possession was not delivered to Seinaba but to her mother, the first appellant, and she accepted the gift on behalf of Seinaba.
Mammotty could have made a declaration of gift and taken possession on behalf of his wife who had attained puberty and had lived with him, for after the celebration of marriage a husband can receive a gift in respect of minor wife even though her father be living; (Durrul Mukhtar, Vol.
3 p. 104 and Fatawa i Alamgiri Vol.
239 240 original text quoted at p. 455 of Institutes of Mussalman Law by Nawab Abdur Rehman).
But Mammotty did not complete his gift in this way.
His gift included immovable properties and it was accepted by the mother who took over possession on behalf of her minor daughter.
A gift to a minor is completed ordinarily by the acceptance of the guardian of the property of the minor Wilayat ul Mal.
A mother can exercise guardianship of the person of a minor daughter (Hizanat) till the girl attains puberty after which the guardianship of the person is that of the father if the girl is un 36 2 S.C. India/64 555 based on istehsan (liberal construction ; lit.
producing symmetry) and istislah (public policy).
The Prophet himself approved of Mu 'izz (a Governor of a province who was newly appointed) who said that in the absence of guidance from the Koran and Hadis he would deduce a rule by the exercise of reason.
But to be able to say that a new rule exists and has always existed there should be no rule against it and it must flow naturally from other established rules and must be based on justice, equity and good conscience and should not be haram (forbidden), or Makruh (reprobated).
It is on these principles that the Mujtahidis and Muftis have allowed certain gifts to stand even though possession of the property was not handed over to one of the stated guardians of the property of the minor.
We shall now refer to some of these cases.
The rules on the subject may first be recapitulated.
It is only actual or constructive possession that completes the gift and registration does not cure the defect nor is a bare declaration in the deed that possession was given to a minor of any avail without the intervention of the guardian of the property unless the minor has reached the years of discretion.
If the property is with the donor he must depart from it and the donee must enter upon possession.
The strict view was that the donor must not leave behind even a straw belonging to him to show his ownership and possession.
Exceptions to these strict rules which are well recognised are gifts by the wife to the husband and by the father to his minor child (Macnaghten page 51 principles 8 & 9).
Later it was held that where the donor and donee reside together an overt act only is necessary and this rule applies between husband and wife.
In Mohammad Sadiq Ali Khan vs Fakhr Jahan(1), it was held that even mutation of names is not necessary if the deed declares that possession is delivered and the deed is handed to the wife.
A similar extension took place in cases of gifts by a guardian to his minor ward (Wilson Digest of Anglo Muhammadan Law 6th Edn.
p. 328).
In the case of a gift to an orphan minor the ,rule was relaxed in this way: "If a fatherless child be under charge of his mother, (1) (1932) 59 I.A. I. 556 and she take possession of a gift made to him, it is valid. .
The same rule also holds with respect to a stranger who has charge of the orphan." Hedaya p. 484.
See also Baillie p. 539 (Lahore Edn.) In the case of the absence of the guardian (Gheebuti Moonqutaa) the commentators agree that in a gift by the mother her possession after gift does not render it invalid.
Thus also brother and paternal uncle in the absence of the father are included in the list of persons who can take possession on behalf of a minor who is in their charge: Durrul Mukhtar Vol.
4 p. 512 (Cairo Edn.).
In Radd ul Mukhtar it is said : "It is laid down in the Barjindi : There is a difference of opinion, where possession has been taken by one, who has it (the child) in his charge when the father is present.
It is said, it is not valid; and the correct opinionis that it is valid." (Vol. 4, C.513 Cairo Edn.) In the Bahr al Raiq Vol. 7 p. 314 (Edn. Cairo) "The rule is not restricted to mother and stranger but means that every relation excepting the father, the grand father and their executors is like the mother.
The gift becomes complete by their taking possession if the infant is in their charge otherwise not." In Fatawai Kazikhan Vol. 4, p. 289 (Lucknow Edn.), the passage quoted above from Radd ul Mukhtar is to be found and the same passage is also to be found in Fatawai Alamgiri Vol.
4 p. 548 Cairo Edn.
All these passages can be seen in the lectures on Moslem Legal Institutions by Dr. Abdullah al Mamun Suhrawardy.
The rule about possession is relaxed in certain circumstances of which the following passage from the Hedaya p. 484 mentions some : "It is lawful for a husband to take possession of any thing given to his wife, being an infant, provided she has been sent from her father 's house to his; and this although the father be present, because he is held, by implication, to have resigned the management of her concerns to the husband.
It is otherwise where she has not been sent from her father 's house, because then the father is not held to have resigned the management of her concerns.
It is also otherwise 557 with respect to 'a mother ' or any others having charge of her; because they are not entitled to possess themselves of a gift in her behalf, unless the father be dead, or absent, and his place of residence unknown ; for their power is in virtue of necessity, and not from any supposed authority ; and this necessity cannot exist whilst the father is present.
" Macnaghten quotes the same rule at p. 225 and at page 230 is given a list of other writers who have subscribed to these liberal views.
The above views have also been incorporated in their text books by the modern writers on Muhammadan Law.
(See Mulla 's Principles of Mahomedan Law 14th Edn.
139, 142, 144 and 146, Tyabji 's Muhammadan Law 3rd Edn.
430 435, sections 397 400, Amir Ali 's Mahommedan Law Vol. 1, pp.
130 131).
The principles have further been applied in some decisions of the High Courts in India.
In Nabi Sab vs Papiah and ors.(1) it was held that gift did not necessarily fail merely because possession was not handed over to the minor 's father or guardian and the donor could nominate a person to accept the gift on behalf of the minor.
It was pointed out that the Muhammadan law if gifts, though strict, could not be taken to be made up of unmeaning technicalities.
A similar view was expressed in Nauab Ian vs Safiur Rehman(2).
These cases were followed recently in Munni Bai and anr.
vs Abdul Gani(3), where it was held that when a document embodying the intention of the donor was delivered to the minor possessing discretion and accepted by her it amounted to acceptance of gift.
It was further pointed out that all that was needed was that the donor must evince an immediate and bona fide intention to make the gift and to complete it by some significant overt act.
See also Mt. Fatma vs Mt. Autun(4), Mst.
Azizi and anr.
vs Sona Mir(5) and Mam& ors.
vs Kunhdi & ors.(6).
(1) A.I.R. (1915) Mad.
(2) A.I.R. (1918) Cal.
(3) A.I.R. (1959) M.P. 225.
(4) A.I.R. (1944) Sind 195, (5) A.I.R. (1962) J. & K. 4.
(6) 1962 K.L.J 351. 558 In Md. Abdul Ghani vs Mt. Fakhr Jahan (1), it was held by the Judicial Committee as follows: "In considering what is the Mohammaden Law on the subject of gift intervivos their Lordships have to bear in mind that when the old and admittedly authoritative texts of Mohammedan law were promulgated there were not in the contemplation of any one any Tran sfer of Property Acts, any Registration Acts, any Revenue Courts to record transfers of the possession of land, or any zamindari estates large or small, and that it could not have been intended to lay down for all time what should alone be the evidence that titles to lands had passed.
The object of the Mohammedan law as to gifts apparently was to prevent disputes as to whether the donor and the donee intended at the time that the title to the property should pass from the donor to the donee and that the handing over by the donor and the acceptance by the donee of the property should be good evidence that the property had been given by the donor and had been accepted by the donee as a gift.
" Later in Mahamad Sadiq Ali Khan vs Fakhr Jahan Begum(2), it was held by the Privy Council that at least between husband and wife Muhammadan law did not require an actual vacation by the husband and an actual taking possession by the wife.
In the opinion of the Judicial Committee the declaration made by the husband followed by the handing over of the deed was sufficient to establish the transfer of possession.
These cases show that the strict rule of Muhammadan law about giving possession to one of the stated guardians of the property of the minor is not a condition of its validity in certain cases.
One such case is gift by the husband to his wife, and another, where there is gift to a minor who has no guardian of the property in existence.
In such cases the gift through the mother is a valid gift.
The respondent relied upon two cases reported in Suna Mia vs section A. section Pillai(3) where gift to a minor through the mother was considered invalid and Musa Miya and (1) (1922) 491.A. 195 at 209.
(2) (1932) 591.A.I. (3) (1932) 11 Rang. 109.
559 anr.
vs Kadar Bux(1), where a gift by a grandfather to his minor grandsons when the father was alive, without delivery of possession to the father, was held to be invalid.
Both these cases involve gifts in favour of minors whose fathers were alive and competent.
They arc distinguishable from those cases in which there is no guardian of the property to accept the gift and the minor is within the care either of the mother or of other near relative or even a stranger.
In such cases the benefit to the minor and the completion of the gift for his benefit is the sole consideration.
As we have shown above there is good authority for these propositions in the ancient and modern books of Muhammadan law and in decided cases of undoubted authority.
In our judgment the gift in the present case was a valid gift.
Mammotty was living at the time of the gift in the house of his mother in law and was probably a very sick person though not in marzulmaut.
His minor wife who had attained discretion was capable under Muhammadan law to accept the gift, was living at her mother 's house and in her care where the husband was also residing.
The intention to make the gift was clear and manifest because it was made by a deed which was registered and handed over by Mammotty to his mother in law and accepted by her on behalf of the minor.
There can be no question that there was a complete intention to divest ownership on the part of Mammotty and to transfer the property to the donee.
If Mammotty had handed over the deed to his wife, the gift would have been complete under Muhammadan law and it seems impossible to hold that by handing over the deed to his mother in law, in whose charge his wife was during his illness and afterwards Mammotty did not complete the gift.
In our opinion both on texts and authorities such a gift must be accepted as valid and complete.
The appeal therefore succeeds.
The Judgment of the High Court and of the Courts below are set aside and the suit of the Plaintiff is ordered to be dismissed with costs throughout.
Appeal allowed. | One Mammotty was married to Seinaba and he made a gift 550 of his properties including immovable property to Seinaba by a registered deed.
Mammotty died without an issue more than two years after the execution of the gift deed.
Later on, Seinaba also died without leaving an issue.
At the time of gift, Seinaba was fifteen years and nine months old.
Mammotty was iII for a long time and was in hospital.
He was discharged uncured a month before the execution of the gift deed and he remained in his mother in law 's house afterwards.
After the death of Seinaba, the present suit was brought by Kunharnu, an eider brother of Mammotty, for partition and possession of 6/16 share of the property which he claimed as an heir under Muhamrnadan law, challenging the gift as invalid.
Kunhamu 's contention was that when succession opened out on the death of Mammotty, his widow was entitled to one fourth share and the remaining three fourth share was divisible between him and his two sisters.
These shares were unaffected by the in .
valid gift in favour of Seinaba and accepted on her behalf by her mother.
The contention of Kunhamu was accepted by all the three courts below which held that a gift by the husband to his minor wife to be valid must be accepted on her behalf by a legal guardian of her property under Muhammadan law i.e. by the father or his executor or by grand father or his executor.
As the mother of Seinaba was not the legal guardian of the property of Scinaba, the gift was void.
The appellant came to this Court by special leave.
Held, that under Muhammadan law a gift by a husband to his minor wife of immovable property accepted on her behalf by her mother is valid if none of the guardians of the property of the minor is available provided there is a clear and manifest intention to make the gift and the husband divests himself of the ownership and possession of the property.
Held further, on facts the above conditions were satisfied in this case.
Mohammad Sadiq Ali Khan vs Fakir Khan (1932) L.R.59 I.A. 1, Nabi Sab vs Papiah and Ors.
A.I.R. 1915 Mad.
972, Nawab fan vs Safiur Rahman, A.I.R. 1918 Cal. 786, Munni Bai vs Abdul Gani, A.I.R. 1959 M.P. 225, Mt. Fatma vs Mt. Autun, A.I.R. 1944 Sind.
195, Mst.
Azizi vs Sona Mir, A.I.R. 1962 J. & K. 4, Mareroad & Ors.
vs Kunhali & Ors., 1962 K.L.J. 351, Md. Abdul Ghani vs Mt. Fakir Khan (1962) 49 I.A. 195, Suna Mia vs S.A.S. Pillai, (1932) 11 Rang.
109 and Musa Miya vs Kadar Bux, I.L.R. , referred to. |
ivil Appeal No 138 of 1955.
Appeal from the judgment and decree dated October 15, 1953, of the Mysore High Court at Bangalore in Regular Appeal No. 255 of 1950 51, arising out of the order dated September 18, 1950, of the Court of the District Judge, Bangalore, in Misc.
Case No. 39 of 1947 48.
G. Channappa, Assistant Advocate General, Mysore R. Gopala Krishnan and T. M. Sen, for the appellant ' A. V. Viswanatha Sastri, M. A. Rangaswami, K. R. Sarma and K. R. Choudhury, for the respondent.
November 7.
The Judgment of the Court was delivered by section K. DAS, J.
This appeal by the Special Land Acquisition Officer, Bangalore, has been brought to this Court on a certificate granted by the High Court of Mysore, and is from the decision of the said High Court dated October 5, 1953, in a regular appeal from an order made by the 2nd Additional District Judge, Bangalore, on September 18, 1950, on a reference under section 18 of the Land Acquisition Act (herein.
after referred to as the Act).
The facts so far as they are relevant to the appeal before us are these.
An area of about 51,243 squard 406 yards of land was acquired by Government under Notification No. M. 11054 Med.
80 45 25 dated April 16, 1946, for development of the Appiah Naidu Maternity Home at Malleswaram, Bangalore City, into a Maternity Hospital.
There were eight owners interested in the property acquired, out of whom two objected to the award made by the Special Land Acquisition Officer, now appellant before us.
One of these two was T. Adinarayana Shetty, a diamond merchant of Mysore City.
Originally, he was the respondent before us, and on his death his son and legal representative has been brought into the record as the sole respondent to this appeal.
The deceased respondent Adinarayana Setty (hereinafter called the respondent) was interested in 48,404 sq.
yards out of the total area, and it may be stated here that there is no dispute before us that out of the said 48,404 sq.
yards an area of about 3,000 sq.
yards consists of land which has been variously characterised as a depression or a pit or low lying land (called 'halla ' in the local vernacular language).
Out of the total amount of compensation awarded by the Special Land Acquisition Officer, a sum of Rs. 1,41,169/was awarded to the respondent.
The Special Land Acquisition Officer proceeded on the following basis for his award.
Firstly, he found that the land value in and around Bangalore City had increased in recent years owing to the war and the respondent had paid to the Deputy Commissioner, Bangalore District, a sum of money called a conversion fine for sanctioning a scheme of converting the land into non agricultural land.
Thereafter, a layout for building sites was prepared and approved by the Municipality and the res pondent sold a few of the sites shown in the layout to some purchasers.
This was done before the publication of the preliminary notification of acquisition; but the sale of further building sites was stopped after the said publication.
Secondly, the Special Land Acquisition Officer took into consideration the value of the sites sold by the respondent and came to the conclusion that Rs. 10/ per sq.
yard was the market value of the land in question.
He awarded to the respondent compensation for approximately 48,404 sq. yards at the 407 rate of Rs. 10/ per sq. yard, but after deducting therefrom an area of 26,248 sq. yards which, according to the Special Land Acquisition Officer, was required for making roads and drains as per the layout scheme.
The total amount thus calculated came to Rs. 2,21,563.
and odd and from this a sum of Rs. 98,807 was again deducted as representing the expenditure which would be required for making roads and drains.
The net amount was thus found to be Rs. 1,22,756 and odd and adding 15% as the statutory compensation payable to the respondent the total amount awarded by, the Special Land Acquisition Officer to the respondent, came to Rs. 1,41,169/ .
Against this award, the respondent raised an objection, and a reference was accordingly made to the District Judge of Bangalore under section 18 of the Act.
This reference was heard by the 2nd Additional District Judge who, by his order dated September 18, 1950, came to the following conclusions: (i) that the rate awarded by the Land Acquisition Officer at Rs. 10/ per sq.
yard was fair and should be,upheld; (ii) that a sum of Rs. 10,000/ for providing electric installation out of the sum of Rs. 98,807/ deducted by the Land Acquisition Officer from the compensation payable to the respondent should not be deducted; and (iii) that with regard to the area of the low lying.
land which I was completely excluded by the Land Acquisition Officer, the respondent should get at the rate of Rs. 3/ per sq. yard or approximately a sum of I Rs. 10,000/ .
In other words, the learned Additional District Judge increased the compensation in favour of the respondent by a sum of about Rs. 20,000/ .
Not being satisfied, the respondent preferred an appeal to the High Court of, Mysore.
The learned Judges of the High Court found that the proper compensation for the land,.
except the portion characterised as low lying, should be Rs. 13/8/per sq. yard and as to the low lying portion it should be reduced by Rs. 51 per sq.
yard inasmuch as a sum of Rs. 15,000/ was necessary, according to the 408 evidence given in the case, for filling it up; in other words, the High Court awarded compensation at the rate of Rs. 8/8/ per sq. yard for the low lying land.
The High Court also reduced the area which had to be deducted for making roads, etc., according to the layout scheme from 26,248 sq.
yards to 12,101 sq.
yards.
It also reduced the layout charges to Rs. 64,432/ .
The High Court added to the compensation a sum of Rs. 7,000/ as the value of a building which the respondent had constructed on one of the sites on the finding that the construction was made prior to the preliminary notification.
In this respect the High Court departed from the finding of the Land Acquisition Officer that the building was put up after the publicaion of the preliminary notification.
The total amount of compensation which the High Court awarded came to about Rs. 4,80,000 and odd.
As the judgment of the High Court was a judgment of reversal and the appellant felt dissatisfied with it, a certificate of fitness was asked for and was granted by the High Court on July 6, 1954.
The present appeal has been brought to this Court in pursuance of that certificate.
The appellant has confined his appeal to the following three points: (1) payment of compensation of a sum of Rs. 7,000/ for the building said to have been constructed before the publication of the preliminary notification; (2) payment of compensation at Rs.
,8/8/per sq. yard for the low lying land (halla); and (3) payment of compensation at Rs. 13/8/ for the remaining land after deducting the area for making roads and buildings.
We may state that there is no dispute before us now as to the area which should be so deducted and also as to the amount of layout charges, as the findings of the High Court on these two points nave not been challenged before us.
On behalf of the respondent our attention has been ' drawn to the decisions of the Privy Council in Charan Das vs Amir Khan (1), Narsingh Das vs Secretary of State for India (2) and Nowroji Bustomji Wadia vs (1) (1920) 47 I.A. 255.
(2) (1924) 52 I.A. 133.
409 Bombay Government (1).
On these decisions it is submitted by learned counsel that though section 26 of the Act was amended in 1921 by insertion of sub section
(2) which says that every award shall be deemed to be a decree ' and thus an appeal therefrom must be considered and determined in the same manner as if it is a judgment from a decree in an ordinary suit the established practice of the Privy Council has been not to interfere with a finding on the question of valuation, unless there is some fundamental principle affecting the valuation which renders it unsound.
The practice, it is stated, was based on two considerations: first, that the courts in India were more familiar with local conditions and circumstances on which the valuation depended and, secondly, the Privy Council found it necessary to limit the extent of the enquiry in order to spare the parties costly and fruitless litigation.
On behalf of the appellant it is submitted that this Court has no doubt adopted the practice that it will not ordinarily interfere with concurrent findings of fact, but this Court has no such established practice as was adopted by the Privy Council in valuation cases even where a difference of opinion has occurred between two courts upon the number of rupees per yard to be allowed for a plot of land.
He has further submitted that the reasons for the practice adopted by the Privy Council do not apply with equal force to this Court.
In view of the facts of this case and the opinion which we have formed after hearing learned counsel for both parties, we do not think it necessary to make any final pronouncement as to the practice which this Court should adopt in a valuation case where two courts have differed.
We are content to proceed in this case on the footing that we should not interfere unless there is something to show, not merely that on the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied.
(1) (1925) 52 I.A. 367.
52 410 We are satisfied that there is no error of principle or otherwise in the findings of the High Court as to the first two points urged in support of the appeal.
As to the construction of the building for which a compensation of Rs. 7,000 has been awarded, the clear finding of the High Court is that it was constructed prior to the preliminary notification.
It has been further stated before us that the building is in actual occupation of the medical department.
Learned counsel for the appellant has taken us through the evidence on the question of construction of the house and the application for a licence for building the said ' house which was made by the respondent to the Bangalore Munici pality.
We are unable to hold that that evidence has the effect of displacing the clear finding of the High Court.
As to the low lying land, we consider that the High Court has given very good reasons for its finding.
Admittedly, the area of the low lying land (halla) is about 3,000 sq.
yards.
The Land Acquisition Officer valued it at Rs. 3 per sq. yard.
A sum of Rs. 15,000 has been deducted from the compensation payable to the respondent on the ground that that amount will be required for filling up the low lying land and converting it into building sites.
Therefore, the position is that the respondent has not only been made to part with 3,000 sq.
yards of land at 3 per sq. yard, but he has also been made to pay Rs. 15,000 for filling up the land.
If these two figures are added, even then the market value of the land comes to about Rs. 8 per sq. yard.
This is so even if we do not follow the method adopted by the High Court that the sum of Rs. 15,000 for 3,000 sq.
yards gives an average of Rs. 5 per sq. yard and that amount should be deducted from the rate of Rs. 13 8 0 per sq. yard fixed as the proper compensation for the remaining land.
We are of the opinion that on the materials before us the value per sq. yard fixed by the High Court for the low lying land is fully justified even on adoption of the method suggested by learned counsel for the appellant.
Learned counsel for the respondent has referred us to the circumstance that some of the sales 411 of building sites which the respondent had made appertained to the low lying land and he has further emphasised the circumstance that just opposite the low lying land which is at the eastern end of the entire area, some houses had been built.
We have taken these circumstances into consideration, but do not think that the conclusion which learned counsel for the respondent wishes us to draw follows therefrom.
First of all, it is by no means clear that the sales of the building sites at the low rate of Rs. 6 8 0 or thereabout appertained to the low lying land only, and, secondly, the mere circumstance that some buildings have been made on land opposite the low lying lands but on the other side of the road, does not necessarily mean that the low lying lands are as valuable as the other land in the area.
We are therefore of the view that the compensation fixed by the High Court for the low lying land is not vitiated by any error of the kind which will justify our interference with it.
We now proceed to consider the third and main point urged on behalf of the appellant, namely, the rate of 13/8 per sq. yard for the other land in the area.
Learned counsel for the appellant has submitted before us that the High Court has committed two fundamental errors in arriving at this finding.
Furthermore, the High Court has been influenced by extraneous considerations such as the purpose for which the land was acquired, the report of certain medical authorities as to the unsuitability of the land for the purpose for which it was acquired, and the delay in putting the land to the use for which it was acquired.
We agree with learned counsel for the appellant that these were extraneous considerations which had no bearing on the question of valuation and the learned Judges of the High Court misdirected themselves as to the scope of the enquiry before them when they imported these considerations into the question of valuation.
We further think that the High Court committed an error of principle in arriving at the figure Rs. 13/8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the 412 relevant time.
It is not disputed that the function of the court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under section 4(1) and the methods of valuation may be (1) opinion of experts, (2) the price paid within a reasonable time in bonafide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years ' purchase of the actual or immediately prospective profits of the lands acquired.
In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors.
There were altogether seven transactions of alienation made by the respondent.
One was a gift which must necessarily be excluded.
The earliest of the sales was in favour of Muniratham which was made on May 15, 1945.
Another was made on July 18, 1945.
This was in favour of Venugopal who was the husband of a grand daughter of the respondent.
Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August, 1945.
The notification under section 4 of the Land Acquisition Act was made on October 4, 1945.
What the learned Judges of the High Court did was to take only four out of the aforesaid six transactions into consideration and then to draw an average price therefrom.
The learned Judges gave no sufficient reason why two of the transactions were left out.
In one part of their judgment they said : " The evidence discloses that the appellant has effected four sales about a couple of months prior to the date of preliminary notification and the rates secured by him are Rs. 12, 15, 14 and 7/8 which on calculation give an average of Rs. 12/2 per sq. yard ".
Why the transaction of May 15, 1945, which was at a rate of Rs. 6/8 per sq. yard only was left out it is difficult to understand.
Similarly, the transaction of July 18, 1945, was at the rate of Rs. 10 per sq. yard.
That also was left out.
We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court.
If all the six transactions of sale are taken into consideration, the average rate comes to about Rs. 10/13 per sq. yard only.
Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average.
Having arrived at an average of Rs. 12/2 per sq. yard from the four transactions referred to above, they again took a second average between Rs. 15, which was the maximum price obtained by the respondent, and Rs. 12/2.
Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs. 13/8.
No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference.
It is obvious that the maximum price Rs. 15 per sq. yard had already gone into the average when an average was drawn from the four transactions.
It is difficult to understand why it should be utilised again for arriving at the market value of the land in question.
We are of the view that if the aforesaid two errors are eliminated, then the proper market value of the land in question is Rs. 11 only.
Learned counsel for the appellant has drawn our attention to the claim made by the respondent himself before the Land Acquisition Officer (exhibit 11).
The respondent had therein said: Hence, under the standing orders compensation has to be paid at rates for building land in the neighbourhood.
This rate ranges from Rs. 10 to Rs. 12, an average of Rs. 10 a sq. yard, as could be verified from entries in the local Sub Registrar 's Office and Bangalore City Municipal Office.
At any rate, I myself have sold in the course of this year some six sites out of the land proposed to be acquired for rates ranging from Rs. 7 to Rs. 15 or on an average of Rs. 10 per sq. yard.
At this rate the compensation amount will be Rs. 5,12,430 and adding the statutory allowance of Rs. 76,860 at 15 per cent.
on the compensation amount on account of the compulsory nature of the acquisition, the total cost of the land will be Rs. 5,89,290 or nearly six lakhs of rupees.
" 414 The learned Judges of the High Court took the aforesaid claim to mean that the average rate was Rs. 10 ,per sq.
yard, only if the entire area was taken into consideration; but the rate would be different if small building sites were sold according to a layout scheme.
It is worthy of note, however, that in his claim the respondent clearly stated that even as building land the average rate in the neighbourhood ranged from Rs. 10 to Rs. 12 per sq. yard and he had himself sold six building sites at an average rate of about Rs. 10 per sq. yard.
It is worthy of note that the six transactions to which the respondent referred were sales of small building sites.
It appears to us, therefore, that the High Court had in effect given the respondent a rate more favourable than what he had himself claimed.
We consider, therefore, that on a proper consideration of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land in question should be Rs. 11 per sq. yard.
The result, therefore, is that we allow this appeal to this limited extent only, namely, the order of the High Court will be modified by substituting the figure Rs. 11 per sq. yard for the figure Rs. 13/8 awarded by the High Court as compensation to the respondent for land other than the low lying land.
We maintain the order of the High Court that the parties will receive and pay costs in proportion to their success and failure, as now determined, in the courts below; but so far as the costs of this Court are concerned, the parties must bear their own costs in view of their divided success here.
Appeal partly allowed. | Certain land belonging to the respondent was compulsorily acquired by the Government for a maternity hospital.
Most of the land consisted of building sites but there was a building on a small portion of the land and a portion was low lying land.
The Special Land Acquisition Officer held on the basis of the value of sites previously sold by the respondent, that the market value of the land was Rs. 10/ per sq. yard and awarded a sum of Rs. 1,41,169/ to the respondent as compensation.
He did not give any compensation for the low lying land or for the building.
Against this award the respondent raised an objection and a reference was made to the District judge.
The District judge accepted the rate of Rs. 10/ per sq. yard as fair, reduced the amount of deductions for providing electric installations by Rs. 10,000/ and allowed a sum of Rs. 10,000/ for the low lying area at the rate of Rs. 3/ per sq.
yard, thereby increasing the amount of compensation by Rs. 20,000/ .
Not being satisfied the respondent appealed to the High Court.
The High Court held that the rate of compensation for the land except the low lying portion, should be Rs. 13/8/ per sq yard and for the low lying portion it should be Rs. 8/8/ per sqyard.
It further awarded a sum of Rs. 7,000/ for the building.
In arriving at the figure of Rs. 13/8/ the High Court took into account only four sale transactions which had been made by the respondent at the rates of Rs. 12, I5, 14 and 7/8/ per sq. yard but did not take into consideration two other transactions which had been made by the respondent at the rates of Rs. 6/8/ and Rs. 10 per sq. yard.
It calculated the average of the four transactions to be Rs. 12/2/per sq. yard and then took a second average between Rs. 15/ , 405 which was the maximum price obtained by the respondent and RS.
12/2/ and arrived at the figure of Rs. 13/8/ .
The High Court was also influenced by considerations such as the purpose for which the land was acquired.
, the report of certain medical authorities as to the unsuitability of the land for the maternity hospital and the delay in putting the land to the use for which it was acquired.
Held, that with regard to the valuation of the land, other than the low lying portion, the High Court misdirected itself by taking into account extraneous considerations and had committed an error of principle in arriving at the figure of Rs. 13/8/ by adopting a wrong method of ascertaining the market value.
The High Court ought to have taken the average of all the six sale transactions and arrived at the proper valuation of Rs. 11/. per sq. yard.
There was no justification for ignoring two of the sale transactions or for taking a second average.
With respect to the compensation for the low lying land and the building there was no error of principle or otherwise in the findings of the High Court and no interference was called for. |
terlocutory Application No. 1 of 1990.
IN Civil Appeal No. 4444 of 1991).
From the Judgment and Order dated 25.5.1991 of the Allahabad High Court in C.W.P. No. 5267 of 1990.
D.K. Garg and Pradip Misra for the Appellants.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Leave is granted to the petitioners who were not parties before the High Court in Writ Petition No. 5267 of 1990 to file the special leave petition.
The Registry shall.
therefore.
consequently register this spe cial leave petition.
Special leave is granted.
On 25.5.1990.
a learned Single Judge of the Allahabad High Court is said to have made an order in Writ Petition No. 5267 of 1990.
That brief order for convenience is ex tracted below: has been brought to the notice of the Court that the opp.
parties have violated the time schedule framed by Hon 'ble Supreme Court in the case of Dr. Dinesh Kumar vs 132 M.L.N. Medical College, Allahabad; , in organising the competition to be held on 27.5.90 by Lucknow University for admissions in Post Graduate Medical Courses in the State Medical Colleges.
The Hon 'ble Supreme Court has recently warned in the case of State of Bihar vs Dr. Sanjay Kumar Sinha, AIR 1990) SC 749 that "Everyone including the States.
the Union territories and other authorities running Medical colleges with Post Graduate Courses are bound by our order and must strictly follow the same schedule".
For violating its orders, the Hon 'ble Supreme Court hoped that "there would be no recurrence of it but we would like to administer a warning to everyone that if it is brought to our notice at any time in future that there has been viola tion, a serious view of such default shall be taken.
Keeping in view the above observations the opposite parties are strictly directed not to hold the competitive examina tion scheduled on 27th May, 1990 and admit the petitioners in Post Graduate Medical Courses in the present session on the basis of marks obtained in MBBS Course as has been done for MDS Courses.
The Writ Petition is allowed with no order as to costs" On the basis of that order and relying upon the terms thereof, a learned Single Judge of the Lucknow Bench of the High Court made an order on 4.6.90) directing that steps be taken on the basis of the direction direction made in the order dated 25.5.90 for giving admission to candidates in P.G. Courses.
The net result of these two orders is that the Selection Examination for filling up of the seats in the Post Graduate Medical Courses of the seven medical colleges in U.P. has been cancelled and a direction has been issued to the State Government to grant admission on the basis of M.B.B.S. results.
This Court by order dated 21st August, 1990 directed the Registrar of the Allahabad High Court to transmit the record wherein order dated 25.5.90 is said to have been made.
The Registrar in his letter dated 22nd August, 1990, to this Court in response to the direction has stated that: "there is no such case as writ No. 5267 of 1990 Dr. B. Sheetal Nandwani vs State and Others, and no judgment 133 was delivered by Hon 'ble Mr. Justice Anshuman Singh on 25.5.90 in the said case.
The file is sent to you through special messenger and you are requested to kindly return the file after the Hon 'ble Court 's perusal.
It is further submitted that fake judgment was said to have been produced before different Medical Colleges purporting to have been delivered by Hon 'ble Mr. justice Anshuman Singh, J. on 25.5.1990 in Writ Petition No. 5267 of 1990 directing the opposite parties not to hold competitive examinations scheduled on 27.5.90 and admit the petitioners in Post Graduate Medical Course in the present session on the basis of the marks obtained in M.B.B.S. Course.
In 'Northern India Patrika ' (Allahabad Edition) dated 11.8.90 this matter was published with the heading 'Bogus Judgment aborts entrance Exam ' and only then it came to the notice of the Hon 'ble Court and the Hon 'ble the Chief Justice took up the matter and directed that a CID enquiry be instituted.
On the direction of Hon 'ble the Chief Justice the Government has been moved to get the matter investigated by CID.
" From the report it is manifest that a fake order in a non existent writ petition was produced before the Lucknow Bench of the Allahabad High Court for securing the order dated 4.6.90.
It also transpires that on the basis of al leged order dated 25.5.90 and the subsequent order of 4.6.90 some admissions have been secured in some of the medical colleges.
Those who have taken admission on the basis of such orders.
that is on the basis of the M.B.B.S. result without going through a selection examination cannot be allowed to continue in the Post Graduate Courses.
We are satisfied that there is a deep seated conspiracy which brought about the fake order from Allahabad.
the principal seat of the High Court and on the basis thereof a subsequent direction has been obtained from the Lucknow Bench of the same High Court.
The first order being non existent has to be declared to be a bogus one.
The second order made on the basis of the first order has to be set aside as having been made on the basis of misrepresentation.
We are alive to the situation that the persons who have taken admission on the basis of the M.B.B.S. results are not before us.
The circum stances in which such benefit has been taken by the candi dates concerned do not justify attraction of the application of rules of natural justice of being provided an opportunity to be heard.
At and rate now that we have at the instance of the U.P. Government ordered 134 the selection examination to be held, admission on the basis of M.B.B.S. results cannot stand.
We accordingly direct that admissions, if any on the basis of M.B.B.S. results granted after the impugned orders of the High Court shall stand vacated and the Principals of the medical colleges of U.P. are directed to implement the direction forthwith.
A copy of this order shall be communicated to each of the Principals of the seven medical colleges in the State of U.P. for compliance.
The report of the Registrar of the High Court of Allaha bad indicates that the Criminal Investigation Department of the State has been asked to investigate into the matter.
We are of the view that appropriate investigation should be done by the Central Bureau of Investigation and persons behind this deep seated fraud should be brought to book without any delay.
Purity of the judicial stream should not be allowed to be polluted by such a clandestine move and citizens should not be misled by actions of the conspira tors.
We, therefore, direct that the Central Bureau of Investigation shall step in forthwith and complete the investigation within two months and provide a copy of the report containing the result of the investigation to this Court.
A copy of the report shall simultaneously be submit ted to the learned Chief Justice of the Allahabad High Court.
The appeal is allowed with costs.
As and when the respondents who are said to be petitioners in writ petition No. 5267 of 1990 are identified shall be made to pay the costs of this appeal which we assess at Rs.10,000.
Out of the costs as and when recovered, the appellants shall be entitled to a sum of Rs.3,000 and the remaining sum of Rs.7,000 shall be paid to the Supreme Court Legal Aid Com mittee.
T.N.A. Appeal allowed. | On the basis of a fake order, in a non existent writ petition, said to have been passed by a Single Judge of the Allahabad High Court on 25.5.1990, some persons obtained an order dated 4.6.1990 from the Lucknow Bench of the High Court which directed cancellation of the scheduled competi tive admission examination to the Post Graduate Medical Courses in the Medical Colleges of the State of Uttar Pra desh and.
granted admission on the basis of the marks ob tained in the M.B.B.S. Exams.
Some admissions were secured in the medical colleges of the State on the basis of the High Court 's orders.
Against the High Court 's orders, the U.P. Junior Doctors ' Action Committee has preferred this appeal by special leave.
Allowing the appeal, this Court, HELD: 1.1 Purity of the judicial stream should not be allowed to be polluted by a clandestine move and citizens should not be misled by actions of the conspirators.
1.2 There is a deep seated conspiracy which brought about the fake order from Allahabad High Court and on the basis thereof a subsequent direction has been obtained from the Lucknow Bench of the same High Court.
The first order being non existent is declared to be a bogus one.
The second order made on the basis of the first order is set aside as having been made on the basis of misrepresentation.
Conse quently, those who have taken admission on the basis of such orders, that is on the basis of the M.B.B.S. result without going through a selection examination, cannot be allowed to continue in the Post Graduate 131 Courses.
Accordingly, admissions, if any, made on the basis of orders of the High Court shall stand vacated.
[133F G; 134A] 2.
Though the persons who have taken admission on the basis of the High Court 's order are not before this Court yet the circumstances in which such benefit has been taken by them do not justify attraction of the application of rules of natural justice of being provided an opportunity to be heard.
[133G H] 3.
Appropriate investigation should be done by the Central Bureau of Investigation and the persons behind the deep seated fraud should be brought to book without any delay.
[134C] Dr. Dinesh Kumar vs M.L.N. Medical College, Allahabad, ; ; and State of Bihar vs Dr. Sanjay Kumar Sinha, A.I.R. 1990 SC 749, cited. |
ivil Appeal No. 417 of 1984.
From the Judgment and Order dated 12.8.1981 of the Delhi High Court in C.W.P. No. 1835 of 1981.
A.K. Ganguli, A. Sharan for the Appellant.
Kapil Sibal, Additional Solicitor General, Raju Rama chandran, Rajiv Dhawan, C.V. Subba Rao and Mrs. Sushma Suri for the Respondents.
T. Prasad for the Secretary, Ministry of Defence.
The Judgment of the Court was delivered by S.C. AGRAWAL, J.
This appeal, by special leave, is directed against the order dated August 12, 1981, passed by the High Court of Delhi dismissing the writ petition filed by the appellant.
In the writ petition the appellant had challenged the validity of the finding and the sentence recorded by the General Court Martial on November 29, 1978, the order dated May 11, 1979, passed by the Chief of Army Staff confirming the findings and the sentence recorded by the General Court Martial and the order dated May 6, 1980, passed by the Central Government dismissing the petition filed by the appellant under Section 164(2) of the (hereinafter referred to as 'the Act ').
48 The appellant held a permanent commission, as an offi cer, in the regular army and was holding the substantive rank of Captain.
He was officiating as a Major.
On December 27, 1974, the appellant took over as the Officer Commanding of 38 Coy.
ASC (Sup) Type 'A ' attached to the Military Hospital, Jhansi.
In August 1975, the appellant had gone to attend a training course and he returned in the first week of November 1975.
In his absence Captain G.C. Chhabra was the officer commanding the unit of the appellant.
During this period Captain Chhabra submitted a Contingent Bill dated September 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowkidars and sweepers.
The said Contingent Bill was returned by the Controller of Defence Accounts (CDA) Meerut with certain objections.
Thereupon the appellant submitted a fresh Contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57.
In view of the difference in the amounts mentioned in the two Contingent Bills, the CDA reported the matter to the headquarters for investiga tion and a Court of Enquiry blamed the appellant for certain lapses.
The said report of the Court of Enquiry was considered by the General Officer Commanding, M.P., Bihar and Orissa Area, who, on January 7, 1977 recommended that 'severe displeasure ' (to be recorded) of the General Officer Com manding in Chief of the Central Command be awarded to the appellant.
The General Officer Commanding in Chief.
Central Command did not agree with the said opinion and by order dated August 26, 1977, directed that disciplinary action be taken against the appellant for the lapses.
In view of the aforesaid order passed by the General Officer Commanding in Chief, Central Command, a charge sheet dated July 20. 1978, containing three charges was served on the appellant and it was directed that he be tried by Gener al Court Martial.
The first charge was in respect of the offence under Section 52(f) of the Act, i.e. doing a thing with intent to defraud.
the second charge was alternative to the first charge and was in respect of offence under Section 63 of the Act, i.e. committing an act prejudicial to good order and military discipline and the third charge was also in respect of offence under Section 63 of the Act.
The appellant pleaded not guilty to the charges.
The prosecution examined 22 witnesses to prove the charges.
The General Court Martial.
on November 29, 1978, found the appellant not guilty of the second charge but found him guilty of the first and the third charge and awarded the sentence of dismissal from service.
The appellant submit 49 ted a petition dated December 18, 1978, to the Chief of Army Staff wherein he prayed that the findings and the sentence of the General Court Martial be not confirmed.
The findings and sentence of the General Court Martial were confirmed by the Chief of the Army Staff by his order dated May 11, 1979.
The appellant, thereafter, submitted a post confirmation petition under Section 164(2) of the Act.
The said petition of the appellant was rejected by the Central Government by order dated May 6, 1980.
The appellant thereupon filed the writ petition in the High Court of Delhi.
The said writ petition was dismissed, in limine, by the High Court by order dated August 12, 1981.
The appellant approached this Court for grant of special leave to appeal against the said order of the Delhi High Court.
By order dated January 24, 1984, special leave to appeal was granted by this Court.
By the said order it was directed that the appeal be listed for final hearing before the Constitution Bench.
The said order does not indicate the reason why the appeal was directed to be heard by the Constitution Bench.
The learned counsel for the appellant has stated that this direction has been given by this Court for the reason that the appeal involves the question as to whether it was incumbent for the Chief of the Army Staff, while confirming the findings and the sentence of the General Court Martial, and for the Central Govern ment, while rejecting the post confirmation petition of the appellant, to record their reasons for the orders passed by them.
We propose to deal with this question first.
It may be mentioned that this question has been consid ered by this Court in Som Datt Datta vs Union of India and Others, ; In that case it was contended before this Court that the order of the Chief of Army Staff confirming the proceedings of the Court Martial under Sec tion 164 of the Act was illegal since no reason had been given in support of the order by the Chief of the Army Staff and that the Central Government had also not given any reason while dismissing the appeal of the petitioner in that case under Section 165 of the Act and that the order of the Central Government was also illegal.
This contention was negatived.
After referring to the provisions contained in Sections 164, 165 and 162 of the Act this Court pointed that while Section 162 of the Act expressly provides that the Chief of the Army Staff may "for reasons based on the merits of the case" set aside the proceedings or reduce the sentence to any other sentence which the Court might have passed, there is no express obligation imposed by Sections 164 and 165 of the Act on the confirming authority or upon the Central Government to give reasons in support of its decision to confirm the proceedings of the Court Martial.
This Court observed that no other section of the Act or any of the rules made 50 therein had been brought to its notice from which necessary implication can be drawn that such a duty is cast upon the Central Government or upon the confirming authority.
This Court did not accept the contention that apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, there is a general principle or a rule of natural justice that a statutory tribunal should always and in every case give reasons m support of its decision.
Shri A.K. Ganguli has urged that the decision of this Court in Som Datt Datta 's case (supra) to the extent it holds that there is no general principle or rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision needs reconsid eration inasmuch as it is not in consonance with the other decisions of this Court.
In support of this submission Shri Ganguli has placed reliance on the decisions of this Court in Bhagat Raja vs The Union of India and Others, ; ; Mahabir Prasad Santosh Kumar vs State of U.P. and Others, ; ; Woolcombers of India Ltd. vs Woolcombers Workers Union and Another, and Siemens Engineering & Manufacturing Co. of India Limited vs Union of India and Another, The learned Additional Solicitor General has refuted the said submission of Shri Ganguli and has submitted that there is no requirement in law that reasons be given by the con firming authority while confirming the finding or sentence of the Court Martial or by the Central Government while dealing with the post confirmation petition submitted under Section 164 of the Act and that the decision of this Court in Som Datt Datta 's case (supra) in this regard does not call for reconsideration.
The question under consideration can be divided into two parts: (i) Is there any general principle of law which requires an administrative authority to record the reasons for its decision; and (ii) If so, does the said principle apply to an order con firming the findings and sentence of a Court Martial and post confirmation proceedings under the Act? On the first part of the question there is divergence of opinion in the common law countries.
The legal position in the United States is different from that in other common law countries.
51 In the United States the courts have insisted upon recording of reasons for its decision by an administrative authority on the premise that the authority should give clear indication that it has exercised the discretion with which it has been empowered because "administrative process will best be vindicated by clarity in its exercise" Phelps Dodge Corporation vs National Labour Relations Board, [1940] 85 Law Edn. 1271 at P. 1284.
The said requirement of record ing of reasons has also been justified on the basis that such a decision is subject to judicial review and "the Courts cannot exercise their duty of review unless they are advised of the considerations underlying the action under review" and that "the orderly functioning of the process of review requires that the grounds upon which the administra tive agency acted be clearly disclosed and adequately sustained." Securities and Exchange Commission vs Chenery Corporation, ; at P. 636.
In John T. Dunlop vs Waiter Bachowski, ; 377) it has been observed that a statement of reasons serves purposes other than judicial review inasmuch as the reasons promotes thought by the authority and compels it to cover the rele vant points and eschew irrelevancies and assures careful administrative consideration.
The Federal Administrative Procedure Act, 1946 which prescribed the basic procedural principles which are to govern formal administrative proce dures contained an express provision (Section g(b) ) to the effect that all decisions shall indicate a statement of findings and conclusions as well as reasons or basis the, for upon all the material issues of fact, law or discretion presented on the record.
The said provision is now contained in Section 557(c) of Title 5 of the United States Code (1982 edition).
Similar provision is contained in the state stat utes.
In England the position at Common law is that there is no requirement that reasons should be given for its decision by the administrative authority (See: Regina vs Gaming Board for Great Britain Ex Party Benaim and Khaida, [1970] 2 Q.B. 417 at p. 431 and McInnes vs Onslow Fane and Another, at p. 1531).
There are, however, observa tions in some judgments wherein the importance of reasons has been emphasised.
In his dissenting judgment in Breen vs Amalgamated Engineering Union and Others, Lord Denning M.R., has observed that: "the giving of reasons is one of the fundamental of good administration." (P. 191) In Alexander Machinery (Dudley) Ltd. vs Crabtree, Sir John Donaldson, as President of the National Industrial Relations Court, has observed that: 52 "failure to give reasons amounts to a denial of justice.
" In Regina vs Immigration Appeal Tribunal Ex parte Khan (Mahmud), Lord Lane, CJ., while expressing his reservation on the proposition that any failure to give reasons means a denial of justice, has observed: "A party appearing before a tribunal is entitled to know either expressly stated by the tribunal or inferentially stated, what it is to which the tribunal is addressing its mind." (P. 794) The Committee on Ministers ' Powers (Donoughmore Commit tee) in its report submitted in 1932, recommended that "any party affected by a decision should be informed of the reasons on which the decision is based" and that "such a decision should be in the form of a reasoned document avail able to the parties affected." (P. 100) The Committee on Administrative Tribunals and Enquiries (Franks Committee) in its report submitted in 1957, recommended that "decisions of tribunals should be reasoned and as full as possible." The said Committee has observed: "Almost all witnesses have advocated the giving of reasoned decisions by tribunals.
We are convinced that if tribunal proceedings are to be fair to the citizen reasons should be given to the fullest practicable extent.
A decision is apt to be better if the reasons for it have to be set out in writing because the reasons are then more likely to have been properly thought out.
Further, a reasoned decision is essential in order that, where there is a right of appeal, the applicant can assess whether he has good grounds of appeal and know the case he will have to meet if he decides to appeal." (Para 98) The recommendations of the Donoughmore Committee and the Franks Committee led to the enactment of the Tribunals and Enquiries Act, 1958 in United Kingdom.
Section 12 of that Act prescribed that it shall be the duty of the Tribunal or Minister to furnish a statement, either written or oral, of the reasons for the decision if requested, on or before the giving of notification of the decision to support the deci sion.
The said Act has been replaced by the Tribunals and Enquiries Act, 1971 which contains a similar provision in Section 12.
This requirement is.
however, confined.
in its applications to tribunals and statu 53 tory authorities specified in Schedule I to the said enact ment.
In respect of the tribunals and authorities which are not covered by the aforesaid enactment, the position, as prevails at common law, applies.
The Committee of JUSTICE in its Report, Administration Under Law, submitted in 1971, has expressed the view: "No single factor has inhibited the development of English administrative law as seriously as the absence of any gener al obligation upon public authorities to give reasons for their decisions.
" The law in Canada appears to be the same as in England.
In Pure Spring Co. Ltd. vs Minister of National Revenue, at P. 539 it was held that when a Minister makes a determination in his discretion he is not required by law to give any reasons for such a determination.
In some recent decisions, however, the Courts have recognised that in certain situations there would be an implied duty to state the reasons or grounds for a decision (See: Re R D.R. Construction Ltd. And Rent Review Commission, and Re Yarmouth Housing Ltd. And Rent Review Commission, In the Province of Ontario the Statutory Powers Procedure Act, 1971 was enacted which provided that "a tribunal shall give its final deci sion, if any, in any proceedings in writing and shall give reasons in writing therefore if requested by a party." (Section 17).
The said Act has now been replaced by the Statutory Powers and Procedure Act, 1980, which contains a similar provision.
The position at common law is no different in Australia.
The Court of Appeal of the Supreme Court of New South Wales in Osmond vs Public service Board of New South Wales, had held that the common law requires those entrusted by Statute with the discretionary power to make decisions which will affect other persons to act fairly in the performance of their statutory functions and normally this will require an obligation to state the reasons for their decisions.
The said decision was overruled by the High Court of Australia in Public Service Board of New South Wales vs Osmond, and it has been held that there is no general rule of the common law, or principle of natural justice, that requires reasons to be given for administrative decisions, even decisions which have been made in the exercise of a statutory discretion and which may adversely affect the interests or defeat the legitimate or reasonable expectations, of other persons.
Gibbs CJ., in his leading judgment, has expressed the view that "the 'rules of natural justice are 54 designed to ensure fairness in the making of a decision and it is difficult to see how the fairness of an administrative decision can be affected by what is done after the decision has been made.
" The learned Chief Justice has.
however.
observed that "even assuming that in special circumstances natural justice may require reasons to be given, the present case is not such a case." (P. 568).
Deane J., gave a concur ring judgment, wherein after stating that "the exercise of a decision making power in a way which adversely affects others is less likely to be.
or appear to be, arbitrary if the decision maker formulates and provides reasons for his decision", the learned Judge has proceeded to hold that "the stage has not been reached in this country where it is a general prima facie requirement of the common law rules of natural justice or procedural fair play that the administra tive decision maker.
having extended to persons who might be adversely affected by a decision an adequate opportunity of being heard.
is bound to furnish reasons for the exercise of a statutory decision making power." (P. 572).
The learned Judge has further observed that the common law rules of natural justice or procedural fair play are neither stand ardized nor immutable and that their content may vary with changes in contemporary practice and standards.
In view of the statutory developments that have taken place in other countries to which reference was made by the Court of Ap peal, Deane, J. has observed that the said developments "are conducive to an environment within which the courts should be less reluctant than they would have been in times past to discern in statutory provisions a legislative intent that the particular decision maker should be under a duty to give reasons." (P. 573).
This position at common law has been altered by the Commonwealth Administrative Decisions (Judicial Review) Act.
Section 13 of the said Act enables a person who is entitled to apply for review the decision before the Federal Court to request the decision maker to furnish him with a statement in writing setting out the findings on material questions of fact, referring to the evidence or other mate rial on which those findings were based and giving the reasons for the decision and on such a request being made the decision maker has to prepare the statement and furnish it to the persons who made the request as soon as practica ble and in any event within 28 days.
The provisions of this Act are not applicable to the classes of decisions mentioned in Schedule I to the Act.
A similar duty to give reasons has also been imposed by Sections 28 and 37 of the commonwealth Administrative Appeals Tribunal Act.
In India the matter was considered by the Law Commission in 55 the 14th Report relating to reform in Judicial Administra tion.
The Law Commission recommended: "In the case of administrative decisions provision should be made that they should be accompanied by reasons.
The reasons will make it possible to test the validity of these deci sions by the machinery of appropriate writs." (Vol.
II P. 694).
No laws has, however, been enacted in pursuance of these recommendations, imposing a general duty to record the reasons for its decision by an administrative authority though the requirement to give reasons is found in some statutes.
The question as to whether an administrative authority should record the reasons for its decision has come up for consideration before this Court in a number of cases.
In M/s. Harinagar Sugar Mills Ltd. vs Shyam Sundar Jhunjhunwala and Others, ; , a Constitution Bench of this Court.
while dealing with an order passed by the Central Government in exercise of its appellate powers under Section 111(3) of the in the matter of refusal by a company to register the transfer of shares, has held that there was no proper trial of the appeals before the Central Government since no reasons had been given in support of the order passed by the Deputy Secretary who heard the appeals.
In that case it has been observed: "If the Central Government acts as a tribunal exercising judicial powers and the exercise of that power is subject to the jurisdiction of this Court under Article 136 of the Constitution we fail to see how the power of this Court can be effectively exercised if reasons are not given by the Central Government in support of its order." (P. 357) In Madhya Pradesh Industries Ltd. vs Union of India and Others, ; the order passed by the Central Government dismissing the revision petition under Rule 55 of the Mineral Concession Roles, 1960, was challenged before this Court on the ground that it did not contain reasons.
Bachawat, J., speaking for himself and Mudholkar, J., re jected this contention on the view that the reason for rejecting the revision application appeared on the face of the order because the Central Government had agreed with the reasons given by 56 the State Government in its order.
The learned Judges did not agree with the submission that omission to give reasons for the decision is of itself a sufficient ground for quash ing it and held that for the purpose of an appeal under Article 136 orders of courts and tribunals stand on the same footing.
The learned Judges pointed out that an order of court dismissing a revision application often gives no reasons but this is not a sufficient ground for quashing it and likewise an order of an administrative tribunal reject ing a revision application cannot be pronounced to be in valid on the sole ground that it does not give reasons for the rejection.
The decision in Hari Nagar Sugar Mills case (supra) was distinguished on the ground that in that case the Central Government had reversed the decision appealed against without giving any reasons and the record did not disclose any apparent ground for the reversal.
According to the learned Judges there is a vital difference between an order of reversal and an order of affirmance.
Subba Rao, J., as he then was, did to concur with this view and found that the order of the Central Government was vitiated as it did not disclose any reasons for rejecting the revision applica tion.
The learned Judge has observed: "In the context of a welfare State, administrative tribunals have come to stay.
Indeed, they are the necessary concomi tants of a Welfare State.
But arbitrariness in their func tioning destroys the concept of a welfare State itself.
Self discipline and supervision exclude or at any rate minimize arbitrariness.
The least a tribunal can do is to disclose its mind.
The compulsion of disclosure guarantees consideration.
The condition to give reasons introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made; and it also enables an appellate or supervisory court to keep the tribunals within bounds, A reasoned order is a desirable condition of judicial disposal." (P. 472).
"If tribunals can make orders without giving reasons, the said power in the hands of unscrupulous or dishonest officer may turn out to be a potent weapon for abuse of power.
But, if reasons for an order are given, it will be an effective restraint on such abuse, as the order, if its discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction.
A speaking order will at its best be a reasonable and at its worst be at least a plausible one.
The public should not be deprived of this only safeguard." (P. 472).
57 "There is an essential distinction between a court and an administrative tribunal.
A Judge is trained to look at things objectively, uninfluenced by considerations of policy or expediency; but an executive officer generally looks at things from the standpoint of policy and expediency.
The habit of mind of an executive officer so formed cannot be expected to change from function to function or from act to act.
So it is essential that some restrictions shall be imposed on tribunals in the matter of passing orders affect ing the rights of parties; and the least they should do is to give reasons for their orders.
Even in the case of appel late courts invariably reasons are given, except when they dismiss an appeal or revision in limine and that is because the appellate or revisional court agrees with the reasoned judgment of the subordinate court or there are no legally permissible grounds to interfere with it.
But the same reasoning cannot apply to an appellate tribunal, for as often as not the order of the first tribunal is laconic and does not give any reasons." (P. 472 73).
With reference to an order of affirmance the learned Judge observed that where the original tribunal gives rea sons, the appellate tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons and that what is essential is that reasons shall be given by an appellate or revisional tribunal expressly or by refer ence to those given by the original tribunal.
This matter was considered by a Constitution Bench of this Court in Bhagat Raja case (supra) where also the order under challenge had been passed by the Central Government in exercise of its revisional powers under Section 30 of the read with rules 54 and 55 of the Mineral Concession Rules, 1960.
Dealing with the question as to whether it was incum bent on the Central Government to give any reasons for its decision on review this Court has observed: "The decisions of tribunals in India are subject to the supervisory powers of the High Courts under article 227 of the Constitution and of appellate powers of this Court under article 136.
It goes without saying that both the High Court and this Court are placed under a great disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word "rejected", or "dismissed".
In 58 such a case, this Court can probably only exercise its appeallate jurisdiction satisfactorily by examining the entire records of the case and after giving a hearing come to its conclusion on the merits of the appeal.
This will certainly be a very unsatisfactory method of dealing with the appeal." (P. 309).
This Court has referred to the decision in Madhya pra desh Industries case (supra) and the observations of Subba Rao, J., referred to above, in that decision have been quoted with approval.
After taking note of the observations of Bachawat, J., in that case, the learned Judges have held: "After all a tribunal which exercises judicial or quasijudi cial powers can certainly indicate its mind as to why it acts in a particular way and when important rights of par ties of far reaching consequences to them are adjudicated upon in a summary fashion, without giving a personal hearing when proposals and counter proposals are made and examined, the least that can be expected is that the tribunals shall tell the party why the decision is going against him in all cases where the law gives a further right of appeal." (P.315).
Reference has already been made to Som Datt Datta 's case (supra) wherein a Constitution Bench of this Court has held that the confirming authority, while confirming the findings and sentence of a Court Martial, and the Central Government, while dealing with an appeal under Section 165 of the Act, are not required to record the reasons for their decision and it has been observed that apart from any requirement imposed by the statute or statutory rule either expressly or by necessary implication, it could not be said that there is any general principle or any rule of natural justice that a statutory tribunal should always and in every case give reasons in support of its decision.
In that case the Court was primarily concerned with the interpretation of the provisions of Act and the Army Rules, 1954.
There is no reference to the earlier decisions in Harinagar Sugar Mills case (supra) and Bhagat Raja case (supra) wherein the duty to record reasons was imposed in view of the appellate jurisdiction of this Court and the supervisory jurisdiction of the High Court under Articles 136 and 227 of the Consti tution of India respectively.
In Travancore Rayon Ltd. vs Union of India, 59 "The Court insists upon disclosure of reasons in support of the order on two grounds; one, that the party aggrieved in a proceedings before the High Court or this Court has the opportunity to demonstrate that the reasons which persuaded the authority to reject his case were erroneous; the other, that the obligation to record reasons operates as a deter rent against possible arbitrary action by the executive authority invested with the judicial power." (P. 46) In Mahabir Prasad Santosh Kumar vs State of U.P. and Others (supra) the District Magistrate had cancelled the licence granted under the ' U.P Sugar Dealers ' Licensing Order, 1962 without giving any reason and the State Govern ment had dismissed the appeal against the said order of the District Magistrate without recording the reasons.
This Court has held: "The practice of the executive authority dismissing statuto ry appeal against orders which prima facie seriously preju dice the rights of the aggrieved party without giving rea sons is a negation of the rule of law." (P. 204) "Recording of reasons in support of a decision on a disputed claim by a quasi judicial authority ensures that the deci sion is reached according to law and is not the result of caprice, whim or fancy or reached on grounds of policy or expediency.
A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim.
If the order is subject to appeal, the necessity to record reasons is greater, for without recorded reasons the appellate authority has no material on which it may deter mine whether the facts were properly ascertained, the rele vant law was correctly applied and the decision was just." (P. 205) In Woolcombers of India Ltd. case (supra) this Court was dealing with an award of an Industrial Tribunal.
It was found that the award stated only the conclusions and it did not give the supporting reasons.
This Court has observed: "The giving of reasons in support of their conclusions by judicial and quasi judicial authorities when exercising initial jurisdiction is essential for various reasons.
First, it is calculated to prevent unconscious unfairness or arbitrari 60 ness in reaching the conclusions.
The very search for rea sons will put the authority on the alert and minimise the chances of unconscious infiltration of personal bias or unfairness in the conclusion.
The authority will adduce reasons which will be regarded as fair and legitimate by a reasonable man and will discard irrelevant or extraneous considerations.
Second, it is a well known principle that justice should not only be done but should also appear to be done.
Unreasoned conclusions may be just but they may not appear to be just to those who read them.
Reasoned conclu sions, on the other hand, will have also the appearance of justice.
Third, it should be remembered that an appeal generally lies from the decision of judicial and quasi judicial authorities to this Court by special leave granted under Article 136.
A judgment which does not disclose the reasons, will be of little assistance to the Court." (P. 507) In Siemens Engineering & Manufacturing Co. of India Limited case (supra) this Court was dealing with an appeal against the order of the Central Government on a revision applica tion under the .
This Court has laid down: "It is now settled law that where an authority makes an order in exercise of a quasi judicial function it must record its reasons in support of the order it makes.
Every quasijudicial order must be supported by reasons." (P 495) "If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them.
Then along administrative au thorities and tribunals, exercising quasi judicial function will be able to justify their existence and carry credibili ty with the people by inspiring confidence in the adjudica tory process.
The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partera, a basic principle of natural justice which must inform every quasi judicial process and this rule must be observed in its 61 proper spirit and mere pretence of compliance with it would not satisfy the requirement of law." (496) Tarachand Khatri vs Municipal Corporation of Delhi & Others, [1977] 2 SCR 198 was a case where an inquiry was conducted into charges of misconduct and the disciplinary authority, agreeing with the findings of the Inquiry Offi cer, had imposed the penalty of dismissal.
The said order of dismissal was challenged on the ground that the disciplinary authority had not given its reasons for passing the order.
The said contention was negatived by this Court and distinc tion was drawn between an order of affirmance and an order of reversal.
It was observed: " . . while it may be necessary for a disciplinary or administrative authority exercising quasi judicial functions to state the reasons in support of its order if it differs from the conclusions arrived at and the recommendations made by the Inquiry Officer in view of the scheme of a particular enactment or the rules made thereunder, it would be laying down the proposition too broadly to say that even an ordi nary concurrence must be supported by reasons." (P. 208) In Raipur Development Authority and Others vs Mls.
Chokhamal Contractors and Others, [1989] 2 S.C.C. 721 a Constitution Bench of this Court was considering the ques tion whether it is obligatory for an arbitrator under the Arbitration Act, 194(1 to give reasons for the award.
It was argued that the requirement of giving reasons for the deci sion is a part of the rules of natural justice which are also applicable to the award of an arbitrator and reliance was placed on the decisions in Bhagat Raja case (Supra) and Siemens Engineering Co. case (Supra).
The said contention was rejected by this Court.
After referring to the decisions in Bhagat Raja case (Supra); Som Datt Datta case (Supra) and Siemens Engineering Co. case (Supra) this Court has ob served: "It is no doubt true that in the decisions pertaining to Administrative Law, this court in some cases has observed that the giving of reasons in an administrative decision is a rule of natural justice by an extension of the prevailing rules.
It would be in the interest of the world of commerce that the said rule is confined to the area of Administrative Law . .
But at the same time it has to be borne in mind that what applies generally to settlement of disputes by 62 authorities governed by public law need not be extended to all cases arising under private law such as those arising under the law of arbitration which is intended for settle ment of private disputes." (P. 751 52) The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts.
An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power.
But this is not the sole consideration.
The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consid eration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decisionmaking.
In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by con siderations of policy or expediency whereas an executive officer generally looks at things from the standpoint of policy and expediency.
Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi judicial func tions, would no doubt facilitate the exercise of its juris diction by the appellate or supervisory authority.
But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance.
These considerations show that the re cording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrari ness and ensures a degree of fairness in the process of decision making.
The said purpose would apply equally to all decisions and its application cannot be confined to deci sions which are subject to appeal, revision or judicial review.
In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an admin istrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review.
It may, however, be added 63 that it is not required that the reasons should be as elabo rate as in the decision of a Court of law.
The extent and nature of the reasons would depend on particular facts and circumstances.
What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy.
The need for recording of reasons is greater in a case where the order is passed at the original stage.
The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional author ity agrees with the reasons contained in the order under challenge.
Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasi judicial functions we may now examine the legal basis for imposing this obligation.
While considering this aspect the Donough more Committee observed that it may well be argued that there is a third principle of natural justice, namely, that a party is entitled to know the reason for the decision, be it judicial or quasi judi cial.
The committee expressed the opinion that "there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise" and that "where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity." (P 80) Prof.
H.W.R. Wade has also ex pressed the view that "natural justice may provide the best rubric for it, since the giving of reasons is required by the ordinary man 's sense of justice." (See Wade, Administra tive Law, 6th Edn.
P. 548).
In Siemens Engineering Co. case (Supra) this Court has taken the same view when it observed that "the rule requiring reasons to be given in support of an order is, like the principles of audi alteram parlem, a basic principle of natural justice which must inform every quasi judicial process." This decision proceeds on the basis that the two well known principles of natural justice, namely (i) that no man should be a Judge in his own cause and (ii) that no person should be judged without a hearing, are not exhaustive and that in addition to these two princi ples there may be rules which seek to ensure fairness in the process of decision making and can be regarded as part of the principles of natural justice.
This view is in conso nance with the law laid down by this Court in A.K. Kraipak and Others vs Union of India and Others, , wherein it has been held: 64 "The concept of natural justice has undergone a great deal of change in recent years.
In the past it was thought that it included just two rules namely (i) no one shall be a Judge in his own cause (nemo dabet esse judex propria causa) and (ii) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).
Very soon thereafter a third rule was envisaged and that is that quasi judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably.
But in the course of years many more subsidiary rules came to be added to the rules of natural justice." (P. 468 69) A similar trend is discernible m the decisions of Eng lish Courts wherein it has been held that natural justice demands that the decision should be based on some evidence of probative value.
(See: R. vs Deputy Industrial Injuries Commissioner ex P. Moore, ; Mahon vs Air New Zealand Ltd., The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about re cording of reasons for its decision by an administrative authority exercising quasi judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision making.
Keep ing in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by adminis trative authorities.
The rules of natural justice are not embodied rules.
The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority.
With regard to the exercise of a particular power by an adminis trative authority including exercise of judicial or quasi judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement.
It may do so by making an express provi sion to that affect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Deci sions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment.
Such an exclusion can also arise by necessary implication from the nature of the sub ject matter, the scheme and the provisions of the 65 enactment.
The public interest underlying such a provision would outweight the salutary purpose served by the require ment to record the reasons.
The said requirement cannot, therefore, be insisted upon in such a case.
For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administra tive authority exercising judicial or quasi judicial func tions is required to record the reasons for its decision.
We may now come to the second part of the question, namely, whether the confirming authority is required to record its reasons for confirming the finding and sentence of the court martial and the Central Government or the competent authority entitled to deal with the post confirma tion petition is required to record its reasons for the order passed by it on such petition.
For that purpose it will be necessary to determine whether the Act or the Army Rules, 1954 (hereinafter referred to as 'the Rules ') ex pressly or by necessary implication dispense with the re quirement of recording reasons.
We propose to consider this aspect in a broader perspective to include the findings and sentence of the court martial and examine whether reasons are required to be recorded at the stage of (i) recording of findings and sentence by the court martial; (ii) confirma tion of the findings and sentence of the court martial; and (iii) consideration of post confirmation petition.
Before referring to the relevant provisions of the Act and the Rules it may be mentioned that the Constitution contains certain special provisions in regard to members of the Armed Forces.
Article 33 empowers Parliament to make law determining the extent to which any of the rights conferred by Part Ill shall, in their application to the members of the Armed Forces be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline amongst them.
By clause (2) of Article 136 the appellate jurisdiction of this Court under Article 136 of the Constitution has been excluded in relation to any judg ment, determination, sentence or order passed or made by any Court or tribunal constituted by or under any law relating to the Armed Forces.
Similarly clause (4) of Article 227 denies to the High Courts the power of superintendence over any Court or tribunal constituted by or under any law relat ing to the Armed Forces.
This Court under Article 32 and the High Courts under Article 226 have, however, the power of judicial review in respect of 66 proceedings of courts martial and the proceedings subsequent thereto and can grant appropriate relief if the said pro ceedings have resulted in denial of the fundamental rights guaranteed under Part III of the Constitution or if the said proceedings suffer from a jurisdictional error or any error of law apparent on the face of the record.
Reference may now be made to the provisions of the Act and the Rules which have a bearing on the requirement to record reasons for the findings and sentence of the court martial.
Section 108 of the Act makes provision for four kinds of courts martial, namely, (a) general courts martial; (b) district courts martial; (c) summary general courtsmar tial and (d) summary courts martial.
The procedure of court martial is prescribed in Chapter XI (Sections 128 to 152) of the Act.
Section 129 prescribes that every general court martial shall, and every district or summary general court martial, may be attended by a judge advocate, who shall be either an officer belonging to the department of the Judge Advocate General, or if no such officer is available, an officer approved of by the Judge Advocate General or any of his deputies.
In sub section (1) of Section 131 it is pro vided that subject to the provisions of sub sections (2) and (3) every decision of a courtmartial shall be passed by an absolute majority of votes, and where there is an equality of votes on either the finding or the sentence, the decision shall be in favour of the accused.
In sub section (2) it is laid down that no sentence of death shall be passed by a general courtmartial without the concurrence of at least two thirds of the members of the court and sub section (3) provides that no sentence of death shall be passed by a summary general court martial without the concurrence of all the members.
With regard to the procedure at trial before the General and District courts martial further provisions are made in Rules 37 to 105 of the Rules.
In Rule 60 it is provided that the judge advocate (if any) shall sum up in open court the evidence and advise the court upon the law relating to the case and that after the summing up of the judge advocate no other address shall be allowed.
Rule 61 prescribes that the Court shall deliberate on its findings in closed court in the presence of the judge advocate and the opinion of each member of the court as to the finding shall be given by word of mouth on each charge separately.
Rule 62 prescribes the form, record and announcement of finding and in sub rule (1) it is provided that the finding on every charge upon which the accused is arraigned shall be recorded and, except as provided in these rules, shall be recorded simply as a finding of "Guilty" or of "Not guilty".
Sub rule (10) of Rule 62 lays down that the finding on charge shall be announced forthwith in open court as subject to confirmation.
Rule 64 lays down 67 that in cases where the finding on any charge is guilty, the court, before deliberating on its sentence, shall, whenever possible take evidence in the matters specified in sub rule (1) and thereafter the accused has a right to address the court thereon and in mitigation of punishment.
Rule 65 makes provision for sentence and provides that the court shall award a single sentence in respect of all the offences of which the accused is found guilty, and such sentence shall be deemed to be awarded in respect of the offence in each charge and in respect of which it can be legally given, and not to be awarded in respect of any offence in a charge in respect of which it cannot be legally given.
Rule 66 makes provisions for recommendation to mercy and sub rule (1) prescribes that if the court makes a recommendation to mercy, it shall give its reasons for its recommendation.
Sub rule (1) of Rule 67 lays down that the sentence together with any recommendation to mercy and the reasons for any such recommendation will be announced forthwith in open court.
The powers and duties of judge advocate are pre scribed in Rule 105 which, among other things, lays down that at the conclusion of the case he shall sum up the evidence and give his opinion upon the legal bearing of the case before the court proceeds to deliberate upon its find ing and the court, in following the opinion of the judge advocate on a legal point may record that it has decided in consequences of that opinion.
The said rule also prescribes that the judge advocate has, equally with the presiding officer, the duty of taking care that the accused does not suffer any disadvantage in consequences of his position as such, or of his ignorance or incapacity to examine or cross examine witnesses or otherwise, and may, for that purpose, with the permission of the court, call witnesses and put questions to witnesses, which appear to him neces sary or desirable to elicit the truth.
It is further laid down that in fulfilling his duties, the judgeadvocate must be careful to maintain an entirely impartial position.
From the provisions referred to above it is evident that the judge advocate plays an important role during the courts of trial at a general court martial and he is enjoined to maintain an impartial position.
The court martial records its findings after the judge advocate has summed up the evidence and has given his opinion upon the legal bearing of the case.
The members of the court have to express their opinion as to the finding by word of mouth on each charge separately and the finding on each charge is to be recorded simply as a finding of "guilty" or of "not guilty".
It is also required that the sentence should be announced forth with in open court.
Moreover Rule 66(1) requires reasons to be recorded for its recommendation in cases where the court makes a recommendation to mercy.
There is no such require 68 ment in other provisions relating to recording of findings and sentence.
Rule 66(1) proceeds on the basis that there is no such requirement because if such a requirement was there it would not have been necessary to have a specific provi sion for recording of reasons for the recommendation to mercy.
The said provisions thus negative a requirement to give reasons for its finding and sentence by the court martial and reasons are required to be recorded only in cases where the courtmartial makes a recommendation to mercy.
In our opinion, therefore, at the stage of recording of findings and sentence the court martial is not required to record its reasons and at that stage reasons are only required for the recommendation to mercy if the court mar tial makes such a recommendation.
As regards confirmation of the findings and sentence of the court martial it may be mentioned that Section 153 of the Act lays down that no finding or sentence of a General, District or summary General, Court Martial shall be valid except so far as it may be confirmed as provided by the Act.
Section 158 lays down that the confirming authority may while confirming the sentence of a court martial mitigate or remit the punishment thereby awarded, or commute that pun ishment to any punishment lower in the scale laid down in Section 71.
Section 160 empowers the confirming authority to revise the finding or sentence of the court martial and in sub section (1) of Section 160 it is provided that on such revision, the court, if so directed by the confirming au thority, may take additional evidence.
The confirmation of the finding and sentence is not required in respect of summary court martial and in Section 162 it is provided that the proceedings of every summary court martial shall Without delay be forwarded to the officer commanding the division or brigade within which the trial was held or to the prescribed officer; and such officer or the Chief of the Army Staff or any officer empowered in this behalf may, for reasons based on the merits of the case, but not any merely technical grounds, set aside the proceedings or reduce the sentence to any other sentence which the court might have passed.
In Rule 69 it is provided that the proceedings of a general court martial shall be submitted by the judge advocate at the trial for review to the deputy or assistant judge advocate general of the command who shall then forward it to the confirming officer and in case of district court martial it is provided that the proceedings should be sent by the presiding officer, who must, in all cases.
where the sentence is dismissal or above, seek advice of the deputy or assistant judge advocate general of the command before confirmation.
Rule 70 lays down that upon receiving the proceedings of a general or district Court Martial, the confirming authority may 69 confirm or refuse confirmation or reserve confirmation for superior authority, and the confirmation, non confirmation, or reservation shall be entered in and form part of the proceedings.
Rule 71 lays down that the charge, finding and sentence, and any recommendation to mercy shall, together with the confirmation or non confirmation of the proceed ings, be promulgated in such manner as the confirming au thority may direct, and if no direction is given, according to custom of the service and until promulgation has been effected, confirmation is not complete and the finding and sentence shall not be held to have been confirmed until they have been promulgated.
The provisions mentioned above show that confirmation of the findings and sentence of the court martial is necessary before the said finding or sentence become operative.
In other words the confirmation of the findings and sentence is an integral part of the proceedings of a court martial and before the findings and sentence of a court martial are confirmed the same are examined by the deputy or assistant judge advocate general of the command which is intended as a check on the legality and propriety of the proceedings as well as the findings and sentence of the court martial.
Moreover we find that in Section 162 an express provision has been made for recording of reasons based on merits of the case in relation to the proceedings of the summary courtmartial in cases where the said proceedings are set aside or the sentence is reduced and no other requirement for recording of reasons is laid down either in the Act or in the Rules in respect of proceedings for confirmation.
The only inference that can be drawn from Section 162 is that reasons have to be recorded only in cases where the proceed ings of a summary court martial are set aside or the sen tence is reduced and not when the findings and sentence are confirmed.
Section 162 thus negatives a requirement to give reasons on the part of the confirming authority while con firming the findings and sentence of a court martial and it must be held that the confirming authority is not required to record reasons while confirming the findings and sentence of the courtmartial.
With regard to post confirmation proceedings we find that subsection (2) of Section 164 of the Act provides that any person subject to the Act who considers himself ag grieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who confirmed such finding or sentence and the Central Government, the Chief of the Army Staff or other officer, as the case may be, may pass such orders 70 thereon as it or he thinks fit.
In so far as the findings and sentence of a court martial and the proceedings for confirmation of such findings and sentence are concerned it has been found that the scheme of the Act and the Rules is such that reasons are not required to be recorded for the same.
Has the legislature made a departure from the said scheme in respect of post confirmation proceedings? There is nothing in the language of sub section (2) of Section 164 which may lend support to such an intention.
Nor is there anything in the nature of post confirmation proceedings which may require recording of reasons for an order passed on the post confirmation petition even though reasons are not required to be recorded at the stage of recording of findings and sentence by a court martial and at the stage of confirmation of the findings and sentence of the court martial by the confirming authority.
With regard to record ing of reasons the considerations which apply at the stage of recording of findings and sentence by the court martial and at the stage of confirmation of findings and sentence of the courtmartial by the confirming authority are equally applicable at the stage of consideration of the post confir mation petition.
Since reasons are not required to be re corded at the first two stages referred to above, the said requirement cannot, in our opinion, be insisted upon at the stage of consideration of post confirmation petition under Section 164(2) of the Act.
For the reasons aforesaid it must be held that reasons are not required to be recorded for an order passed by the confirming authority confirming the findings and sentence recorded by the court martial as well as for the order passed by the Central Government dismissing the post confir mation petition.
Since we have arrived at the same conclu sion as in Sorn Datt Datta case (Supra) the submission of Shri Ganguli that the said decision needs reconsideration cannot be accepted and is.
therefore, rejected.
But that is not the end of the matter because even though there is no requirement to record reasons by the confirming authority while passing the order confirming the findings and sentence of the CourtMartial or by the Central Government while passing its order on the post confirmation petition, it is open to the person aggrieved by such an order to challenge the validity of the same before this Court under Article 32 of the Constitution or before the High Court under Article 226 of the Constitution and he can obtain appropriate relief in those proceedings.
We will, therefore, examine the other contentions that have 71 been urged by Shri Ganguli in support of the appeal.
The first contention that has been urged by Shri Ganguli in this regard is that under sub section (1) of Section 164 of the Act the appellant had a right to make a representa tion to the confirming authority before the confirmation of the findings and sentence recorded by the court martial and that the said right was denied inasmuch as the appellant was not supplied with the copies of the relevant record of the court martial to enable him to make a complete representa tion and further that the representation submitted by the appellant under sub section (1) of Section 164 was not considered by the confirming authority before it passed the order dated May 11, 1979 confirming the findings and sen tence of the court martial.
The learned Additional Solicitor General, on the other hand, has urged that under sub section (1) of Section 164 no right has been conferred on a person aggrieved by the findings or sentence of a court martial to make a representation to the confirming authority before the confirmation of the said findings or sentence.
The submis sion of learned Additional Solicitor General is that while sub section (1) of Section 164 refers to an order passed by a court martial, sub section (2) of Section 164 deals with the findings or sentence of a court martial and that the only right that has been conferred on a person aggrieved by the finding or sentence of a court martial is that under sub section (2) of Section 164 and the said right is avail able after the finding and sentence has been confirmed by the confirming authority.
We find considerable force in the aforesaid submission of learned Additional Solicitor Gener al.
Section 164 of the Act provides as under: "(1) Any person subject to this Act who considers himself aggrieved by any order passed by any court martial may present a petition to the officer or authority empowered to confirm any tinging or sentence of such court martial and the confirming authority may take such steps as may be considered necessary to satisfy itself as to the correct ness.
legality or propriety of the order passed or as to the regularity of any proceeding to which the order relates.
(2) Any person subject to this Act who considers himself aggrieved by a finding or sentence of any court martial which has been confirmed, may present a petition to the Central Government, the Chief of the Army Staff or any prescribed officer superior in command to the one who 72 confirmed such finding or sentence and the Central Govern ment, the Chief of the Army Staff or other officer, as the case may be, may pass such orders thereon as it or he thinks fit.
" In sub section (1) reference is made to orders passed by a courtmartial and enables a person aggrieved by an order to present a petition against the same.
The said petition has to be presented to the officer or the authority empowered to confirm any finding or sentence of such court martial and the said authority may take such steps as may be considered necessary to satisfy itself as to the correctness, legality or propriety of the order or as to the regularity of any proceedings to which the order relates.
Sub section (2), on the other hand, makes specific reference to finding or sentence of a court martial.
and confers a right on any person feeling aggrieved by a finding or sentence of any court martial which has been confirmed, to present a peti tion to the Central Government, Chief of the Army Staff or any prescribed officer.
The use of the expression "order" in sub section (1) and the expression "finding or sentence" in sub section (2) indicates that the scope of sub section (1) and sub section (2) is not the same and the expression "order" in sub section (1) cannot be construed to include a "finding or sentence".
In other words in so far as the finding and sentence of the court martial is concerned the only remedy that is available to a person aggrieved by the same is under sub section (2) and the said remedy can be invoked only after the finding or sentence has been con firmed by the confirming authority and not before the con firmation of the same.
Rule 147 of the Rules also lends support to this view.
In the said Rule it is laid down that every person tried by a court martial shall be entitled on demand, at any time after the confirmation of the finding and sentence, when such confirmation is required, and before the proceedings are destroyed, to obtain from the officer or person having the custody of the proceeding a copy thereof including the proceedings upon revision, if any.
This Rule envisages that the copies of proceedings of a court martial are to be supplied only after confirmation of the finding and sentence and that there is no right to obtain the copies of the proceedings till the finding and sentence have been confirmed.
This means that the appellant cannot make a grievance about non supply of the copies of the proceedings of the court martial and consequent denial of his right to make a representation to the confirming authority against the findings and sentence of the court martial before the confirmation of the said finding and sentence.
Though a person aggrieved by the finding or sentence of a courtmar tial has no right to make a representation before the confi ramtion 73 Of the same by the confirming authority, but in case such a representation is made by a person aggrieved by the finding or sentence of a court martial it is expected that the confirming authority shall give due consideration to the same while confirming the finding and sentence of the court martial.
In the present case the representation dated December 18, 1978 submitted by the appellant to the confirming au thority was not considered by the confirming authority when it passed the order of confirmation dated May 11, 1979.
According to the counter affidavit filed on behalf of Union of India this was due to the reason that the said represen tation had not been received by the confirming authority till the passing of the order of confirmation.
It appears that due to some communication gap within the department the representation submitted by the appellant did not reach the confirming authority till the passing of the order of con firmation.
Since we have held that the appellant had no legal right to make a representation at that stage the non consideration of the same by the confirming authority before the passing of the order of confirmation would not vitiate the said order.
Shri Ganguli next contended that the first and the second charge levelled against the appellant are identical in nature and since the appellant was acquitted of the second charge by the court martial his conviction for the first charge can not be sustained.
It is no doubt true that the allegations contained in the first and the second charge are practically the same.
But as mentioned earlier, the second charge was by way of alternative to the first charge.
The appellant could be held guilty of either of these charges and he could not be held guilty of both the charges at the same time.
Since the appellant had been found guilty of the first charge he was acquitted of the second charge.
There is, therefore, no infirmity in the court martial having found the appellant guilty of the first charge while holding him not guilty of the second charge.
Shri Ganguli has also urged that the findings recorded by the court martial on the first and third charges are perverse inasmuch as there is no evidence to establish these charges.
We find no substance in this contention.
The first charge was that the appellant on or about December 1975, having received 60.61 meters woollen serge from M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi for stitching 19 coats and pants for Class IV civilian employees of his unit with intent to defraud 74 got 19 altered ordnance pattern woollen pants issued to the said civilian employees instead of pants stitched out of the cloth received.
To prove this charge the prosecution exam ined Ram Chander P.W. 1 and Triloki Nath P.W. 2 of M/s Ram Chandra & Brothers, Sadar Bazar, Jhansi who have deposed that 60.61 meters of woollen serge cloth was delivered by them to the appellant in his office in December, 1975.
The evidence of these witnesses is corroborated by B.D. Joshi, Chowkidar, P.W. 3, who has deposed that in the last week of December, 1975, the appellant had told him in his office that cloth for their liveries had been received and they should give their measurements.
As regards the alteration of 19 ordnance pattern woollen pants which were issued to the civilian employees instead of the pants stitched out of the cloth that was received, there is the evidence of N/sub.
P. Vishwambharam P.W. 19 who has deposed that he was called by the appellant to his office in the last week of December, 1975 or the first week of January, 1976 and that on reaching there he found ordnance pattern woolien pants lying by the side of the room wall next to the appellant 's table and that the appellant had called Mohd. Sharif P.W. 15 to his office and had asked him to take out 19 woolien trousers out of the lot kept there in the office.
After Mohd. Sharif had select ed 19 woollen trousers the appellant told Mohd. Sharif to take away these pants for alteration and refitting.
The judge advocate, in his summing up, before the court martial, has referred to this evidence on the first charge and the court martial, in holding the appellant guilty of the first charge, has acted upon it.
It cannot, therefore, be said that there is no evidence to establish the first charge levelled against the appellant and the findings recorded by the court martial in respect of the said charge is based on no evidence or is perverse.
The third charge, is that the appellant having come to know that Capt.
Gian Chand Chhabra while officiating OC of his unit, improperly submitted wrong Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 omitted to initiate action against Capt.
Chhabra.
In his summing up before the court martial the judge advocate referred to the CDA letter M/IV/191 dated November 20, 1975 (Exh. 'CC ') raising cert in objection with regard to Contingent Bill No. 341/Q dated September 25, 1975 for Rs.16,280 and pointed out that the said letter was received in the unit on or about November 28, 1975 and bears the initials of the appellant with the aforesaid date and remark "Q Spk with details".
This would show that the appellant had knowledge of the Contingent Bill on November 28, 1975.
It is not the case of the appellant that he made any complaint against Captain 75 Chhabra thereafter.
It cannot, therefore, be said that the finding recorded by the court martial on the third charge is based on no evidence and is perverse.
In the result we find no merit in this appeal and the same is accordingly dismissed.
But in the circumstances there will be no order as to costs.
R.N.J. Appeal dismissed. | The Appellant was officiating as a Major though he held a substantive rank of Captain as a permanent Commissioned Officer of the army when on December 27, 1974 he took over as the Officer Commanding 38 Coy.
A.S.C. (Sup) Type 'A ' attached to the Military Hospital, Jhansi.
In August, 1975 the Appellant went to attend a training course and returned in the first week of November.
In his absence Captain G.C. Chhabra was commanding the unit of the appellant and he submitted a Contingent Bill dated September 25, 1975 for Rs.16,280 for winter liveries of the depot civilian chowki dars and sweepers.
The said Bill was returned by the Con troller of Defence Accounts (CDA) with certain objections.
Thereupon the appellant submitted a fresh contingent Bill dated December 25, 1975 for a sum of Rs.7,029.57.
In view of the wide difference in the two Contingent Bills, the CDA reported the matter to the Headquarters for investigation and a Court Enquiry blamed the appellant for certain lapses.
After considering the said report of the Court of En quiry the General Officer Commanding, M.P., Bihar and Orissa recommended that 'severe displeasure ' (to be recorded) of the General Officer Commanding in Chief of the Central Command be awarded to the appellant.
The General Officer Commanding in Chief Central Command, however.
did not agree with the said opinion and by order dated August 26, 1977 directed that disciplinary action be taken against the appellant for the lapses.
Pursuant to the said order a charge sheet dated July 20, 1978 containing three charges was served on the appellant and it was directed that he be tried by General Court Mar tial.
The first charge was, doing of a thing with intent to defraud under section 52(f) of the Act.
The second charge was alternative to the first charge i.e. commit 45 ting an act prejudicial to good order and military disci pline under section 63 of the Act and the third charge was also in respect of offence under section 63 of the Act. 'the appellant pleaded not guilty to the charges.
The General Court Martial on November 29, 1978 found him guilty of first and third charge and awarded the sentence of dis missal from service.
Thereupon the appellant submitted petition dated December 18, 1978 to the Chief of Army Staff praying that the findings of the General Court Martial be not confirmed.
The Chief of the Army Staff by his order dated May 11, 1979 confirmed the findings and sentence of the General Court Martial.
The appellant thereafter submit ted a post confirmation petition under section 164(2) of the Act.
This was rejected by the Central Government by order dated May 6, 1980.
Thereupon the appellant filed a writ petition in the High Court of Delhi which was dismissed in limine.
Hence this appeal by special leave directed to be heard by the Constitution Bench for the reason that it involves the question as to whether it was incumbent for the Chief of the Army Staff, while confirming the findings and sentence of the General Court Martial and for the Central Government while rejecting the post confirmation petition of the appellant to record their reasons for the orders passed by them.
Dismissing the appeal, this Court, HELD: The requirement that reasons be recorded should govern the decisions of an administrative authority exercis ing quasi judicial functions irrespective of the fact wheth er the decision is subject to appeal, revision or judicial review.
It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law.
The extent and nature of the reasons would depend on particular facts and circumstances.
What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy.
[62H; 63A B] The need for recording of reasons is greater in a case where the order is passed at the original stage.
The appel late or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revision al authority agrees with the reasons contained in the order under challenge.
[63B] Except in cases where the requirement has been dispensed with expressly or by necessary implication, an administra tive authority exercising judicial or quasi judicial func tions is required to record ' the reasons for its decision.
[65B] 46 The provisions contained in the and the Army Rules, 1954 negative a requirement to give reasons for its findings and sentence by a Court Martial and reasons are not required to be recorded in cases where the Court Martial makes a recommendation to mercy.
Similarly, reasons are not required to be recorded for an order passed by the confirm ing authority confirming the findings and sentence recorded by the Court Martial as well as for the order passed by the Central Government dismissing the post confirmation peti tion.
[70E F] Sub section (1) of section 164 of the enables a person aggrieved by an order passed by a Court Martial to present a petition against the same.
The expression "order" under sub section (1) does not include a finding or sentence of the Court Martial and in so far as the finding and sen tence of the Court Martial is concerned the only remedy that is available to a person aggrieved by the same is under sub section (2) of section 164 of the and the said remedy can be invoked only after the finding or sentence has been confirmed by the confirming authority and not before the confirmation of the same.
[72B; D E] Though a person aggrieved by the finding or sentence of a Court Martial has no right to make a representation before the confirmation of the same by the confirming authority, but in case such a representation is made by a person ag grieved by the finding or sentence of a Court Martial it is expected that the confirming authority shall give due con sideration to the same while confirming the finding and sentence of the Court Martial.
[72H; 73A] Som Datt Datta vs Union of India & Ors., [1969] 2 S.C.R. 177; Bhagat Raja vs The Union of India & Ors., ; ; Mahabir Prasad Santosh Kumar vs State of U.P. & Ors., ; ; Woolcombers of India Ltd. vs Woolcombers Workers Union & Ant., [1974] I S.C.R. 503; Siemens Engineering & Manufacturing Co. of India Ltd. vs Union of India & Anr., ; Phelps Dodge Corporation vs National Labour Relations Board, [1940] 85 Law Edn. 1271 at p. 1284; Securities and Exchange Commis sion vs Chenery Corporation; , at p. 636; John T. Dunlop vs Waiter Bachewski, ; 377; Regina vs Gaming Board for Great Britain, Exparte Benaim & Khaida, ; at p. 431; Mc Innes vs Onslow Fane & Anr., at p. 1531; Breen vs Amalgamated Engineering Union & Ors., ; Alexander Machinery (Dudley) Ltd. vs Crabtree, [1974] I.C.R. 120; Regina vs Immigration Appeal Tribunal Ex Parte Khan (Mahmud), ; Pure Spring Co. Ltd. vs Minister of National Revenue, 47 at p. 539; Re R.D.R. Construction Ltd. & Rent Review Commission, 168; Re Yar mouth Housing Ltd. & Rent Review Commission, ; Osmond vs Public Service Board of New South Wales, ; Public Service Board of New South Wales vs Osmond, ; M/s. Harinagar Sugar Mills Ltd. vs Shyam Sundar Jhunjhunwala & Ors., ; ; Madhya Pradesh Industries Ltd. vs Union of India & Ors., ; ; Tranvancore Rayon Ltd. vs Union of India; , ; Tarachand Khatri vs Municipal Corporation of Delhi & Ors., [1977] 2 S.C.R. 198; Raipur Development Authority & Ors.
vs M/s. Chokhamal Con tractors & Ors., [1989] 2 S.C.C. 721; A.K. Kraipak & Ors.
vs Union of India & Ors.
, ; R. vs Deputy Industrial Injuries Commissioner ex P. Moore, [1965] 1 Q.B. 456 and Mahon vs Air New Zealand Ltd., , referred to. |
N: Criminal Appeal No. 280 of 1988.
From the Judgment and Order dated 26.9.1986 of the High Court of Delhi in Crl.
W.P. No.361 of 1986.
R.L. Panjwani and R.D. Upadhyay for the Appellant.
section Madhu Sudan Rao, N.L. Kakkar and Miss A. Subhashini for the Respondents.
The following Order of the Court was delivered: O R D E R Special leave granted.
This is an unfortunate case which tends to shake the credibility of police investigation and undermines the faith of common man in Delhi Police which is supposed to protect life and liberty of citizens and maintain law and order.
There has been serious allegations of murder by torture against the police and further about the haphazard manner in which the investigation against the accused police officers was investigated with a view to shield the guilty members of the Delhi Police.
Kashmeri Devi the appellant is the unfortunate widow of Gopi Ram deceased who was a tonga driver.
On the fateful night of 22/23.8.1986 two sub inspectors accompanied by two constables visited the house of Sudesh Kumar of Prem Nagar.
It is alleged that they started beating Sudesh Kumar.
Hearing his shrieks his maternal uncle Gopi Ram deceased came to the spot, he tried to intervene whereupon the police men are alleged to have giving him beating also.
Gopi Ram and Sudesh Kumar both were arrested and taken to the Police Station Patel Nagar where they were stripped of their clothes and the police men gave them serious beating with the help of iron rods and iron rulers.
It is alleged that Gopi Ram succumbed to his injuries at the police station sustained at the hands of Satish Kumar and Rana sub inspectors and Jagmal Singh and Romesh constables while in police custody.
It is alleged that thereafter a post mortem was conducted and the dead body of Gopi Ram was cremated without handing over the dead body to the appellant.
This incident caused consternation in the locality and on 23.8.1986 a mob surrounded the police station to lodge 703 its protest against the death of Gopi Ram deceased at the police hands, Undaunted the Patel Nagar police registered a cause under Section 147/148/149/353/332 of the Indian Penal Code against Shankar brother of the deceased who was arrested along with others on 23.8.1986 as they were members of the mob.
Sudesh Kumar who had been taken to the police station along with Gopi Ram filed a written complaint at the police Station Patel Nagar on 23.8.1986, making allegations against the two sub inspectors and the constables.
In that complaint Sudesh Kumar alleged that as a result of beating by police officers his maternal uncle became unconscious and thereafter the police officers kept on beating him at the police station as a result of which he died.
He further alleged that the police officers took the dead body of Gopi Ram to the hospital from there they brought it to another hospital, where he was forced to sign blank papers.
He named the police officers who were responsible of the death of his maternal uncle.
On that complaint a case was registered under Sections 302/342 IPC against the police officers of Patel Nagar Police Station but no action was taken against those officers.
After some time case was converted to Section 304 IPC for purpose of investigation.
The appellant Kashmeri Devi approached the High Court by means of a writ petition under Article 226 of the Constitution for transferring the investigation of the case from the Crime Branch of the Delhi Police to Central Bureau of Investigation.
Division Bench of the High Court dismissed the writ petition by its order dated 26th September, 1986.
Thereupon, the appellant approached this Court by means of special leave petition.
During the pendency of the special leave petition this court granted time to the respondents twice for filing counter affidavit but the respondents failed to file their counter affidavit.
Ultimately on 11.4.1988 Kanwaljit Deol, Deputy Commissioner of Police Head Quarters has filed counter affidavit setting out a totally different story.
He has stated that on 23.8.1986 the police received information that one Gopi of Prem Nagar was brought dead by Sudesh Kumar from Prem Nagar to Ram Manohar Lohia Hospital, New Delhi.
On receipt of the information from the Hospital one sub inspector of police went to Dr. Ram Manohar Lohia Hospital and obtained medical legal certificate of the deceased 's Gopi Ram.
It is alleged that on a personal search of the deceased 's body the police recovered 5 small packets of smack from his pocket.
In his affidavit an attempt has been made out to show that Gopi Ram had died on account of alcohol and marphine and not on account of any injuries caused to him by the police and in this connection a story has been set up that Sudesh Kumar had brought the dead body to Dr. Ram Manohar Lohia Hospital and on receiving 704 information from the Hospital the police made recovery of smack from the the deceased 's pocket.
The affidavit is completely silent about the allegations made by the appellant that the Gopi Ram and Sudesh Kumar were arrested taken to the police station and Gopi Ram was beaten to death.
The affidavit further refers to some medical report which purports to state that deceased died on account of alcohol and marphine.
It is further stated that after taking into consideration the cause of the death given by the Doctor, charges were amended to Sections 323/342/34 IPC and after completing the investigation challan was prepared and the same has been put in the Magistrate 's Court.
The affidavit of Kanwaljit Deol states that in the absence of evidence the story set up by Sudesh Kumar could not be substantiated.
After hearing learned counsel for the parties and on perusal of the record we are satisfied that prima facie the police have not acted in a forthright manner in investigating the case, registered on the complaint of Sudesh Kumar.
The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing.
The appellant has been crying hoarse to get the investigation done by an independent authority but none responded to her complaint.
The Additional Sessions Judge while considering the bail application of Jagmal Singh, Constable, considered the autopsy report and observed that Doctor had postponed giving his opinion regarding the cause of death although the injuries were antimortem.
The learned Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from 302 IPC to 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the postmortem report.
The learned Sessions Judge further observed that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan.
We are in full agreement with the observations made by the learned Sessions Judge.
As already noted during the pendency of the writ petition before the High Court and special leave petition before this Court the case was further converted from 304 IPC to 323/34 IPC.
Prima facie the police has acted in partisan manner to shield the real culprits and the investigation of the case has not been done in a proper and objective manner.
We are therefore of the opinion that in the interest of justice it is necessary to get a fresh investigation made through an independent authority so that truth may be known.
705 Since according to the respondents charge sheet has already been submitted to the Magistrate we direct the trial court before whom the charge sheet has been submitted to exercise his powers under Section 173(8) Cr.
P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case.
On issue of such direction the Central Bureau of Investigation will investigate the case in an independent and objective manner and it will further submit additional charge sheet, if any, in accordance with law.
The appeal stands disposed of accordingly.
N.V.K. Appeal disposed of. | The appellant was the widow of a tonga driver who died in police custody.
It is alleged that on the fateful night of 22/23.8.1986 two sub inspectors accompanied by two constables visited the house of one Sudesh Kumar, and started beating him.
On hearing his shrieks his maternal uncle Gopi Ram, the tonga driver tried to intervene whereupon the policemen are alleged to have beaten him also.
Both of them were arrested taken to the police station, stripped of their clothes and beaten with iron rods.
The tonga driver succumbed to his injuries at the police station.
Thereafter, a post mortem was conducted and the dead body was cremated without handing it over to the appellant.
The aforesaid incident caused consternation in the locality, and a mob surrounded the police station to lodge its protest against the death of the tonga driver in police custody.
Undaunted the police registered a case under Sections 147 149 and 353/332 I.P.C. against the brother of the deceased and others as they were members of the mob.
Sudesh Kumar filed a written complaint naming the two sub inspectors and the constables as responsible for the death of his maternal uncle which was registered under Section 302/342 I.P.C. No action was however taken against those officers.
After some time the case was converted to Section 304 I.P.C. for purpose of investigation.
701 The appellant approached the High Court by a writ petition under Article 226 for transferring the investigation of the case from the Crime Branch of the State Police to the Central Bureau of Investigation.
The Division Bench, however, dismissed the petition.
Disposing of the Appeal, this Court, ^ HELD: 1.
The police have not acted in a forthright manner in investigating the case registered on the complaint of Sudesh Kumar.
[704C D] 2.
The circumstances available on record prima facie show that effort has been made to protect and shield the guilty officers of the police who are alleged to have perpetrated the barbaric offence of murdering Gopi Ram by beating and torturing.
[704D] 3.
The appellant had been crying hoarse to get the investigation done by an independent authority but none responded to her complaint.
[704D E] 4.
The Additional Sessions Judge while considering the bail application of one of the Constables Jagmal Singh, considered the autopsy report and observed that the Doctor had postponed giving his opinion regarding the cause of death although the injuries were antimortem.
[704D E] 5.
The Sessions Judge referring to a number of circumstances observed that the investigating officer had converted the case from Section 302 IPC to 304 IPC on flimsy grounds within hours of the registration of the case even without waiting for the post mortem report and that it was a prima facie case of deliberate murder of an innocent illiterate poor citizen of Delhi in police custody and investigation was partisan.
[704E F] 6.
In the interest of justice it is necessary to get a fresh investigation made through an independent authority so that the truth may be known.
[704H] 7.
The trial court before whom the charge sheet has been submitted shall exercise its powers under Section 173(8) Cr.
P.C. to direct the Central Bureau of Investigation for proper and thorough investigation of the case.
On issue of such direction the C.B.I. will investigate the case in an independent and objective manner and submit additional charge sheet if any in accordance with law.
[705A B] 702 |
ivil Appeal No. 1935 of 1981.
From the Judgment and Order dated 8.4.
1980 of the Calcutta High Court in Matter No. 143 of 1980.
Sukumar Bhattacharya and G.S. Chaterjee for the Appellant.
J. Ramamurthy.
g. Rajappa and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by K.N. SINGH, J.
The appellant is a Government Corporation engaged in jute industry.
It was assessed to income tax for the assessment year 1974 75 by the Income Tax Officer.
The assessee preferred appeal before the Appellate Assistant Commissioner.
During the hearing of the appeal, the assessee raised an additional ground claiming deduction of Rs. 11,54,995 on the ground of liability of Purchase Tax.
The assessee claimed that in view of the decision of this Court in Kedarnath Jute Company Limited vs Commissioner of Income Tax, [19771 the aforesaid amount being tax liability should be deducted from its income for purposes of charging tax.
The Appellate Assistant Commissioner permitted the assessee to raise the additional ground and after hear ing the Income Tax Officer, he accepted the assessee 's claim and allowed deduction of Rs. 11,54,995 in computing the total income of the assessee for the assessment year 1974 75.
The Revenue preferred appeal before the Income Tax Appellate Tribunal.
The Tribunal held that the Appellate Assistant Commissioner had no jurisdiction to entertain an additional ground or to grant relief to the assessee on a ground which had not been raised before the Income Tax Officer.
The Tribunal set aside the order of the Appellate Assistant Commissioner placing reliance on the decision of this Court in Addl.
Commissioner of Income Tax, Gujarat vs Gurjargravures P. Ltd. [1978] 111 I.T.R.I.
The assessee made application before the Tribunal under Section 256(1) of the Income Tax Act, 1961 for making reference to the High Court.
The Tribunal refused to refer the question on 343 the findings that the question stood covered by this Court 's decision in Gurjargravures (supra).
The assessee thereupon approached the High Court under Section 256(2) of the Act for calling the statement of case and reference from the Appellate Tribunal.
A Division Bench of the Calcutta High Court held that the Tribunal was right in rejecting the assessee 's application, therefore it refused to call state ment of case.
The assessee thereupon approached this Court under Article 136 of the Constitution.
and obtained leave.
Hence this Appeal.
The question of law which the assessee sought to be referred to the High Court under Section 256(1) of the Act was: "Whether on the facts and in the circumstances of the case.
the Income Tax Appellate Tribunal was justified in holding that the Appellate Assistant Commissioner of Income Tax had exceeded his powers in entertaining the additional ground of appeal taken before him in respect of the claim for deduc tion of a sum of Rs. 11,54,995 representing liability for raw jute Purchase Tax.
" Section 251 of the Income Tax Act (hereinafter referred to as the 'Act ') prescribes power of the Appellate Authority hearing appeal against the order of.
Income Tax Officer.
Clause (a) of Section 25 1(1) confers power on the Appellate Authority namely the Appellate Assistant Commissioner [now after the Amendment of 1987 the Deputy Commissioner (Ap peals)] according to which Appellate AUthority while hearing appeal against an order of assessment.
has power to confirm.
reduce, enhance or annual the assessment; he is further empowered to set aside the assessment and remit the case back to the Assessing Officer for making a fresh assessment in accordance with its directions.
after making such further inquiry as may be necessary.
If a direction is issued by the Appellate Authority, the Assessing Officer is required to proceed to make such fresh assessment and determine the amount of tax, if any.
payable on the basis of fresh assess ment.
The Appellate Assistant Commissioner is thus invested with wide powers under section 251(1)(a) of the Act while hearing an appeal against the order of assessment made by the Income Tax Officer.
The amplitude of the power includes power to set aside the assessment order or modify the same.
The question is whether the Appellate Assistant Commissioner while hearing an appeal under section 251(1)(a) has jurisdiction to allow the assessee to raise an additional ground in assailing the order of the assessment before it.
The Act does not contain any express provision debarring an assessee from raising an addi 344 tional ground in appeal and there is no provision in the Act placing restriction on the power of the Appellate Authority in entertaining an additional ground in appeal.
In the absence of any statutory provision.
general principle relat ing to the amplitude of appellate authority 's power being co terminus with that of the initial authority should nor mally be applicable.
But this question for the purposes of the Income Tax Act has been an intricate and vexed one.
There is no uniformity in the judicial opinion on this question.
Section 31 of the Income Tax Act, 1922 also conferred power on the Appellate Assistant Commissioner to hear appeal against the assessment order made by the Income Tax Officer.
The Chagla, CJ of the Bombay High Court considered the question in detail in Narrondas Manordass vs Commissioner of Income Tax, and held that the Appellate Assistant Commissioner was empowered to correct the Income Tax Officer not only with regard to a matter which had been raised by the assessee but also with regard to a matter which may have been considered by the Income Tax Officer and determined in the course of the assessment.
The High Court observed that since the Appellate Assistant Commissioner had revising authority against the decisions of the Income Tax Officer; a revising authority not in the narrow sense of revising those matters, which the assessee makes a grievance but the subject matter of the appeal not only he had the same powers which could be exercised by the Income Tax Officer.
These observations were approved by this Court in Commissioner of Income Tax vs McMillan & Co., ; the Appellate Assistant Commissioner on an appeal preferred by the assessee had jurisdiction to invoke, for the first time provisions of Rule 33 of the Income Tax Rules, 1922, for the purpose of computing the income of a nonresident even if the Income Tax Officer had not done so in the assessment proceedings.
But in Commissioner of Income Tax, Bombay vs Shapporji Pallon Ji Mistry, [1962] 44 I.T.R. 891 this Court while considering the extent of the power of the Appellate Assistant Commissioner referred to a number of cases decided by various High Courts including Bombay High Court judgment in Narrondas case and also the decision of this Court in McMillan & Co. case and held that in an appeal filed by the assessee, the Appellate Assistant Commissioner has no power to enhance the assessment by discovering new sources of income, not considered by the Income Tax Officer in the order appealed against.
It was urged on behalf of the Revenue that the words "enhance the assessment" occurring in section 31 were not confined to the assessment reached through particular process but the amount which ought to have been computed if the true total income had been 345 found.
" The Court observed that there was no doubt that this view was also possible, but having regard to the provisions of Sections 34 and 33B, which made provisions for assessment of escaped income from new sources, the interpretation suggested on behalf of the Revenue would be against the view which had held the field for nearly 37 years.
In this view the Court held that the Appellate Assistant Commissioner had no power to enhance the assessment by discovering new sources of income.
This decision does not directly deal with the question which we are concerned.
Power to enhance Tax on discovery of new source of income is quite different than granting deduction on the admitted facts fully supported by the decision of this Court.
If the tax liability of the assessee is admitted and if the Income Tax Officer is af forded opportunity of hearing by the Appellate Authority is allowing the assessee 's claim for deduction on the settled view of law, these appears to be no good reason to curtail the powers of the appellate authority under Section 25 1(1)(a) of the Act.
In Commissioner of Income Tax, U.P.v.
Kanpur Coal Syndi cate, a three Judge Bench of this Court discussed the scope of Section 31(3)(a) of the Income Tax Act, 1922 which is almost identical to Section 251(1)(a).
The Court held as under: "If an appeal, lies, Section 31 of the Act describes the powers of the Appellate Assistant Commissioner in such an appeal.
Under Section 31(3)(a) in disposing of such an appeal the Appellate Assistant Commissioner may, in the case of an order of assessment, confirm, reduce, enhance or annul the assessment; under clause (b) thereof he may set aside the assessment and direct the Income Tax Officer to make a fresh assessment.
The Appellate Assistant Commissioner has, therefore, plenary powers in disposing of an appeal.
The scope of his power is conterminous with that of the Income Tax Officer.
He can do what the Income Tax Officer can do and also direct him to do what he has failed tO do. " (emphasis supplied) The above observations are squarely applicable to the interpretation of section 25 1(1)(a) of the Act.
The declaration of law is clear that the power of the Appellate Assistant Commissioner is co terminus with that of the Income Tax Officer, if that he so, there appears to be no reason as to why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Income Tax Officer.
No 346 exception could be taken to this view as the Act does not place any restriction or limitation on the exercise of appellate power.
Even otherwise an Appellate Authority while hearing appeal against the order of a subordinate authority has all the powers which the original authority may have in deciding the question before it subject to the restrictions or limitations if any prescribed by the statutory provi sions.
In the absence of any statutory provision the Appel late Authority is vested with all the plenary powers which the subordinate authority may have in the matter.
There appears to be no good reason and none was placed before us to justify curtailment of the power of the Appellate Assist ant Commissioner in entertaining an additional ground raised by the assessee in seeking modification of the order of assessment passed by the Income Tax Officer.
In Additional Commissioner of Income Tax, Gujarat vs Gurjargravures P. Ltd. (supra) this Court has taken a dif ferent view, holding that in the absence of any claim made by the assessee before the Income Tax Officer regarding relief, he is not entitled to raise the question of exemp tion under Section 84 before the Appellate Assistant Commis sioner hearing appeal against the order of Income Tax Offi cer.
In that case the assessee had made no claim before the Income Tax Officer for exemption under Section 84 of the Act, no such claim was made in the return nor any material was placed on record supporting such a claim before the Income Tax Officer at the time of assessment.
The assessee for the first time made claim for exemption under Section 84 before the Appellate Assistant Commissioner who rejected the claim but on further appeal the Appellate Tribunal held that since the entire assessment was open before the Appellate Assistant Commissioner there was no reason for his not entertaining the claim, or directing the Income Tax Officer to allow appropriate relief.
On a reference the High Court upheld the view taken by the Tribunal.
On appeal this Court set aside the order of the High Court as it was of the view that the Appellate Assistant Commissioner had no power to interfere with the order of assessment made by Income Tax Officer on a new ground not raised before the Income Tax Officer, and therefore the Tribunal committed error in directing the Appellate Assistant Commissioner to allow the claim of the assessee under Section 84 of the Act.
Apparent ly this view taken by two Judge Bench of this Court appears to be in conflict with the view taken by the three Judge Bench of the Court in Kanpur Coal Syndicate 's case (supra).
It appears from the report of the decision in Gujarat case the three Judge Bench decision in Kanpur Coal Syndicate (supra) case was not brought to the notice of the Bench in the Gurjargravures P. Ltd. (supra).
In the 347 circumstances the view of the larger Bench in the Kanpur Coal Syndicate, (supra) holds the field.
However we do not consider it necessary to over rule the view taken in Gurjar gravures P. Ltd. (supra) case as in our opinion that deci sion is rounded on the special facts of the case, as would appear from the following observations made by the Court; "As we have pointed out earlier, the statement of case drawn up by the Tribunal does not mention that there was any material on record to sustain the claim for exemption which was made for the first time before the Appellate Assistant Commissioner.
We are not here called upon to consider a case where the assessee failed to make a claim though there was no evidence on record to support it, or a case where a claim was made but no evidence or insufficient evidence was ad duced in support.
In the present case neither any claim was made before the Income Tax Officer, nor was there any mate rial on record supporting such a claim.
" The above observa tions do not rule out a case for raising an additional ground before the Appellate Assistant Commissioner if the ground so raised could not have been raised at that particu lar stage when the return was filed or when the assessment order was made, or that the ground became available on account of change of circumstances or law.
There may be several factors justifying raising of such new plea in appeal, and each case has to be considered on its own facts.
If the Appellate Assistant Commissioner is satisfied he would be acting within his jurisdiction in considering the question so raised in all its aspects.
Of course, while permitting the assessee to raise an additional ground, the Appellate Assistant Commissioner should exercise his discre tion in accordance with law and reason.
He must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons.
The satisfac tion of the Appellate Assistant Commissioner depends upon the facts and circumstances of each case and no rigid prin ciples or any hard and fast rule can be laid down for this purpose.
In Rai Kumar Srimal vs Commissioner of Income Tax, West Bengal 111, a Division Bench of Cal cutta High Court presided over by Sabyasachi Mukharji, J., as he then was held that the Appellate Assistant Commission er was entitled to admit new ground or evidence either suo motu or at the invitation of the parties.
If he is acting on being invited by the assessee, then there must be some ground for admitting new evidence in the sense that there must be some explanation to show that the failure to adduce earlier the evidence sought to be adduced before the Appel late Assistant Commissioner was not wilful and not unreason able.
This view is reasonable and it finds favour with us.
348 In the instant case the assessee was carrying on manu facture and sale of jute.
In the assessment year of 1974 75 he did not claim any deduction on its liability to pay Purchase Tax under the provisions of the Bengal Raw Jute Taxation Act, 1941, as the appellant entertained a belief that it was not liable to pay Purchase Tax under the afore said Act.
But later on it was assessed to Purchase Tax and the order of assessment was received by it on 23.11.
The appellant disputed the demand and filed an appeal before the Appellate Authority and obtained stay order.
The asses see thereafter claimed deduction for the amount of Rs. 11,54,995 towards his liability to pay Purchase Tax as deduction for the assessment year 1974 75.
The assessee had not actually paid the Purchase Tax as he had obtained stay from the Appellate Authority nonetheless its liability to pay tax existed, and it was entitled to deduction of Rs. 11,54,995 as was held by this Court in Kedarnath Jute Mfg. Co. Ltd. vs Commissioner of Income Tax (Central), Calcutta, There was no dispute about these facts.
In these circumstances the Appellate Assistant Com missioner allowed the assessee to raise this question and after hearing the Income Tax Officer, he granted the deduc tion from the assessee 's income.
The Tribunal took a con trary view placing reliance on the decision of this Court in Gujargravures P. Ltd. (supra).
As already discussed the facts in the instant case are quite clear, unlike the facts involved in Gurjargravures case.
We are, therefore, of the view that the view taken by the Appellate Tribunal and the High Court is not sustainable in law.
In our opinion, the High Court and Tribunal both committed error in refusing to state the case, or making a reference.
The next question which arises for consideration is to know what order should be passed in the present circum stances.
In view of the findings recorded by us ordinarily we should direct the High Court to call for the statement of case from the Tribunal and thereupon decide the matter afresh, but this procedure would be time consuming.
Since we have already discussed the correct position of law we do not consider it necessary to follow the usual procedure.
Since the view taken by the Income Tax Appellate Tribunal is not sustainable in law we grant leave against the order of the Appellate Income Tax Tribunal under Article 136 and set aside the same and remit the matter to the Appellate Income Tax Tribunal to consider the merit of the deduction permit ted by the Appellate Assistant Commissioner.
If the Tribunal thinks it necessary it may remand the matter to the Appel late Assistant Commissioner (now Deputy Commissioner of Appeals) for reheating.
The appeal is accordingly disposed of.
There will be no order as to costs.
G.N. Appeal disposed of. | In respect of the assessment for the assessment year 1974 75, the appellant assessee preferred an appeal before the Appellate Assistant Commissioner.
During the hearing of the appeal, the assessee raised an additional ground as regards its liability to Purchase Tax and claimed a deduc tion of Rs.11,54,995.
After giving an opportunity of hearing to the Income Tax Officer, the Appellate Assistant Commis sioner allowed the said claim.
The Revenue preferred an appeal before the Income Tax Appellate Tribunal.
The Tribunal held that the Appellate Assistant Commissioner had no jurisdiction to entertain any additional ground not raised before the Income Tax Officer and set aside the order of the Appellate Assistant Commis sioner.
The assessee 's application for making reference to the High Court was refused by the Tribunal.
The High Court also rejected the assessee 's application for calling the state ment of the case and reference from the Tribunal.
Hence, this appeal by special leave.
Disposing of the appeal, the Court, HELD: 1.1 The declaration of law is clear that the power of the Appellate Assistant Commissioner is co terminus with that of the Income Tax Officer.
If that be so, there appears to be no reason as to why the appellate authority cannot modify the assessment order on an additional ground even if not raised before the Income Tax Officer.
No exception could be taken to this view as the Act does not place any restric tion or limitation on the exercise of appellate power.
Even otherwise an Appellate Authority while hearing appeal against the order of a subordinate authority has all the powers which the original 341 authority may have in deciding the question before it sub ject to the restrictions or limitation if any prescribed by the statutory provisions.
In the absence of any statutory provisions to the contrary the Appellate Authority is vested with all the plenary powers which the subordinate authority may have in the matter.
[155G H; 156A B] 1.2 If the Appellate Assistant Commissioner is satisfied he would be acting within his jurisdiction in considering the question so raised in all its aspects.
Of course, while permitting the assessee to raise an additional ground, the Appellate Assistant Commissioner should exercise his discre tion in accordance with law and reason.
He must be satisfied that the ground raised was bona fide and that the same could not have been raised earlier for good reasons.
The satisfac tion of the Appellate Assistant Commissioner depends upon the facts and circumstances of each case and no rigid prin ciples or any hard and fast rules can be laid down for this purpose.
[157D F] Commissioner of Income Tax vs Mc Millan & Co., ; ; Commissioner of Income Tax, U.P. vs Kanpur Coal Syndicate,, ; Kedarnath Jute Mfg. Co. Ltd. vs Commissioner of Income Tax (Central), Calcutta, ; relied on.
Commissioner of Income Tax, Bombay vs Shapporji Patton Ji Mistry, ; Addl.
Commissioner of Income Tax Gujarat vs Gurjargravures ?.
Ltd., ; distinguished.
Rai Kumar Srimal vs Commissioner of Income Tax, West Bengal 111, , approved.
Narrondas Manordass vs Commissioner of Income Tax, [1957] 31 referred to. 2.
In the instant case, the assessee was assessed to Purchase Tax.
The appellant disputed the demand and filed an appeal before the Appellate Authority and obtained stay order.
The assessee thereafter claimed deduction for the amount of Rs.11,54,995 towards his liability to pay Purchase Tax as deduction for the assessment year 1974 75.
The asses see had not actually paid the Purchase Tax as it had ob tained stay from the Appellate Authority; nonetheless its liability to pay tax existed, and it was entitled to deduc tion of Rs. 11,54,995.
[158B C] 3.
Since the view taken by the Income Tax Appellate Tribunal is 342 not sustainable in law, the order of the Tribunal is set aside and the matter is remitted to the Tribunal to consider the merit of the deduction permitted by the Appellate As sistant Commissioner.
If the Tribunal thinks it necessary, it may remand the matter to the Appellate Assistant Commissioner (Deputy Commissioner of Appeals) for hearing [158F H] |
Appeal No. 91 of 1976.
From the Judgment and Order dated 15.4.
1975 of the Punjab and Haryana High Court in I.T. Reference No. 14 of 1972.
Bishamber Lal and Ms. Geetanjali Madan for the Appellant.
Gauri Shanker, Manoj Arora, section Rajappa and Ms. A. Subhashini for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of the Punjab and Haryana High Court dated 15.4.1975 answering the Income Tax Reference made to it by the Income Tax Appellate Tribunal.
Briefly, the facts giving rise to this appeal are that the appellant Saraswati Industrial Syndicate is a limited company carrying on business of manufacturing and sale of sugar and machinery for sugar mills and other industries.
Another company, namely, the Indian Sugar and General Engi neering Corporation (hereinafter referred to as 'the Indian Sugar Company ') was also manufacturing machinery parts for sugar mills.
On 28th September 1962 under the orders of the High Court the Indian Sugar Company was amalgamated with the appellant company.
After the amalgamation, the Indian Sugar Company lost its identity, as it did not carry on any busi ness.
Prior to the amalgamation, the Indian Sugar Company had been allowed expenditure to the extent of Rs.58,735 on accrual basis in its earlier assessment.
The company had shown the aforesaid amount as a trading liability and the said trading liability was taken over by the appellant company.
After amalgamation, the appellant company claimed exemption on the amount of Rs.58,735 from income tax for the assessment year 1965 66 on the ground that the amalgamated 335 company was not liable to pay tax under Section 41(1) of the Income Tax Act 1961 (hereinafter referred to as 'the Act ') as the expenditure had been allowed to the erstwhile Indian Sugar Company which was a different entity from the amalga mated company.
The Income Tax Officer disallowed the appel lant 's claim for exemption.
The assessee filed appeal before the Appellate Assistant Commissioner who confirmed the order of the Income Tax Officer.
The assessee, thereafter, pre ferred appeal before the Income Tax Appellate Tribunal.
The Tribunal allowed the appeal on the construction of Section 41(1) of the Act.
The Tribunal held that after the amalgama tion of the Indian Sugar Company with the assessee company the identity of the amalgamating company was lost and it was no longer in existence, therefore, the assessee company was a different entity not liable to tax on the aforesaid amount of Rs.58,735.
On the Department 's application the Tribunal referred the following question to the High Court: "Whether on the facts and circumstances of the case the Tribunal was justified in law in holding that the amount of Rs.58,735 was not chargeable to tax under sub section (1) of Section 41 of the Income Tax Act 1961 for the assessment year 1965 66?" The High Court answered the question in favour of the Reve nue holding that the exemption from tax liability claimed by the appellant assessee was chargeable to tax under Section 41(1) of the Act.
The High Court held that on the amalgama tion of the two companies, neither of them ceased to exist instead both the amalgamating companies continued their entities in a blended form.
It further held that the amalga mated company was a successor in interest of amalgamating company and since the assets of both the companies were merged and blended to constitute a new company the liabili ties attaching thereto must, therefore be, on the amalgamat ed company.
On these findings the High Court held that the amalgamated company, namely, the assessee was liable to pay tax on Rs.58,735 which came into its hands from the assets of the Indian Sugar Company.
The assessee made application before the High Court under Section 261 of the Act read with Section 109 of the Code of Civil Procedure for certificate to appeal to this Court but the High Court dismissed the same.
The appellant, thereupon, approached this Court by means of special leave petition under Article 136 of the Constitution.
This Court granted leave.
Hence this appeal.
Section 41(1) of the Act reads as under: 336 1(1).
Whether an allowance or deduction has been made in the assessment for any year in respect of loss, expenditure or trading liability incurred by the assessee, and subsequently during any previous year the assessee has obtained.
whether in cash or in any other manner whatsoever, any amount in respect of such loss or expenditure or some benefit in respect of such trading liability by way of remission or cessation thereof, the amount obtained by him or the ' value of benefit accruing to him, shall be deemed to be profits and gains of business or profession and accord ingly chargeable to income tax as the income of that previ ous year, whether the business or profession in respect of which the allowance or deduction has been made is in exist ence in that year or not ." Section 41(1) has been enacted for charging tax on profits made by an assessee, but it applies to the assessee to whom the trading liability may have been allowed in the previous year.
If the assessee to whom the trading liability may have been allowed as a business expenditure in the previous year ceases to be in existence or if the assessee is changed on account of the death of the earlier assessees the income received in the year subsequent to the previous year or the accounting year cannot be treated as income received by the assessee.
In order to attract the provisions of Section 41(1) for enforcing the tax liability, the identity of the assessee in the previous year and the subsequent year must be the same.
If there is any change in the identity of the assessee there would be no tax liability under the provi sions of Section 41.
In Commissioner of Income Tax, Madhya Pradesh vs Hukumchand Mohanlal, this Court held that the Act did not contain any provision making a succes sor in a business or the legal representative of an assessee to whom the allowance may have been already granted liable to tax under Section 41(1) in respect of the amount remitted on receipt by the successor or by the legal representative.
ln that case the wife of the assessee on the death of her husband succeeded to the business carried on by him.
Another firm which had recovered certain amounts towards the sales tax from the assessee 's husband succeeded in an appeal against its sales tax assessment and thereupon the firm refunded that amount to the assessee which was received during the relevant accounting period.
The question arose whether the amount so received by the assessee could be assessed in her hands as a deemed profit under Section 41(1) of the Act.
This Court held that Section 41 did not apply because the assessee sought to be taxed was not the assessee as contemplated by Section 41(1) as the husband of the asses 337 see had died, therefore the Revenue could not take advantage of the provisions of Section 41(1) of the Act.
The question is whether on the amalgamation of the Indian Sugar Company with the appellant company, the Indian Sugar Company continued to have its entity and was alive for the purposes of Section 41(1) of the Act.
The amalgamation of the two companies was effected under the order of the High Court in proceedings under Section 391 read with Sec tion 394 of the .
The Saraswati Industrial Syndicate, the transferee company was a subsidiary of the Indian Sugar Company, namely, the transferor company.
Under the scheme of amalgamation the Indian Sugar Company stood dissolved on 29th October, 1962 and it ceased to be in existence thereafter.
Though the scheme provided that the transferee company the Saraswati Industrial Syndicate Ltd. undertook to meet any liability of the Indian Sugar Company which that company incurred or it could incur, any liabili ty, before the dissolution or not thereafter.
Generally, where only one company is involved in change and the rights of the share holders and creditors are varied, it amounts to reconstruction or reorganisation or scheme of arrangement.
In amalgamation two or more companies are fused into one by merger or by taking over by another.
Reconstruction or 'amalgamation ' has no precise legal mean ing.
The amalgamation is a blending of two or more existing undertakings into one undertaking, the share holders of each blending company become substantially the share holders in the company which is to carry on the blended undertakings.
There may be amalgamation either by the transfer of two or more undertakings to a new company, or by the transfer of one or more undertakings to an existing company.
Strictly 'amalgamation ' does not cover the mere acquisition by a company of the share capital of other company which remains in existence and continues its undertaking but the context in which the term is used may show that it is intended to include such an acquisition.
See: Halsbury 's Laws of Eng land, 4th Edition Vol.
7 Para 1539.
Two companies may join to form a new company, but there may be absorption or blend ing of one by the other, both amount to amalgamation.
When two companies are merged and are so joined, as to form a third company or one is absorbed into one or blended with another, the amalgamating company loses its entity.
In M/s. General Radio and Appliances Co. Ltd. & Ors.
M.A. Khader (dead) by Lrs., [1986] 2 S.C.C. 656, the effect of amalgamation of 338 two companies was considered.
M/s. General Radio and Appli ances Co. Ltd. was tenant of a premises under an agreement providing that the tenant shall not sub let the premises or any portion thereof to anyone without the consent of the landlord.
M/s. General Radio and Appliances Co. Ltd. was amalgamated with M/s. National Ekco Radio and Engineering Co. Ltd. under a scheme of amalgamation and order of the High Court under Sections 391 and 394 of .
Under the amalgamation scheme, the transferee company, namely, M/s. National Ekco Radio and Engineering Company had acquired all the interest, rights including leasehold and tenancy rights of the transferor company and the same vested in the transferee company.
Pursuant to the amalgamation scheme the transferee company continued to occupy the prem ises which had been let out to the transferor company.
The landlord initiated proceedings for the eviction on the ground of unauthorised sub letting of the premises by the transferor company.
The transferee company set up a defence that by amalgamation of the two companies under the order of the Bombay High Court all interest, rights including lease hold and tenancy rights held by the transferor company blended with the transferee company, therefore the transfer ee company was legal tenant and there was no question of any sub letting.
The Rent Controller and the High Court both decreed the landlord 's suit.
This Court in appeal held that under the order of amalgamation made on the basis of the High Court 's order, the transferor company ceased to be in existence in the eye of law and it effaced itself for all practical purposes.
This decision lays down that after the amalgamation of the two companies the transferor company ceased to have any entity and the amalgamated company ac quired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets.
In the instant case the Tribunal rightly held that the appellant company was a separate entity and a different assessee, therefore, the allowance made to Indian Sugar Company, which was a different asses see, could not be held to be the income of the amalgamated company for purposes of Section 41(1) of the Act.
The High Court was in error in holding that even after amalgamation of two companies, the transferor company did not become non existent instead it continued its entity in a blended form with the appellant company.
The High Court 's view that on amalgamation 'there is no complete destruction of corpo rate personality of the transferor company instead there is a blending of the corporate personality of one with another corporate body and it continues as such with the other is not sustainable in law.
The true effect and character of the amalgamation largely depends on the terms of the scheme of merger.
But there cannot be any doubt that when two compa nies 339 amalgamate and merge into one the transferor company loses its entity as it ceases to have its business.
However, their respective rights of liabilities are determined under scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amal gamation is made effective.
In view of the above discussion, we agree with the Tribunal 's view that the amalgamating company ceased to exist in the eye of law, therefore the appellant was not liable to pay tax on the amount of Rs.58,735.
The appeal is accordingly allowed and we set aside the order of the High Court and answer the question in favour of the assessee against the Revenue.
There will be no order as to costs.
V.P.R Appeal allowed. | Under the scheme of amalgamation and order of the High Court under Sections 391 and 394 of the on 28.9.1962 one Indian Sugar Company was amalgamated with the appellant assessee company.
The transferor company had been allowed expenditure to the extent of Rs.58,734.
The appellant transferee company claimed exemption on the amount of Rs.58,735 from income tax for the assessment year of 1965 66 on the ground that the amalgamated transferee compa ny was not liable to pay tax under Section 41(1) of the Income tax Act, as the expenditure had been allowed to the erstwhile transferor company.
The claim was disallowed by the Income Tax Officer.
The transferee appellant company 's appeal was also rejected by the Appellate Assistant Commis sioner.
The appellant company preferred appeal before the Income Tax Tribunal which was allowed on the ground that after amalgamation, the transferor company 's identity was lost and it was no longer in existence and the transferee company was a different entity.
When the question was referred to the High Court, it answered the reference in favour of the Revenue, holding that on amalgamation of the two companies, neither of them ceased to exist, instead both the companies continued their entities in a blended form and the amalgamated company was a successor in interest of the amalgamating company.
333 The Appellant Company 's application under Section 291 of the Income Tax Act read with Section 109, Code of Civil Procedure was dismissed by the High Court.
Hence the present appeal.
Allowing the appeal of the assessee Appellant company, this Court, HELD: 1.
Section 41(1) has been enacted for charging tax on profits made by an assessee, but it applies to the asses see to whom the trading liability may have been allowed in the previous year.
If the assessee to whom the trading liability may have been allowed as a business expenditure in the previous year ceases to be in existence or if the asses see is changed on account of the death of the earlier asses sees the income received in the year subsequent to the previous year or the accounting year cannot be treated as income received by the assessee.
[146C E] 2.
In order to attract the provisions of Section 41(1) for enforcing the tax liability, the identity of the asses see in the previous year and the subsequent year must be the same.
If there is any change in the identity of the assessee there would be no tax liability under the provisions of Section 41.
[146E] 3.
Two companies may join to form a new company, but there may be absorption or blending of one by the other, both amount to amalgamation.
When two companies are merged and are so joined, as to form a third company or one is absorbed into the other or blended with another, the amalga mating company loses its entity.
[147G] 4.
After the amalgamation of two companies the transfer or company ceased to have any entity and the amalgamated company acquired a new status and it was not possible to treat the two companies as partners or jointly liable in respect of their liabilities and assets.
[148E] 5.
The true effect and character of the amalgamation largely depends on the terms of.the scheme of merger.
But there can be no doubt that when two companies amalgamate and merge into one, the transferor company loses its entity as it ceases to have its business.
However, their respective rights or liabilities are determined under the scheme of amalgamation but the corporate entity of the transferor company ceases to exist with effect from the date the amal gamation is made effective.
[148H; 149A B] 334 Commissioner of Income Tax, Madhya Pradesh vs Hukumchand Mohanlal, and M/s. General Radio and Appliances Co. Ltd. & Ors.
vs M.A. Khader (dead) by L.rs., [1986] 2 S.C.C. 656; followed.
Halsbury 's Laws of England, 4th Edition Vol.
7 Para 1539; referred to. |
ivil Appeals Nos.
1334 and 1335 of 1982.
From the Judgment and Order dated 9.11.1979 and 8.5. 1979 of Delhi High Court in L.P.A. No. 192 of 1979 and R.F.A. No. 245 of 1969.
Sasidharan and P.K. Pillai for the Appellants.
Tapas Ray, A.K. Srivastava and Ms. A. Subhashini for the Respondents.
The following Order of the Court was delivered: KANIA, J. Lands comprising a few bighas belonging to the claimants (appellants) and situated in the area now known as 'Nehru Place ' in Delhi were notified for acquisition by the Government of India by a Notification dated November 13, 1959, issued under Section 4 of the Land Acquisition Act, 1894.
The said lands were duly acquired under the said Act.
In compensation proceedings the Land Acquisition Collector awarded to the claimants (appellants) compensation at the rate of Rs.2,000 per bigha and further awarded solatium and interest as provided by law.
In two references under section 18 of the Land Acquisition Act at the instance of the appel lants, the Additional District Judge enhanced the compensa tion from Rs.2,000 per bigha to Rs.4,000/5,000 per bigha.
From the orders of the Additional District Judge.
the appel lants filed appeals in Delhi High Court.
The Delhi High Court enhanced the compensation to Rs.7,000 per bigha and also awarded solatium and interest.
Compensation was deter mined at the aforesaid rate largely on the footing of a sale of comparable land by 128 one Puran to the Delhi Finance Company Private Limited (hereinafter referred to as the DLF Co. ').
That sale took place a few months prior to the date of the Notification and rate at which the land was sold was Rs.6,000 per bigha.
In view of the period of few months which had gone by and the rise in land values, the High Court determined the compensa tion at Rs.7,000 per bigha.
The claimants strongly relied on the instances of 'sales of small developed plots by the DLF Co. and pointed out that it was on the basis of the sales that the High Court had awarded compensation at the rate of Rs.11 per sq. yard to the DLF Co. in respect of similar lands of the said company acquired by the government.
This amount was arrived at by taking the price of developed plots sold by DLF Co. and deducting therefrom the cost of develop ment.
It was alleged by the claimants that this land was contiguous to the land of the claimants acquired as afore said and the acquisition was at almost the same time as in the case of the claimants.
It was submitted by them that the principal reason given by learned District Judge as well as the High Court for not accepting the instance of the compen sation awarded to DLF Co. was not tenable in law.
It was submitted by them that compensation should also have been awarded to them on the basis of the said instance.
The High Court has taken the view that the instance of compensation awarded to DLF Co. was not acceptable mainly because that company was in a position to develop the land and to realise its potentiality and had been able to sell certain developed plots at a very much higher rates.
The High Court took the view that the higher compensation was liable to be awarded to the DLF Co. because that organisation was in a better position to develop the land and hence.
the potentiality of the land in its hands was greater.
With respect to learned Judges of the High Court who delivered the impugned judgment, in our opinion, the view taken by them cannot be sustained.
In land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer.
there being no other factors like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price.
In determining this compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential.
cannot be regarded as a relevant circumstances.
The High Court.
there fore, was in error in placing great reliance of the afore said circumstances in determining the value of the land for fixing the compensation.
129 We would have proceeded to determine the compensation ourselves but for the fact that the appellants have failed to furnish any material on record of this Court on which we can fix the proper compensation nor have any arguments been advanced before us in that regard.
In these circumstances, we set aside the impugned judgments and orders and remand the appeals to the Delhi High Court for determination of the proper compensation for the lands acquired in accordance with law.
The appeals are accordingly allowed.
There will be no order as to costs.
G.N. Appeals allowed. | Notification under section 4 of the Land Acquisition Act, 1894 was issued in respect of the appellant 's lands in 1959 and the lands were acquired.
The Land Acquisition Collector awarded compensation at the rate of Rs.2,000 per bigha, as also solatium and interest.
The appellants approached the District Court which enhanced the compensation from Rs.2,000 per bigha to Rs.4,000/5,000 per bigha.
The appellants preferred appeals before the High Court.
Taking into account a comparable sale in the area few months before the Notification, the High Court enhanced the compensation to Rs.7,000 per bigha and also awarded solatium and interest.
The plea for higher compensation on the ground that some developed plots were sold by a real estate company at a higher rate was negatived since according to the High Court that company was in a better position to develop the land and that the potentiali ty of the land in its hands was greater.
These appeals, by special leave, are against the said orders of the High Court.
Allowing the appeals, HELD: 1.
In land acquisition proceedings compensation has to be fixed on the basis of a hypothetical sale at or about the time of the notification under section 4 of the Land Acquisition Act of similar land by a willing seller to a willing buyer, there being no other factors like urgent need of money or urgent need of the land for a special purpose and so on which might depress or augment the price.
In determining this compensation the ability of a particular party or his lack of ability to develop the land and to realise its potential, cannot be regarded as a relevant circumstance.
The High Court, therefore, was in error in 127 placing great reliance of the aforesaid circumstance in determining the value of the land for fixing the compensa tion.
[128F H] 2.
The appellants have failed to furnish any material on record of this Court on which this Court could fix the proper compensation nor have any arguments been advanced in that regard.
In these circumstances, the impugned judgments and orders are set aside and the appeals remanded to the High Court for determination of the proper compensation for the lands acquired in accordance with law.
and in the light of our judgment.
[129A B] |
ivil Appeal No. 2228 of 1982.
From the Judgment and Order dated the 25.7.1980 of the Madras High Court in C.R.P. No. 1150 of 1979.
Anant Palli and E.C. Agarwala for the Appellant.
396 V. Balachandran and K. Vijay Kumar for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The appellant/tenant is in occupation of a double storeyed building bearing No. 100, Aiya Mudali Street, Chintadripet, Mount Road, Madras on a monthly rent of Rs. 170.
The respondent landlady filed an application under Sec. 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 18 of 1960 as amended by Act, 23 of 1973, for short 'the Act '.
The Rent Controller fixed the fair rent at Rs. 1,000 per month.
On appeal, the Court of Small Causes, Madras and on further Revision under Sec. 25, the Madras High Court confirmed the order.
This appeal by special leave has been at the behest 01 ' the tenant.
The admitted facts are that 1/3rd portion of the building is being used for residential and the rest for non residential purpose namely, for running a school.
It is of 50 years ' old.
Section 4 of the Act provides the procedure for fixation of the fair rent, which reads thus: "Fixation of Fair Rent (1) The Controller shall on applica tion made by the tenant or the landlord of a building and after holding such enquiry as he thinks fit, fix the fair rent for such building in accordance with the principles set out in the following sub sections.
(2) The fair rent for any residential building shall be nine per cent gross return per annum on the total cost of such building.
(3) The fair rent for any non residential building shall be twelve per cent gross return per annum on the total cost of such building.
(4) The total cost referred to in sub section (2) and sub section (3) shall consist of the market value of the site in which the building is constructed, the cost of construction of the building and the cost of provision of any one or more of the amenities specified in Schedule I as on the date of application for fixation of fair rent; Provided further that the cost of provision of amenities specified in Schedule I shall not exceed 397 (i) in the case of any residential building, fifteen per cent; and (ii) in the case of non residential building, twentyfive per cent, of the cost of site in which the building is con structed and the cost of construction of the building as determined under this Section." "5.(a) The cost of construction of the building including cost of internal water supply, sanitary and electrical installations shall be determined with due regard to the rates adopted for the purpose of estimation by the Public Works Department of the Government for the area concerned.
The Controller may, in appropriate cases, allow or disallow an amount not exceeding thirty per cent of construction having regard to the nature of the building.
(b) The Controller shall deduct from the cost of construc tion determined in the manner specified in clause (a) depre ciation, calculated at the rates specified in Schedule II.
" A bird 's eye view of Sec. 4 indicates that the Control ler shall hold an enquiry before fixing the fair rent pre ceded by an application made in that behalf either by the tenant or the landlord, in accordance with the principles set out in sub sections 2 to 5 of Sec. 4.
In case of a residential building the fair rent shall be 9 per cent and for nonresidential building 12 per cent gross return per annum on the total cost of the building in question.
The total cost shall consist of (a) market value of the site on which the building is constructed; (b) the cost of the construction of the building; and (c) the cost of provision of any one or more of the amenities specified in Schedule I which shall not exceed: (1) in the case of residential building 15 per cent; and (2) in case of any non residential building 25 per cent of the cost of the site in which the building was constructed as determined under Sec. 4 of the Act.
The cost of the construction of the building would also include internal water supply, sanitary and electrical installations.
The estimation of its ratio thereof shall be as is done by the Public Works Department of the Government for the area concerned.
In addition to the above, having regard to the nature of the building, the Controller may, in appropriate cases, allow or disallow an amount not exceeding 30% of construction.
The Controller shall also deduct from the cost of construction determined in the manner specified in clause (a) of sub 398 section 5 of Sec.
(4) the depreciation calculated at the rates specified in Schedule II.
The determination of the fair rent of the building shall be fixed as on the date of the application filed for fixation of the fair rent.
Section 5 of the Act provides the right for refixation of the fair rent under the Act for the reasons adumbrated therein with which we are presently not concerned.
An Engi neer was appointed as a Commissioner to evaluate the total cost of the building, who adopted the rates of the Public Works Department and submitted his report which is Exhibit P 2.
He was also examined as a witness.
The rates of the construction for terraced building were (a) for the ground floor at Rs.345 per sq.
metre and (b) for first floor at Rs.320 per sq.
metre.
As regards the tiled portion, the cost of construction is Rs.300 per sq.
metre.
The parties also adduced oral evidence.
The Rent Controller after considera tion thereof fixed the rates as afore stated and he worked out the fair rent on that basis.
The entire ground floor consists of 2927.25 sq.
the area of two shops wherein consists of 238.00 sq.
The built up area of the first floor is 3330.75 sq.
ft., the tiled portion consists of 237 sq.
The cost of construc tion was estimated at Rs. 1,99,300.
The depreciation @ 1 per cent, as is first class building, was given.
He added the market value of the open site at Rs.20,000 and also annuity on the vacant portion @ 1 per cent was added.
Accordingly the Rent Controller worked out the cost at Rs. 1,51,820.
The fair rent as non residential premises, at 12 per cent gross return, was fixed at Rs. 15 18 per month.
Since the respond ent, landlady confined to the enhancement of the fair rent at Rs. 1,000, it was accordingly fixed.
On appeal it was affirmed.
In the revision, the High Court while agreeing with the valuation adopted, determined fair rent on the basis that 1/3rd as being used for residential purpose and 2/3rd for non residential purpose.
On that basis the learned Judge worked out at the rate of 9 per cent and 12% as adum brated in Sec.
4(2) and (3) and fixed the fair rent.
While upholding the depreciation at 1 per cent it fixed the fair rent Rs.1391.67 per month, but affirmed the fair rent at Rs.1,O00 per month as was confined to, by the landlady.
From this material matrix the question at issue is whether the fixation of the fair rent by the Rent Controller, ultimately affirmed by the High Court, is illegal.
The contention of the learned counsel for the appellant/tenant that the cost of the building and its market value are illegal, is falla cious and untenable.
Section 4 not only provides the proce dure but also the principles and method on the basis of which the fair rent is to be determined.
The fixation of fair rent, therefore, is in consonance with Section 4.
We 399 accordingly affirm its legality.
Realising this stark reali ty the counsel laid emphasis that the valuation of the cost of construction should be as on the date of the construction of the building and placed strong reliance on K.C. Nambiar vs The IV Judge of the Court of Small Causes, Madras & Ors.
, Therein this Court held that the expres sion 'cost of construction ' means the cost of construction of the building as originally erected with such additions as may be required to be made for subsequent improvements.
Rule 12 which prescribes the rate at which the cost of construc tion is to be computed plainly goes beyond the terms of the section.
Accordingly this Court allowed the appeal and determined the fair rent as on the basis of the cost of construction.
On that premise the learned counsel for the appellant contended that calculation of the cost of con struction to the residential as well as non residential building should be with reference to the date of applica tion.
We find no substance in the contention.
It is already seen that sub section 4 of Sec. 4 of the Act, clearly indi cates that the total cost of construction referred to in sub section 2 and sub section 3 shall consist of the market value as on the date of application for fixation of the fair rent.
It is obvious that at the time when this court ren dered the decision in Nambiar 's case there was no provision in Sec. 4 as to the date on which the cost of construction was to be determined, and Rule 12 provided in the manner in which the fixation of the fair rent has to be made.
But subsequently it was amended by Amending Act 23 of 1973 incorporating in sub section (4) of Sec. 4 of the Act as the date of making an application.
This is also apparent when we see Sec. 5 of the Act.
Sub section (3) of Sec. 5 clearly mentions that: "Where the fair rent of any building has been fixed before the date of the commencement of the Tamil Nadu Building (Lease and Rent Control) Amendment Act, 1973 the Landlord or the tenant may apply to the Controller to refix the fair rent in accordance with the provisions of Section 4 and on such application, the Controller may refix the fair rent. ' ' Thus we are clearly of the view that the ratio in Nambi ar 's case no longer would apply.
The subsequent amendment brought on the statute in 1973, amplified the date of appli cation as the staring point to fix market value.
On the basis of the valuation of the building estimated by the commissioner as per P.W.D. rates prevailing in the area and evidence produced by the parties, the Rent controller as modified by the High Court rightly determined the fair rent.
400 It is next contended that the method adopted by the Controller and ultimately upheld by the High Court in fixing the fair rent is not correct.
It is contended that the value of the building has been changing from time to time as is reflected from the evidence on record and the courts below committed the gravest error in not considering the evidence in proper perspective.
It is already seen that Sec.
4 pre scribed the principles on the basis of which the fair rent is to be fixed.
In the light of those principles the evi dence adduced by the parties was considered by the Control ler, the appellate court and the High Court, found that the fixation of the fair rent is much in excess to the claim made by the landlady.
Since the landlady confined the claim for Rs. 1,000 per month, the courts below have fixed the fair rent at Rs. 1,000.
Therefore, on the findings of facts based on consideration of the evidence, this Court cannot interfere and come to its conclusion.
Thereby the finding is not vitiated nor illegal warranting interference.
The appeal is accordingly dismissed with costs, fixed at Rs .5,000.
G.N. Appeal dismissed. | The appellant tenant was in occupation of a double storeyed building on a monthly rent of Rs. 170.
The respond ent landlady filed an application under Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 for fixation of fair rent.
The Rent Controller took note of the fact that 1/3rd portion of the building was being used for residential purpose and the rest of the building for non residential purpose, namely, for running a school.
He also appointed an Engineer as Commissioner to evaluate the total cost of the building.
The Commissioner adopted the rates prevalent in the Public Works Department and submitted his report.
On the basis of the Commissioner 's report, the Rent Controller worked out the cost at Rs.1,51,820.
Accordingly, the fair rent for the said premises was arrived at Rs.1518 per month at 12 per cent gross return.
Since the respondent landlady had confined her claim for the enhance ment of fair rent to Rs.1,O00 only, the Rent Controller fixed the fair rent at Rs.1,O00.
On appeal, the order of Rent Controller was affirmed by the Court of Small Causes.
On a revision being preferred, the High Court agreed with the valuation adopted and determined the fair rent on the basis that 1/3rd of the premises was used for residen tial purpose and 2/3rd for nonresidential purpose, and, as per sub sections (2) and (3) of Section 4 of the Act, worked out the rent at 9 per cent and 12 per cent respectively on the cost of construction arrived at.
The High Court fixed the fair rent at Rs. 1391.67 per month.
It confirmed the fair rent of Rs. 1,000 as was fixed by the Rent Controller and as confined to by the Respondent landlady.
This appeal, by special leave, is against the High Court 's order.
It 395 was contended that the cost of the building and its market value as worked out was illegal, fallacious and untenable.
Dismissing the appeal, HELD: 1.
Section 4 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 prescribes the principles on the basis of which the fair rent is to be fixed.
In the light of those principles, the evidence adduced by the parties was considered by the Rent Controller, the appellate court and the High Court and they found that the fixation of the fair rent was much in excess of the claim made by the Respondent landlady.
Since she confined her claim to Rs.1,O00 per month, the courts below have fixed the fair rent at Rs.1,O00.
Therefore, on the findings of facts based on consideration of the evidence, this court cannot interfere and come to its own conclusion.
The finding is neither vitiated nor illegal warranting interference.
[210B C] 2.1 Sub section 4 of Section 4 of the Act, clearly indicates that the total cost of construction referred to in sub sections (2) and (3) shall consist of the market value as on the date of application for fixation of the fair rent.
[209C] 2.2 It is obvious that at the time when this Court rendered its decision in Nambiar 's case there was no provi sion in Section 4 as to the date on which the cost of con struction was to be determined, and Rule 12 provided the manner in which the fixation of the fair rent has to be made.
The subsequent amendment brought on the statute in 1973, by the Amending Act 23 of 1973, has incorporated sub section (4) in Section 4 which amplified the date of appli cation as the starting point to fix market value.
As such the fair rent has been rightly determined by the courts below.
[209D E; HI K.C. Nambiar vs The IV Judge of the Court of Small Causes, Madras & Ors., , referred to. |
Civil Appeal No. 105 of 1990.
From the Judgment and Order dated 10.3.
1988 of the Rajasthan High Court in S.B. Civil Second Appeal No. 327 of 1976.
C.M. Lodha, H.M. Singh and R.S. Yadav for the Appellant.
S.K. Ghose, M. Qamaruddin and Mrs. M. Qamaruddin for the Respondent.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Is Estoppel a good defence to 'archaic ', Atam Prakash vs State of Haryana, ; , right of Pre emption which is a 'weak right ', Bishen Singh vs Khazan Singh; , , and can be defeated by any 'legitimate ' method Radha Kishan vs Sridhar, ; Barring High Court of Rajasthan and erstwhile, Mewar State Jethmal vs Sajanumal, [1947] Mewar Law Reports, 36, most of the other high courts, namely, Allahabad, Naunihal Singh vs Ram Ratan, , Oudh, Ram Rathi vs Mr. Dhiraji, [1947] Oudh 81, Ajmer 352 Gopinath vs R.S. Nand Kishore, AIR 1952 Ajmer 26, Bhopal, Abdul Karim vs Babu Lal, AIR 1953 Bhopal, and Lahore Kanshi Ram Sharma & Anr.
vs Lahori Ram & Anr., have answered the issue in the affirmative.
The Privy Coun cil, [1929] PC AIR 259, too, applied this principle to non suit a pre emptor who knew that the property was in the market for long but offered to purchase, only.
one out of many blocs.
It had: "Assuming that the prior completed purchase by the appellant would under other circumstances, have given him the right of pre emption in respect of the blocks in suit, he must be taken by his conduct to have waived this right, and that it would be inequitable to allow him now to re assert it." Even in Muslim Law which is the genesis of this right, as it was unknown to Hindu Law and was brought in wake of Mohamme dan Rule, it is settled that the right of pre emption is lost by estoppel and acquiescence.
Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith.
It operates as a check on spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished.
It is invoked and applied to aid the law in administration of justice.
But for it great many injustice may have been perpetrated.
Present case is a glaring example of it.
True no notice was given by the seller but the trial court and appellate court concurred that the pre emptor not only came to know of the sale immediately but he assisted the purchaser appellant in raising construction which went on for five months.
Having thus persuaded, rather misled, the purchaser by his own conduct that he acquiesced in his ownership he somersaulted to grab the property with con structions by staking his own claim and attempting to unset tle the legal effect of his own conduct by taking recourse to law.
To curb and control such unwarranted conduct the courts have extended the broad and paramount considerations of equity, to transactions and assurances, express or im plied to avoid injustice.
Legal approach of the High Court, thus, that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre emption Act (In brevity 'the Act ') was given by the seller and pre emptor should have had occasion to pay or tender price ignores the fallacy that Estoppel need not be specifically provided as it can always be used as a 353 weapon of defence.
In the Privy Council decision, referred earlier, the court was concerned with Oudh Laws Act (18 of 1876) which too had an identical provision for giving notice by seller.
No notice was given but since pre emptor knew that the property was for sale and he had even obtained details of lots he was precluded from basing his claim on pre emption.
Exception, to this universal rule or its non availabili ty, is not due to absence of any provision in the Act ex cluding its operation but welfare of society or social and general well being.
Protection was, consequently, sought not on the rationale adopted by the High Court that in absence of notice under Section 8 of the Act estoppel could not arise but under cover of public policy.
Reliance was placed on Shalimar Tar Products vs H.C. Sharma, ; , a decision on waiver, and Equitable Life Assurance Society of the United States vs Reed, 14 Appeal Cases 587, which laid down that there could be no estoppel against statute.
Equi ty, usually, follows law.
Therefore that which is statutori ly illegal and void cannot be enforced by resorting to the rule of estoppel.
Such extension of rule may be against public policy.
What then is the nature of right conferred by Section 9 of the Act? In Bishen Singh vs Khazan Singh, ; this Court while approving the classic judgment of Mahmood, J. in Gobind Dayal vs Inayatullah, ILR 7 All 775 (FB). 'that the right of pre emption was simply a right of substitution ' observed that, 'courts have not looked upon this right with great favour, presumably, for the reason that it operated as a clog on the right of the owner to alienate his property.
In Radha Kishan vs Shridhar, AIR 1960 SC 1369 this Court again while repelling the claim that the vendor and vendee by accepting price and transferring pos session without registration of sale deed adopted subterfuge to defeat the right of pre emption observed that, 'there were no equities in favour of a pre emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute.
To defeat the law of pre emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre emption by all lawful means '.
Such being the nature of right it is harsh to claim that its extinction by conduct would amount to statutory illegality or would be opposed to public policy.
The distinction be tween validity and illegality or the transaction being void is clear and well known.
The former can be waived by express or implied agreement or conduct.
But not the latter.
The provision in the Act requiring a vendor to serve the notice on persons having right of pre emption is condition of validity of transfer, and therefore a pre emptor could waive it.
Failure to serve notice as 354 required under the Act does not render the sale made by vendor in favour of vendee ultra vires.
The test to deter mine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved.
If the answer is latter then it may be difficult to put estoppel as a defence.
But if it is right of party alone then it is capable of being abnegated either in writing or by conduct.
The Act does not provide that in case no notice is given the transaction shall be void.
The objective is to intimate the pre emptor who may be interested in getting himself substituted.
The Act does not debar the pre emptor from giving up this right.
Rather in case of its non exercise within two months, may be for the financial reasons.
the right stands extinguished.
It does not pass on to anyone.
No social disturbance is caused.
It settles in purchaser.
Giving up such right.
expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy.
Even otherwise on facts found that the respondent knew of the sale deed.
assisted the appellant in raising the construction and after the construction was completed in the month of June he gave the notice in month of July for exer cise of the right and filed the suit in January would itself demonstrate that the conduct of the respondent was inequita ble and the courts in this country which are primarily the courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appellant and invoke a right which has been called a weak and inequitable right.
In the result this appeal succeeds and is allowed.
The order of the High Court is set aside and that of the First Appellate Court is restored.
The appellant shall be entitled to his costs.
G.N. Appeal allowed. | The appellant purchased certain properties by way of registered sale deeds.
She constructed therein a godown and a two storeyed building with the knowledge and assistance of the respondent, who did not say anything about the common passage and had never expressed his intention to pre empt the sales.
Soon after the construction was over, the respondent sent a notice to the appellant claiming his right to pre empt the sale.
The appellant gave a reply to the notice.
However, respondent filed a suit for preemption in relation to the said properties.
The appellant pleaded that the respondent was estopped from claiming the pre emption.
Principle of waiver was also pleaded.
The Trial Court dis missed the suit of the respondent, and he preferred an appeal before the District Judge which was also dismissed.
Respondent preferred a regular second appeal before the High Court.
The High Court allowed the appeal holding that the principles of estoppel and waiver had no application against the pre emptor to preempt the suit, and set aside the orders of the Courts below.
Aggrieved against the High Court 's order the appellant has preferred this appeal, by special leave.
Allowing the appeal, this Court, HELD: 1.1 Estoppel is a rule of equity flowing out of fairness striking on behaviour deficient in good faith.
It operates as a check on 350 spurious conduct by preventing the inducer from taking advantage and assailing forfeiture already accomplished.
It is invoked and applied to aid the law in administration of justice.
But for it great many injustice may have been perpetrated.
[162D E] 1.2 Legal approach of the High Court, that no estoppel could arise unless notice under Section 8 of the Rajasthan Pre emption Act was given by the seller and pre emptor should have had occassion to pay or tender price ignores the fallacy that Estoppel need not be specifically provided as it can always be used as a weapon of defence.
[162G H] 2.
There can be no estoppel against statute.
Equity usually follows law.
Therefore, that which is illegal cannot be enforced by resorting to rule of estoppel.
Such an exten sion may be against public policy.
The distinction between validity and illegality or the transaction being void is clear and well known.
The former can be waived by express or implied agreement or conduct.
But not the latter.
[163D & F G] Shalimar Tar Products Ltd. vs H.C. Sharma, ; ; Equitable Life Assurance Society of the United States vs Reed, 14 AC 587; Bishan Singh vs Khazan Singh, ; and Radha Kishan vs Shridhar, AIR 1960 SC 1369, referred to.
The provision in the Pre emption Act requiring a vendor to serve notice on persons having right of pre emp tion is condition of validity of transfer, and therefore a pre emptor could waive it.
Failure to serve notice as re quired under the Act does not render the sale made by vendor in favour of vendee ultra vires.
The test to determine the nature of interest, namely, private or public is whether the right which is renunciated is the right of party alone or of the public also in the sense that the general welfare of the society is involved.
If the answer is latter then it may be difficult to put estoppel as a defence.
The Act does not provide that in case no notice is given the transaction shall be void.
The objective is to intimate the pre emptor who may be interested in getting himself substituted.
It does not debar the pre emptor from giving up this right.
Rather in case of its non exercise within two months, may be for financial reasons, the right stands extinguished.
It does not pass on to anyone.
No social disturbance is caused.
It settles in purchaser.
Giving up such right, expressly or impliedly cannot therefore be said to involve any interest of community or public welfare so as to be in mischief of public policy.
[163H; 164A C] Jethmal vs Sajanumal, [1947] Mewar Law Reports 36, over ruled.
351 Atam Prakash vs State of Haryana, ; ; Bishan Singh vs Khazan Singh, ; ; Radha Kishan vs Sridhar, ; ; Naunihal Singh vs Ram Ratan, ILR 39 All. 127; Ram Rathi vs Mt. Dhiraji, [1947] Oudh 81; Gopinath vs R.S. Nand Kishore, AIR 1952 Ajmer 26; Abdul Karim vs Babulal, AIR 1953 Bhopal 26 and Kanshi Ram Sharma vs Lahori Ram, , approved.
Pateshwari Partab Narain Singh vs Sitaram, AIR 1929 PC 259, referred to. 4.
In the instant case, the fact that the respondent knew of the sale deed, assisted the appellant in raising the construction and after the construction was completed in the month of June he gave notice in the month of July for exer cise of the right and filed the suit in January, would itself demonstrate that the conduct of the respondent was inequitable and the courts in this country which are pri marily the courts of equity, justice and good conscience cannot permit the respondent to defeat the right of appel lant and invoke a right which has been called a weak and inequitable right.
[164D E] |
ON: Civil Appeal Nos.
543 to 570 of 1974.
From the Judgment and Order dated 22.1.1973 of the Kerala High Court in A.S. Nos. 487, 488, 489, 490, 491,492,493,495,497, 498, 499, 500, 501,502, 503,504, 505,506, 507, 509, 510, 511, 512, 5 13, 5 14, 5 15, 521 and 523 of 1969.
G.L. Sanghi and Ms. Lily Thomas for the Appellant.
A.S. Nambiar, K.R. Nambiar and T.T. Kunhikannan for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
1.
This batch of 28 Appeals are against the common judgment and decrees of the Kerala High Court in A.S. No. 487 of 1969 etc.
dated January 22, 1973 and leave under article 136 was granted by this Court on March 14, 1974.
The High Court reversed the awards and decrees of land acquisition, Sub Court, Ernakulam and confirmed the separate awards of the Collector dated March 29, 1962.
The notifica tion under section 4(1) of the Kerala Land Acquisition 1089 for short "the Regulation" was published on October 31, 1961 and the declarations which are the relevant dates for deter mining the market value by operation of Section 22(1) was published on October 31, 1961 and February 22, 1962.
The land acquired was 190.37 acres 368 and 15.48 acres for Periyar Valley Irrigation Project and Phyto Chemicals Project both being public purposes.
The Collector determined the market value at Re.O.04 per cent for certain lands and Re.O. 12 per cent for certain other lands, Rs.30 per cent to the wet lands as against the claim of Rs.40 and 50 per cent and Compensation to the trees as timber value was given.
The total Compensation fixed was Rs.4.84 lakhs.
Dissatisfied therewith the appellant sought reference under section 18 thereof.
They also claimed sepa rate value as fruit bearing trees on potential value.
They also claimed charges for severence and injurious effects on the remaining land.
The Civil Court after adduction of evidence and on consideration thereof enhanced the market value to the lands @ Rs.40 50 as claimed in addition to a sum of Rs.30 to 38 per cent.
It awarded in all Rs.20.20 lakhs on all counts including severence and injurious ef fects and 15 per cent solatium and also 6 per cent interest on additional compensation from the date of taking posses sion till date of payment vide page 3 of short notes of the appellant.
On appeals by the State, by common judgment dated January 22, 1973, the High Court reversed the award of the Civil Court and confirmed that of the Land Acquisition Collector.
Mr Sanghi, learned Sr. counsel for the appellants with his usual vehemence contended that the High Court committed manifest error of law in reversing the awards and decrees of the Civil Court which had the advantage of seeing the de meanor of the witnesses and extensively considered the evi dence in particular the unimpeachable documents exhibit p.7, p.9 and p. 10.
The appellant, on account of the acquisition, had to incur huge expenditure to construct Kayallas, Pathways, culverts etc.
for protection of the rest of the Estate.
The amount expended was to prevent injurious effects to the Estate and is to be recompensated.
It is further contended that the potential value of the trees have to be taken into account in determining the market value.
The appellant also is entitled to compensation for severence due to submersion of the lands when the Periyar Canal passes through the rubber estate of the appellant.
Therefore, the appellant is entitled to the compensation in full measure with interest on solatium.
The High Court was unjustified in reversing the awards and the decrees of the Civil Court.
The first question, therefore, is whether the High Court is justified in reversing the awards and decrees of the Civil Court.
Admittedly 190.37 and 15.48 cents of land is part of the extensive Periyar Estate of 879.37 acres stretching over seven miles long on the banks of the Periyar River.
It had a road of 14 feet width by name 369 Alwaye Munnar Highway running through middle of the Estate.
The lands were acquired for submersion due to Periyar River Valley Irrigation Project and to establish Phyto Chemical Project.
Shri Sanghi, repeatedly reiterated that in deter mining the market value an element of some guesswork is involved.
But in determining the market value the Court has to eschew arbitrary fixation keeping in view the settled principles of law in evaluating market value in compulsory acquisition on the hypothesis of a willing vendor and a willing vendee.
Therefore, let us glance through the settled principles of law in this regard.
In Galapati Raju vs Revenue Divisional Officer, popularly known as Vijji 's case, the judicial committee of the Privy Council held that compensa tion for compulsory acquisition governed by Section 23(1) of the Land Acquisition Act, 1894 is the market value of the land at the date of the publication of the notification under sub sec.
(1) of the Section 4 of the Act "what a willing vendor might reasonably except to obtain from will ing purchaser".
The function of the Court in awarding com pensation under the Act is to ascertain the market value of the land at the date of notification under section 4(1) of the Act (in this case under section 6(1) of the Regulation) and the evaluation may be as pointed out by this Court in Special Land Acquisition Officer vs Adinarayana Setty, [1959] Suppl.
1 S.C.R. 404 at 412 (1) Opinion of experts; (2) The price paid within a reasonable time in bona fide transactions of purchase of the land acquired or the land adjacent to the acquired land and possessing similar advan tages; (3) Number of years of purchase of the actual or immediately perspective profits of the land acquired.
In that case while adopting the second method the High Court arrived at average price of four transactions excluding two sales and separate average was arrived fixed the market value of Rs. 13.80.
This Court calculating the average of six sale transactions fixed the market rate at Rs. 11.
In Tribeni Devi & Ors.
vs Collector of Ranchi, ; at 2 12 this Court held that for determining compensation payable to the owner of the land, the market value is to be determined by reference to the price which may reasonably to obtain from willing purchasers but since it may not be possible to ascertain this with any amount of precision the authority charged with the duty to award compensation is bound to make an estimate judged by an objective standard.
While reiterating the three tests laid down in S.L.A. Officer 's case, it was further emphasised that these methods, however, do not preclude the Court from taking any other special circumstances into consideration, the requirement being always to arrive at as nearly 370 as possible at an estimate of the market value.
In arriving at a reasonable correct market value it may be necessary to take even two or all these methods into account inasmuch as the exact evaluation is not always possible as no two lands may be the same either in respect of the situation or the extent or potentiality nor is it possible in all cases to have reliable material from which the valuation can be accurately determined.
This Court rejected the sale deeds of the lands situated farther away from the lands acquired and also disallowed 10 per cent additional compensation over market rate fixed.
In Dollor Co., Madras vs Collector of Madras, this Court held that "we may even say that the best evidence of the value of the property is the value of the sale in the very property to which the claimants are the party.
If the sale is of recent date and all that need normally be proved is that the sale was between a willing purchaser and willing seller, that there has not been any appreciable rise or falls since and that nothing has been done on the land during the interval to raise the value.
But if the sale was long ago, may be the court would examine more recent sales of comparable lands as throwing better light on current land value.
This Court further emphasised the fact that because the appellant therein himself pur chased the land which is 10 months prior to the date of notification under section 4, at a price of Rs.410 per ground, that would be the measure of prevailing market value.
The High Court enhanced the market value to Rs. 1800 per ground and on appeal was filed by the State.
Though the appellant still claimed higher value, this Court negatived further enhancement.
In Smt.
Kaushalya Devi Bogra & Ors.
vs The Land Acquisition Officer, Aurangabad & Anr., ; the transaction in respect of small properties do not offer proper guidelines and, therefore, the price fetched therein cannot be taken as real basis for determining compensation for large tracts of property.
This was also the view in Pridviraj vs State of Madhya Pradesh, ; and Padrna Uppal Etc.
vs State of Punjab & Ors.
, ; If they are relied upon reasonable reduction should be given.
Accordingly, this Court has fixed the market value in the light of the development of the land in the neighbour hood of the township etc.
In Chandra Bansi singh & Ors. etc.
vs State of Bihar & Ors. etc.
; , notification under section 4(1) was issued for acquiring 1034 acres of land for housing construction by the Housing Board.
This Court held that compensation should be paid as per the value of the land prevailing as on the date of the notification but not on the date of taking over possession.
371 5.
In Tahsildar, Land Acquisition, Visakhapatnam vs P. Narasingh Rao and Ors., a Division Bench of the Andhra Pradesh High Court to which one of us (K. Ramaswamy, J) was a member while reiterating the princi ples referred to above held that the object of determining the compensation with reference to comparable sales of the land adjacent to the land acquired is to find the fertility, quality, the probable price of the land under acquisition is ' likely to fetch and the actual price paid by the vendee to the vendor under those transactions as a prudent vendee and is not actuated with any other speculative features.
It is to ascertain these facts, the sale deeds are insisted to be produced.
The market value fixed must be reasonable and fair to the owner as well as to avoid undue burden to the exchequer.
Therefore, the transaction relating to the ac quired land of recent dates or in the neighbour hood lands that possessed of similar potentiality or fertility or other advantageous features are relevant pieces of evidence.
When the Courts are called upon to fix the market value of the land in compulsory acquisition.
the best evidence of the value of property is the sale of the acquired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands.
In proof of the sale transaction, the relationship of the parties to the transaction, the market conditions, the terms of the sale and the date of the sale are to be looked into.
These features would be estab lished by examining either the vendor or vendee and if they are not available, the attesting witnesses who have personal knowledge of the transaction etc.
The original sale deed or certified copy thereof should be tendered as evidence.
The underlying principles to fix a fair market value with refer ence to comparable sales is to reduce the element of specu lation.
In a comparable sales the features are: (1) it must be within a reasonable time of the date of the notification; (2) it should be a bona fide transaction; (3) it should be a sale of the land acquired or land adjacent to the land acquired and (4) it should possess similar advantages.
These should be established by adduction of material evidence by examining as stated above the parties to the sale or persons having personal knowledge of the sale transactions.
The proof also would focus on the fact whether the transactions are genuine and bona fide transactions.
As held by this Court in Collector, Raigarh vs Hari Singh Thakur & Anr., ; that fictitious and unreal transactions of speculative nature brought into existence in quick succes sion should be rejected.
In that case it was found by major ity that these sale deeds are brought up sales.
In Adminis trator General of West Bengal vs Collector, Varanasi, ; that the price at which the property fetches would be by a willing seller to a willing purchaser but not too anxious a buyer, dealing at aim 's length.
The 372 prices fetched for similar lands with similar advantages and potentialities and the bona fide transactions of the sale at time of preliminary notification are the usual, and indeed the best, evidence of the market value.
Other methods of valuation are resorted to if the evidence of sale of similar land is not available.
The prices fetched for smaller plots cannot form basis for valuation of large tracts of land as the two are not comparable properties.
Smaller plots always would have special features like the urgent need of the buyer, the advantageous situation, the like of the buyer etc.
In Chimanlal Hargovinddas vs Special Land Acquisition Officer, Poona & Anr., ; this Court held that the land situated on the frontage have special advantage and the land situated in the interior undeveloped area will not have the value at par since the latter will have lower value than land situated near developed area.
Some guesswork is permissible in determining the value and on this basis this Court did not interfere with fixation of market value by the High Court.
In Mehta Ravindrarai Ajitrai vs State of Gujarat, ; this Court reiterated the ratio in West Bengal Administrator General 's case that the persons to prove the fair transaction are either the vendor and the vendee or the person conversant with the sale and they are to be examined.
The original sale deed or the certified copy of the sale deed are to be produced.
The same is the view in Dr. Hari Singh Thakur 's case.
This was also the view of the Andhra Pradesh High Court in Narasingh Rao 's case.
In Mantaben Manibhai vs Special Land Acquisition Officer, Baroda, AIR 1990 SC 103 to which one of us (L.M. Sharma, J) was a member, this Court held that when the quality of the lands are different (bagayat land and jiryat land).
Bagayat land is superior in quality and to what percentage of superiority was not established by the claim ants.
This Court held that addition of 25 per cent of the value of the Jiryat land was held to be proper valuation.
In Hindustan Oil Co. Ltd. vs Special Duty Collector (Land Acquisition), this Court held that cumulative effect of all the facts and circumstances should be taken into consideration in arriving at a reasonable and fair market value.
8. ' In the light of these principles, the further con tention that having rejected the documents produced by the State, the High Court 373 ought to have relied upon the documents produced by the appellant as comparable sale and would have confirmed the compensation awarded ' by the Civil Court does not impress us as well founded.
It is well settled law that the amount awarded by the Land Acquisition Collector form an offer and that it is for the claimants to adduce relevant and material evidence to establish that the acquired land are capable of fetching higher market value and the amount offered by the [,and AcqUisition Collector was inadequate and he proceeded on a wrong premise or principle.
In Ezra vs Secretary of State for India, I.L.R. it was held that the amount awarded by the Collector forms an offer.
It was reiterated by this Court in Raja Harish Chandra vs Dy.
Land Acquisition Officer, ; Khorshed Shapoor Chenai, etc.
vs Assistant Controller of Estate Duty, 15 and Dr. G.H. Grant vs State of Bihar, ; In Hari Singh 's case, A.P. Sen, J. held (and major ity did not disagree) at p. 191 C to E that: "In a reference under section 18 of the Act, the burden of prov ing that the amount of compensation awarded by the Collector is in adequate lies upon the claimant, and he must show affirmatively that the Collector had proceeded upon a wrong basis.
The nature and the burden of establishing that he was wrong, depend on the nature of the enquiry held by him .
It is equally well settled that where the claimant leads no evidence to show that the conclusions reached in the award were inadequate, or, that it offered unsatisfactory compen sation.
the award has to be confirmed.
" In that ease it was held that the evidence produced was untrustworthy.
Same is the view of Bombay High Court in Asstt.
Development Officer vs Tavaballi, at 361 D.B. and of A.P. High Court in Narsing Rao 's case and T.W. Higgins claimant vs Secretary of State, AIR 19 ; Naresh Chandra Bose vs State of West Bengal & Ors.
AIR 1955 Cal.
398 at 399; Smt.
Kusumgauri Ramray Munshi & Ors.
vs The Special Land Acquisition Officer, Ahmedabad, at 94, 95 and Maharao Shri Madansinhji vs State of Gujarat, AIR 1969 Gujarat 270.
It is also the duty of the State to adduce evidence in rebuttal.
This Court in Chaturbhuj Panda & Ors.
vs Collector, Raigarh, [1969] 1 SCR412 at 414 has rightly pointed out that: 374 "It is true that the witnesses examined on behalf of the appellants have not been effectively cross examined.
It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence.
The Judges are not computers.
In assessing the value to be attached to oral evidence, they are bound to call into aid their experience of life.
As Judges of fact, it was open to the appellate Judges to test the evidence placed before them on the basis of probabili ties.
" In Narasingh Rao 's case. 1 have dealt with in paragraph 8 thus: "The object of the inquiry is to bring on record the price fetched or capable of fetching, the relative situation of the land acquired and the subject of the sale transac tion, their fertility, suitability, nature of the use to which they are put to.
income derive or other special dis tinctive features possessed of by the respective lands either single of some or all relevant to the facts in issue.
In this process the courts are not mere umpires but to take intelligent participation and to see whether the counsel on either side are directing towards this goal or the court itself to intervene in this regard." Therefore, it is the paramount duty of the courts of facts to subject the evi dence to close scrutiny, objectively assess the evidence tendered by the parties on proper consideration thereof in correct perspective to arrive at reasonable market value.
The attending facts and circumstances in each case would furnish guidance to arrive at the market value of the ac quired lands.
The neighbour hood lands possessed of similar potentialities or same advantageous features or any advanta geous special circumstances available in each case also are to be taken into account.
Thus, the object of the assessment of the evidence is to arrive at a fair and reasonable market value of the lands and in that process sometimes trench on the border of the guesswork but mechanical assessment has to be eschewed.
The Judges are to draw from their experience and the normal human conduct of parties in bonafide and genuine sale transactions is the guiding star in evaluating evidence.
Misplaced sympathies or undue emphasises solely on the claimants ' right to compensation would place heavy burden on the public exchequer to which everyone contributes by direct or indirect taxes.
In V.R. Katarki vs State of Karnataka & Ors.
, C.A. No. 4392/86 dated March 22, 1990 decided by Bench of this Court to which one of us (K. Ramaswamy, J.) is a member, the appellant apart from other charges, was imputed with miscon duct of fixing, in his capacity as Civil Judge at Bagalkot, "higher valuation than was legitimate of the 375 lands." After conducting enquiry he was dismissed from service and when he challenged it, the High Court upheld it on the judicial side.
On further appeal, since the appeals against higher valuation were pending in the High Court, without going into that question, while confirming the dismissal laid the rule thus: "We would like to make a special mention of the position that even if the assessment of valuation is modified or affirmed in an appeal as a part of the judicial process, the conduct of the judicial officer drawable from an overall picture of the matter would yet be available to be looked into.
In appropriate cases it may be opened to draw inferences even from judicial acts" of the misconduct.
The rule of conduct spurned by this Court squarely put the nail on the official act as a refuge to fix arbitrary and unreasonable market value and the person concerned shall not camaflouge the official act to a hidden conduct in the function of fixing arbitrary or unreasonable compensation to the acquired land.
Equally it is salutory to note that the claimant has legal and legitimate right to a fair and reasonable compensation to the land he is deprived of by legal process.
The claimant has to be recompensated for rehabilitation or to purchase similar lands elsewhere.
In some cases for lack of comparable sales it may not be possible to adduce evidence of sale transactions of the neighbouring lands possessed of same or similar quality.
So insistence of adduction of precise or scientific evidence would cause disadvantage to the claimants in not getting the reasonable and proper market value prevailing on the date of notification under section 4( 1 ).
Therefore, it is the paramount duty of the Land Acquisition Judge authority to keep before him always the even scales to adopt pragmatic approach without indulging in "facts of imagination" and assess the market value which is reasonably capable to fetch reasonable market value.
What is fair and reasonable market value is always a question of fact depending on the nature of the evidence, circumstances and probabilities in each case.
The guiding star would be the conduct of a hypotheti cal willing vendor would offer the lands and a willing purchaser in normal human conduct would be willing to buy as a prudent man in normal market condition as on the date of the notification under section 4(1) but not an anxious buyer dealing at arm 's length nor facade of sale or fictitious sales brought about in quick succession of otherwise to inflate the market value.
Let us consider the evidence on record from the above perspective and evaluate the circumstances on record.
Shri Sanghi repeatedly stressed that an element of guesswork is inescapable and exhibit P. 7, 8, 9 & 10 furnish the best materi al.
Though he relied on exhibit P. 1 to P. 3, in fairness, he did not press for consideration in our view quite 376 rightly as they are very small extents of 2 1/2; 4 and 3 cents respectively.
They are situated in residential and commercial areas.
So they cannot be relied on.
But he strongly relied on exhibit P. 7 dated March 9, 195 1.
The extent is Ac.
3 4 cents for Rs. 19,000.
It worked out at Rs.52.50 per cent.
The High Court held that the lands covered by exhibit P. 7 are situated by the side of irrigation channel and paddy cultivation was carried on.
Under those circumstances, the evidence of P.W. 6, the vendor was not accepted and in our opinion quite rightly and exhibit P. 7 was rightly not relied as lands in question are not irrigated lands whereas the lands under exhibit P. 7 are paddy lands cultivated by irrigation sources and is situated four miles away from the acquired lands.
Similarly exhibit P. 9 is dated April 4. 1957.
The extent is Ac.
1.38 cents for Rs.6,000.
PW. 5 is the vendor.
It worked out at Rs.43.50 per cent.
It is also four miles away from the acquired lands.
It is also not of any assistance to the appellant as this land also is a paddy land irrigated by irrigation sources.
It is undoubted that in exhibit P. Ii).
the judgment of the Sub Court.
Ernakulam in Land Acquisition Case No. 298 of 1963 etc.
relate to the land in the vicinity of Phyto Chemical Project and the Land Acquisition Court awarded (C) Rs.80 per cent for the paddy lands and Rs.43 per cent for dry land.
The ' High Court has pointed out that on the basis of the evidence adduced in that case.
namely, comparable sales, the determination of the market value is correct.
It was held that it cannot form the basis for determining the market value of the lands in this case.
We have been taken through the entire judgment under exhibit P. 10 and after carefully scanning the evidence, we are not persuaded to take a different view from that of the High Court.
Which has correctly appreciated the evi dence.
Accordingly exhibit P. 10 also would not form a base to fix the market value.
It is undoubtedly true that the High Court did not accept the evidence adduced by the State.
It was rejected both by the Civil Court as well as by the High Court.
The Sub Judge appears to be too anxious to award whatever is asked for on mechanical appreciation without subjecting the evidence to legal and critical scrutiny and analysis.
The appellate Court after rejecting the evidence may have to find whether there are any circumstantial or other material evidence on record to fix reasonable market value.
We are relieved to undertake that exercise in view of fair stand taken by the Learned Advocate General.
Kerala, who appeared in the High Court.
It is clear from the judg ment that the Learned Advocate General while arguing the case had stated across the bar.
obviously on instructions or in fairness from record, that the market value can be fixed at Rs. 18 per cent.
This is.
therefore.
a concession made by the Learned Advocate General on behalf of the State.
The High Court, therefore, was not justified in not 377 taking into account this submission of the Advocate General.
It is undoubted that the High Court having rejected the evidence of the claimants has to confirm the offer made by the Collector in the award provided if there is no other evidence on record.
But in view of the concession made by the Learned Advocate General, we are of the definite view that the claimants are entitled to the market value Rs. 18 per cent to the lands other than those to which the Collec tor awarded @ Rs.30 per cent as the reference court shall not reduce the market value to less than awarded by the Collector as enjoined under the statute.
As a limb of the argument Shri Sanghi has placed reliance on the concession made by the government pleader in the Trial Court that exhibit P. 9 would form the basis for determination of the market value which worked out @ Rs.43.50 per cent.
We are unable to accept the submission of the learned counsel.
Any concession made by the government pleader in the Trial Court cannot bind the Government as it is obviously, always, unsafe to rely on the wrong or erroneous or wanton concession made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer.
Otherwise it would place tindue and needless heavy burden on the public exchequer.
But the same yardstick cannot be applied when the Advocate General has made a statement across the bar since the Advocate General makes the statement with all responsi bility.
In those circumstances we have no hesitation to accept the statement of Learned Advocate General and hold that the market value of the lands would be fixed at Rs. 18 per cent.
From the very nature of compulsory acquisition 15 per cent solatium as additional compensation was statutorily fixed.
Therefore, determination of additional market value is unwarranted.
It is next contended that the claimants are entitled to the severence charges and injurious effects on the re maining lands of the claimant.
From the evidence it is clear that the Commissioner who collected the evidence in this regard has admitted in the crossexamination that the appel lant did not expend any money in erecting boundary walls, bridges, projects etc.
It is an admitted fact that though from the date of the acquisition till date of evidence more than six years have passed by, the appellant has not pro duced any material or account books of the Estate to estab lish that they have expended any money in this regard.
It is also admitted by both the engineers examined on behalf of the State and also appellant 's witnesses that the road passing through the lands is being used by the appellant to carry his goods i.e. his forest produce etc.
Though during rainy season that too for a short period at some places the water get stagnated on the 378 roads at lower levels but that stand no impediment for the carriage of the goods as admitted by the witnesses.
This phenomena was prevalent even before acquisition.
In these circumstances we entirely agree with the High Court in its finding that the appellant has not established that they have expended any money for erection of retaining walls.
culverts.
bridges etc.
There is no damage.
due to acquisi tion of the land of the appellant and.
therefore.
the award of severence charges is unwarranted.
Both the counsel have taken us through the material evidence of PW. 7, 8 & 9.
C.P.W. 1 and C.P.W. 2 examined on behalf of the State.
We have once again carefully scanned the evidence and we are satisfied that the High Court has thoroughly considered the evidence of all the witnesses and reports of the Commission ers.
The High Court is well justified in arriving at the finding that the appellant has not expended any money for either constructing any boundary walls.
culverts.
bridges or roads etc.
The value of the land of the appellant has not been injuriously effected due to acquisition.
No damage due to severence was caused.
Under these circumstances the appellant is not entitled to compensation in this regard.
When we have pointed out that the appellant is not entitled separately to the value of the land and the trees as poten tial value as fruit bearing one.
The counsel agreed.
on instructions, that they would confine to fix market value of the lands.
The only question then remains is whether the appel lant is entitled to payment of interest on solatium.
The High Court relied on Union of India vs Shri Ram Mehar & Anr., ; and rejected the claim for interest.
Section 25(3) of the Regulation reads thus: "If the sum in the opinion of the court, the Division Peishkar ought to have awarded as compensation is in excess of the sum which the Division Peishkar did not award as compensation, the award of the court may direct that the government shall pay interest on such excess @ Rs.6 per centum per annum from the date on which the Division Peish kar took possession of the land to the date of payment of such excess in Court " A reading thereof does postulate that in the opinion of the Court the Land Acquisition Officer ought to have awarded compensation in excess as found by the court.
then the court may direct that the government shall pay interest @ 6 per centum per annum on the excess amount so found as compensation.
The payment should be from the date, the land was taken possession by the Division Peishkar till the date of the payment of the excess amount into court.
379 The question, therefore, is whether "interest" is an inte gral part of the word "compensation" under sub section (3) of Section 25 of the Regulation.
In Shri Ram Mehar 's case, the question came up for consideration was whether the words "interest on market value" in Section 4(3) of the Land Acquisition (Amendment and Validation Act, 1967) would include payment of interest on solatium.
Additional 15 per cent solatium undersection (2) of Section 23 certainly forms part of compensation as under section 23 the market value of the land would include solatium.
But market value and compensation are distinct expressions and have been used as such in the Land Acquisi tion Act.
The key to the meaning of the word "compensation" is to be found in Section 23(1) which consists of market value and solatium on the market value which is stated to be compensation.
Therefore, this Court held that the term market value has acquired a definite connotation in judicial decision.
If the word market value and compensation were intended by the legislature to have the same meaning, it is difficult to comprehend why the word compensation in sections 28(a) and 34 and nor market value was used.
So market value cannot be equated to compensation.
The market value is, therefore, only one of the components in the determination of the amount of compensation, if the legislature has used the word "market value" in Section 4(3) of the Amending Act, it must be held that it was done deliberately and what was intended was that interest should be payable on the market value of the land and not on the amount of compensation.
Otherwise, there is no reason why the Parliament should not have employed the word compensation in the aforesaid provi sion of the amended Act.
Webster Comparative Dictionary at p. 267, the word compensation defined (I) the act of compen sating or (2) that which compensates payment.
In Stroud 's Judicial Dictionary, Fourth Edition, Volume I at p. 523 compensation defined (Defence Act 1842 (c. 94), section 19) includes not only the value of the land taken but also damage for severence or injuriously effecting other lands belonging to the owner of the land taken, al though the Act contained no such clause as Land Clauses Consolidation Act, 1845.
The word compensation is used to recompensate or reparation to the loss caused to the owner of the land.
Therefore, we have no hesitation to hold that Section 25(3) contemplates payment of interests on solatium to recompensate the owner of the land for loss of user of the land from the date of taking possession till date of payment into court.
The word compensation has been advisedly used by the legislature.
Accordingly we hold that the appel 380 lant is entitled to interest on solatium.
We allow the appeals to the extent indicated above.
The market value is fixed at Rs. 18 per cent and confirm the market value at Rs.30 per cent for wet lands awarded by the Collector.
Solatium at Rs. 15 per cent and interest at 6 per cent on the excess market value determined under the judg ment including solatium from the date of taking possession till the date of payment.
In other respects the judgment of the High Court is confirmed and in the circumstances, the parties are directed to bear their own costs throughout.
P.S.S. Appeals allowed. | The respondent State had acquired a large extent of land out of the appellant 's estate under the Kerala Land Acquisi tion Regulation, 1089 for river valley irrigation project and to establish an industrial project.
The notification under Section 4(1) of the Regulation was published on Octo ber 31, 1961.
This was followed by the declaration under Section 6(1) published on February 22, 1962.
The Collector by his awards dated March 29, 1962 deter mined the market value under Section 22(1) of the Regulation at Re.O.04 per cent for certain lands, Re.O.12 per cent for certain other lands, and Rs.30 per cent for the wet lands as against the claim of Rs.40 and 50 per cent.
Compensation for the trees at timber value was also given.
The total compen sation fixed was Rs.4.84 lakhs.
Dissatisfied therewith the appellant sought reference under Section 18 of the Regulation.
They also claimed sepa rate value for fruit bearing trees on potential value and charges for severence and injurious effects on the remaining lands.
In support of the claim they relied on exhibit P. 7 dated March 9, 1951 and exhibit P. 9 dated April 4, 1957 which worked out at Rs.52.50 and Rs.43.50 per cent respectively, and the acquisition forming subject matter of exhibit P. 10 pertaining to the land in the vicinity of the industrial project award ed at the rate of Rs.80 per cent for paddy lands and Rs.43 for dry land.
The Government pleader stated before the civil court that exhibit P. 9 could form the basis for determining the market value.
The court enhanced the market value @ Rs.40 50 per cent as claimed in addition to a sum of Rs.30 to 38 per cent.
It awarded in all Rs.20.20 lakhs on all counts includ ing severence and injurious effects, 15 per cent solatium and also 6 per cent interest on additional compensation from the date of taking possession till date of payment.
363 The High Court found that the lands covered by exhibit P. 7 and exhibit P. 9 were paddy lands cultivated by irrigation sources and situated about four miles away from the acquired lands which were not irrigated and therefore held that these could not form the basis for determining market value.
Similarly, it found exhibit P. 10 could not form a base to fix the market value.
The High Court did not accept the evidence adduced by the State, which was rejected by the civil court as well.
The statement made by the State Advocate General across the bar that the market value could be fixed at Rs. 18 per cent was also not taken into account.
Consequently, it reversed the awards and decrees of the civil court.
In these appeals by special leave it was contended for the appellant that having rejected the documents produced by the State the High Court ought to have relied upon the documents produced by the appellant as comparable sales and consumed the compensation awarded by the civil court, that exhibit P. 7, 9 and 10 furnished the best material, that the Government pleader had conceded before the trial court that exhibit P. 9 could form the basis for determining the market value, that they had incurred huge expenditure on civil works for protection of the rest of the estate from injuri ous effects for which they should be recompensated, that the potential value of the trees had to be taken into account in determining the market value, that they were entitled to compensation for severence due to submersion of the lands and that they were also entitled to payment of interest on solatium.
Allowing the appeals partly, the Court, HELD: 1.1 When the Courts are called upon to fix the market value of the land in compulsory acquisition, the best evidence of the value of property is the sale of the ac quired land to which the claimant himself is a party, in its absence the sales of the neighbouring lands possessed of similar potentiality or fertility or other advantageous features made within a reasonable time of the date of noti fication in bona fide transactions on the hypothesis of a willing seller and a willing purchaser but not too anxious a buyer, dealing at arms length nor facade of sale or ficti tious and unreal transactions of speculative nature brought into existence in quick succession or otherwise to inflate the market value.
This, however, does not preclude the Court from taking any other special circumstances into considera tion, the requirement being always to arrive at as nearly as possible an estimate of the market value judged by an objec tive standard.
[181C 182D] 364 Gajapati Raju vs Revenue Divisional Officer, ; Special Land Acquisition Officer vs Adinarayana Setty, [1959] Suppl.
1 S.C.R. 404; Tribeni Devi & Ors.
vs Collector of Ranchi; , ; Dollor Co. Madras vs Collector of Madras, ; Chandra Bansi Singh & Ors. etc vs State of Bihar & Ors. etc.; , ; Tahsildar, Land Acquisition Visakhapatnam vs P. Narasingh Rao & Ors., ; Collector, Raigarh vs Hari Singh Thakur & Anr., ; ; Administrator General of West Bengal vs Collector, Varanasi, ; ; Mehta Ravindrarai Ajitrai vs State of Gujarat, ; and Hindustan Oil Co. Ltd. vs Special Duty Collector (Land Acquisition), [1990] 1 S.C.R. 59, referred to. 1.2 The prices fetched for smaller plots cannot form basis for valuation of large tracts of land as the two are not comparable properties.
Smaller plots always would have special features like the urgent need of the buyer, the advantageous situation, the like of the buyer etc.
Similar ly, the land situated on the frontage have special advantage and the land situated in the interior undeveloped area will not have the value at par since the latter will have lower value then the former.
So is the case with orchard land and agricultural land, the former being superior in quality as compared to the latter.
If such sales are relied upon rea sonable reduction should be given.
[182B C] Smt.
Kaushalva Devi Bogra & Ors.
vs The Land Acqui sition Officer, Aurangabad & Anr., ; ; Pridviraj vs State of Madhya Pradesh, ; ; Padma Uppal etc.
vs State of Punjab & Ors., [1977] 1 S.C.R. 329; Chimanlal Hargovinddas vs Special Land Acquisition Officer, Poona & Anr., ; and Mantaben Manibhai vs Special Land Acquisition Officer, Baroda, A.I.R. , referred to.
1.3 In some cases for lack of comparable sales it may not be possible to adduce evidence of sale of the neighbour ing lands possessed of same or similar quality.
So, insist ence on abduction of precise or scientific evidence would cause disadvantage to claimants in not getting the reasona ble and proper market value.
The courts of facts should, therefore, keep before them always the even scales to adopt pragmatic approach without indulging in facts of imagination and assess the market value which is capable to fetch rea sonable compensation.
They may in that process sometimes trench on the border of the guess work but mechanical as sessment should be eschewed.
Misplaced sympathies or undue emphasis solely on the claimants ' right to compensation would 365 place heavy burden on the public exchequer to which everyone contributes by direct or indirect taxes.
[185D G; 184F G] 1.4 In the instant case, the High Court found that exhibit P. 7 and P. 9 relied on by the civil court were not applica ble as the lands covered by them were paddy fields cultivat ed by irrigation sources and situated four miles away from the acquired unirrigated lands.
Similarly, it also found that exhibit P. 10 could not be relied on.
The High Court, therefore, could not be said to be unjustified in reversing the awards and decrees of the civil court.
[186B D] 2.
The amount awarded by the Land Acquisition Collector forms an offer.
It is for the claimants to adduce relevant and material evidence to establish that the acquired lands were capable of fetching higher market value and the amount offered by the Land Acquisition Collector was inadequate and he proceeded on a wrong premise or principle.
It is also the duty of the State to adduce evidence in rebuttal.
[183B, G] Ezra vs Secretary of State for India, I.L.R. ; Raja Harish Chandra vs Dy.
Land Acquisition Officer, ; Khorshed Shapoor Chenai, etc.
vs As sistant Controller of Estate Duty; , ; Dr. G.H. Grant vs State of Bihar, ; ; Asstt.
Development Officer vs Tayaballi, AIR ; Tah sildar, Land Acquisition, Visakhapatnam vs P. Narasingh Rao Secretary of State, AIR 1919 Cal.
1008; Naresh Chandra Bose vs State of West Bengal & Ors., AIR 1955 Cal. 398; Smt.
Kusumgauri Ramray Munshi & Ors.
vs The Special Land Acquisi tion Officer, Ahmedabad, ; Maharao Shri Madansinhji vs State of Gujarat, AIR 1969 Gujarat 270 and Chaturbhuj Panda & Ors.
vs Collector, Raigarh, ; , referred to.
2.2 In the instant case the evidence produced by the appellant was found untrustworthy by the High Court.
It also did not accept the evidence adduced by the State.
[186E F] 3.1 The Appellate Court after rejecting the evidence may have to find whether there are any circumstantial or other material evidence on record to fix reasonable market value.
The State Advocate General having stated across the bar in the High Court that the market value can be fixed at Rs.18 per cent, a concession made by him with all responsibility on behalf of the State, the High Court was not justified in 366 not taking into account this submission.
[186G I87B] 3.2 Any concession made by the Government pleader in the trial court cannot bind the Government as it is always unsafe to rely on the wrong or erroneous or wanton conces sion made by the counsel appearing for the State unless it is in writing on instructions from the responsible officer.
Otherwise it would place undue and needless heavy burden on the public exchequer.
[187C] 3.3 The claimants are, therefore, entitled to the market value @ Rs.18 per cent to the lands other than those to which the Collector awarded @ Rs.30 per cent, as the refer ence court shall not reduce the market value to less than that awarded by the Collector as enjoined under the statute.
From the very nature of compulsory acquisition, 15 per cent solatium as additional compensation was statutorily fixed.
Therefore, determination of additional market value is unwarranted.
[187E] 3.4 Section 25(3) of the Regulation contemplates payment of interest on solatium to recompensate the owner of the land for loss of user of the land from the date of taking possession tilldate of payment into court.
The claimants are, therefore, entitled to interest on solatium.
It is fixed at 6 per cent on the excess market value determined under the judgment including solatium from the date of taking possession till the date of payment.
In other re spects judgment of the High Court is confirmed.
[189G 190B] Union of India vs Shri Ram Mehar & Anr., [1973] 2 S.C.R. 720, referred to. 4.
The Commissioner who collected the evidence in re spect of the injurious effects on the remaining lands of the claimants admitted in the cross examination that the appel lant did not expend any money on civil works.
Though from the date of the acquisition till the date of evidence more than six years had passed by the appellant had not produced any material or account books of the estate to establish that they have expended any money in this regard.
Both the engineers examined on behalf of the State and also appel lant 's witnesses admitted that the road passing through the lands was being used by the appellant to carry its forest produce etc.
Though during rainy season that too for a short period, at some places the water gets stagnated on the roads at lower levels but that stand no impediment for the car riage of the goods.
This phenomena was prevalent even before acquisition.
The value of the land of the appellant had not been injuriously effected due to acquisition.
No 367 damage due to severence was caused.
Under these circum stances, the appellant was not entitled to compensation in this regard.
[187F 188D] 5.
The Sub Judge appears to be too anxious to award whatever is asked for on mechanical appreciation without subjecting the evidence to legal and critical scrutiny and analysis.
In such a case, even if the assessment of valua tion is modified or affirmed in an appeal as apart of the judicial process, the conduct of the judicial officer, drawable from an overall picture of the matter would yet be available to be looked into.
In appropriate cases it may be opened to draw inferences even from judicial acts of the misconduct.
The person concerned shall not, therefore, camouflage the official act to a hidden conduct in the function of fixing arbitrary or unreasonable compensation to the acquired land.
V.R. Katarki vs State of Karnataka & Ors., Civil Appeal No. 4392 of 1986 decided on March 22, 1990, referred to. |
Appeal No. 472 of 1962.
Appeal from the judgment and decree dated December 23, 1960, of the Bombay High Court in First Appeal No. 464 of 1958.
R.K. Garg, S.C. Agarwala, D.P. Singh and M.K. Ramamurthi, for the appellants.
S.V. Gupte, Additional Solicitor General, V.D. Mahajan and R.N. Sachthey, for the respondent.
October 23, 1963.
The Judgment of the Court was delivered by WANCHOO J.
This is an appeal against the judgment and decree of the Bombay High Court on a certificate granted by that Court.
The appellant was in the service of the Union of India.
He was appointed on June 11, 1949 as an officiating Assistant Director Grade II in the office of the Textile, Commissioner, Bombay and was working as such till September 15, 1954.
The appointment was temporary and his services were liable to be terminated on one month 's notice on either side.
He was posted after the date of his appointment in the Textile Commissioner 's office at Ahmedabad and continued to work there 193 till February 1954.
He was transferred to Bombay in February 1954 and was informed in August 1954 that his services would be terminated from September 15, 1954.
No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him.
He therefore brought a suit in the City Civil Court at Bombay, and his contention was that his services had been terminated unjustifiably and maliciously as the Regional Director of Production in the Textile Commissioner 's office at Ahmedabad was against him.
Because of this on December 29, 1953, the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him.
The appellant went on to state in the plaint that certain enquiries were held against him behind his back but the matter was not pursued and he was transferred to Bombay in February 1954.
While he was at Bombay he received the notice terminating his services.
He claimed that he was a quasi permanent employee under the Central Civil Services (Temporary Service) Rules, 1949, (hereinafter referred to as the Rules) and no action under r. 5 of the Rules could be taken against him.
He was further entitled to the protection of article 311 of the Constitution and as his services were terminated without complying with that provision the order was bad and liable to be set aside.
It was further contended that if r. 5 applied to him, it was bad inasmuch as it was hit by article 16 of the Constitution and in any case the order passed against him was bad as it was discriminatory.
The appellant therefore prayed that the order of August 13, 1954 by which his services were terminated be declared illegal and inoperative and he be declared a quasi permanent employee and reinstated in service.
There was also a claim for arrears of salary and costs of the suit and such other consequential reliefs as the court might deem fit to give.
The suit was opposed by the Union of India and its main defence was that the appellant was not a quasi permanent employee and that r. 5 of the Rules I SCI/64 13 194 applied to him and that action was properly taken under ' that rule when terminating the appellant 's services by order dated August 13, 1954.
It was also contended that r. 5 was perfectly valid and that there was no discrimination practised against the appellant when his services were terminated.
It was admitted that the memo.
dated December 29, 1953 was issued to the appellant and he was directed to submit his explanation in respect of the irregularities mentioned therein to the Under Secretary, Government of India, New Delhi and to state why disciplinary action should not be taken against him.
It was also admitted that from December 1953 onwards some department inquiry was conducted against the appellant but it was averted that the said departmental inquiry was not pursued as the evidence against him was not considered to be conclusive.
But as the appellant 's work was not found satisfactory, he was transferred to Bombay in February 1954 to give him a chance of improvement.
As his work and conduct were ultimately found to be unsatisfactory, his employment was terminated under r. 5 of the Rules as he was a temporary employee.
On these pleadings three main questions arose for decision before the trial court, namely, (i) whether the appellant was a quasi permanent employee and r. 5 of the Rules did not apply, to him (ii) whether r. 5 was invalid as it was hit by article 16 of the Constitution and in any case whether the action taken against the appellant was discriminatory, and therefore hit by article 16 of the Constitution, and (iii) even if the appellant was a temporary government servant, whether he was entitled to the protection of article 311(2) of the Constitution in the circumstances of this case.
The trial court held on all these points against the appellant and dismissed the stilt.
The appellant then went in appeal to the High Court.
The High Court agreed with the trial court and dismissed the appeal.
The appellant then applied for a certificate to appeal to this Court, which was granted; and that is how the matter has come up before us.
195 The first question that fails for consideration is whether the appellant was a quasi permanent employee and r. 5 did not apply to him.
If the appellant is held to be a quasi permanent employee, he will be entitled to the protection of article 311(2) and as admittedly the provisions of article 311(2) were not complied with in the present case, his suit would have to be decreed and no further question would arise for decision.
Rule 3 of the Rules, which falls for consideration in this connection, is as follows: "A Government servant shall be deemed to be in quasi permanent service: (i) if he has been in continuous Government service for more than three years; (ii) if the appointing authority, being satisfied as to his suitability in respect of age, qualifications, work and character, for employment in a quasi permanent capacity has issued a declaration to that effect, in accordance with such instructions as the Governor General may issue from time to time.
" The contention on behalf of the appellant is that as there is no conjunction "and" between the two sub clauses of r. 3, a Government servant must be deemed to be quasi permanent if he complies with either of the two sub clauses.
It is urged that a temporary government servant will become quasi permanent if he has been in continuous government service for more than three years or if a declaration is made in his favour as required by sub cl.
The appellant thus reads the word "or" between the two sub clauses.
On the other hand, the respondent contends that looking at the scheme of the Rules the word "and" should be implied between the two sub clauses and that both the clauses must be fulfilled before a Government servant can be deemed to be in quasi permanent service.
In this connection our attention was drawn to two cases of this Court in which this rule was mentioned.
In Parshotam Lal Dhingra vs Union of India,(1) this Court, when referring to r. 3 at p. 858, used (1) [1958] S.C.R. 196 the conjunction "or" between the two sub clauses.
Learned counsel for the appellant relies on this to show that we should read the word "or" between the two sub clauses.
We are however of opinion that this Court was not specifically dealing with the interpretation of r. 3 in that case and what has been said there about r. 3 was merely for purposes of illustration.
The other case of this Court to which reference has been made is K.S. Srinivasan vs Union of India.(1) There while quoting r. 3 at p. 1307, this Court used the word "and" between the two subclauses.
That is probably due to the fact that the brochure on "Central Civil Services (Temporary Services) Rules 1949" printed by the General Manager, Government of India Press, New Delhi, 1959, contains the word "and" between the two sub clauses in r. 3.
That also in our opinion is not conclusive in favour of the respondent, because it is not disputed before us that in the Government gazette where the Rules were first published, neither the word "and" nor the word "or" appears between the two sub clauses of r. 3.
This aspect of the matter was considered by the Bombay High Court in B.M. Pandit vs Union of India(2) where the learned Judges pointed out at p. 48 that they found from the copy of the gazette of the Government of India in which these Rules were first published that neither the word "and" nor the word "or" appeared between the two subclauses and this position is accepted on behalf of the respondent before us.
The question therefore arises whether we have to read the two sub clauses conjunctively or disjunctively.
We may add that the Bombay High Court ' in the case mentioned above read the two sub clauses conjunctively and we are of opinion that view is correct.
The object of these Rules obviously was to provide for some security of tenure for a large number of temporary government servants who had to be employed in view of World War II and also to provide for former employees of the Governments of Sind, the North West Frontier Province and Baluchistan (1) ; (2) A.I.R. 1962 Bom.
45. 197 who had come to India on account of the Partition.
This protection was afforded to temporary government servants and the government servants of the other type by the device of creating quasi permanent service.
Rule 3 provided in what circumstances a government servant shall 'be deemed to be quasi permanent.
Quasi permanent service is defined in r. 2(2) as meaning "temporary service commencing from the date on which a declaration issued under r. 3 takes effect and consists of periods of duty and leave (other than extraordinary leave) after that date.
" R, de 3 therefore must be read with r. 2(b) which defines "quasi permanent service".
Under r. 2(b), quasi permanent service begins from the date on which a declaration is issued under r. 3.
It follows therefore that before a government servant can be deemed to be in quasi permanent service a declaration must be issued under the second sub clause of r. 3, for that is the sine quo non for the commencement of quasi permanent service.
Without such a declaration quasi permanent service cannot begin.
If therefore the appellant 's contention were to be accepted and a temporary government servant can be deemed to be in quasi permanent service, if only the first sub clause has been fulfilled, viz., that he has been in continuous government service for more than three years, there will be complete irreconcilability between r. 2(b) and the first clause of r. 3.
Therefore, reading these two rules together the conclusion is inevitable that we must read the two sub clauses conjunctively and hold that both conditions must be fulfilled before a Government servant can be deemed to be in quasi permanent service, namely, (i) that he has been in continuous government service for more than three years, and (ii) that the appointing authority after satisfying itself as to suitability in various respects for employment in quasi permanent capacity has issued a declaration to that effect.
It is however urged that the definitions in r. 2 have to be read subject to there being nothing repugnant in the subject or context and it is contended that in the context of r. 3 the two sub clauses must be read disjunctively.
198 We are of opinion that there is no force in this argument, and as a matter of fact the context of r. 3 itself requires that rule must be read in harmony with the definition of "quasi permanent service" in r. 2(b), for it could not possibly be the intention of the rule making authority to create disharmony between the definition in r. 2(b) and the provision in r. 3.
The contention on behalf of the appellants that the two sub clauses are independent and have to be read disjunctively must be rejected and it must be held that both the conditions in r. 3 must be satisfied before a government servant can be deemed to be in quasi permanent service.
This will in our opinion also be clear from the scheme of the Rules following r. 3.
Rule 4 provides that "a declaration issued under r. 3 shall specify the particular post or the particular grade of posts within a cadre in respect of which it is issued, and the date from which it takes effect.
" This rule is clearly meant to apply to all quasi permanent employees and shows that no government servant can be deemed to be in quasi permanent service until a declaration has been issued.
Rule 6 provides that "the service of a Government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as a government servant in permanent service.
" Now under the definition of r. 2(b), quasi permanent service begins with a declaration issued under sub cl.
(1)of r. 3.
Therefore the protection of r. 6 can only be given to a quasi permanent employee after a declaration has been made.
This again shows that a declaration is necessary before a Government servant can claim to be in quasi.permanent service.
Rule 7 provides that a government servant in respect of whom the declaration has been issued under r. 3, shall be eligible for permanent appointment on the occurrence of a vacancy in the specified posts which may be reserved for being filled from among persons in quasi permanent service.
This again shows that a quasi permanent employee can become eligible for permanent appointment only when a declaration has been issued under 199 r. 3.
Again r. 8 provides that a government servant in quasi permanent service shall as from the date on which his service is declared to be quasi permanent be entitled to the same conditions of service in respect of leave, allowances and disciplinary matters as a government servant in permanent service holding the specified post.
Here again the benefit of r. 8 can only be availed of by a quasi permanent government servant in whose favour a declaration has been made.
Then r. 9 provides that a government servant in quasi permanent service shall be eligible for a gratuity under certain circumstances.
This gratuity will be at the rate of half a month 's pay for each completed year of quasi permanent service, such gratuity being payable on the basis of the pay admissible to such government servant in respect of the specified post on the last day of his service.
This again contemplates a declaration before the benefit of r. 9 can be claimed by a quasi permanent employee.
Rule 10 provides that where a government servant in quasi permanent service is appointed substantively to a permanent pensionable post, the entire period of quasi permanent service rendered by him shall be deemed to be qualifying service for the grant of gratuity and pension.
Now under r. 2(b) quasi permanent service only commences after the declaration and therefore unless a declaration is made, the benefit of r. 10 cannot be taken by a quasi permanent employee.
The scheme of the rules therefore clearly shows that a declaration under r. 3 is necessary before a temporary government servant can claim to be a quasi permanent employee.
Otherwise if the two sub clauses of r. 3 were to be read disjunctively the result would be that a person may become a quasi permanent employee under sub cl.
(1) but will get none of the advantages mentioned above.
We are therefore satisfied that the scheme of the Rules and the harmony that is essential between r. 2(b) defining "quasi permanent service" and r. 3 laying down how a government servant can be deemed to be in quasi permanent service require that the two sub clauses should be read conjunctively and that two conditions 200 are necessary before a government servant can be deemed to be in quasi permanent service, namely, (i) continuous service for more than three years, and (ii) declaration as required by sub cl.
(ii)of r. 3.
It is not in dispute that though the appellant had been in service for more than three years by 1954, no declaration as required by sub cl.
(ii) of r. 3 has ever been made in his case.
He cannot therefore claim to be in quasi permanent service.
It follows therefore that he cannot claim the benefit of r. 6, which lays down that the services of a government servant in quasi permanent service shall be liable to termination in the same circumstances and in the same manner as government servants in permanent service.
If he could claim the benefit of r. 6, he would have been certainly entitled to the protection of article 311.
As he is not entitled to the benefit of r. 6, he cannot claim the benefit of article 311 (9.2) on the ground that he must be deemed to be in quasi permanent service.
The appellant therefore must be held to be still in temporary service when his services were dispensed with in August 1954.
The rule that applies to a temporary government servant is r. 5 which lays down that "(a) the service of a temporary Government servant who is not in quasi permanent service shall be liable to termination at any time by notice in writing given either by the Government servant to the appointing authority, or by the appointing authority to the Government servant.
(b) The period of such notice shall be one month, unless otherwise agreed to by the Government and by the Government servant; Provided that the service of any such Government servant may be terminated forthwith by payment to him of a sum equivalent to the amount of his pay plus allowances, at the same rates at which he was drawing them immediately before the termination of his services, for the period of the notice or, as the case may be, for the period by which such notice falls short of one month or any agreed longer period." 201 In short r. 5 gives power to the Government to terminate the services of a temporary government servant by giving him one month 's notice or on payment of one month 's pay in lieu of notice or such shorter or longer notice or payment in lieu thereof as may be agreed to between the Government and the employee concerned.
This rule is being attacked on the ground that it is hit by article 16, which provides that "there shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State".
We have not been able to understand how this rule can possibly be hit by article 16, which provides for equality of opportunity.
These Rules show that there are two classes of employees namely, (i) permanent employees, and(ii) temporary employees, the latter being divided into two sub clauses (a) quasi permanent, and (b) temporary.
It is well recognised that the Government may have to employ temporary servants to satisfy the needs of a particular contingency and such employment would be perfectly legitimate.
There can also be no doubt, if such a class of temporary servants could be recruited that there would be nothing discriminatory or violative of equal opportunity if the conditions of service of such servants are different in some respects from those of permanent employees.
Further we see no denial of equal opportunity if out of the class of temporary employees some are made quasi permanent depending on length of service and their suitability in all other respects for permanent employment eventually and thus assimilated to permanent employees.
It has been urged on behalf of the respondent that article 16 in any case will not apply to matters relating to termination of service.
We do not think it necessary for present purposes to decide whether article 16 would apply to rules relating to termination of service.
We shall assume for the purposes of this appeal that article 16 will apply even in the case of rules relating to termination of service.
But we fail to see how the rule which applies to one class of government servants in the matter of termination but does not apply to the other two classes can be said to violate 202 equality of opportunity provided in article 16.
The classification of government servants into these classes is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory in the circumstances.
In particular the very fact that the service of a government servant is purely temporary makes him a class apart from those in permanent service and such government servant cannot necessarily claim all the advantages which a permanent servant has in the matter of security of service.
We are therefore of opinion that considering the nature of the employment of a temporary government servant, a provision like that in r. 5 in respect of termination of service is a. reasonable provision which cannot be said to deny equality of opportunity provided in article 16.
The attack therefore on r. 5 on the ground that it is hit by article 16 of the Constitution must fail.
It is next urged that even if r. 5 is good, the order by which the appellant 's services were dispensed with was bad, because it was discriminatory.
In this Connection reference was made in the plaint to a number of Assistant Directors whose services were not dispensed with even though they were junior to the appellant and did not have as good qualifica tions as he had.
We are of opinion that there is no force in this contention.
This is not a case where services of a temporary employee are being retrenched because of the abolition of a post.
In such a case a question may arise as to who should be retrenched when one out of several temporary posts is being retrenched in an office.
In those circumstances, qualifications and length of service of those holding similar temporary posts may be relevant in consider ing whether the retrenchment of a particular employee was as a result of discrimination.
The present however is a case where the appellant 's services were terminated because his work was found to be unsatisfactory.
We shall deal with the question whether termination in this case is liable to be set aside on the ground that article 311 (2) was not complied with later; but where termination of the service of a temporary 203 government servant takes place on the ground.
that his conduct is not satisfactory there can in our opinion be no question of any discrimination.
It would be absurd to say that if the service of one temporary servant is terminated on the ground of unsatisfactory conduct the services of all similar employees must also be terminated along with him, irrespective of what their conduct is.
Therefore even though some of those mentioned in the plaint by the appellant were junior to him and did not have as good qualifications as he had and were retained in service, it does not follow that the action taken against the appellant terminating his services was discriminatory for that action was taken on the basis of his unsatisfactory conduct.
A question of discrimination may arise in a case of retrenchment on account of abolition of one of several temporary posts of the same kind in one office but can in our opinion never arise in the case of dispensing with the services of a particular temporary employee on account of his conduct being unsatisfactory.
We therefore reject the contention that the appellant was denied the protection of article 16 and was treated in a discriminatory manner.
We now come to the last question whether the appellant Was entitled to the protection of article 311(2) of the Constitution, even though he was a temporary government servant.
It is well settled that temporary servants are also entitled to the protection of article 311(2) in the same manner as permanent government servants, if the government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank: (see Parshotam Lal Dhingra vs Union of India(").
But this protection is only available where discharge, removal or reduction in rank is sought to be inflicted by way of punishment and not otherwise.
It is also not disputed that the mere use of expressions like "terminate" or "discharge" is not conclusive and in spite of the use of such innocuous expressions, the court has to apply the two tests mentioned in Parshotam Lal Dhingra 's case(1), namely (1) whether ( ) ; 204 the servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the servant had been punished.
Further even though misconduct, negligence, inefficiency or other disqualification may be the motive or the inducing factor which influences the Government to take action under the terms of the contract of employment or the specific service rule, nevertheless, if a right exists under the contract or the rules, to terminate the service the motive operating on the mind of the Government is wholly irrelevant.
It is on these principles which have been laid down in Parshotam Lal Dhingra 's case() that we have to decide whether the appellant was entitled to the protection of article 311(2) in this case.
Before however we consider the facts of this case, we should like to make certain general observations in connection with disciplinary proceedings taken against public servants.
It is well known that government does not terminate the services of a public servant, be he even a temporary servant, without reason; nor is it usual for government to reduce a public servant in rank without reason even though he may be holding the higher rank only temporarily.
One reason for terminating the services of a temporary servant may be that the post that he is holding comes to an end.
In that case there is nothing further to be said and his services terminate when the post comes to an end.
Similarly a government servant temporarily officiating in a higher rank may have to be reverted to his substantive post where the incumbent of the higher post comes back to duty or where the higher post created for a temporary period comes to an end.
But besides the above, the government may find it necessary to terminate the services of a temporary servant if it is not satisfied with his conduct or his suitability for the job and/or his work.
The same may apply to the reversion of a public servant from a higher post to a lower post where the post is held as a temporary measure.
This dissatisfaction with the work and,/or conduct of a temporary servant (1) ; 205 may arise on complaint against him.
In such cases two courses are open to government.
It may decide to dispense with the services of the servant or revert him to his substantive post without any action being taken to punish him for his bad work and/or conduct.
Or the Government may decide to punish such a servant for his bad work or misconduct, in which case even though the servant may be temporary he will have the protection of article 311(2).
But even where it is intended to take action by way of punishment what usually happens is that something in the nature of what may be called a preliminary enquiry is first held in connection with the alleged misconduct or unsatisfactory work.
In this preliminary enquiry the explanation of the government servant may be taken and documentary and even oral evidence may be considered.
It is usual when such a preliminary enquiry makes out a prima facie case against the servant concerned that charges are then framed against him and he is asked to show cause why disciplinary action be not taken against him.
An enquiry officer (who may be himself in the case where the appointing authority is other than the Government) is appointed who holds enquiry into the charges communicated to the servant concerned after taking his explanation and this inquiry is held in accordance with the principles of natural justice.
This is what is known as a formal departmental enquiry into the conduct of a public servant.
In this enquiry evidence both documentary and oral may be led against the public servant concerned and he has a right to cross examine the witnesses tendered against him.
He has also the right to give documentary and oral evidence in his defence, if he thinks necessary to do so.
After the enquiry is over, the enquiry officer makes a report to the Government or the authority having power to take action against the servant concerned.
The government or the authority makes up its mind on the enquiry report as to whether the charges have been proved or not and if it holds that some or all the charges have been proved, it determines tentatively the punishment to be inflicted 206 on the public servant concerned.
It then communicates a copy of the enquiry officer 'sreport and its own conclusion thereon and asks himto show cause why the tentative punishment decidedupon be not inflicted upon him.
This procedure is required by article 311(2) of the Constitution in the case of the three major punishments, i.e., dismissal, or removal or reduction in rank.
The servant concerned has then an opportunity of showing cause by making a represen tation that the conclusions arrived at the departmental enquiry are incorrect and in any case the punishment proposed to be inflicted is too harsh.
Generally therefore a preliminary enquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two should not be confused.
Even where government does not intend to take action by way of punishment against a temporary servant on a report of bad work or misconduct a preliminary enquiry is usually held to satisfy government that there is reason to dispense with the services of a temporary employee or to revert him to his substantive post, for as we have said already government does not usually take action of this kind without any reason.
Therefore when a preliminary enquiry of this nature is held in thecase of temporary employee or a governmentservant holding a higher rank temporarily it mustnot be confused with the regular departmentalenquiry (which usually follows such a preliminaryenquiry) when the government decides to frame charges and get a departmental enquiry made in order that one of the three major punishments already indicated may be inflicted on the government servant.
Therefore, so far as the preliminary enquiry is concerned there is no question of its being governed by article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a temporary government servant or a servant holding higher rank temporary to which he has no right.
In short 207 a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein.
Such a preliminary enquiry may even be held ex parte, for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry.
But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above.
There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in article 311 that the government servant is entitled to the protection of that Article.
That is why this Court emphasised in ParshotamLal Dhingra 's case(1) and in Shyamlal vs The Stateof Uttar Pradesh(2) that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.
In Shyamlal 's case(2) what happened was that the government servant concerned was called upon to explain certain matters which cast an imputation upon him; but later it was made perfectly clear to him by the government that it was not holding any formal departmental enquiry against him with a view to inflicting any of the three major punishments, although the government desired to give him an opportunity to show cause why he should not be compul (1) (1958] 1 S.C.R. 828 (2) 208 sorily retired, and after considering his explanation he was compulsorily retired under the relevant service rule.
It was held in that case that this did not amount to punishment within the meaning of article 311(2), even though there was some imputation at an earlier stage and even though the servant concerned was asked to explain why he should not be compulsorily retired.
As we have said already it is not usual for government to take action against a public servant without rhyme or reason and that is why in the case of temporary servants or servants holding higher ranks to which they have no right some kind of preliminary enquiry is usually held before the government decides to dispense with their set vice or revert them to their substantive posts.
The mere fact that some kind of preliminary enquiry is held against a temporary servant and following that enquiry the services are dispensed with in accordance with the contract or the specific service rule (e.g. r. 5 in this case) would not mean that the termination of service amounted to infliction of punishment of dismissal or removal within the meaning of article 311(2).
Whether such termination would amount to dismissal or removal within the meaning of article 311(2) would depend upon facts of each case and the action taken by government which finally leads to the termination of service.
Let us now turn to the facts of this case.
On December 29, 1953, a memorandum was given to the appellant under the signature of the Under Secretary to the Government of India.
By that memorandum he was informed about four matters and his explanation was called in that connection.
The first matter referred to his punctuality in attending office and his absenting himself from duty without prior intimation and instances in that respect were brought to his notice.
The second matter was with respect to irregular claims for mileage allowance in respect of his visits to mills some of which were never made.
Instances of these were also brought to his notice.
The third matter related to a certain visit to a certain mill on a certain date which was 209 never undertaken.
The fourth matter was general relating to his work and conduct being not satisfactory and his not attaching due importance to the performance of his duties in accordance with the instructions of the Regional Director.
He was required to submit his explanation by January 6, 1954 and also asked to state why disciplinary action should not be taken against him.
The contention on behalf of the appellant is that this memorandum really amounted to a chargesheet against the appellant and he was asked to give an explanation thereto and also to state why disciplinary action should not be taken against him.
Stress is laid on the last sentence of the memorandum where the appellant was asked why disciplinary action should not be taken against him.
It may be conceded that the way in which the memorandum was drafted and the fact that in the last sentence he was asked to state why disciplinary action should not be taken against him might give an impression that the intention was to hold a formal departmental enquiry against him with a view to punishing him.
But though this may appear to be so, what is important to see is what actually happened after this memo randum for the courts are not to go by the particular name given by a party to a certain proceeding but are concerned with the spirit and substance of it in the light of what preceded and succeeded it.
It is true that in the written statement of the respondent it is stated that from December 1953 onwards a departmental enquiry was being conducted against the appellant, though the written statement went on to say that departmental enquiry was not pursued as the evidence was not considered to be conclusive.
In actual fact however it is not even the case of the appellant that any enquiry officer was appointed to hold what we have called a formal departmental enquiry in which evidence was tendered from both sides in the presence of the appellant.
This is clear from para 8 of the plaint in which it is said that some enquiries appeared to have been held after the memorandum of December 1953 but were 210 not pursued further.
It is however clear that no formal departmental enquiry as contemplated under article 311(2) read with the relevant Central Services Rules was ever held after the notice of December 29, 1953, as otherwise the appellant would have taken part in such an enquiry and would have been entitled to cross examine witnesses produced against him and would also have been entitled to lead evidence.
It seems therefore clear that though this memorandum was issued and the appellant was asked therein to state why disciplinary action should not be taken against him, no departmental enquiry followed that memorandum and the matter was dropped.
That is further borne out by the fact that the appellant was transferred from Ahmedabad to Bombay in February 1954, which would be most unlikely if a departmental enquiry was going on against him in Ahmedabad.
The respondent 's case in this connection is that it gave up the departmental enquiry even though it was contemplated and transferred the appellant to Bombay in order to give him a chance of improvement.
The appellant worked in Bombay for over six months and thereafter the Government finally decided to terminate his services under r. 5 as his work and conduct were found unsatisfactory even after his transfer to Bombay.
On these facts there can in our opinion be no doubt that even if a departmental enquiry was contemplated in December 1953 it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him on December 29, 1953; what appears to have happened is that after the appellant was transferred to Bombay where he worked for six months more, the government came to the conclusion that his work and conduct were not satisfactory and therefore decided to terminate his services under r. 5.
We cannot accept the proposition that once government issues a memorandum like that issued in this case on December 29, 1953, but later decides not to hold a departmental enquiry for taking punitive action, it can never thereafter proceed to take action against a temporary government servant in the terms of r. 5, 211 even though it is satisfied otherwise that his conduct and work are unsatisfactory.
The circumstances in this case are in our opinion very similar to the facts in Shyamlal 's case("), the difference being that in that case he was compulsorily retired and in this case the appellant 's services have been terminated.
In Shyamlal 's case(1) also at one stage, the government made imputation against his conduct but later withdrew them and did not follow up the matter by holding a departmental enquiry.
This is exactly what happened in the present case and it was more than six months after that the appellant who had in the meantime been transferred to Bombay was discharged in the terms of r. 5 because his work and conduct were found unsatisfactory.
The order terminating his services makes no imputation whatsoever against him and in the circumstances it cannot be said that the termination of his service is visited with any evil consequences as explained in Parshotam Lal Dhingra 's case(2).
We are therefore of opinion that on the facts of this case article 311(2) has no application and the appellant was not entitled to the protection of that Article before his services were terminated under r. 5, for the termination of service here does not amount to infliction of the penalty of dismissal or removal.
It remains now to consider certain cases on which reliance was placed on either side.
Strong reliance has been placed on behalf of the appellant on Madan Gopal vs The State of Punjab(3).
In that case Madan Gopal was a temporary government servant.
A charge sheet was served on him on February 5, 1955 and he was charged with having taken bribes in two cases.
He was also asked to explain why disciplinary action should not be taken against him.
He was further asked to state if he wanted to be heard in person and also to put forth any defence.
It will be clear that charges were served upon Madan Gopal (1) ; (2) ; (3) [1963]1 3 S.C.R. 716. 212 in that case while in the present case no charges were ever served on the appellant and the communication of December 29, 1953 was headed as a memorandum.
Further the charge sheet in Madan Gopal 's case(,) besides asking him to state why disciplinary action should not be taken against him also asked him to state in his reply if he wanted to be heard in person and wanted to put forward any defence, which clearly showed that a departmental enquiry was going to be held particularly when the charges were given by the Settlement Officer who had apparently been appointed the enquiry officer for the purpose.
Further in Madan Gopal 's case(,) an enquiry was held and a report was submitted by the enquiry officer to the Deputy Commissioner.
The enquiry officer found Madan Gopal guilty of the charges and recommended that he should be removed from service immediately.
On the basis of this report an order was passed by the Deputy Commissioner which stated in so many words that it had been established that bribes had been taken by Madan Gopal and that he accepted the report of the Settlement Officer.
The Deputy Commissioner then went on to order that the services of Madan Gopal were terminated on payment of one month 's pay in lieu of notice.
Obviously in that case a departmental enquiry was held by the enquiry officer, a report was made to the Deputy Commissioner who was apparently the authority to dismiss or remove Madan Gopal and he passed the order terminating his services on the basis of the report, though he did not use the word "dismiss" or "remove" in his order.
In those circumstances this Court held in conformity with what had been said in Parshotam Lal Dhingra 's case(2) that the mere use of the word "termination" would not conclude the matter and as the facts showed as they did in Madan Gopal 's case() that the order was one of dismissal or removal and was passed as a punishment after inquiry, article 311(2) should have been complied with.
The facts of that case in our opinion are very different from the facts in the present case.
(1) [1963] 3 S.C.R. 716.
(2) ; 213 As we have already pointed out no departmental enquiry was really held after the memorandum of December 29, 1953 in this case and no enquiry officer was appointed and no report was made by any enquiry officer.
Whatever might have been the intention behind the memorandum dated December 29, 1953, the matter was not pursued and the departmental enquiry if it was ever intended to be held was dropped.
The appellant thereafter was transferred to Bombay to give him chance of improvement and it was only six months later when it was found that his work and conduct were still unsatisfactory that government took action under r. 5 and dispensed with his services.
On the facts of the present case therefore it cannot be said that the order of dispensing with the services of the appellant which was passed in August 1954 was an order punishing the appellant by imposing upon him the penalty of removal or dismissal.
The next case is The State of Bihar vs Gopi Kishore Prasad(1).
That was a case of a probationer and this Court laid down five propositions therein.
It is the third proposition therein on which strong reliance has been placed on behalf of the appellant.
It is in these terms : "But, if instead of terminating such a person 's service without any enquiry, the employer chooses to hold an enquiry into his alleged misconduct, or inefficiency, or for some similar reason, the termination of service is by way of punishment, because it puts a stigma on his competence and thus affects his future career.
In such a case he is entitled to the protection of article 311(2) of the Constitution.
" it is urged on behalf of the appellant that this proposition means that as soon as any kind of enquiry is held against a probationer and the same it is said will apply to a temporary employee as the two (1) A.I.R. 1960 S.C. 689.
214 stand more or less on the same footing the protection of article 311(2) would be available.
We are of opinion that this is reading much more in the proposition then was ever intended by this Court.
In that case the Government after some kind of enquiry said in the order terminating the services of the servant concerned that confidential enquiries showed that he had the reputation of being a corrupt officer and that there was ample material to show that the report about his resorting to corrupt practices was justified.
The order further said that his work was wholly unsatisfactory and in consideration of those matters, it was provisionally decided to terminate the probation and the government servant was asked to show cause why he should not be discharged.
His explanation was then considered and the Government finally decided to discharge him.
The facts of that case as they appeared from the copy of the government decision showed that the government was actually proceeding on the basis that article 311(2) was applicable in that case and that is why some enquiries were held and a provisional conclusion to terminate the services of the officer concerned was arrived at and he was asked to show cause against that.
In those circumstances this Court held that as government had purported to take action under article 311, the action was bad as the protection envisaged by that Article was not afforded to the servant concerned.
The third proposition therefore in that case does not in our opinion lay down that as soon as any kind of enquiry is held into the conduct of a probationer or a temporary servant he is immediately entitled to the protection of article 311.
All that the third proposition lays down is that if the govern ment chooses to hold an enquiry purporting to act under article 311 as was the case in that case, it must afford to the government servant the protection which that Article envisages.
Gopi Kishore Prasad 's case(1) was considered by this Court in a later case in the State of Orissa (1)A.I.R, 215 vs Ram Narayan Das,(1) which was also a case of a probationer.
In Ram Narayan Das 's case,(1) the order was to the effect that the government servant was discharged from service for unsatisfactory work and conduct from the date on which the order was served on him.
This Court in Ram Narayan Das 's case(1) referred to the rules, which provided that " where it is proposed to terminate the employment of a probationer, whether during or at the end of the period of probation, for any specific fault or on account of his unsuitability for the service, the probationer shall be apprised of the grounds of such proposal and given an opportunity to show cause against it, before orders are passed by the authority competent to terminate the employment" and pointed out that action in accordance with the rules would not be hit by article 31 1.
Gopi Kishore Prasad 's case(1) was distinguished in that case and it was pointed out that the third proposition in Gopi Kishore Prasad 's case(2) referred to "an enquiry into allegations of misconduct or inefficiency With a view, if they were found established, to imposing punishment and not to an enquiry whether a probationer should be confirmed," which means that where the Government purports to hold an inquiry under article 311 read with the Rules in order to punish an officer, it must afford him the protection provided therein.
The third proposition therefore in Gopi Kishore Prasad 's case(2) Must be read in the context of that case and cannot apply to a case where the government holds what we have called a preliminary enquiry to find out whether a temporary servant should be discharged or not in accordance with his contract or a specific service rule in view of his conduct.
The third proposition must be restricted only to those cases whether of temporary government servants or others, where government purports to act under article 311(2) but ends up with a mere order of termination.
In such a case the form of the order is immaterial and the termination of service may amount to dismissal or (1) ; (2) A.I.R. 1960 S.C. 689.
216 removal.
The same view has been taken in Jagadish Mitter vs Union of India(1) We are therefore of opinion that on the facts of this case it cannot be said that the order by which the appellants, services were terminated under r. 5 was an order inflicting the punishment of dismissal or removal to which article 311(2) applied.
It was in our opinion an order which was Justified under r. 5 of the rules and the appellant was not entitled to the protection of article 311(2) in the circumstances.
The appeal therefore fails and is hereby dismissed.
In the circumstances we pass no order as to costs.
Appeal dismissed. | The appellant was in the service of Union of India, his appointment being temporary liable to be terminated on one month 's notice on either side.
He was appointed in June 1949.
On August 1954 he was informed that his services would be terminated from September 1954.
No cause was assigned for the termination of his services and no opportunity was given to him of showing cause against the action taken against him.
Before such termination the appellant was called upon to explain certain irregularities and was also asked to submit his explanation and to state why disciplinary action should not be taken against him.
Certain preliminary enquiries were held against him but he was not heard therein.
No regular departmental enquiry however followed and the proceedings were dropped.
Claiming that he is a quasi permanent servant he brought a suit against the Union of India alleging that the termination of his service was not justified.
He prayed in the suit for a declaration that the termination of his service was illegal.
He also claimed arrears of salary.
The trial Court dismissed the suit and he appealed to the High Court 191 without success.
The present appeal was filed on a certificate granted by the High Court.
The first contention raised by the appellant was that he was a quasi permanent employee and r. 5 of the Central Civil Service (Temporary Service) Rules, 1949 did not apply to him.
Secondly it was contended that r. 5 was invalid as it was hit by article 16 of the Constitution and in any event the action taken against him was discriminatory and therefore hit by article 16.
It was further contended that even if the appellant was a temporary servant he was entitled to the protection of article 311 (2) of the Constitution.
: (i) Sub cls.
(1) and (2) of r. 3 should be read conjunctively and not disjunctively and both the conditions contained therein should be fulfilled before a Government servant can be deemed to be in quasi permanent service.
The Government servant has to show that he has been in continuous Government service for more than three years and that the appointing authority has made a declaration under sub cl.
(2) of r. 3.
This being the position, since no declaration has been made in his case, the appellant cannot claim the benefits of r. 6 which places a quasi permanent servant and a permanent servant on the same footing in the matter of termination of service.
Hence he cannot claim the protection of article 311(2) on the ground that he must be deemed to be in quasi permanent service.
B.M. Pandit vs Union of India, A.I.R. 1962 Bom.
45, Purshottarn Lal Dhingra vs Union of India, ; and K.S. Srinivasan vs Union of India, ; , distinguished.
(ii) R. 5 which provides for termination of the services of a temporary Government servant by giving him one month 's notice is not hit by article 16.
The classification of Government servants into permanent, quasi permanent and temporary is reasonable and differences in the matter of termination of service between these classes cannot be said to be discriminatory.
(iii) Where termination of service of a temporary Government servant takes place as it has taken place in the present ease, on the ground that his conduct is not satisfactory there cannot be any question of any discrimination.
The contention of the appellant that he was denied the protection of article 16 and was treated in a discriminatory manner is rejected.
(iv) Temporary Government servants are also entitled to the protection of article 311(2) in the same manner as a permanent Government servants, if the Government takes action against them by meting out one of the three punishments i.e. dismissal, removal or reduction in rank.
purshottam Lal Dhingra vs Union of India, ; Held, that when a preliminary enquiry is held to determine whether a prima facie case for a formal departmental enquiry is made out in the case of a temporary employee or a Government servant holding a higher rank temporarily there is no question 192 of its being governed by article 311(2).
Such a preliminary enquiry may even be held ex parte.
It is only when the Government decides to hold a regular departmental enquiry for the purpose of inflicting one of the three major punishments that the Government servant gets the protection of article 311.
Shyamlal vs State of U.P. ; and Purshottam Lal Dhingra vs Union of India, ; , explained.
Held, that even if a departmental enquiry against the appellant was contemplated it was not pursued and no punitive action was taken against him on the basis of the memorandum issued to him.
Simply because the Government issued such a memorandum but later decided not to hold a departmental enquiry for taking punitive action, it cannot be said that the Government can never thereafter proceed to take action under the terms of r. 5 even though it is satisfied otherwise that the appellant 's conduct and work are unsatisfactory.
Madan Gopal vs State of Punjab, [1963] 3 S.C.R. 716, State of Bihar vs Gopi Kishore Prasad, A.I.R. 1960 S.C. 689.
State of Orissa vs Ram Narayan Das, ; and, Jagdish Mitter vs Union of India, A.I.R. distinguished. |
Appeal No. 183 of 1984.
From the Judgment and Order dated 23.10.1982 of the Kerala High Court in A.S. No. 309 of 1977.
Dr. Y.S. Chitale, Aseem Mehrotra, Mukul Mudgal, R.K. Aggarwal, S.K. Aggarwal and Sudhir Gopi for the Appellant.
545 G. Viswanatha Iyer and P.K. Pillai for the Respondents.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
In this appeal an important question touching upon the interpretation of Section 9 of The ( 'Act ' for short) defining 'holder in due course ' falls for consideration.
The appeal is directed against the judgment of the High Court of Kerala confirming the judgment of the Subordinate Judge, Tellicherry in Original Suit No. 74 of 1975.
To appreciate the question involved it becomes necessary to state the relevant facts and while stating so we shall refer to the parties as arrayed in the suit for convenience sake.
The plaintiff Catholic Syrian Bank Ltd. is a banking company incorporated under the Indian Companies having its Head Office in Trichur and branches at various places.
The first defendant firm consisting of defendant Nos. 2 to 4 as partners who are brothers, was doing business in Telli cherry in hill produces and they were allowed credit facili ties by the plaintiff Bank, like accommodation by way of Hundi discount, key loan and cheque purchases upto a limit of Rs.35,00,000.
A promissory note was executed by defend ants Nos. 2 to 4 in favour of their mother, the 5th defend ant for an amount of Rs.35,00,000 and the same was endorsed in favour of the plaintiff as security for the facilities granted to the first defendant firm.
The 5th defendant had also deposited the title deeds of her properties shown in the plaint schedule to create an equitable mortgage to secure the repayment of the amounts due from first defend ant.
The first defendant firm had dealings with 6th defend ant as well as others.
The first defendant firm was supply ing goods consisting of hill products and used to receive payments by way of cheques.
On 26.10.74, 6th defendant drew a cheque on the Union Bank of India, Palghat Branch in favour of the first defendant payable to the first defendant firm on order a sum of Rs.2,00,000.
The cheque was purchased by the plaintiff Bank from the first defendant on 30.10.1974 on valid consideration and proceeds were credited by the Bank to the account of the first defendant.
Similarly anoth er cheque was drawn on 31.10.1974 and the first defendant endorsed the same to the plaintiff for valid consideration and the proceeds were credited to the account of the first defendant who withdrew the amount at various dates.
The plaintiff Bank sent the cheques for collection but the Union Bank of India returned the same with the endorsement "full cover not received".
The defendant Nos. 2 to 5 by two sepa rate agreements offered to pay 546 the amounts to the plaintiff Bank and as per the terms therein they were to pay Rs. 1,000 per month and the 5th defendant was to pay the amount realised by her from the tenants by way of rent and they could pay only 12,3 13.35 p. Thereupon after exchange of notices between defendant No. 6 and other defendants a suit was filed for the recovery of the balance amount from defendant No. 6 also who issued the cheques.
The defendant No. 6 who is the appellant herein, con tended that the cheques were issued to the first defendant on their representation that they would supply a large consignment of pepper, dry ginger etc.
and the understanding was that the cheques would be presented only after the consignment was despatched.
Since the first defendant failed to despatch the goods, the 6th defendant could not pay the money in the Bank and therefore the cheques were not ho noured.
He also pleaded that he would not admit the purchase of cheques by the plaintiff and that plaintiff was only a collection agent and there was no consideration for purchase and therefore the plaintiff was not a holder in due course.
It was also contended that plaintiff acted negligently and in disregard of the provisions of law, therefore there was no valid cause of action against the defendant.
It may not be necessary for us to refer to the stand taken by the other defendants.
The trial court held that the plaintiff is a 'holder in due course ' and as such is entitled to enforce the liability against the 6th defendant, who is the maker of the cheques.
The trial court also held that the defendant Nos. 2 to 4 were personally liable for the plaint claim and the assets of the first defendant would also be liable if the hypothecation is not sufficient to discharge the decree amount.
The 6th defendant alone filed an appeal in the High Court and the others figured as respondents.
The High Court confirmed the findings of the trial court but modified the decree holding that immovable properties described in the Schedule to the plaint would be proceeded against in the first instance and if the entire decree amount cannot be realised by the sale of those properties, the plaintiff Bank would proceed against the assets of the first defendantfirm, and for the balance, if any, the decree holder would proceed against defendants Nos. 2 to 4 and 6 and the liability of the 5th defendant is restricted to the extent of immovable properties mortgaged by her.
Aggrieved by the said judgment and decree, the 6th defendant has preferred this appeal.
Dr. Chitale, learned counsel appearing for the appellant submitted that respondent No. 1 herein namely the plaintiff Bank is not a 'holder in due course ' and therefore cannot maintain any legal action 547 against the appellant i.e. defendant No. 6 who had drawn the cheques.
His main submission is that the plaintiff Bank acted negligently and did not act in good faith in paying the amounts due under the cheques to the defendant firm without making any enquiries regarding the "title" of the person namely defendant No. 1 from whom the Bank claims to have purchased the cheques for consideration.
It is submit ted that the cheques were issued by defendant No. 6, the appellant, with the understanding that the goods would be supplied and the plaintiff Bank without making any enquiries whether the goods were supplied or not and without any verification from the Union Bank of India paid the amounts to the payee namely defendant No. 1 within few days in a hasty and negligent manner.
Therefore, according to the learned counsel, the necessary ingredients of the definition of 'holder in due course ' in the case of plaintiff are not satisfied and consequently the plaintiff Bank can not main tain any claim against the appellant.
Section 9 of the which defines 'holder in due course ' reads as under: "Holder in due course" means any person who for considera tion became the possessor of a promissory note, bill of exchange or cheque if payable to bearer, or the payee or indorsee thereof, if payable to order before the amount mentioned in it became payable, and with out having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
" The definition makes it clear that to be a 'holder in due course ' a person must be a holder for consideration and the instrument must have been transferred to him before it becomes overdue and he must be a transferee 'in good faith and another important condition is that the transferee namely the person who for consideration became the possessor of the cheque should not have any reason to believe that there was any defect in the title of the transferor.
It is beyond dispute that the plaintiff bank credited the proceeds to the account of the first defendant who also withdrew the amount on various dates.
Therefore it has been rightly held that the plaintiff purchased the cheques for valid consideration after the necessary endorsement by the bearer before they became overdue.
In this con 548 text, the learned counsel.
however, contended that the plaintiff was only a holder and was only a collection agent as per the endorsement made by the defendant No. 1.
Section 8 defines 'holder ' as a person entitled in his own name to the possession of a cheque or bill of exchange or a promis sory note and to receive or recover the amount due thereon from the parties thereto.
Section 118 of the which deals with the presumptions as to negotiable instruments provides in clause (g) that the holder of a negotiable instrument shall be presumed as a holder in due course.
Section 118(g) reads as under: "118.
Until the contrary is proved, the following presump tions shall be made: XX XX XX XX XX XX (g) that the holder of a negotiable instrument is a holder in due course; provided that, where the instrument has been obtained from its lawful owner, or from any person in lawful custody thereof, by means of an offence or fraud, or has been obtained from the maker or accept or thereof by means of an offence or fraud, or for unlawful consideration, the burden of proving that the holder is a holder in due course lies upon him.
" In the instant case, the holder namely defendant No. 1 made the necessary endorsements in the two cheques in favour of the plaintiff Bank and the Bank endorsed "payee account credited".
The defendant No. 1 withdrew this amount and there is no dispute about it.
It must also be noted in this context that there is no endorsement on the cheque made by the drawer namely the appellant that the cheques are not negotiable.
In the absence of the cheques being crossed as "not negotiable" nothing prevented the plaintiff Bank to purchase the cheques for a valuable consideration and the presumption under Section 118(g) comes to his rescue and there is no material whatsoever show that the cheques were obtained in any unlawful manner or for any unlawful consid eration.
Now the question is whether the other requirement of the definition i.e. "without having sufficient cause t9 believe that any defect existed in the title of the person from whom he derived his title" is satisfied.
It is contended on behalf of the appellant that the cheques were issued on the representation that the defendant No. 1 would 549 supply the goods and that the cheques would be presented after the despatch and delivery of the goods but defendant No. 1 failed to despatch the goods and that plaintiff with out any enquiries about the title of the payee could not have purchased the cheques because there was sufficient cause to believe that the title of the bearer was not free from defects.
According to the learned counsel, the Indian Law is stricter, and is not satisfied merely with the hones ty of the person taking the instrument, but requires the person to exercise due diligence.
and goes a step further then English Law in scrutinising the causes which go to make up the belief in the mind of the transferee.
To appreciate the submission of the learned counsel it becomes necessary to refer to the various authorities cited by him including the text books, in the first instance an English law and then on Indian Law on the subject.
In Eng lish Law, Section 29 of the Bills of Exchange Act, 1882 defines 'holder in due course '.
The relevant part of Section 29(1)(b) reads thus: "29.
Holder in due course (a) A holder in due course is a holder who has taken a bill, complete and regular on the face of it, under the following conditions.
namely: (a) xx xx xx (b) that he took the bill in good faith and for value, and that at the time the bill was negotiated to him he had no notice of any defect in the title of the person who negoti ated it.
" Section 90 of this Act reads as under: "90.
Good faith: A thing is deemed to be done in good faith within the meaning of this Act, where it is in fact done honestly, whether it is done negligently or not." These provisions have been understood and interpreted to mean that the holder should take the bill in good faith and he is deemed to have 'acted in good faith and if he acts honestly and negligence will not affect his title.
In Byles of Bills of Exchange, 25th Edn.
Page 206 a passage reads thus: 550 "A wilful and fradulent absence of inquiry into the circum stances, when they are known to be such as to invite in quiry, will (if the jury thinks that the abstinence from inquiry arose from a suspicion or belief that inquiry would disclose a vice in the bills) amount to general or implied notice.
" There must, however, be something to put the holder on inquiry." In Nelson vs Larholt, the defendant re ceived cheques for value drawn by an executor in fraud of the testator.
Denning, J. held that the defendant could not escape liability because he knew or ought to have known of the executor 's want of authority.
In Baker vs Barclays Bank Ltd., the expression "notice" occur ring in Section 2(1)(b) of the Bills of Exchange Act, 1882 is interpreted to mean actual notice and there is no ques tion of constructive notice.
In Chitty on Contracts, 26th Edn.
the learned author states the requirement that must be fulfilled before a person may be considered a holder in due course as under: "First, he must take the bill when it is complete and regu lar on its face.
Secondly, he must take it before it is overdue and without notice that it was previously disho noured, if such was the fact.
Knowledge that a bill is bound to be dishonoured may also be relevant.
Thus, a Canadian authority suggests that a holder, who has taken a cheque with the knowledge of its having been countermanded, is not a holder in due course.
Thirdly, he must take it in good faith and without having notice of any defect in the title of the person who negotiates the bill to him.
In particular the title of the person who negotiates the bill is defective when he obtained the bill or its acceptance by fraud, duress or other unlawful means, or for an illegal consideration, or when he negotiates it in breach of faith or under circum stances amounting to fraud.
Last, a holder in due course must take the bill for value i.e. consideration.
" The learned author dealing with the presumption of good faith has noted in paragraph 2781 thus: "Presumption of good faith.
Every party whose signature appears on a bill is prima facie deemed to have become a 551 party thereto for value.
Every holder of a bill is prima facie deemed to be a holder in due course; but if the ac ceptance, issue or subsequent negotiation of the bill was affected with fraud, duress or illegality, the burden of proof is shifted, and the holder must prove that.
subsequent to the alleged fraud or illegality, value was in good faith given for the bill.
Thus, once a fraud is proved.
the burden of proof is shifted to the holder who must then show not only that value has been given for the bill.
but also that he took the bill in good faith and without notice of the fraud.
If the holder can discharge this onus he is, again, in the position of a holder in due course." (emphasis supplied) The learned author Chitty in paragraph 2778 dealing with the subject 'The Consideration for a Bill ' has stated thus: "For example, if a person whose banking account is overdrawn negotiates to this bankers a cheque.
drawn by a third party, to reduce the overdraft, the banker becomes a holder for value of the cheque.
The pre existing debt of the overdraft is a sufficient consideration for the negotiation of the cheque to the banker.
" A consideration of the above passages and decisions goes to show that English law requires that the holder in taking the instrument should act in good faith and that he had no notice of any defect in the title and if he has acted hon estly, he is deemed to have acted in good faith whether it is negligently or not.
With the above background of English Law.
we shall now examine the Indian law on the subject.
In Bhashyam & Adiga on the , 15th Edn.
at page 171, the authors have dealt with the position in Indian law and it is observed that it would be Seen that the Indian Legislature has adopted the older English law as laid down by Abbott.
C.J., (later Lord Tent erden) in Gill vs Cubitt, English Reports 107~ King 's Bench 806.
Relying on this passage the learned counsel proceeded to submit that the Indian law is stricter than English law and requires the person to exercise due diligence and in this context the Indian law goes even a step further than English law in scrutinising the causes which go to make up the belief in the mind of the transferee.
Gill 's case (supra) is a case where a bill of exchange was stolen during the night.
and taken to the office of a discount broker early in the following 552 morning by a person whose features were known, but whose name was unknown to the broker and the latter being satis fied with the name of the acceptor, discounted the bill, according to his usual practice, without making any enquiry of the person who brought it.
On these facts it was held that the plaintiff had taken the bill under circumstances which ought to have excited the suspicion of a prudent and careful man.
Abbott.
C.J. (later Lord Tenterden) observed: "It appears to me to be for the interest of commerce, that no person should take a security of this kind from another without using reasonable caution.
If he takes such security from a person whom he knows, and whom he can find out, no complaint can be made of him.
In that case he has done all any person could do.
But if it is to be laid down as the law of the land.
that a person may take a security of this kind from a man of whom he knows nothing, and of whom he makes no enquiry at all, it appears to me that such a decision would be more injurious to commerce than convenient for it.
by reason of the encouragement it would afford to the purloin ing, stealing, and defrauding.persons of securities of this sort.
The interest of commerce requires that bona fide and real holders of bills, known to be such by those with whom they are dealing, should have no difficulties thrown in their way in parting with them.
But it is not for the inter est of commerce that any individual should be enabled to dispose of bills or notes without being subject to inquiry.
" Bayley, J. agreeing with Abbott, C.J. however, added: admit that has been generally the case; but I consider it was parcel of the bona fides whether the plain tiff had asked all those questions which, in the ordinary and proper manner in which trade is conducted, a party ought to ask.
I think from the manner in which my Lord Chief Justice presented this case to the consideration of the jury, he put it as being part and parcel of the bona fides; and it has been so put in former cases.
" Holroyd. J., having agreed with Abbott, C.J. further ob served that: 553 "The question whether a bill or note has been taken bona fide involves in it the question whether it has been taken with due caution.
It is a question of]act for the jury, under all the circumstances of the case.
whether a bill has been taken bona fide or not; and whether due and reasonable caution has been used by the person taking it.
And if a bill be drawn upon parties of respectability capable of answering it, and another person discounts it merely because the acceptance is good, without using due caution, and without inquiring how the holder came by it, I think that the law will not, under such circumstances, assist the parties so taking the bill, in recovering the money.
If the bill be taken without using due means to ascertain that it has been honestly come by, the party, so taking on himself the risk for gain.
must take the consequence if it should turn out that it was not honestly acquired by the person of whom he received it.
Here the person in possession of the bill was a perfect stranger to the plaintiff, and he discounted it, and made no inquiry of whom the bill had been obtained, or to whom he was to apply if the bill should not be taken up by the acceptor.
I think those circumstances tend strongly to show that the party who discounted the bill did not choose to make inquiry, but supposing the questions might not be satisfactorily answered, rather than refuse to take the bill, took the risk in order to get the profit arising from commission and interest." (emphasis supplied) In Chalmers on Bills of Exchange, 13th Edn.
at page 283 the learned author deals with the expression good faith ' occur ring in Section 90 of the said Act and it is stated as under: "Test of bona fides The test of bona fides as regards bill transactions has varied greatly.
Previous to 1820 the law was much as it now is under the Act.
But under the influence of Lord Tenterden (Abbott, C.J. in Gill vs Cubbitt) due care and caution was made the test, and this principle seems to be adopted by Section 9 of the Indian ." (emphasis supplied) The learned author Parathasarathy in his book 'Cheques in Law and 554 Practice '.
4th Edn. has also noted this aspect.
At page 74, a passage reads thus: "The Indian definition imposes a more stringent condition on the holder in due course than does the English definition.
Under English law, he should not have notice of a defect in the transferor 's title and he should have taken the instru ment in good faith.
Under Indian law, there should be no cause to believe that any such defect existed.
Hence, it is not sufficient if the holder acts in good faith.
He should also exercise due care and caution in taking the instrument.
Perhaps, the Indian definition is based on Gill vs Cubbit, ; In Raghavji Vizpal vs Narandas Parmanandas, Bombay Law Reporter Vol.
VIII (1906) 921 the Bombay High Court, howev er.
held that negligence does not affect the title of a person taking the instrument in good faith for value.
It is observed thus: "The test of good faith in such cases is thus: Regard to the facts of which the taker of such instruments had notice is most material whether he took in good faith.
If there be anything which excites suspicion that there is something wrong in the transaction, the taker of the instrument is not acting in good faith if he shuts his eyes to the facts presented to him and puts the suspicions aside without further inquiry." (emphasis supplied) We may also mention it here that there is no reference to Gill 's case in the above decision.
In Bhashyam & Adiga on the , 15th Edn.
at page 172.
the author having noticed the ratio in Raghavji 's case observed: "The Bombay High Court quoted the later English decisions with approval and applied them to the facts of the case before them, but the question is not discussed in the light of the words of this Section, and the decision is opposed to the opinion expressed by Chalmers in his commentaries on the Indian Act.
" In Durga Shah Mohan Lal Bankers vs Governor General in Council & Others, AIR 1952 Allahabad 590 a Division Bench examined the scope 555 of the provisions of Section 9 of the Act and held that: "The provision that the person must have become possessor of a cheque "without having sufficient cause to believe" is more favourable to the person who claims to ' have become holder in due course than the words "acting bona fide".
His claim would be defeated only if it is found that there was sufficient cause for him to believe that a defect existed.
If he fails to prove bona fides or absence of negligence, it would not negative his claim.
There must be evidence of positive circumstances on account of which he ought to have believed that some defect existed." (emphasis supplied) In this case also there is no reference to Gill 's case.
The learned counsel for the appellant submitted that the deci sion in Raghavji 's case is in favour of the appellant.
however.
conceded that the Durga Shah 's case is in favour of the respondent i.e. the plaintiff Bank.
We may, however, note another judgment of the learned Single Judge of the Bombay High Court in Sunderdas Sobhraj, a firm vs Liberty Pictures, a firm, AIR 1956 Bombay 618 wherein the scope of Section 9 is considered and it is held thus: "The rule as laid down in section 9 of the which defines "holder in due course" is stricter than the rule of English law on the subject and a payee or endor see of a negotiable instrument can, under our.law.
prefer a claim to be a holder in due course of the instrument only if he obtained the same without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
A bona fide holder for value without notice is, of course.
as I have already observed.
in a different position.
" The learned Single Judge has not.
however.
referred to the Raghavji 's case.
We have.
already noted that in Raghavji 's case reliance was placed on English decisions later to the decision in Gill 's case.
The authors Chalmers.
Bhashyam & Adiga and Parathasarathy have uniformly stated that Section 9 of the Act is based on the ratio in Gill 's case.
Learned counsel appearing on both sides could not place any other decision directly on the question.
The view taken by the Allahabad High Court in Durga Shah 's case is more or less in accordance 556 with the principle laid down in Gill 's case.
However, with regard to the legal importance of negli gence in appreciating the principle of "sufficient cause to believe" a passage from Chalmers ' took "The Law Relating to Negotiable Instruments in British India" 4th Edn.
may use fully be noted: "All the circumstances of the transactions whereby the holder became possessed of the instrument have a bearing on the question whether he had "sufficient cause to believe ' ' that any defect existed.
It is left to the Court to decide, in any case where the holder has been negligent in taking the instrument without close enquiry as to the title of his transferor.
whether such negligence is so extraordinary as to lead to the presumption that the holder had cause to believe that such title was defective." (emphasis supplied) This view is more sound and logical.
The legal position as explained by Chitty may be noted in this context which reads as under: "While the doctrine of constructive notice does not apply in the law of negotiable instruments the holder is not entitled to disregard a "red flag" which has raised his suspicions.
therefore.
modify the view taken by the Allahabad High Court in Durga Shah 's case to the extent that though the failure to prove bona fide or absence of negligence would not negative the claim of the holder to be a holder in due course.
yet in the circumstances of a given case.
if there is patent gross negligence on his part which by itself indicates lack of due diligence.
it can negative his claim.
for he can not negligently disregard a "red flag" which arouses suspicion regarding the title.
In this view of the matter we hold that the decision in Raghav.
ii 's case does not lay down correct law.
We agree with the view taken by the Allahabad High Court with above modification.
Before we apply the above principles to the facts of this case we would like to advert to another submission of the learned counsel Dr. Chitale.
He urged that in the in stant case the plaintiff Bank has not acted in good faith and with due diligence in crediting the proceeds to 557 the account of the defendant No. 1 inasmuch as there is no authority either by way of express or implied contract between them and the defendant No. 1.
In support of this submission he relied on certain passages in Halsbury 's Laws of England.
In Halsburv 's Law of England, 4th Edn.
in para graph 22 1 (page 186) the author says: "Bank as holder for value.
A banker who is asked by a cus tomer to collect a cheque and who.
pursuant to a contract express or implied to do so.
credits the customer forthwith with the amount of the cheque before the proceeds are re ceived, in fact receives the sum for himself and not for the customer; but he has the same statutory protection in such circumstances as if he had received payment of the cheque for the customer.
XX XX XX Every holder is deemed to be a holder in due course; but.
if the instrument is shown to be affected by fraud.
a banker dealing with it must show that he gave value in good faith subsequent to the fraud.
The status of holder for value may be claimed by the bank; where cash has been given for the cheque over the counter; where the cheque is paid in intro duction of an overdraft.
where the cheque is paid in on the footing that it may be at once drawn against, whether in fact it is drawn against or not; or where the cheque is subject to a lien.
However, the mere existence of an over draft.
though the banker 's lien in respect thereof makes him a holder for value to the extent of that lien, would not preclude the protection.
XX XX XX A banker who gives value for.
or has a lien on, a cheque payable to order which the holder derives to him for collec tion without endorsing it as such, if any rights as he would have had if, upon delivery, the holder has endorsed the cheque in blank.
A banker taking such a cheque is the holder thereof and.
if the requisite conditions are present, a holder for value or in due course.
It is not essential that the cheque be credited to the account of the holder.
" Yet another important passage in paragraph 222 reads as under: "222.
Crediting as cash.
The mere fact that the banker has 558 credited the cheque in his customer 's account before receiv ing the proceeds does not deprive him of protection against the true owner in the event of his customer having no title.
or a defective title, to the cheque.
Crediting the custom er 's account does not of itself alter the position of the banker from that of agent for collection to that of holder for value.
It is a question of fact in each case.
In order to constitute the banker a holder for value on his ground there must be a contract, express or implied, that the customer should be entitled to draw against the amount of the cheque before it is cleared.
If the banker becomes a holder for value.
he may.
in the absence of a forged endorsement and unless the cheque is crossed 'not negotiable ' sue upon a cheque in his own name as a holder in due course and may debit the customer if the cheque is dishonoured.
, He may apparently plead that he is a holder for value as against the person claiming as true owner, except where the endorsement is forged or the cheque is marked 'not negotiable. '" (emphasis supplied) The above two passages indicate that the Banker who is asked to collect a cheque can credit the customer with the amount before the proceeds are received and if he has acted in good faith he has the necessary statutory protection and credit ing the customer account does not by itself alter his posi tion but that however is a question of fact in each case namely whether there was such a contract express or implied that the customer should be entitled to draw against the amount of cheque before it is cleared.
In A.L. Underwood Ltd. vs Bank of Liverpool and Martins, Same vs Barclays Bank, at page 241 Atkin, L.J. dealing with the protection that can be availed by a banker in such case, observed as under: "It is sufficient to say that the mere fact that the bank.
in their books.
enter the value of the cheques on the credit side of the account on the day on which they receive the cheques for collection.
does not, without more.
constitute the bank a holder for value.
To constitute value there must be in such a case a contract between banker and customer.
express or implied.
that the bank will, before receipt of the 559 proceeds.
honour cheques of the customer drawn against the cheques.
Such a contract can be established by course of business and may be established by entry in the customer 's pass book, communicated to the customer and acted upon by him.
Here there is no evidence of any such contract." (emphasis supplied) To the same effect is the ratio laid down in Baker vs Bar clays Bank Ltd. After applying the dictum of Atkin, L.J. in Underwood 's case it is observed therein that "it was not enough to show merely that the bank had entered the value of the cheques on the credit side of the account on which the bank received the cheques.
To constitute value there must be in such a case a contract between banker and customer, express or implied, that the bank will before receipt of the proceeds honour cheques of the customer drawn against the cheques.
" We find another passage in the above decision at page 581 which reads thus: "What is suggested is that the bank did not give value.
and the question arises which often arises in cases of this sort.
namely, whether, when a cheque is given to a bank in these circumstances, the bank takes the cheque giving value for and then becoming a holder in due course, or whether the bank takes the cheque merely to collect the amount of the cheque for someone else.
That is a question of fact.
The true relationship has to be inferred from the acts of the parties." (emphasis supplied) From the above discussion it emerges that the Indian definition imposes a more stringent condition on the holder in due course then the English definition and as the learned authors have noted the definition is based on Gill 's case.
Under the Indian law, a holder, to be a holder in due course, must not only have acquired the bill, note or cheque for valid consideration but should have acquired the cheque without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.
This condition requires that he should act in good faith and with reasonable caution.
However, mere failure to prove bona fide or absence of negligence on his part would not negative his claim.
But in a given case it is left to the 560 Court to decide whether the negligence on part of the holder is so gross and extraordinary as to presume that he had sufficient cause to believe that such title was defective.
However.
when the presumption in his favour as provided under Section 118(g) gets rebutted under the circumstances mentioned therein than the burden of proving that he is a 'holder in due course ' lies upon him.
In a given case, the Court.
while examining these requirements including valid consideration must also go into the question whether there was a contract express or implied for crediting the proceeds to the account of the bearer before receiving the same.
The enquiry regarding the satisfaction of this requirement invariably depends upon the facts and circumstances in each case.
The words "without having sufficient cause to believe" have to be understood in this background.
In the instant case there is sufficient evidence estab lishing the fact that the defendants were allowed credit facilities upto a limit of Rs.35,00.000 by the Bank and this fact is not in dispute.
The pledging of the title deed by 5th defendant of her properties with the bank with an inten tion to create an equitable mortgage to secure the repayment of the amounts due from 1st defendant and the fact that a pronote for an amount of Rs.35,00,000 executed by defendant Nos.
2 to 4 in favour of the 5th defendant was endorsed in favour of the plaintiff Bank would establish that there was an express contract for providing the credit facilities.
It should therefore necessarily be inferred that there is also an implied contract to credit the proceeds of the cheques in favour of defendant No. 1 to his account before actually receiving them.
As a question of fact this aspect is estab lished by the evidence on record.
In such a situation the plaintiff need not make enquiries about the transactions of supply of goods etc.
that were going on between defendants Nos. 1 and 6.
Even if defendant No. 1 has not supplied the goods in respect of which the cheque in question were issued by defendant No. 6 there was no cause at any rate sufficient cause for the plaintiff to doubt the title of defendant No. 1 nor can it be said that the plaintiff acted negligently disregarding 'red flag ' raising suspicion.
Viewed from this background it cannot be said that there was sufficient cause to doubt the title nor there is scope to infer gross negli gence on the part of the plaintiff.
There is no material which amounts to rebuttal of the presumption in his favour as provided under Section 118(g).
On the other hand.
the plaintiff has discharged the neces sary burden to the extent on him and has proved that he is a holder in due course for valid consideration.
Therefore, we hold that he could validly maintain an action 561 against all the defendants including defendant No. 6.
There fore, we affirm the judgments of the courts below and dis miss the appeal.
In the circumstances of the case, parties are directed to bear their own costs throughout.
Y. Lal Appeal dismissed. | What is the true meaning and scope of the expression 'holder in due course ' as defined in Section 9 of the Nego tiable Instruments Act, 1881, was the question that arose for consideration in this appeal.
Consequent upon the pleading of promissory note and other title deeds relating to her property by Defendant No. 5, (mother of Defendants 2 to 4) in favour of the respondent Bank as security, thereby creating an equitable mortgage, the respondent Bank allowed credit facilities like accommo dation by way of Hundi discount, Key loan and cheque pur chases upto a limit of Rs.35,00,000 to Defendant No. 1, a firm consisting of defendants Nos. 2 to 4 as partners.
The first defendant firm had business dealings with the appel lant defendant No. 6.
In course of business it was supplying goods consisting of hill products and used to receive pay ment by way of cheques from defendant No. 6.
Defendant No. 6 issued two cheques drawn on the Union Bank of India, Palgh at, in favour of the first defendant payable to the first defendant firm on order.
The cheques were purchased by the Respondent bank and proceeds thereof were credited by the bank to the account of first defendant, on valid considera tion.
The first defendant withdrew the amount at various dates.
When the respondent bank sent the cheques for collec tion, the Union Bank of India returned the cheques with the endorsement "full cover not received".
Defendants 2 to 5 agreed to pay the amounts to the Bank but could not pay the full amount, with the result the Bank filed a suit for recovery of the balance amount from Defendant No. 6 also who had issued the cheques in question.
At the trial, Defendant No. 6 contended that since the firm (defendant No. 1) did not supply the goods, it could not pay the money in the bank.
According to Defendant No. 6, the appellant, did not admit the purchase of cheques by the respondent bank for valid consideration and hence denied that the bank was 'holder in due course '.
The trial court held that the re spondent bank is a 'holder in due course ' and as such enti tled to enforce the liability against the appellant defend ant No. 6.
543 The trial court also held defendants 2 to 4 personally liable for the plaint claim.
Against the order of the trial court the appellant defendant No. 6 alone appealed to the High Court.
The High Court affirmed the findings of the trial court but modified the decree holding that the immova ble properties mentioned in the schedule to the plaint would first be proceeded against and in case the entire amount of decree is not realised by the sale of those properties, the Bank would proceed against the assets of the firm defendant No. 1 and for the balance, if any, the decreeholder would proceed against the defendants Nos. 2 4 and 6.
Aggrieved by the said order of the High Court, the 6th defendant has preferred this appeal.
Dismissing the appeal, this Court, HELD: Indian Law is stricter, and is not satisfied merely with the honesty of the person taking the instrument, but requires the person to exercise due diligence, and goes a step further than English Law in scrutinising the causes which go to make up the belief in the mind of the transfer ee.
[359B] In the instant case, the holder namely defendant No. 1 made the necessary endorsements in the two cheques in favour of the plaintiff Bank and the Bank endorsed "payee account credited".
The defendant No. 1 withdrew this amount and there is no dispute about it.
It must also be noted in this context that there is no endorsement on the cheque made by the drawer namely the appellant that cheques are not nego tiable.
In the absence of the cheques being crossed "not negotiable" nothing prevented the plaintiff Bank to purchase the cheques for a valuable consideration and the presumption under Section 118(g) comes to his rescue and there is no material whatsoever to show that the cheques were obtained in any unlawful manner or for any unlawful consideration.
[358E G] In a given case it is left to the court to decide wheth er the negligence on part of the holder is so gross and extraordinary as to presume that he had sufficient cause to believe that such title was defective.
[370A] The court while examining these requirements including valid consideration must also go into the question whether there was a contract express or implied for crediting the proceeds to the account of the bearer before receiving the same.
The enquiry regarding the satisfaction of this re quirement invariably depends upon the facts and cir 544 cumstances in each case.
The words "without having suffi cient cause to believe" have to be understood in this back ground.
[370B C] In the instant case, there is also an implied contract to credit the proceeds of the cheques in favour of defendant No. 1 to his account before actually receiving them.
As a question of fact this aspect is established by the evidence on record.
In such a situation the plaintiff need not make enquiries about the transactions of supply of goods etc.
that were going on between defendants No. 1 and 6.
Even if defendant No. 1 has not supplied the goods in respect of which the cheques in question were issued by defendant No. 6 there was no cause at any rate sufficient cause for the plaintiff to doubt the title of defendant No. 1 nor can it be said that the plaintiff acted negligently.
Viewed from this background it cannot be said that there was sufficient cause to doubt the title nor there is scope to infer gross negligence on the part of the plaintiff.
[370E G] Nelson vs Larhold, ; Baker vs Barclays Bank Ltd., ; Gill vs Cubitt English Reports, 107 Kings ' Bench 806; Durg Shah Mohan Lal Bankers vs Governor General in Council and Others, AIR 1952 Allaha bad 590; Sunderdas Sobhraj, a firm vs Liberty Pictures, a firm, AIR 1956 Bombay 618; A.L. Underwood Ltd. vs Bank of Liverpool and Martins; Same vs Barclays Bank, at page 241, referred to.
Raghavji Vizpal v Narandas Parmanandas Bombay Law Re porter, Vol.
VIII (1906) 921, Overruled.
Chitty on Contracts, 26th Edn.
Paragraphs 2778 & 2781; Chalmers on Bills of Exchange, 13th Edn.
at p. 283; Paratha sarathy on Cheques in Law and Practice, 4th Edn.
p. 74; Halsbury 's Laws of England, 4th Edn.
paragraph 221 page 186 and paragraph 222, referred to. |
ivil Appeal No. 2231 of 1988.
From the Judgment and Order dated 19.8.1987 of the Madras High Court in Appeal No. 86 of 1982.
R. Venkataramani for the Appellants.
section Balakrishnan and M.K.D. Namboodiri for the Respondents.
The Judgment of the Court was delivered by SHARMA, J.
This appeal by special leave is directed against the decree passed by the High Court in favour of the plaintiff respondents in a suit for partition.
The property in suit belonged to Smt.
Rathinammal, who after executing a registered will died in 1942.
Accord ing to the terms of the will, her two sons Natesan.
defend ant No. 1, and Subramanian.
plaintiffs ' witness No. 2 (PW 2), were to remain in possession of the properties without any power of alienation and had to pay the taxes and conduct regularly certain religious festivals; and thereafter their sons were to manage the properties on similar terms.
The will further provides that after their attaining majority the great grand sons, i.e., 510 the son 's sons ' sons of the testatrix will get the proper ties as absolute owners.
Subramanian, the younger son of the testatrix, who has been in 'the present suit examined as the second witness on behalf of the plaintiffs, has one son Arunachalam, de fendant No. 15.
The three plaintiffs, Ramesh, Ganesh and Sivalingam are the sons of the defendant No. 15.
The defend ant No. 1 got four sons and ten sons ' sons.
The main dispute in the suit is about the share which the plaintiffs are entitled to, under the terms of the will.
They claim that they being the only grand sons of Subramanian have half share in the properties, the remaining half going to the grand sons of the defendant No. 1, namely, defendants No. 5 to 14.
On behalf of the defendants it is pleaded that the suit properties have to be divided amongst all the 13 great grand sons of the testatrix in equal shares.
The defendants also contended that the suit was fit to be dismissed as the defendant No. 1 and the defendant No. 15 had finally parti tioned the properties in 1975, and no question of a further partition arises.
The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity.
The trial court rejected the plea based on the rule against perpetuity.
Having regard to the interest of the defendant No. 1, his brother Subramanian and Arunachalam, defendant No. 15, the court held that the alleged partition of 1975 was illegal and not binding on the plaintiffs.
So far the shares of the plaintiffs and the defendants No. 5 to 14 are concerned, agreeing with the defence case, the court held that the parties would take the properties as per capita.
However, the suit was dismissed on the ground that the plaintiffs were still minor.
On appeal by the plaintiffs, the High Court confirmed the finding of the trial court that the 1975 partition was illegal.
On the question of the shares of the parties, the High Court agreed with the plaintiffs and held that the division would take place as per stirpes.
Taking into ac count the fact that during the pendency of the appeal two of the plaintiffs had attained majority, the High Court passed a decree in their favour for one sixth share each.
So far the third plaintiff is concerned, the High Court declared his right without passing a decree for partition.
The de fendants are challenging the decision of the High Court by the present civil appeal.
The learned counsel for the appellants has contended that as per the terms of the will the great grand sons of the testatrix have inherited the suit properties as per capita and the conclusion of the 511 High Court on this aspect is illegal.
The English version of the operative portion of the will has been quoted in para graph 7 of the judgment of the trial court and is not chal lenged by either party before us.
After mentioning the rights and the duties of her sons the testatrix has stated the position of her grand sons and great grand sons thus: "They (that is, sons ' sons) have also to pay the taxes and out of their income conduct the aforesaid festivals regular ly.
Then their male issues after attaining majority, have to take possession of the said properties in equal shares and enjoy them with all powers of alienation.
" It has been stated by the learned counsel for the parties before us that the words "the said properties in equal shares" are the English version of the words SAMABHAGAMAGA ADAINTHU.
The learned counsel for the appellants translated this portion of the will as stating that, "they (that is, the sons ' sons) shall pay the taxes due to the Government and will carry on the charitable/religious activities without fail and their male issues would on attaining majority get the properties in equal portion (SAMABHAGAMAGA ADAINTHU) and will possess, own and enjoy it absolutely.
" The crucial expression is SAMABHAGAMAGA ADAINTHU which according to the learned counsel for the parties means in equal portions.
The question is as to whether in view of this provision in the will, the entire properties left by the testatrix are to be divided equally amongst all her great grand sons; or, the three plaintiffs shall amongst themselves take half, the remaining half going to their cousins.
The High Court has interpreted the crucial part of the will, mentioned in the preceding paragraph, as directing the plaintiffs on the one hand and the defendants 5 to 14 on the other respectively to "share equally out of each branch".
It has been assumed that the properties finally descended on the two branches in equal shares, and conse quently parties belonging to the two branches inherited the properties as stirpes.
The main reason for the High Court for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venkatakrishna Rao & Ors.
vs Shrimati Boddu Satyavathi & Ors., ; ; were more or less similar, which this Court construed in the manner as suggested by the plaintiffs in the case before us.
We are not in agreement with the.
approach of the High Court.
512 8.
It is well settled that a court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances, the posi tion of the testator.
his family relationship 'and the probability that he used the words in a particular sense also must be taken into account.
They lend a valuable aid in arriving at the correct construction of the will.
Since these considerations are changing from person to person.
it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases, the disputed will approximates closely.
Recourse to prece dents, therefore, should be confined for the purpose of general principle of construction only.
which, by now, are well settled.
There is still another reason as to why the construction put on certain expressions in a will should not be applied to a similar expression in the will under ques tion for, a will has to be considered and construed as a whole, and not piecemeal.
It follows that a fair and reason able construction of the same expression may vary from will to will.
For these reasons it has been again and again held that in the matter of construction of a will.
authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur (see Ramachandra Shenoy and Another vs Mrs. Hilda Brite and Others, ; at p. 736.
The risk in not appreciating this wholesome rule is demonstrated by the case before us.
Assuming that the will in the case of Boddu Venka takrishna Rao & Ors.
vs Shrimati Boddu Satyavathi & Ors., ; ; was somewhat similar to that in the present case.
the High Court.
following the construction given on the will in the reported case, has held in the judgment under appeal that the great grand sons of the testatrix shall be taking the properties as per stripes.
While so doing the Court failed to notice that the relevant facts and circumstances of that case were widely different from those in the present case.
There.
the testatrix who was a childless widow.
had bequeathed under the will life es tates to two children who were defendants 4 and 5 in the case and whom she had brought up from their infancy.
and subject to the same, the property was to go to their chil dren after their death.
The conclusion of the High Court on the construction of the will.
with which this Court agreed.
was expressed thus.
"the bequest in favour of defendants 4 and 5 was that of a life estate with a vested remainder in favour of their children and that the children should take the vested re mainder per stripes and not per capita".
513 In the case before us no life estate was created in favour of anybody.
otherwise there would not arise any question of the plaintiffs ' getting any share in the proper ty even on their attaining majority during the lifetime of their father and uncle.
The High Court has also.
under the impugned judgment, observed that a Hindu is not ordinarily expected to create a joint tenancy but, failed to appreciate that there is only presumption.
to this effect, which can not override the provisions 'of the will, if the language is unambiguous and clear.
In the present case there is no manner of doubt, and it is not denied by any party that neither the sons nor the grand sons of the testatrix got any life estate in the properties.
It is the agreed case of the parties that as soon as plaintiffs and defendants No. 5 to 14 become major they are entitled to get the property abso lutely without waiting for the death of their respective fathers or grand fathers.
We should, therefore.
interpret the will without being influenced by the meaning given to the will in the reported case.
The devolution of the property under the will takes place on the plaintiffs and defendants No. 5 to 14 for the first time "under equal shares".
Since this is the first occasion for the shares in the property to be defined the expression "equal shares" must refer to the entire proper ties left by the testatrix which will have to be divided equally amongst all the thirteen great grand sons by the testatrix.
In other words.
they take the properties as per capita.
Admittedly the third plaintiff has also attained majority during the pendency of the present appeal and has, therefore.
become entitled to a share in the properties now.
The suit.
is accordingly decreed in favour of all the plain tiffs, their share being one thirteenth each.
The plea that the disposition under the will was hit by the rule against perpetuity was rejected by the trial court in paragraph 7 of judgment on the ground that the sons of the testatrix, namely, the first defendant and the plain tiff 's witness No. 2 as also their respective sons the defendants No. 2 to 4 are alive.
The point was not pressed in the High Court.
The view of the trial court appears to be correct, and does.
not require reconsideration at this stage.
In the result, the appeal is allowed in part as indicated above.
The suit is accordingly decreed in favour of all the three plaintiff.
The share of the three plain tiffs and the ten defendants, that is, defendants No. 5 to 14, shall be onethirteenth each in the suit properties.
There shall be no order as to costs.
N.V.K. Appeal party allowed. | The property in the suit belonged to the great grand mother of the plaintiffs and defendant Nos. 5 to 14 who executed a registered will.
According to the terms of the will, her two sons, defendant No. 1 and plaintiffs ' witness No. 2 were to remain in possession of the properties without any power of alienation, to pay the taxes and conduct regu larly certain religions festivals, and their male issues on attaining majority were to get the property in equal por tions and enjoy it absolutely.
The main dispute in the suit was about the share which the plaintiffs are entitled to under the terms of the afore said will.
The plaintiffs claimed that they being the only grand sons of the younger son of the testatrix were entitled to half share in the properties, the remaining half going to the grand sons of defendant No. 1 namely, defendant Nos. 5 to 14.
The suit was contested on behalf of the defendants, who pleaded that the suit properties have to be divided amongst all the 13 great grand sons of the testatrix in equal shares, and that the suit was fit to be dismissed as defendant No. 1 defendent No. 15 had finally partitioned the properties in 1975, and no question of further partition arises.
The maintainability of the suit was also challenged on the ground of minority of the plaintiffs as also on the basis of the rule against perpetuity.
The trial Court rejected the plea based on the rule against perpetuity but having regard to the interest of defendant No. 1, his brother, and defendant No. 15, it held that the alleged partition of 1975 was illegal and not binding on the plaintiffs and that so far as the shares of the plaintiffs and defendant Nos. 5 to 14 are concerned held that the parties would take the properties as per capita.
The suit was however dismissed on the ground that the plain tiffs were still minor.
In the appeal to the High Court by the plaintiffs, the High Court confirmed the findings of the trial court that the 1975 partition was illegal, but held that the division would take place as per stirpes, and taking into account the fact that during the pendency of the appeal, two of the plaintiffs had attained majority, the High Court passed a decree in theft favour for one sixth share each.
So far as the third plaintiff was concerned, it declared his right without passing a decree for partition.
The appellants defendants challenged the decision of the High Court in 508 this Court by special leave, contending that as per the terms of the will the great grand sons of the testatrix have inherited the suit properties as per capita and that the conclusion of the High Court on this aspects was illegal, and that reliance by the High Court, on Boddu Venkatakrishna Rao & Ors.
vs Shrimati Boddu Satyavathi & Ors., ; was inapplicable to the facts of this case.
Allowing the appeal in part, and decreeing the suit in favour of all the plaintiffs, that the share of the three plaintiffs and defendant Nos. 5 to 14 shah be one thirteen each in the suit properties this Court, HELD: 1.
A Court while construing a will should try to ascertain the intention of the testator to be gathered primarily from the language of the document; but while so doing the surrounding circumstances the position of the testator, his family relationship and the probability that he used the words in a particular sense also must be taken into account.
They lend a valuable aid in arriving at the correct construction of the will.
Since these considerations are changing from person to person it is seldom profitable to compare the words of one will with those of another or to try to discover which of the wills upon which the decisions have been given in reported cases.
the disputed will approx imates closely.
Recourse to precedents, therefore, should be confined for the purpose of general principles of construc tion only.
2.There is still another reason as to why the construc tion put on certain expressions in a will should not be applied to a similar expression in the will under question for, a will has to be considered and construed as a whole, and not piecemeal.
It follows that a fair and reasonable construction of the same expression may vary from will to will.
Therefore, in the matter of construction of a will, authorities or precedents are of no help as each will has to be construed in its own terms and in the setting in which the clauses occur.
In the instant case, the High Court has interpreted the crucial part of the will containing the expression 'SAMABHA GAMAGA ADAINTHU ' as directing the plaintiffs on the one hand and the defendants5 to 14 on the other to "share equally out of each branch".
The main reason for the High Court for taking such a view is that the terms of a will which was the subject matter of interpretation in the case of Boddu Venka takrishna Rao & Ors.
vs Shrbnati Boddu Satvavathi & Ors., ; ; were more or less similar.
It has also been assumed that the properties finally descended on the two branches in equal shares and consequently parties be longing to the two branches inherited the properties as per stripes.
While so doing the Court failed to notice that the relevant facts and circumstances of that case were widely different from those in the present case.
The conclusion of the High Court on the construction of the will was therefore not correct.
In the instant case, there is no manner of doubt, and it is not denied by any party that neither the sons nor the grand sons of the testatrix got any life estate 509 in the properties.
It is the agreed case of the parties that as soon as plaintiffs and defendants No. 5 to 14 become major they are entitled to get the property absolutely without waiting for the death of their respective fathers or grandfather.
The will has therefore to be interpreted with out being influenced by the meaning given to the will in the reported case.
The devolution of the property under the will takes place on the plaintiffs and defendants No. 5 to 14 for the first time 'under equal shares '.
Since this is the first occasion for the shares in the property to be defined, the expression 'equal shares ' must refer to the entire proper ties left by the testatrix which will have to be divided equally amongst all the thirteen great grand sons by the testatrix.
In other words they take the properties as per capita.
The third plaintiff has also attained majority during the pendency of the present appeal and has therefore become entitled to a share in the properties.
The suit is decreed in favour of all the plaintiffs their share being one thirteenth each.
Ramachandra Shenoy and Another vs Mrs.Hilda brite and Others; , , relied on.
Boddu Venkatakrishna Rao & Ors.
vs Shrimati Boddu Sat vavathi & Ors.
; , , distinguished.
The plea that disposition under the will was hit by the rule against perpetuity was rightly rejected by the trial court on the ground that the sons of the testatrix as also their respective sons were alive. |
ivil Appeal No. 2674 of 1977.
From the Judgment and Order dated 19.8.1977 of the Andhra Pradesh High Court in Writ Appeal No. 527 of 1976.
Dr. K. Parasaran, Mr. A.D.N. Rao and A. Subba Rao for the Appellants.
C. Sitaramiah, T.S. Krishnamurthy Iyer, G. Prabhakar, A.T.M. Sampath and P.N. Ramalingam for the Respondents.
The Judgment of the Court was delivered by R.M. SAHAI, J.
Whether possession of a lessee who ac quires interest of one of the co lessors, before expiration of period of lease, is litigious or lawful? Litigious and lawful possession are concepts of varying legal shades deriving their colour from the setting in which they emerge.
Epithet used itself indicates the field in which they operate.
The one pertains to dispute in which possession may be conterminous with physical or de facto control, only, whereas the domain of other is control with some legal basis.
The former may be uncertain in character and may even be without any basis or interest but the latter is rounded on some rule, sanction or excuse.
Dictionarily 'litigious ' means "disputed" Concise Oxford Dictionary or "disputable" Concise Oxford Dictionary" or "marked by inten tion to quarrel" Webster Third New International Dictionary, "inviting controversy" Webster Third New International Dictionary, "relating to or marked by litigation" Webster Third New International Dictionary, "that which is the subject of law suit".
Black 's Law Dictionary.
Lawful on the other hand is defined as, "legal, warranted or authorised by the law.
" Black 's Law Dictionary.
Jurisprudentially a person in physical control or de facto possession may have an interest but no right to continue whereas a person in pos session, de jure, actually or constructively has the right to use, enjoy, destroy or alienate property.
"Rights are interest protected or recognised by law.
But every interest may not be so.
Its violation may not be wrong.
Many interest exist de facto and not de jure; they receive no recognition or protection from any rule or right".
Solmond on jurispru dence.
With this brief preface it may now be determined if posses sion of 11 appellant who had entered into an agreement of sale with one of co lessors of his interest, and has been found by High Court to have entered into his shoes, was lawful for pur poses of rule 11 framed under Andhra Pradesh Cinemas (Regu lation) Act 1955 which required a licensee either for grant or renewal of license to file all necessary record or ' certified copies with the application, "relating to his lawful possession thereof", if he was not the owner.
That the appellant has been running cinema not as owner but after obtaining lease in 1950 of 2038 2/3 sq.
out of 7000 sq.
from the then Zamindar is not in dispute.
Nor it is in dispute that ownership of land changed twice since then and the last purchaser in July 1974 were one V. Venkatarathnam (in brief V.V. since deceased) his son and grandson who formed a private partnership V.V. Estates in September 1975 and objected to renewal of appellant 's license in December 1975 as the Estate did not intend to renew the lease in favour of appellant which was to expire on 31st March 1976.
But problem arose when on 24th March V.V. entered into an agreement of sale with appellant to sell his entire share which was one half for consideration of Rs. 14,000 cash and partnership of 1/8th in appellants ' cinema business.
He further executed lease of remaining half on next day in favour of appellant as managing partner of the Estate and withdrew the objection, filed before licensing authority for renewal of appellant 's license, unconditionally.
Dispute however arose as V.V. 's son on his behalf and on behalf of his nephew refuted authority of his father to grant lease as he had already withdrawn his authority to act on their behalf on 22nd March.
Therefore the question arose about nature of appellant 's possession.
The High Court found that even though it was not open to the son to remove his father from position of managing partner yet V.V. could not lease out the property on his behalf as the partnership deed did not invest him with such authority.
And so far the agreement of sale was concerned it was ineffective to make him owner.
Consequently the possession of appellant was not lawful as he was neither lessee nor owner.
True the appellant was neither owner nor lessee.
Yet was his possession forbidden in law? Was there no excuse for his possession? The error committed by High Court was to equate lawful with legal.
Legal and lawful, normally, convey same sense and are usually interchangeable.
What is legal is lawful.
But what is lawful may be so without being formally legal.
"The principle distinction between the terms 'lawful ' and 'legal ' is that former contemplates the substance of law, the latter the form of law.
To say of an act that it is lawful implies that it is authorised, Sanctioned or at any rate not forbidden by law".
12 Black 's Law Dictionary.
Same thought about lawful has been brought out by Pollock and Wright by explaining that "Lawful Possession" means a legal possession which is also rightful or at least excusable.
Pollock and Wright Possession in the Common Law.
Thus that which is not stricto legalo may yet be lawful.
It should not be forbidden by law.
In fact legal is associated with provisions in the Act, rules etc.
whereas lawful visualises all that is not illegal against law or even permissible.
Lawful is wider in connotation than legal.
Although provision in specific Relief Act empowering a person or tenant to recover possession if he has been evict ed forcibly by the Landlord, may be juridical and not lawful or a tenant holding over is not in lawful possession unless landlord agrees or acquiesces expressly or impliedly but that does not alter the legal position about possession of a person not legal yet not without interest.
The provision in specific Relief Act is rounded more on public policy than on jurisprudence.
But concept of lawful as opposed or in con tradistinction to litigious assumes different dimension.
M.C. Chockalingam vs M. Manichavasagam, ; is of no help as it was concerned with possession which could not be said to be warranted or authorised by law.
Distinc tion between nature of possession of a lessee after expiry of period of lease can better be explained by resorting to few illustrations.
For instance a lessee may before expiry of lease acquire entire lessor 's interest resulting in "drowning" or "sinking" of inferior right into superior right.
That is right of one merges into another.
It has been statutorily recognised by Section 111(d) of Transfer of Property Act.
Similarly a tenant after expiry of period of lease may be holding over and the lessor may acquiesce in his continuance expressly or impliedly.
That is from conduct of lessor the tenant 's possession may stand converted into lawful.
The other may be where lessor may not agree to renew the lease nor he may acquiesce in his continuance.
Such a lessee cannot claim any right or interest.
His possession is neither legal nor lawful.
Such was the Chockalingam 's case (supra).
The Court held that continuance of lessee 's posses sion after expiry of period of lease was not lawful for purposes of renewal of licence under Madras Cinema Regula tion Act 1955 obviously because lessee was left with no interest which could furnish any excuse or give it even colour of being legal.
Yet another illustration may be, not very common where, lessee acquires some interest in part of the undivided property as in present case.
Can it be said in such a case on ratio of Chockalingam 's authority that possession of such lessee or to be more specific of appellant was unwarranted or contrary to law: Share of V.V. in 7,000 sq.
was half.
He had agreed to sell his half interest.
V.V. was joint owner with his son and grandson.
He had "both single possession and a single 13 joint right to possess" Pollock and Wright.
Whether such joint owner could transfer his share even when he was not in exclusive possession and what would be effect of such trans fer need not be gone into as title suit is pending between parties but when a person having physical control acquires an interest to hold or continue by virtue of an agreement of sale it cannot be said that he had no interest and his possession was forbidden by law.
The High Court lost sight of the fact that by virtue of the transaction entered be tween V.V. and appellant which was not challenged by him nor any cloud was cast over it by creating any subsequent inter est the appellant may not have become owner but he could certainly claim that he was in lawful possession.
In law he was entitled to file suit for specific performance if there was any threat to his right or interest by V.V.
Such right or interest could not be termed as litigious.
It was at least not without any excuse or forbidden by law.
In words and Phrases Permanent Edition Vol.
25A, 2nd reprint 1976 a somewhat similar situation was described as not litigious: "Where client conveyed undivided half interest in land to attorney in consideration of attorney 's rendering services and paying court costs, giving irrevocable power of attorney to sue, settle, or compromise, attorney received good title as third person purchasing upon faith of public records, precluding reformation as against attorney, on the strength of an instrument recorded after deed to attorney and client claimed title, as against contention that attorney acquired a "litigious right".
For reasons stated above this appeal succeeds and is allowed.
The order of High Court and the licensing authority are set aside.
The licensing authority is further directed to consider renewal of license of the cinema in accordance with law treating licensee to be in lawful possession.
Since suit has been filed between parties in respect of title it is clarified that any observation made above shall not be treated as binding or deciding right of parties except to the limited extent that appellant shall be treated to be in lawful possession for renewal of license subject to final adjudication in suit, which shall now proceed as, probably, the proceedings had been stayed.
It shall be disposed of expeditiously.
The appellant shall be entitled to its costs in this Court and High Court.
P.S.S. Appeal allowed. | Rule 11 of the A.P. Cinema (Regulation) Rules, 1970 flamed under the A.P. Cinemas (Regulation) Act, 1955, as it stood at the relevant time, required a licensee either for grant or renewal of license to file evidence of his lawful possession of the site.
The appellant firm had been running a cinema since 1950 on a piece of land leased by the then zamindar.
The said lease was to expire on March 31, 1976.
In the meantime the ownership of the land changed hands.
In 1975, when the appellant sought renewal of the license the estate partner ship, consisting of father, son and grandson objected on the ground that it did not intend to renew the lease.
However, on March 24, 1976 one of the co lessors, the father, entered into an agreement of sale with the appellant to sell his entire share which was one half for a consideration.
He also executed lease of the remaining half the next day in favour of the appellant as the managing partner of the estate.
and withdrew the objection filed before the licensing authority unconditionally.
A question arose about the nature of appellant 's posses sion.
The High Court found that the co lessor could not lease out the property on his behalf as the partnership deed did not invest him with such an authority, and that the agreement of sale was ineffective to make him the owner.
Consequently, the possession of appellant was not lawful as last was neither a lessee nor an owner.
Allowing the appeal, the Court, 9 HELD: 1.
When a person having physical control acquires an interest to hold or continue by virtue of an agreement of sale it cannot be said that he had no interest and his possession was forbidden by law.
In the instant case, by virtue of the transaction entered between the co lessor and the appellant which was not challenged by him nor any cloud was cast over it by creating any subsequent interest the appellant may not have become owner but could certainly claim lawful possession.
In law last was entitled to file suit for specific performance if there was any threat to its right or interest by the co lessor.
Such right or interest could not be termed as litigious.
[13A C] 2.
A lessee may before expiry of lease acquire entire lessor 's interest resulting in drowning or sinking of infe rior right into superior right.
That is right of one merges into another.
It has been statutorily recognised by section III(d) of the Transfer of Property Act.
Similarly, a tenant after expiry of period of lease may be holding over and the lessor may acquiesce in his continuance expressly or im pliedly.
That is from conduct of lessor the tenant 's posses sion may stand converted into lawful.
But where the lessor does not agree to renew the lease nor he acquiesce in his continuance a lessee cannot claim any right or interest.
His possession is neither legal nor lawful.
In the instant case, the appellant had acquired some interest in part of the undivided property by virtue of the agreement.
It may not be a lessee, but its possession was not without any excuse or forbidden by law.
[12D G] 3.
The High Court erred in equating lawful with legal.
What is legal is lawful.
But what is lawful may be so with out being formally legal.
That which is not stricto legalo may yet be lawful.
It should not be forbidden by law.
Al though provision in Specific Relief Act empowering a person or tenant to recover possession if he has been evicted forcibly by the landlord, may be juridical and not lawful or a tenant holding over is not in lawful possession unless landlord agrees or acquiesces expressly or impliedly but that does not alter the legal position about possession of a person not legal yet not without interest.
The provision in Specific Relief Act is rounded more on public policy than on jurisprudence.
[11G; 12A C] 4.
The licensing authority is directed to consider renewal of license in accordance with law treating licensee to be in lawful possession.
[13F] M.C. Chockalingam vs M. Manichavasagam, ; distinguished. 10 |
Appeal No. 226 of 1960.
Appeal from the judgment and decree dated February 2, 1956, of the Allahabad High Court in Special Appeal No. 158 of 1954.
M.C. Setalvad, Attorney General for India, Veda Vyasa, R. K. Garg, section C. Agarwal, Shiv Sastri and K. K. Jain, for the appellant.
S.T. Desai, K. section Hajela and C. P. Lal, for respondent No. 1.
C.K. Daphtary, Solicitor General for India, Radhy Lal Agarwal and P. C. Agarwal, for respondent No. 2.
764 1962.
December 6.
The Judgment of Das, Kapur, Sarkar and Hidayatullah, was a delivered by Hidayatullah, J., Dayal, J., delivered a separate judgment.
HIDAYATULLAH.J., This is an appeal on a certificate granted by the High Court of Allahabad under Article 133 (1) (c) of the Constitution against its judgment and order dated February 2, 1956.
By the judgment, under appeal, which was passed in a Letters Patent Appeal, the Divisional Bench confirmed the order of a learned single judge dismissing the petition of the appellant under article 226 of the Constitution.
Seth Banarsi Das, the appellant before us, was the petitioner in the High Court and the two respondents before us, namely, the Cane Commissioner, U. P., Lucknow, and the Cane Marketing Society Ltd., Bijnor, were the opposite parties.
The petition asked for a number of writs in the alternative, but its purport was to seek to prohibit the two respondents from continuing certain proceedings pending before the Cane Commissioner under rule 23 of the United Provinces Sugar Factories Control Rules, 1938.
That rule provides for arbitration in disputes touching agreements entered into by sugar cane factories and cane growers for supply of sugar cane as laid down by the United Provinces Sugar Factories Control Act, 1938.
The facts of the case are as follows: The appellant was at the material time the lessee and "Occupier" of Shiva Prasad Banarsi Das Sugar Mills, Bijnor, for five years from the crushing season 1946 47 to 1950 51.
The second respondent is the Cane Marketing Society Ltd., Bijnor, which is a society registered under the Uttar Pradesh Co operative Societies Act, and one of its objects is to supply sugar cane grown by its members to the sugar mills.
Before the control of 765 sugar cane, cane growers, whether they belonged to a co operative society or not, sold sugar cane directly to the factories and made Supplies from any area as it suited them.
The United Provinces Sugar Factories Control Act was passed for the purpose of licensing of sugar factories and for regulating the supply of sugar cane intended for use in such factories and the price at which it may be purchased and for such other matters as may be incidental thereto.
The broad outline of the Act and the rules framed thereunder may be given here.
Under the Act the control of sugar cane grown in the State was vested in an officer known as the cane Commissioner and Advisory Committees and Sugar Control Board were to be appointed to advise upon and effectuate control of sugar and sugar cane.
There was a scheme for licensing of factories with which we are not concerned in this case.
Chapter IV of the Act made provision for regulating the purchase of sugar cane.
Under section 14, the State Government could require the "Occupier ' of any factory to submit to 'the Cane Commissioner an estimate in the prescribed form and manner of the quantity of sugar cane which would be required in his factory during a crushing season.
This estimate was examined by the Cane Commissioner who, after consulting the Advisory Committee in that area, published it with such modifications, if any, as he.
thought fit to make.
Under section 15 the Cane Commissioner, in consultation with the Advisory Committee (if any) and the ,Occupier ' of the factory, could issue an order declaring an area to be 'a reserved area ' for the purpose of supply of sugar 'cane to a particular factory.
Section 18 then provided as follows "18.Purchase of cane in reserved area. (1) A cane grower or a Cane growers ' Co operative Society in a reserved area may offer, in the form and by the date prescribed, to supply to 766 the occupier of the factory for which the area is reserved cane grown by the cane grower or by the members of such Cane growers ' Co operative Society as the case may be, not exceeding the quantity, if any, prescribed for such grower or Cane growers ' Co operative Society.
(2)The Occupier or manager of a factory for which an area is reserved shall enter into an agreement, in such form, by such date and on such terms and conditions as may by prescribed, to purchase the cane offered in accordance with sub section (1) : Provided that, he shall not enter into an agreement to purchase cane from a person who is a member of a Cane growers ' co operative Society.
(3)Except with the permission of the Provincial Government, cane grown in a reserved area shall not be purchased in such area by a purchasing agent, or by any person other than occupier of the factory for which such area has been reserved.
(4)Cane grown in a reserved area shall not be sold by any person other than a cane grower or a Cane growers ' Co operative Society: Provided that a cane grower or a Cane growers ' Co operative Society may deliver cane intended for use in a factory through another cane grower or through a carrier.
(5)During the crushing season the Provincial Government may, if it is satisfied that there is likely to be in the area reserved for a factory any quantity of cane available for sale to the occupier of the factory in excess of the quantity 767 for which he is required to enter into agree ments, direct that cane shall not be purchased outside the reserved areas until the occupier of the factory enters into agreements to purchase all the cane offered to him in the reserved area : Provided that such prohibition shall not apply in respect of cane for the supply of which agreements in writing have been entered into before such direction was issued." In addition to the reserved area, section 19 provided for declaration of assigned area and purchase of sugar cane therein.
The factory was authorised to take its supplies also from the assigned area.
The important difference between the two areas was that the factory was bound to enter into agreements with cane growers or cane growers ' co operative societies in an area reserved for the factory for the prescribed quantity of sugar cane but in an assigned area, the Factory could enter into an agreement for a specified quantity of sugar cane as the factory desired.
In other words, in a reserved area if sugar cane of the prescribed quality was offered by the cane grower or cane growers ' society, the factory was bound to purchase that cane up to the prescribed quantity but in an assigned area the factory was at liberty to purchase cane, as it needed, subject to its entering into an agreement for the purpose.
In addition to the reserved and assigned areas there was a third category, namely, areas which were neither reserved nor assigned.
We are not concerned with such areas or the provisions dealing with the purchase of sugar cane from such areas.
Section 27 provided for certain penalties.
Sub section 3 (b) provided as follows: "(3) If the occupier or manager of a factory x x x x 768 (b) intentionally fails to enter into agree ments as required by section (2) of section 18. he shall be punishable with fine which may extend to two thousand rupees" Section 30 gave power to the Government to make rules.
The material portions of section 30 for our purpose are as follows: "30 Power to make rules (1) The Provincial Government may make rules to carry out the provisions of this Act.
(2)In particular and without prejudice to the generality of the foregoing power, such rules may provide for; x x x x (u)the reference to the Cane Commissioner of disputes relating to the supply of cane for decision or if he so directs to arbitration, the mode of appointing an arbitrator or arbitrators, the procedure to be followed in proceedings before the Cane Commissioner or such arbitrator or arbitrators, and the enforcement of the decisions of the Cane Commissioner or the awards of arbitrators;" In exercise of the powers conferred by the last quoted section, the following, rules (among others) were framed "15.
Purchase of cane growing in a reserved area. (1) The occupier or manager of a factory shall estimate or cause to be estimated by 30th September, the quantity of sugarcane with each grower enrolled in the Growers ' Register and shall submit the estimates to the Collector.
The Collector may, after such enquiries as he considers necessary, modify the estimates and 769 cause them to be published in such manner as he may direct, In framing these estimates, sugarcane grown in more than one third of the area of land suitable for sugarcane cultivation in the holding of each grower may be excluded.
(2)A cane grower or a cane grower 's co operative society in a reserved area may offer in form 10, Appendix III, by the 15th October each year to supply during the crushing season to the occupier or manager of the factory for which the area has been reserved, cane not exceeding, in the case of a cane grower, the quantity estimated in accordance with subrule (1).
(3)The occupier or manager of the factory for which the area is reserved shall enter into an agreement with the cane grower or the cane growers ' co operative society as the case may be, in forms 15 and 18 respectively or in any other form approved by the Cane Commissioner within a month of the offer mentioned in sub.
rule (2).
(4)The occupier or manager of a factory shall spread the purchase made in the reserved area in an equitable manner and shall in the case of cane grower of the reserved area make purchase of cane only after issuing requisition slips.
In order to comply with this rule the occupier or manager shall 'cause identification cards to be distributed to all cane growers of the reserved area to whom requisition slips have been issued and shall maintain a record of the same.
He will also keep a record of the requisition slips issued and distributed to the growers and returned by them.
770 (5)Cane grown in a reserved area shall not except with the permission of the Cane Commissioner be purchased by any person with out the previous issue at convenient centres in the reserved area of requisition slips and identification cards to the growers, by the occupier or manager of the factory for which the area is reserved.
(6)Requisition slips and identification cards to members of a "can growers ' co operative society shall not be issued except by such society.
(7)In case of a dispute whether a particular system adopted for the purchase of cane grown in the reserved area is equitable or not, the dispute may be 'referred to the Cane Commissioner whose decision shall be final "23.
Arbitration (1) Any dispute touching an agreement referred to in section 18 (2) or section 19 (2) of the Act shall be referred to the Cane Commissioner for decision, or if he so directs to arbitration.
No suit shall lie in a civil or revenue court in respect of any such dispute.
(2)If the Cane Commissioner directs the reference of a suit to arbitration, it shall be referred to a sole arbitrator acceptable to the parties concerned.
In case no sole arbitrator is acceptable to both parties, the dispute in question shall be referred to a Board of Arbitration, consisting of one representative of each party and an umpire acceptable to both representatives.
If the representatives or the parties are unable to elect such an umpire within a fortnight, the Cane Commissioner shall either himself act as umpire or nominate one.
The umpire shall be the President of the Board of 771 Arbitration and shall have a vote in case of disagreement between the representatives.
(3)The sole arbitrator or the President of the Board, of Arbitration shall have the full power of a court in respect of summoning the parties, witnessess and records.
(4) The decision of the sole arbitrator or Board of Arbitration shall be final and binding on both parties and shall not be called in question in any civil or revenue court.
(5) The sole arbitrator or the Board of Arbitration shall give an award within the time fixed by the Cane, Commissioner, failing which the Cane Commissioner may decide the dispute himself or appoint another arbitrator or arbitrators for the purpose.
(6)Any party considering himself aggrieved by an award may appeal to the Commissioner of the Division in which the factory is situated within one month of the date of the communication of the award and the Commi ssioner shall pass such order as he deems fit.
(7)The Commissioner 's order in appeal shall be final.
(8)On application to the Civil Court having jurisdiction over the subject matter of the decision or award, the decision of the Cane Commissioner, or the award of the arbitrator or arbitrators, or the Commissioner 's order in a peal against an award, shall be enforced by the Court as if such decision, award, or order in appeal were a decree of that Court.
" " 25.Penalties (1) Any person contravening any of the provisions of these rules for which no 772 penalty has been provided in the Act or not obeying a lawful order or direction conveyed to him in writing which the Cane Commissioner or a Collector or an Inspector is authorised to pass or issue shall be punishable with fine which may extend to Rs. 750: (Proviso omitted) We are concerned with the crushing seasons of 1949 50 and 1950 51.
In these two years, the Cane Marketing Society offered sugar cane by Form 10.
According to the appellant, the Society should have offered 85% of its net estimated crop but it made an offer in both the years which was less than 85% and actually supplied a quantity which was still less.
The relevant figures or the two years, according to the appellant, were as follows: 1949 50 1950 51 (In Lacs of Maunds) Net estimated Crop 45.82 55.20 Less 15% 6.82 8.28 85% which should have been offered 39.00 46.92 Opposite party No 2 offered to sell finally 32.00 32.00 Shortage in offer 7.00 14.92 Actually supplied 23.1113129 7954 Actual shortage 15.8886917.1246 The appellant therefore preferred a claim to the Cane Commissioner for compensation for the short supply calculated at one anna per maund of sugar cane, by an application dated October 31, 1950.
This was preceded by a long correspondence 773 which began in June 1950.
Of this correspondence a few of the letters have been printed in the record of the case.
The first letter is by the appellant to the Cane Marketing Society Ltd., Bijnor, in which a claim for Rs. 1,02,116 13 0, as compensation on account of short supplies in the season 1949 50 was made.
The next letter in August, 1950, showed that the Society was claiming a sum of Rs. 1,64,094 4 6 as commission for the years 1948 49 and 1949 50 and that the appellant was setting up a counterclaim for Rs. 1,04,890 2 9 as compensation for short supply.
On November 4,1950, the appellant wrote a final letter giving the accounts and sending a cheque for Rs. 22628 13 0 in full satisfaction of the claim.
This cheque was accepted by the Society but under protest.
The real dispute was about the compensation for short supplies which the Society did not admit.
According to the Society they had a claim for Rs. 2,63,624 2 6 and they also moved the Cane Commissioner under Rule 23 (1) of the U. P. Sugar Control Act and Rules, 1938, for arbitration.
The Cane Commissioner, who had not acted on the letter of the appellant, then passed an order on July 26, 1951, calling upon the parties to be present before him on August 18, 1951, for the decision of the dispute.
On September 3, 1951, the appellant filed a petition under article 226 of the Constitution for a Writ of Certiorari to quash the proceedings pending before the Cane Commissioner, for a Writ of Prohibition for restraining the Cane Commissioner from continuing the proceedings and for a writ of quo warranto for a declaration that the Cane Commissioner had no right to assume the office of arbitrator in the dispute.
In support of the petition the appellant contended that there could be no arbitration in this dispute because the agreement was not a proper agreement as the Society had omitted to complete the prescribed form XII by leaving the Schedule, the area of cultivation and the estimated yield, blank and as the agreements were not signed 774 by the Mills who did not accept them in their incomplete state.
In the alternative, it was contended that Rule 23 offended against article 14 of the Constitution because it provided two different methods of decision of the disputes one by the Cane Commissioner and the other by arbitration leaving it to the arbitrary will of the Cane Commissioner to choose which it should be in a particular case, and by providing an appeal in one case, and not in the other.
It was further contended that the provision in sub Rule (6) of Rule 23, which provided for an appeal went beyond the rule making power of the Provincial Government as no such power was conferred on it by section 30 of the Act and sub Rule (6) being unseverable, the whole of Rule 23 must fail and that, there could be no action by the Cane Commissioner.
The petition was heard by Chaturvedi, J., and was dismissed.
A special appeal under the Letters Patent was heard by Mootham, C. J., and C. B. Agarwala, J.
Both of them concurred in dismissing the appeal but there was a difference as to sub Rule (6) between the learned judges.
According to the learned Chief justice, in making sub Rule (6) of Rule 23 the Provincial Government had exceeded its power and the Rule was invalid but the sub Rule was severable and the rest of the Rule was validly framed.
According to Agarwala, J,, the sub Rule was properly framed and there was a right of appeal both against the order of the Cane Commissioner as well as the award of the arbitra tors to the Commissioner of the Division.
Both the learned judge held that the provisions of Rule 23 were not discriminatory and thus not void under article 14.
In this appeal the same points, which were urged before the High Court, have been urged before us.
The scheme of the Act and the Rules analysed above shows that the purchase of suger cane was 775 regulated.
There were reserved areas, assigned areas and other areas.
Supplies from a reserved area were meant for a factory for which the area was reserved and forms were prescribed for offer, agreements etc.so that the scheme might not be defeated by parties contracting out of the scheme.
We are not concerned with the merits of the rival contentions about short supply or unpaid commission.
Those are matters for adjudication elsewhere.
We are only con cerned with the. legality of the proceedings before the Cane Commissioner.
This dispute has been referred to him under Rule 23 not only by the Society but earlier also by the appellant.
The appellant now says that he had made a mistake arid seeks to avoid a decision by the Cane Commissioner or by arbitrator and has set up two contentions.
The first is that by reason of three defects in the agreement of 1949 50 season and two in the agreement of 1950 51 season there is no binding contract as is contemplated by section 18(2) and the agreement not having come into force the Commissioner has no power to act under Rule 23.
The defects are : (a) Absence of signature for the mills in both agreements, (b) Schedule left blank in both agreements, (c) Two blanks left in the agreement for 1949 50 season where an area and a quantity had to be mentioned.
The second contention is that Rule 23 enjoining arbitration is void under articles 13 and 14 of 'the Constitution as, on its face it allows discrimination and sub Rule (6) of Rule 23 making provision for an appeal is beyond the rule making power conferred by section 30 of the Act and that sub Rule being unseverable Rule 23 as a whole fails.
We shall deal with the first contention separately and the other two points in the second contention together.
776 The first question thus to consider is whether there is a binding contract between the parties or not.
Clause No. 10 of the agreement which is in the prescribed form, says that "all disputes touching the agreement shall be decided by arbitration as provided for in the rules and no suit shall lie in a civil or revenue court in respect of any such dispute".
The exclusion of the jurisdiction of 'courts is also provided in Rule 23(1).
If the agreement were binding the matter would have to be referred to arbitration as laid down in Rule 23.
The agreement was challenged in the petition under Article 226 on four grounds.
Three of them deal with the facts in dispute with which we are not concerned.
The last was that "no agreement was entered into at all between the parties as contemplated under section 18(2) of the U.P. Sugar Factories Control Act and in the form No. 12 as prescribed under the Rules made thereunder."
The defects that are pointed out now, it is said, make out that there was no agreement at all.
To begin with the agreement was accepted on both sides and was acted upon.
The appellant himself moved the Cane Commissioner for the enforcement of the agreement on October 31, 1950.
He now says that this was under the erroneous belief that even without a written agreement Rule 23 app lied.
Even in the proceedings before the Cane Commissioner the appellant caused an appearance to be made and asked for time.
No objection that there was no valid agreement, was taken.
In his letters to the Society the appellant relied upon the agreements and calculated his compensation and the commission of the Society on its basis.
The appellant sent requisitions for supplies for sugar cane in accordance with Rule 15(5) and (6) and the agreement.
He accepted bills and paid for them.
The appellant had the signed form 10 and also form 12 with him.
He could have got the blanks filled in and also signed the agreement but evaded doing this.
By his conduct 777 the appellant appears prima facie to have accepted the agreement though now he is relying on his own default and petty omissions in the form.
Now it must be remembered that this form was prescribed so that the scheme of the Act and Rules should work smoothly, and the purchase and sale of sugar cane should follow a particular pattern.
The failure to enter into an agreement in the prescribed form was made an offence to compel the factories to keep to the scheme.
Here the form in fact has been used.
All the terms are included and none has been altered or new terms added.
The agreement has also been acted upon.
The question is whether the want of signature of the complaining party and the existence of the blanks render the contract void and non existing.
There is no doubt that in the agreement for the season 1949 50 the area of the crop in one place and the approximate yield from that area in another have not been filled in the blank space provided for that purpose.
The form in 1950 51 has no such blanks.
The agreement was preceded by from No. 10 which showed these particulars.
That form was with the appellant and it supplied these two details, namely, the area under cultivation and the estimated yield. 'Indeed, the two forms between them contained all the particulars which are required to be entered in the body of the agreement.
As regards the schedule to the agreement the headings read as follows: Village Area under sugar Approximate Remarks cane Deal: Ra yield in Mds.toon: Plant If the appellant required this information it could have been furnished.
The Schedule merely gives details village by village of the area under cultivation mentioned in form No. 10 and the body of the agreement and also shows the quality grown 778 in each village.
This is obviously to facilitate re quisitions being sent and the appellant if he has any complaint on this score can raise it in the proceedings.
The banks in the body of the agreement for 1949 50 thus are insignificant.
Those details were already mentioned in form 10.
They do not bear upon the terms which are quite unaffected by the omissions.
The form for 1949 50 season was therefore not invalid because of the omissions in the body of the agreement.
The schedule was intended to record the details of the crop grown but those details were not an integral part of the agreement or its terms.
The agreements for 1949 50 and 1950 51 season were therefore not invalid for this reason also.
This leaves over the absence of the signature of the party who had the custody of the document and who is now complaining of its absence.
It is somewhat odd that he should complain of the lack of his own signature because it is tantamount to his making a virtue of his own lapse.
The argument is therefore attempted to be put on a legal foundation and it is that section 18 (2) used mandatory language and attached penal consequences and the slightest deviation in a material respect and particularly the lack of signature of one of the contracting parties renders the agreement null and void.
What the law requires is that the cane growers and the factories should, in view of the scheme, conform to certain terms and conditions which have been predetermined so that the scheme of rationalisation does not fail.
For this purpose a form is prescribed and the form shows the place where the parties have to sign in token of their acceptance.
Of course, the terms could be accepted orally but the section requires that the contract should be in a particular form and hence in writing.
As to signatures it was held by Duke L. J. as he then was in Ruf (T. A.) & Co. vs Pauwels (1) as follows (1) , 670.779 "As to the suggestion which was made that the words 'contract in writing ' imports a contract made by means of a writing or writings signed by both parties, I do not think the words necessarily have that meaning.
A document purporting to be an agreement may be an agreement in writing sufficient to satisfy the requirements of an Act of Parliament though it is only verified by the signature of one of the parties.
Re Jones The learned Attorney General, however, contends that the prescriptions of section 18(2) being manda tory they had to be followed to the letter.
He urges that in as much as the Act and the rules prescribe a penalty for breach the section cannot but be regarded as mandatory in all its parts.
He assumes that the appellant may be guilty and punished but, says he, the mandatory provision not having been followed according to the letter there can be no resulting valid contract.
A large number of rulings on how to distinguish between mandatory and directory provisions of law were cited before us, in support of the contention.
More cases were cited ' to show that where a form is prescribed, the form and must be used otherwise there is no contract.
We shall only briefly refer to them.
The general rule as to which provision of law, can be regarded as mandatory and which directory is stated in Maxwell on the Interpretation of Statutes at page 364 "It has been said that no rule can be laid) down for determining whether the command (of the statute) is to be considered as a mere direction or instruction involving no invalidating consequence in its disregard, or as imperative, with an implied nullification for dig ) obedience, beyond the fundamental one that 780 it depends on the scope and object of the enactment.
It may, perhaps, be found generally correct to say that nullification is the natural and usual consequence of disobedience, but the question is in the main governed by considerations of convenience and justice (R. vs Ingall (2) , per Lush, J.), and, when that result would involve general inconvenience or injustice to innocent persons, or advantage of those guilty of the neglect, without promoting the real aim and object of the enactment, such an intention is not to be attributed to the legislature.
The whole scope and purpose of the statute under consideration must be regarded.
The general rule is, that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially.
" This rule has been applied in many cases both in India and in England.
In State of U. P. vs Manbodhan Lal Srivastava (1) this Court observed that no general rule can be laid down but the object of the statute must be looked at and even if the provision be worded in a mandatory form, if its neglect would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of the Legislature, it is to be treated only as directory and the neglect of it though punishable would not affect the validity of the acts done; These observations have been followed in other cases and recently in Bhikraj vs Union of India (2) it was observed that where a statute requires that a thing shall be done in a particular manner or form but does not itself set out the consequences of non compliance the question whether the prescription of law shall be treated as mandatory or directory could only be solved by regarding the object, purpose and scope of that law.
If the statute (1) ; (2) A.I.R. (1962) 113,119.781 is found to be directory a penalty may be incurred for noncompliance but the act or thing done is regarded as good.
It is unnecessary to multiply these cases which are based upon the statement in Maxwell which is quoted over and over again.
Now the prescription of the law in the present case was that the cane growers and the factory must enter into an agreement in a prescribed form.
That form has in fact been used, only there are certain blanks and the appellant has not signed where he was expected to do so.
Reliance is placed by the appellant upon a decision of the House of Lords reported in Thomas vs Kelly (1) particularly the observations of Lord Macnaghten where a distinction was made between the words "in accordance with the form" and "in the form".
It is argued that the Act and the rules in the present case require the agreement to be in the form prescribed and not in accordance with the form.
It is submitted that a substantial compliance may be permissible when the words of the statute are " 'in accordance with the form" but that strict compliance is necessary when the words are "in the form": The form in Thomas vs Kelly (1) was in a different category from their form which we have.
Under the statute, which prescribed the form (a bill of sale), it was provided that a bill of sale given by way of security was void unless made in accordance with the form.
, The form used there being not in accordance with the form prescribed was held to be void though there are observations to show that if this consequence had not been attached a departure from the statutory form in any thing which was not a characteristic of that form would not have been fatal.
In the body of the bill of sale executed in that case there was no description of the things intended to be assigned and this portion was regarded as characteristic of the form prescribed.
There are some cases of this Court in which the prescribed forms have been considered, In two (1) 782 cases under the Representation of the People Act,1950, the form for making a security deposit which was prescribed, was not strictly followed but it was held that it was merely a matter of form and as there was substantial compliance the penal consequences did not ensue.
See Jagan Nath vs Jaswant Singh (1) and Kamaraja Nadar vs Kunju Thevar (2), In Hari Vishnu Kama the vs Syed Ahmed Ishaque (3) votes not given in the form prescribed were held to be invalid because the form prescribed was considered to be essential and an intention of the voter expressed otherwise than in the form prescribed was considered to be an intention not expressed at all.
In Radhakisson Gopikisson vs Balmukund Ramchandra (4) a by law provided that contract between agents and their constituents shall be in the form prescribed.
It was held by the Privy Council that a literal compliance with the forms was not essential if the contract contained all the terms and conditions set out in the form but it was otherwise if it did not.
In the present case the form prescribed set out a number of conditions and these have all been incorporated in the agreement which has been executed by the society.
In other words the form has been used.
There is no deviation from the prescribed form except in respect of the three defects which we have mentioned earlier.
We have pointed out that the failure to execute the agreement in the form is made an offence but no other consequence is indicated if the form is not followed.
The utmost that can be said is that if the form which was used included conditions which were at variance with the conditions in the prescribed form a contract might not have resulted.
But we need not express any opinion on this, because in this case the terms as stated in the prescribed form are the terms in the form used.
We have pointed out that no consequence attaches to the failure to observe the form except punishment by fine and section 18 (2) is capable (1) ; (2) (3) ; (4) [1932] L.R. 60 1.A. 63.783 of being read as directory.
Even if it be read as mandatory we have shown already that the failure of the appellant to sign the form is not a matter of which he can take advantage regard being had to his own conduct.
The blanks also do not matter in view of the existence of form No. 10 which suppli ed the information accidentally omitted from the agreement.
The form is also sufficiently identified by the signature on behalf of the Society and it has been acted upon not only by the Society but also by the appellant who is complaining of the want of signature.
In our opinion, the agreement was binding.
It may be pointed out that the arbitration clause in the agreement was enforceable, if agreed to, even without the signature of the appellant as it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties and it is sufficient if the terms are reduced to writing and the agreement of the parties thereto is established.
See Jugal Kishore Rameshwardas vs Mrs. Goolbai Hormusji (1).
In our opinion even if the section be held to be mandatory to the extent that the terms as prescribed should appear in writing, that is complied with in this case.
There was thug a binding contract between the parties and the dispute was to be ,resolved as required by Rule 23.
The appellant has an alternative argument by which he challenges the validity of Rule 23 itself.
He says that Rule 23 permits the Cane Commissioner to follow two different methods for the adjudication of the disputes.
One method is that the Cane Commissioner can himself hear and decide the dispute and the other is that he can direct the parties to have their dispute decided by arbitration.
It is said that Rule 23 thus confers on the Cane Commissioner an arbitrary power to proceed with some cases in one way and in some cases in another because there is no (1) ; 784 guiding principle.
It is also contended that one of the procedures, (namely the decision by the arbitrators) gives a right of appeal from the award to the Commissioner of the Division while there is no right of appeal in the other (namely, decision by the Cane Commissioner) and there is thus discrimination between those persons whose case is decided by the Cane Commissioner and those whose case is decided by arbitration.
It is contended that the Commissioner is given an arbitrary power to discriminate between one case and another in as much as he can decide one case himself and refer another to arbitration and the rule thus offends against the equal protection clause contained in article 14 of the Constitution.
Reference is made to those cases in which this Court has ruled that in such circumstances the law is void.
It is also contended that Rule 23 contains a provision for appeal but sub r.(6) providing for an appeal goes beyond the power conferred by section 30 which confers the rule making power on the Provincial Government.
It is also said that sub r.(6) is not severable from the rest of the Rule because the Provincial Government would not have made a rule for arbitration in that form if it was not able to enact a rule giving a right of appeal to an aggrieved party when there was arbitration.
It is thus contended that sub r.(6) allowing the right of appeal should be struck down as ultra vires the Provincial Government and the whole rule because sub r.(6) is not severable from the rest of the rule.
The arguments are somewhat conflicting.
If sub r.(6) was ultra vires the Provincial Government and must be struck down then one of the reasons on which the complaint of discrimination is based must disappear provided the sub r.is severable, because the decision in either case then would be final.
It is only if it is unseverable that other considerations would arise.
It is therefore necessary to see if section 30 of the Act confers power to provide for appeal from 785 the award of the arbitrators.
An appeal is no doubt a creature of statute and does not lie in the nature of things.
Under the general law relating to arbitration there is no appeal against an award.
The power to provide for an appeal by a rule must, therefore, flow from section 30 of the Act.
Section 30 first confers a general power to make rules and then enumerates, as illustrative of the general power, certain topics on which rules in particular may be made ' The general power is conferred by the first sub section which reads: "The Provincial Government may make rules to carry out the provisions of this Act.
" It is argued by the appellant that this sub section does not use the common formula "carry out the purposes of this Act" and the Provincial Government could only provide for an appeal if a provision enabling it to ' do so existed in the Act, and no such provision regarding appeals is to be found.
The other side relies upon sub section(2) which says that rules may provide for : "(u) the reference to the Cane Commissioner of disputes relating to the supply of Cane for decision or if he so directs to arbitration, the mode of appointing an arbitrator or arbitrators, the procedure to be followed in proceedings before the Cane Commissioner or such arbitrator or arbitrators, and the enforcement of the decisions of the Cane Commissioner or the awards of arbitrators.
" It is contended that this clause confers on the rule making authority the power to make rules regarding disputes relating to the supply of cane for decision by arbitration and being itself a provision of the Act '.
rules can be made to carry out this provision.
The appellant however contends that 186 clause (u) mentions only four matters and the provision of an appeal is not one of them.
In our opinion, clause (u) conferred a general power to make rules for the resolving of disputes either by the Cane Commissioner or if he so directs by arbitration and to give effect to the latter part of this provision arbitration with an appeal from the arbitrator 's decision would be giving effect to the provisions as a whole.
In this sense sub r.(6) providing for an appeal against the decision of the arbitrators must be considered as a rule giving effect to the provision of section 30 (2) (u) providing for the resolving of disputes by arbitration.
Sub Rule (6) was thus within the rule making power of the Provincial Government and it is unnecessary to discuss whether it is severable or not from the rest of the rule.
We shall now pass on to the main contention in this case, that Rule 23 provides for two different types of procedures to be followed at the option of the Cane Commissioner.
If it could be said that the rule, as framed, allows the Cane Commissioner to discriminate between one party and another, then the rule must offend Article 14.
We shall, therefore, see whether there is any room for discrimination at the hands of the Cane Commissioner.
It is necessary in this connection to see first whether the Cane Commissioner can compel a party to go to arbitration against his will.
The rule says that any dispute touching an agreement shall be referred to the Cane Commissioner for decision or if he so directs to arbitration.
It also provides that no suit shall lie in a civil or revenue court in respect of any such dis pute.
At first sight, it does look as if the Cane Commissioner can pick and choose between two disputes of like nature., keeping one two himself ' and sending another for decision by a sale arbitrator or Board of arbitrators.
But the purport of the first sub Rule is that an arbitration can be with the permission of the Cane Commissioner 787 and parties cannot go to arbitration without the permission of the Cane Commissioner.
The rest of the rule shows that there can be no arbitration without the consent of the parties.
If the reference to arbitration is purely on a voluntary basis then there can be no complaint that two different procedures are provided for the solution of the same kind of disputes.
If parties cannot be compelled to go to arbitration and refuse to go to arbitration then the Cane Commissioner must decide the dispute himself.
If this view was correct then there is but one mode of deciding disputes, namely, by the Cane Commissioner and an alternative mode, no doubt, under the direction of the Cane Commissioner but only if the parties agree, by arbitration.
Therefore the provisions regarding arbitration cannot be compared with the procedure before the Cane Commissioner, and the provision for an appeal in the former but prima facie not in the latter loses all significance.
The procedure of arbitration with the appeal included really applies only if both sides accept that procedure willingly.
To determine whether the procedure involving arbitration is voluntary or not we shall have to examine Rule 23 in some detail but before we do so we shall advert to section 46 and three other sections of he Arbitration Act.
That section provides : "The provisions of this Act, except sub section (1) of section 6 and sections 7, 12, 36 and 37, shall apply to every arbitration under any other enactment for the time being in force, as if the arbitrations were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as this Act is inconsistent with that other enactment or with any rules made thereunder.
" It was admitted before us by the learned counsel for the appellant that section 46 in its first part does not apply but it was argued that section 8, 9 and 10 of the 788 arbitration Act must be considered in deciding whether the arbitration is purely on a voluntary basis or not.
We have thus to compare the provisions of Rule 23 with those of these sections to find out if the rule prevails over the sections.
Rule 23(2) provides that when the Cane Commissioner directs the reference of the dispute to arbitration "it shall be referred to a sole arbitrator acceptable to the parties concerned".
It is thus clear that arbitration by a sole arbitrator can only be by consent of parties.
New if the matter were governed by section 8 of the Arbitration Act it would be open to any party to serve the other party with a written notice to concur in the appointment and after a lapse of a fortnight the Court could be moved to make the appointment.
This provision is clearly inconsistent with what happens in the same circumstances under the Rule.
The Rule provides : in case no sole arbitrator is acceptable to both parties the dispute in question shall be referred to a Board of Arbitration., consisting of one representative of each party and an umpire acceptable to both representatives.
The Board is a three member board and this eliminates from consideration section 8.
It also excludes section 9, of the Arbitration Act which deals with situations in which the reference is to two arbitrators and if one party fails to appoint his arbitrator the other party after appointing his own arbitrator can give a notice and the appointed arbitrator becomes the sole arbitrator.
Under Rule 23 this cannot happen.
Section 9 is thus inconsistent with a three member board which is the sine qua non of the Rule.
The Rule provides that each party must appoint his, own arbitrator and then the umpire is to be chosen by the two representatives.
Tile Cane Commissioner comes into the picture again when the representatives are unable to agree regarding the umpire.
But there is an initial stage at which any of the parties can frustrate the arbitration by declining in limine to 789 select his own arbitrator.
The arbitration must therefore be by agreement or it cannot take place at all.
It remains to mention section 10.
That section has no relation to the appointment of arbitrators to begin with.
It deals with the position of the third arbitrator chosen by two arbitrators appointed by the parties.
That stage does not reach at all if one of the parties does not appoint his arbitrator.
It is thus quite clear that sections 8, 9 and 10 of the Arbitration Act do not apply being inconsistent with Rule 23.
It is also quite clear that the decision by the Commissioner is the normal mode of disposing of disputes regarding the supply of sugar cane.
The Cane Commissioner has the power to direct that the dispute be referred to arbitration but the rules show that there can be no arbitration unless the parties themselves agree.
If it is to a sole arbitrator then the sole arbitrator must be acceptable to the parties concerned.
If parties do not agree about the sole arbitrator the arbitration is by a Board of arbitrators consisting of one representative of each party and an umpire acceptable to both representatives.
The Rule stops short of providing what is to happen if a party does not appoint his representative and the Arbitration Act furnishes no answer because it is inconsistent with the Rule.
It is, therefore, obvious that the arbitration must be with the consent of parties and they must express this consent either by selecting an agreed sole arbitrator or by appointing their representative on the Board.
This choice is entirely theirs, If the parties do not agree thus far there can be no arbitration at all and the case must be disposed of by the Cane Commissioner himself.
Where there are two procedures one for every one and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be 790 found to exist if the election is with someone alse who can exercise his will arbitrarily.
It remains to consider an argument which was raised by Mr. Veda Vyasa at the end of the hearing but which was not urged by the learned Attorney General and it is that there may be discrimination in as much as the Cane Commissioner may refer some, disputes to arbitration and keep some to himself even though in all of them parties wish for arbitration.
In other words, the discrimination is said to exist the other way round that is to say not because there are two modes from which one may be selected arbitrarily but because parties in some cases may be deprived of their election to proceed by arbitration.
As we have said the normal mode is decision by the Cane Commissioner with a possibility of arbitration by the agreement of parties.
It is most unlikely that the Cane Commissioner would decline to refer a dispute to arbitration where the parties agree that it should be so referred.
Where the Cane Commissioner declines to make a reference the question may arise whether he could not be compelled to do so and also whether his decision given against the wishes of the parties would be binding on the parties.
But we cannot say that the rule offends Article 14 because the Cane Commissioner may himself decide a dispute which the parties wish to go to arbitration.
In our opinion the agreement was a binding agreement and Rule 23(6) of the U.P. Sugar Factories Control Rules 1938 was not ultra vires the Provincial Government and the Rule as a whole does not offend Article 14 of the Constitution.
This appeal must therefore fail.
It is dismissed with costs.
RAGHUBAR DAYAL, J.
I have had the advantage of perusing the judgment of my learned brother Hidayatullah,J., and I agree that there was a binding contract between the parties and in the view of 791 cl.10, the dispute was capable of being referred to arbitration.
1, however, do not agree that r. 23 of the U. P. Sugar Factories Control Rules, 1938 is not discriminatory.
Sub r.(1) of r. 23 provides that the dispute be referred to the Cane Commissioner for decision or,.if he so directs, for arbitration, and thus gives discretion to the Cane Commissioner to direct that the dispute touching the agreement be referred to arbitration.
There is nothing to guide his discretion.
The procedure contemplated seems to be that when a party approaches the Cane Commissioner for the settlement of the dispute, the Cane Commissioner may either proceed to decide the dispute himself or may direct the party to go to arbitration.
There is nothing in this sub rule to suggest that the Cane Commissioner can refer the dispute to arbitration by arbitrators only when the parties agree to have the dispute so settled.
In the absence of such a provision, the discretionary power of the Cane Commissioner cannot be restricted.
There seems to be no justification for taking the clause 'if he so directs ' to be if he so directs on the parties agreeing to have the dispute settled by arbitrators '.
Clause 10 of the agreement in Form 12, together with the direction of the Cane Commissioner, amounts to the arbitration agreement.
Once the Cane Commissioner has given the necessary direction the dispute is to go to the sole arbitrator acceptable to the parties concerned.
This is what sub r.(2) provides.
In case no sole arbitrator is acceptable to both the parties, the dispute is to be referred to a Board of Arbitration.
The parties can thus avoid arbitration by the sole arbitrator by their not agree ing to any particular person to act as sole arbitrator.
If the parties do not accept any sole arbitrator each of the parties has to appoint one representative 792 to the Board of Arbitration and the representatives so appointed, then appoint an umpire acceptable to them.
It is suggested for the respondent that in case a party does not wish the matter to be referred to the Board of Arbitration, it can easily avoid it by not appointing a representative and that in that contingency, the Cane Commissioner will have to decide the dispute himself.
If the parties agree to appoint a representative, the reference of the dispute to the Board of Arbitration would be a reference with the consent of the parties and therefore no question of discrimination can arise, even if the incidents of the dispute decided by the Cane Commissioner himself and by the Board of Arbitration be different.
Sub r.(2) or any other sub rule of r.23, does not provide what is to happen when any of the parties does not appoint a representative.
It does not necessarily follow from the absence of such a provision that the dispute goes back to the Cane Commissioner for decision or that the Cane Commissioner is empowered to withdraw his direction of referring the dispute to arbitration.
Rule 23 has no such express provision in this regard, though sub r.(5) expressly, provides for the Cane Commissioner to take charge of ' the dispute afresh in another contingency.
Once the Cane Commissioner has directed reference of the dispute to arbitration, he, in the absence of any provision in the rules empowering him to do so, is not to withdraw that direction and take over the decision of the dispute himself.
The omission to provide for such a contingency can only mean that the rule does not contemplate a party not nominating his representative.
This appears to be more reasonable to suppose than to hold that the reference of the dispute reverts to the Cane Commissioner who had already decided not to decide the dispute himself.
Further, the party 's nominating a representative would not make the reference to arbitration a 793 voluntary act.
The parties have no choice.
They had to enter into an agreement in Form 12.
Their agreeing to cl. 10 of the agreement is not voluntary but is due to statutory requirement.
So is their agreement to nominate representative to the Board of Arbitration as they cannot go to a Civil Court for the decision of the dispute in view of sub r.
There is nothing in r. 23 to indicate that the decision of the dispute by the Cane Commissioner is the normal procedure contemplated by the rule.
Of course, the Cane Commissioner can act as an umpire if he so desires in case the two representatives appointed by the parties to the Board of Arbitration are unable to elect an umpire within a fortnight of the reference to them.
In case the Board of arbitration does not give the award within a time fixed by the Cane Commissioner, the dispute is to be deemed to have been freshly referred to the Cane Commissioner, as sub r.(5) in these circumstances, empowers the Cane Commissioner to decide the dispute himself or to appoint another arbitrator or arbitrators for the purpose.
It is clear from the various provisions of r. 23 that there is a difference in the procedure for the dispute being decided by the Cane Commissioner and the dispute being decided by the arbitrator or Board of Arbitration.
In the former case, the decision of the Cane Commissioner is final and enforcible by the Civil Court referred to in sub r.
In the latter case, the award of the sole arbitrator or the Board of Arbitration is appealable to the Commissioner of the Division in which the factory is situated and the Commissioner 's order is final and enforcible by the Civil Court.
It follows that the procedure provided by r. 23 for decision of the dispute touching the agreement is such that parties similarly situated may have the dispute decided by different person an by different procedures according to the, 794 inclination of the Cane Commissioner whose discretion in this matter is uncontrolled by any guiding principles.
The rule therefore offends against article 14 of the Constitution and is void.
It is also contended that sub r.(6) providing an appeal to the Commissioner, against the order of the arbitrator or Board of Arbitration is void as the ,State Government had no power to make a provision about appeal.
Sub section(1) of section 30 of the U. P. Sugar Factories (Control) Act empowers the State Government to make rules to carry out the provisions of that Act, There is nothing in the Act to the effect that provision be made for an appeal against the award of the arbitrator or arbitrators.
A rule providing for appeal against the order of the arbitrator or arbitrators is therefore not a rule to carry out any provision of the Act.
Clause (u) of sub section (2) of section 30 states that the State Government may make rules to provide for the reference to the Cane Commissioner of disputes relating to the supply of cane for decision or, if he so directs, to arbitration, the mode of appointing arbitrator or arbitrators, the procedure to be followed in proceedings before the Cane Commissioner and such arbitrator or arbitrators and the enforcement of the decisions of the Cane Commissioner or of the award of the arbitrators.
It is true that these provisions relate to the settlement of disputes between the parties, but that by itself does not mean that the State Government can provide for appeals against the orders of the arbitrator or arbitrators.
These provisions of cl.(u) do not expressly state that the rule can provide for an appeal against the award of the arbitrator.
Provisions of cl.(u) make no reference either for the provision of an appeal or for the procedure to be followed by the appellate Tribunal, or for the enforcement of the order of the appellate Tribunal.
The absence of such reference establishes that cl.(u) did neither contemplate nor empower the State 795 Government to make rules providing an appeal against the award of arbitrator or arbitrators.
Further, the order of the Commissioner is not an award and this is recognised by the language of sub r.
(8) of r. 23 which refers to the decision of the Cane Commissioner to the award of the arbitrator or arbitrators and to the Commissioner 's order in appeal.
The provision for an appeal in sub r.(6) therefore is not to be treated as something ancillary to the provision for settling disputes between the parties by the Cane Commissioner for which object cl.(u) empowered the State Government to make rules with respect to certain matters.
The right to appeal is a substantive right and is to be conferred on a party by or under the Act.
The Act must either provide for the appeal or enact that the rules framed thereunder may provide for appeals against certain orders of decisions. '
In the absence of such a provision in the Act, the rules cannot provide for appeals.
I am therefore of opinion that sub r.(6) is void.
It is true that if sub r.(6) is struck down as void, there would not be any substantial difference between the procedure to be followed by the Cane Commissioner or the Arbitrator or Board of Arbitrators in deciding the dispute, but it does, not necessarily follow from this that r. 23 minus sub rule (6) and other incidental deleted provisions, is valid.
It is difficult to say that sub r.(6) is severable.
The existence of sub r.(6) and other consequential provisions makes it clear that the State Government which made r. 23 provided for the decision of the dispute by the arbitrator or arbitrators subject to an appeal against the award.
It will be sheer speculation to say that the State Government would have made provision for the dispute to be settled by arbitrators if it had known that it could not make any provision for an appeal against that order.
I am therefore of opinion that the entire r. 23 is to be struck down both because in its present for it is 796 discriminatory and because sub r.(6) is void inasmuch as the State Government had no power to enact it and it is not servable from the rest of the rule.
I would therefore allow the appeal with costs and order the issue of a writ quashing the proceedings pending before the Cane Commissioner and prohibiting him to continue those proceedings.
By COURT : In accordance with the opinion of the majority, this Appeal is dismissed with costs. | Certain disputes arose between the appellant and the Cane Marketing Society Ltd., Bijnor.
The appellant preferred a claim to the Cane Commissioner for compensation for short supply of Sugar cane.
The Society also moved the Cane Commissioner for arbitration.
The Commissioner passed an order calling upon the parties to be present before him for a decision of the dispute.
It was then that the appellant filed a petition under article 226 of the Constitution of India for a writ of certiorari to quash the proceeding pending before the Cane Commissioner, for a write of prohibitation for restraining the Cane Commissioner from continuing quo warranto for a declaration that the Cane the proceedings and a writ of Commissioner had, no right to assume the office of arbitrator in the dispute.
The appellant contended that there could be no arbitration because the claim was not a proper claim as the Society had omitted to complete the prescribed form XII by leaving the schedule, the area of cultivation and the estimated yield blank and as the agreements were not signed by the Mills who did not accept them in their incomplete state.
In the alternative, it was contended that Rule 2 3 offended against article 14 of the Constitution.
It was also contended that r. 23(6) providing for an appeal went beyond the rule making power of the Provincial Government under section 30 of the Act.
The writ petition was dismissed by the High Court.
The Letters Patent appeal was also dismissed.
The appellant came to this Court by a certificate.
Held, that the agreement was a binding agreement.
The form prescribed set out a number of conditions and all of them have been incorporated in the agreement executed by the Society.
There has been no deviation from the prescribed form except some minor omission.
The failure to execute the 761 agreement in the form is made an offence but no other cons equence is indicated if the form is not followed.
The utmost that can be said is that if the form that was used included conditions which were at variance with the conditions in the prescribed form, a contract might not have resulted, but in the present case the terms as stated in the prescribed form are the terms in the form used.
No consequence attaches to the failure to observe the form except punishment by fine and section 18(2) is capable of being read as directory.
Even if it be read as mandatory, the failure of the appellant to sign the form is not a matter of which he can take advantage, regard being bad to his own conduct.
The blanks also do not matter in view of the existence of form 10, which supplied the information accidently omitted from the agreement.
The arbitration clause in the form was enforceable, if agreed to, even without the signature of the appellant as it is settled law that to constitute an arbitration agreement in writing it is not necessary that it should be signed by the parties and it is sufficient if the terms are reduced to writing an the agreement of the parties thereto is established.
Even if section 18(2) be held to be mandatory to the extent that the terms as prescribed should appear in writing, that is complied with in this case, Held (Raghubar Dayal, J., dissenting), that section 30(2 of the Act conferred a general power to make rules for the resol ving of disputes either by the Cane Commissioner or if he so directs, by arbitration and to give effect to the latter part of this provision arbitration with an appeal from the arbitrator 's decision would be giving effect to the provisions as a whole.
Rule 23(6) providing for an appeal against the decision of arbitrators must be considered as a rule giving effect to the provisions of section 30(2)(u) providing for the resolving of disputes by arbitration.
Sub rule (6) was thus within the rule making power of the Provincial Government.
Sections 8, 9 and 10 of the Arbitration Act do not apply being inconsistent with r. 23.
The decision by the Commis sioner is the normal mode, of disposing of disputes regarding the supply of sugar cane.
The Cane Commissioner has the power to direct that the dispute be referred to arbitration, but the rules show that there can be no arbitration unless the parties themselves agree.
If it is to a sole arbitrator, then the sole arbitrator must be acceptable to the parties concerned.
If the parties do not agree to the appointment of a sole arbitrator, the arbitration is by a Board of Arbitrators consisting of one representative of each party and an Umpire acceptable to both the representatives.
The Rule stops short of providing what is to happen if a party does not appoint his 762 representative and the Arbitration Act furnishes no answer because it is inconsistent with the Rule.
It is, therefore, obvious that the arbitration must be with the consent of the parties and they must express their consent either by selecting an agreed sole arbitrator or by appointing their representative on the Board.
This choice is entirely theirs.
If the parties do not agree, there can be no arbitration at all and the case must be disposed of by the Cane Commissioner himself.
Where there are two procedures, one for everyone and the other if the disputants voluntarily agree to follow it, there can be no discrimination because discrimination can only be found to exist if the election is with some one else who can exercise his will arbitrarily.
Rule 23 as a whole does not offend Art.14 of the Constitution.
Per Raghubar Dayal, J. It is true that the provisions of section 30(2)(u) relate to the settlement of disputes between the parties but that by itself does not mean that the State Government can provide for appeals against the orders of the arbitrator or arbitrators.
These provisions do not expressly state that the rule can provide for an appeal against the award of the arbitrator.
They make no reference either for the provision of an appeal or for the procedure to be followed by the Appellate Tribunal or for the enforcement of the order of the Appellate Tribunal.
The absence of such a reference establishes that cl.
(u) did neither contemplate nor empowered the State Government to make rules providing an appeal against the award of arbitrator or arbitrators.
Further, the order of the Commissioner is not an award and this is recognised by the language of r. 23(8) which refers to the decision of the Cane Commissioner to the award of the arbitrator or arbitrators and to the Commissioner 's order in appeal.
The provision for an appeal in r. 23(6), therefore, is not to be treated as something ancillary to the provision for settling disputes between the parties by the Cane Commissioner for which object cl.
(u) empowered the State Government to make rules with respect to certain matters.
The right to appeal is a substantive right and is to be conferred on a party by or under the Act.
The Act must either provide for the appeal or enact that the rules framed thereunder may provide for appeals against certain orders or decisions.
In the absence of such a provision in the Act, the rules cannot provide for appeals.
The result is that r. 23(6) is void.
It is clear from the various provisions of r. 23 that there is a difference in the procedure for the dispute being decided by the Cane Commissioner and the dispute being decided by the arbitrator or a Board of Arbitration.
In the former case, 763 the decision of the Cane Commissioner is final and enforceable by the Civil Court referred to in r. 23(8).
In the latter case, the award of the sole arbitrator or the Board of Arbitration is appealable to the Commissioner of the Division in which the factory is situated and the order of the Commissioner is final and enforceable by the Civil Court.
It follows that the procedure provided by r. 23 for decision of the dispute touching the agreement is such that parties similarly situated may have the dispute decided by different persons and by different procedures according to the inclination of the Cane Commissioner whose discretion in this matter is uncontrolled by any guiding principles.
The rule, therefore, offends against article 14 of the Constitution and is void.
The entire r. 23 is struck down both because in its present form it is discriminatory and because sub r.
(6) is void inasmuch as the State Government had no power to enact it and it is not severable from the rest of the rule.
Ruf (T. A.) & Co. vs Pauwels, ; State of U. P. vs Manbodhan Lal Srivastava, ; , Bhikraj vs Union of India, A. I. R. , Thomas vs Kelly, 888) 13 App.
506, Jagan Nath vs Jaswant Singh, ; , Kamaraja Nadar vs Kunju Thevar, , Hari Vishnu Kamath vs Syed Ahmed Ishaque, ; , Radhakinsson Gopikis8on vs Balmukund Ramchandra (1932) L. R. 60 I. A. 63 and Jugal Kishore Rameshwardas vs Mrs. Goolbai Hormusji, [1955] 2 section C. R. 857, referred to. |
Criminal Appeal No. 195 of 1984.
From the Judgment and Order dated 30.11.
1982 of the Punjab & Haryana High Court in Crl.
Appeal No. 425 D.B./1982.
O.P. Soni, Ms. Kamlesh Datta and S.K. Sabharwal for the Appellant.
664 U.R. Lalit and Uma Datta for the Respondents.
Mahabir Singh for the State of Haryana.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
The respondents Puran and Tara Chand along with Ved, Balwan, Dhapan, Jagdish and Lal Chand were tried before the Additional Sessions Judge, Sonepat, for the murder of one Partap Singh and causing injuries to others.
The learned Judge by judgment dated 18.5.
1972 convicted these respondents for offences under section 302, I.P.C., and sections 323,325 read with 149, I.P.C. They were sen tenced to undergo imprisonment for life and ordered to pay a sum of Rs.500 each under section 302, I.P.C., R.I. for one year under section 148, I.P.C., R.I. for one year under section 325 and R.I. for six months under section 323, I.P.C.
The other accused were convicted for the minor of fences and released on probation under sections 360/36.1, Cr.
P.C. The respondents appealed against the conviction and sentence.
The High Court by the impugned judgment dated 30.11.
1982 disposed of the appeal thus: "Admittedly there was no prior enmity between the parties.
The quarrel arose out of a very insignificant matter like the burning of dry sugarcane leaves on the common boundary of the fields of the two parties.
The ensuing altercation would probably have been forgotten had Partap Singh deceased not died.
Even when there is an altercation arising out of a minor incident there is some tendency on the part of the prosecution witness to exaggerate matters.
The three eye witnesses have of course fully supported the prosecution case but the investigating officer recorded statement of one Paras Ram at the time of making the inquest report which gives a somewhat different version.
The learned trial judge has himself found that the object of the unlawful assembly was not to commit the murder of the deceased.
It is precise ly for this reason that five accused persons have been released on probation and only two accused, i.e., Puran and Tara Chand appellants, have been convicted under section 302, I.P.C. We do not propose to go into the details of the controversy and in the peculiar circumstances of this case convert the conviction of Puran and Tara Chand appellants into one under section 304.
Part1, 1.
P.C., on the basis that in view of the statement made by 665 Paras Ram at the time when the investigating officer made the inquest report a somewhat different version was given.
This Paras Ram was not produced as a witness by the prosecu tion.
Since there was no prior enmity between the parties, we order that sentence already undergone by Puran and Tara Chand appellants will meet the ends of justice.
They are, however, ordered to pay a fine of Rs. 12,000 each.
In de fault of payment of this fine, the defaulter is ordered to undergo rigorous imprisonment for five years.
The sentences of imprisonment imposed upon Puran and Tara Chand appellants on other counts are also reduced to that already undergone by them.
The total fine, if realised, shall be paid to the next heirs of Partap Singh deceased as compensation." (emphasis supplied) The High Court has, by this Cryptic order, acquitted re spondents of the major charge under section 302, I.P.C., and recorded their conviction under section 304 Part I reducing the sentence of life imprisonment to a term of imprisonment already undergone while enhancing the sentence of fine.
The State has not preferred any appeal against the order of acquittal or reduction of sentence.
The respondents.
it appears, have accepted the judgment.
Sham Sunder, the de facto complainant, however, being aggrieved approached this Court under Article 136 of the Constitution.
This Court has granted special leave to appeal.
The High Court, exercising power under section 386, Cr. P.C., in an appeal from a conviction may reverse the finding and sentence and acquit the accused or alter the finding maintaining the sentence or with or without altering the finding after the nature or the extent or the nature and extent of the sentence but not so as to enhance the same.
The powers of the High Court in dealing with the evidence are as wide as that of the trial Court.
As the final court of facts, the High Court has also duty to examine the evi dence and arrive at its own conclusion on the entire materi al on record as to the guilt or otherwise of the appellants before it.
It is true that the High Court is entitled to reappraise the evidence in the case.
It is also true that under Article 136.
the Supreme Court does not ordinarily reappraise the evidence for itself for determining whether or not the High Court has come to a correct conclusion on facts but where the High Court has completely missed 666 the real point requiring determination and has also on erroneous grounds discredited the evidence and has further failed to consider the fact that on account of long standing enmity between the parties, there is a tendency to involve innocent persons and to exaggerate and lead pre judged evidence in regard to the occurrence, the Supreme Court would be justified in going into the evidence for the pur pose of satisfying itself that the grave injustice has not resulted in the case.
We have extracted the material portion of the judgment of the High Court to indicate that the line of approach adopted by the High Court is wholly wrong.
There is no discussion of the evidence much less any reasoning.
The respondents herein along with five others had been found guilty by the trial court accepting the testimony of the two eye witnesses and other material evidence on record.
A brief resume of the facts is necessary.
Lal Chand and Tara Chand are brothers.
Ved Singh, Puran, Balwan and Ishwar are the sons of Tara Chand and Dhapan is his wife.
Jagdish is the son of Lal Chand.
Partap and Bhim Singh are brothers.
Sham Sunder is the son of Bhim Singh.
Roshan is the son of Partap.
Tara Chand owns sugarcane field adjoining the wheat field of Partap.
On 10.3.
1981 in the morning, Ved Singh burned sugarcane patties causing damage to the wheat crop.
The protest raised by Roshan was not heeded.
Bhim Singh arrived at the scene and altercation 'ensued.
Partap later raised protest before Tara Chand.
His grievance was not redressed.
At about 6.00 P.M. Partap raised the protest before Puran who also turned down the same.
Shortly thereaf ter Puran and the other members of his family including his wife, brother and their children all numbering about eight reached in front of the house of Partap.
They were armed and attacked Partap.
The allegation is that the respondents Tara Chand and Puran had attacked Partap with jailies, first they gave jailies blows from the prong side in the chest and when Partap fell down, they gave jailies blows like lathi on his head, back and shoulder.
Partap died on his way to the hospital.
It is further alleged that in the course of the incident Lal Chand and Jagdish caused injuries to Roshan; Ishwar caused injuries to Dhapan wife of Partap; Puran, Ved, Balwan caused injuries to Sham Sunder.
It has come out in evidence that Ved, Dhapan, Lal Chand, Puran and Ishwar also received injuries in the course of the incident.
Sham Sunder and Roshan are the two eye witnesses, be sides Smt.
Dhapan the wife of deceased Partap.
There had been no independent witness.
Sham Sunder and Roshan said that they had caused 667 injuries to the members of the opposite party in self de fence.
They do not however state in what circumstances they had to use force.
The evidence does not disclose the genesis of the occurrence; how it developed and culminated in fatal injuries to Partap.
There had been no enmity between the two groups.
The immediate provocation for the quarrel is the damage to the wheat crops.
It is admitted that Partap raised his protest right from the morning till the arrival of Puran who was employee of the Medical College, Rohtak.
The prose cution has, it appears, given a twist when they say that at 6.00 P.M. Partap met Puran who turned down his request and went home and after 15 minutes all the members of his family including the womenfolk reached the house of Partap and started the assault.
It is significant to note that the women and even the minor children of both families were present and received injuries recording their presence at the place.
It would therefore appear that it was a continu ous transaction and when Partap persistently raises the protest and started abusing Puran, other members of his household had come out.
The quarrel had taken a serious turn and in the course of further development fatal injuries had been caused to Partap.
The plea of the respondents was that they did not cause any injury, that there was a Panchayat where a large crowd assembled and there had been brick batting and altercation.
The plea of private defence was not specifically set up.
However, if there are material in evidence to indicate that the incident could not have hap pened in the manner spoken to by the eye witnesses and in all probability the respondents had used the force exercis ing the right of private defence, then accused are entitled to the benefit thereof.
Whether the respondents have in such circumstances exceeded their right and are justified in causing death, has necessarily to be considered.
In the absence of a full discussion of the evidence by the High Court, we have been constrained to consider the materials on record.
We have seen that there is the evidence of only the interested witnesses who have the tendency to exaggerate and involve even innocent persons.
We have seen that most of the accused have sustained injuries and in explaining the same, the prosecution witnesses have not come forward with a truthful account.
We are led to draw the inference that in the melee and ensued on account of the aggressive attitude of Partap, the respondents and other members of the family participated and used the force against Partap and his associates in all probabilities in the exercise of right of private defence.
However, the circumstances did not warrant the causing of death and the respondents must be deemed to have exceeded their right.
The nature of the injuries indi 668 cate that injuries sufficient in the ordinary course of nature to cause death had been inflicted intentionally.
In such circumstances.
, the act of the respondents squarely falls under section 304 Part I, EP.C. While we agree with the conclusion arrived at by the High Court, we record that the High Court has not given any cogent or clear reasons for its conclusion and whatever reason has been stated is erro neous.
It is on the basis of the statement given in the course of investigation by a person who was not examined in the case that the High Court has drawn its conclusion.
We, however, maintain the conviction under section 304 Part I, I.P.C.
The High Court has reduced the sentence to the term of imprisonment already undergone while enhancing the fine.
It is pointed out that the respondents have undergone only imprisonment for a short period of less than six months and, in a grave crime like this, the sentence awarded is rather inadequate.
No particular reason has been given by the High Court for awarding such sentence.
The court in fixing the punishment for any particular crime should take into consid eration the nature of the offence, the circumstances in which it was committed and the degree of deliberation shown by the offender.
The measure of punishment should be propor tionate to the gravity of the offence.
The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice.
We are of opinion that to meet the ends of justice, the sentence has to be enhanced.
In the result, we maintain the conviction of the re spondents but enhance the sentence to one of rigorous im prisonment for a period of five years.
The respondents should surrender to the bail to undergo the unexpired por tion of the sentence.
The fine, if paid, shall be refunded to the respondents 1 and 2.
The appeal is disposed of as above.
G.N. Appeal disposed Of. | Respondent 1 is the son of Respondent No. 2.
Including Respondent No. 1 Respondent No. 2 had 4 sons.
Respondent No. 2 owned a sugarcane field adjoining the wheat field of one P. One of the sons of Respondent 2 had burnt sugarcane patties causing damage to the wheat crop of P, against which P protested before the respondents.
The protest was turned down.
Shortly thereafter the respondent and the family members reached the house of P. They were all armed.
Re spondents attacked P and he fell down.
On the way to hospi tal P died.
Most of the accused as well as the family mem bers of P sustained injuries.
On a complaint, F.I.R. was registered.
After investigation, Prosecution filed a case before the Additional Sessions Judge.
Two eye witnesses were produced by the prosecution.
They were relatives of the deceased and there was no independent witness.
The Additional District Judge convicted the respondent for offences under sections 302 IPC and 323, 325 read with 149 IPC.
Both were sentenced to imprisonment for life and a fine Rs.500 each under section 302 IPC.
They were also sentenced to rigorous imprisonment ranging from six months to one year for the other offences.
The other accused were convicted for minor offences and released on probation.
The respondent appealed against the conviction and sentence.
The High Court acquitted the respondents of the major charge under section 302 IPC and recorded the conviction under section 304 Part I reducing the sentence of life imprison ment to the term already undergone, and enhanced the sen tence of fine.
No appeal was preferred by the State.
Howev er, the complaint filed an appeal by special leave.
663 Disposing the appeal, this Court, HELD 1.
There is the evidence of only the interested witnesses who have the tendency to exaggerate and involve even innocent persons.
Most of the accused have sustained injuries and in explaining the same, the prosecution wit nesses have not come forward with a truthful account.
In the melee that ensued on account of the aggressive attitude of the respondents and other members of the family who partici pated and used force against P and his associates.
in all probabilities in the exercise of right of private defence.
However, the circumstances did not warrant the causing of death and the respondents must be deemed to have exceeded their right.
The nature of the injuries indicate that they were sufficient in the ordinary course of nature to cause death and had been inflicted intentionally.
In such circum stances, the act of the respondents squarely fails under section 304 Part I, IPC.
The High Court has not given any cogent or clear reasons for its conclusion and whatever reason has been stated is erroneous.
It is on the basis of the statement given in the course of investigation by a person who was not examined in the case that the High Court has drawn its conclusion.
However.
the conviction under section 304 Part I, IPC is maintained.
The High CoUrt has reduced the sentence to the term of imprisonment already undergone, and enhanced the fine.
The respondents have undergone imprisonment only for a short period of less than six months and, in a grave crime like this, the sentence awarded is rather inadequate.
No particu lar reason has been given by the High Court for awarding such sentence.
The Court in fixing the punishment for any particular crime should take into consideration the nature of the offence, the circumstances in which it was committed, and the degree of deliberation shown by the offender.
The measure of punishment should be proportionate to the gravity of the offence.
The sentence imposed by the High Court appears to be so grossly and entirely inadequate as to involve a failure of justice.
The sentence is enhanced to one of rigorous imprisonment for a period of five years. |
ivil Appeal No. 4460 Of 1988.
From the Order dated 15.4.
1988 of the Customs Excise and Gold (Control) Appellate Tribunal New Delhi in Appeal No. E/Appeal No. 2225 of 1986 A. 3 V. Sreedharan, V.J. Francis and N.M. Popli for the Appel lant.
Ashok H. Desai, Solicitor General, Dalip Tandon and P. Parmeshwaran for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This is an appeal under section 35L of the .
The appeal is di rected against the order dated 15.4.1988 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi.
The appellant is the manufacturer of Hacksaw blades and Bandsaw Blades failing under Tariff Item No. 51 A(iv) of the Central Excise Tariff.
The appellant filed a classification list as per Rule 173B of the Central Excise Rules 1944 on 26.3.1985 in respect of their products furnishing the tariff rate of 15% Ad valorem by mistake instead of furnishing the effec tive rates of duty as per Notification No.85/85 CE dated 17.3.1985.
The aggregate value of the clearance in the preceding year i.e. 1984 85 did not exceed Rs.75 lakhs.
In the case of first clearance upto an aggregate value not exceeding Rs.7.5 lakhs, the effective rates of duty is nil and in the case of next clearance of Rs.7.5 lakhs, the duty is 3.75% Ad valorem.
The Assistant Collector of Central Excise, Hyderabad, approved the Tariff rate 15% Ad valorem on 3.6.1985 instead of the above effective rates as the appellant did not claim the exemption as per Notification No.85/85 CE dated 17.3.1985 due to ignorance.
A revised classification list with the effective rates in respect of the products with retrospective effect from 26.3.1985 was filed on 31.10.1985.
The revised classification list was approved.
The appellant claimed that they had paid excess Rs.2,55,172.55 from 1.4.1985 to 31.8.1985 as excise duty.
They made an application for refund as per rule under sec tion 11B of the on 30.10.1985.
The Assistant Collector of Central Excise by his order dated 13.12.1985 sanctioned the refund claim only partly.
For the period from 1.4.1985 to 27.4.1985, the refund claim was rejected on the ground that the same was time barred.
The Assistant Collector held that the refund claim for the period 1.4.1985 to 27.4.1985 was time barred for the reason that under section 11B, the 'relevant date ' for preferring the claim for a case such as that of the appellant was the date of payment of duty and, according to him, the duty had been paid by adjustment in the personal ledger account as and when goods were removed.
The plea of the appellant is that mere debiting in the personal ledger account should not be taken as the starting point for 4 limitation and the relevant date should be the date on which RT 12 Returns which are filed on a monthly basis are as sessed.
The order of the Assistant Collector was confirmed in the appeal by the Collector of Central Excise (Appeals).
The further appeal to the Tribunal was also unsuccessful.
The question that arises for decision in the appeal is as to the starting point of limitation for filing an appli cation under section 11B of the .
Section 11B so far as it is material reads as under: "11B. Claim for refund of duty (1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date.
Provided that the limitation of six months shall not apply where any duty has been paid under protest.
Explanation For the purposes of this section (B) "relevant date" means, (a) to (d) . . . . . . . . (e) in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (f) in any other case, the date of payment of duty.
" The appellant 's contention before the authorities was that the date of assessment would be the date of payment of duty within the meaning of clause (f) above.
We agree with the learned Solicitor General that this argument is not tenable.
Where an assessee maintains a personal ledger account, duty is paid by way of debit therein and goes to reduce the amount of deposit paid by the assessee.
It is 5 not a mere adjustment entry; it is effective payment.
Before us, however, learned counsel for the assessee has raised an alternative contention.
According to the appellant it is clause (e) which is applicable in the case whereas the contention of the respondent is that clause (f) is attract ed.
To understand this argument, it is necessary to refer to 'Self removal ' procedure under which the appellant cleared the goods.
Chapter VII A of the Rules relates to removal of excise goods on determination of duty by producers, manufacturers of private warehouse licensees.
Under Rule 173B, every assessee shall file with the Proper Officer for approval a list in prescribed form showing full description of all excisable goods or products manufactured, the rate of duty leviable on such goods and such other particulars as the Collector may direct.
The Proper Officer shall, after such enquiry as he deems fit, approve the list with such modifi cations as are considered necessary and return one copy of the approved list to the assessee who shall unless otherwise directed by the Proper Officer determine the duty payable on the goods intended to be removed in accordance with such list.
All clearance shall be made only after the approval of the list by the Proper Officer.
Sub rule (2 A) of Rule 173B provides as under: "(2 A) All clearances shall, subject to the provisions of rule 173CC, be made only after the approval of the list by the proper officer.
If the proper officer is of the opinion that on account of any inquiry to be made in the matter or for any other reason to be recorded in writing there is likely to be delay in according the approval, he shall, either on a written request made by the assessee or on his own accord, allow such assessee to avail himself of the procedure prescribed under rule 9B for provisional assess ment of the goods.
" Where the assessee disputes rate of duty approved by the Proper Officer in respect of goods, he may have to give an intimation to that effect to such officer and to pay duty under protest at the rate approved by such officer.
When the dispute about the rate of duty has been finalised or for any other reason affecting rates of duty, a modification of the rate or rates of duty is necessitated, the Proper Officer shall make such modification and inform the assessee accord ingly.
Under Rule 173C, the assessee shall file with the Proper Officer a price list in prescribed form.
Prior ap proval of the price list by the 6 Proper Officer is necessary in the specified cases.
Here also, sub rule (5) of rule 173C provides: "(5) Subject to the provisions of rule 173CC, an assessee specified in sub rule (2) shall not clear any goods from a factory, warehouse or other approved place of storage unless the price list has been approved by the proper officer.
In case the proper officer is of the opinion that on account of any enquiry to be made in the matter or for any other rea sons to be recorded in writing, there is likely to be delay in according approval, he shall either on a written request made by the assessee or of his own accord allow such asses see to avail himself of the procedure prescribed under rule 9B for provisional assessment of the goods." Under Rule 173CC, assessee may remove goods in certain cases pending approval by the Proper Officer of the classi fication or price list.
Rule 173F provides that where the assessee has complied with the provisions of Rules 173B, 173D, and where applicable 173C, 173CC, he shall himself determine his liability for the duty due on the excisable goods intended to be removed and shall not, except as other wise expressly provided, remove such goods unless he has paid the duty as determined.
Under Rule 173G, every assessee shall keep an account current with the Collector.
This rule lays down the procedure which is to be followed by the assessee for payment of duty.
According to sub rule (3) of Rule 173G, within five days after the close of each month every assessee shall file with the Proper Officer a monthly return in the prescribed form showing the quantity of the excisable goods manufactured, duty paid on such quantity and other particulars.
The Proper Officer makes an assessment as provided under Rule 1731 on the basis of the information contained in the return and after such further enquiry as he may consider necessary assess the duty due on the goods removed and the assessment is completed.
The duty determined and paid by the assessee under Rule 173F shall be adjusted against the duty assessed and where the duty so assessed is more than the duty determined and paid, the assessee shall pay the deficiency by making a debit in the current account within 10 days of the receipt of copy of the return and where such duty is less, the assessee shall take credit in the account current for the excess.
This is the scheme for the payment of duty for clearance of goods by the manufacturers.
This procedure is known as self removal procedure.
There will be no time bar for refund if the duty is paid under 7 protest.
The period of 6 months is prescribed in other cases.
As we have already seen, section 1 1B says that the period of 6 months "in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof".
In this case, the classification list filed by the appellant for the period 1.4.1985 to 27.4.1985 was not approved till 3.6.1985.
From the provisions of Rules 173B, 173C and 173CC, which we have set out earlier, it will be seen that clearances can be made only after the approval of the list by the particular officer.
However, if there is likely to be delay in according the approval the officer can allow the assessee to avail himself of the procedure pre scribed under Rule 9B for provisional assessment of the goods.
In the present case between 1st April, 1975 when the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account.
The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned.
This is the procedure prescribed under Rule 9B except for the circum stance that no bond as provided in Rule 9B is required in a case where the personal ledger account is maintained for the clearance of the goods, since there is always a balance in the account current sufficient to cover the duty that may be demanded on the goods intended to be removed at any time.
In these circumstances, the clearances of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment.
In such a situation clause (e) of para (B) of the Explanation under section 11B will be attracted.
In this case the RT 12 Returns for the month of April, 1985 was filed on 8.5.1985 and the same was assessed on 29.10.1985.
It is, therefore, only from the date of this assessment that time bar in section 11B will operate.
In the present case the refund application had been filed on the 30th of October, 1985.
It cannot, therefore, said to be time barred.
We, therefore, accept this contention of the appellant.
The appeal has therefore to be allowed holding the appellant is entitled to the full amount and there is no bar of limi tation as found by the Tribunal.
We, therefore, allow the appeal.
In the facts and circumstances of the case there will be no order as to costs.
T.N.A. Appeal allowed. | The appellant was manufacturing Hacksaw blades and Bandsaw falling under Tariff Item No. 51 A(iv) of the Cen tral Excise Tariff.
On 26.3.1985 they filed a classification list as per Rule 173 B of the Central Excise Rules, 1944 in respect of their products furnishing the tariff rate of 15% Ad valorem by mistake instead of furnishing the effective rates of duty as per Notification No.85/85 CE dated 17.3.1985.
The Assistant Collector of Central Excise ap proved the classification list on 3.6.1985.
On 31.10.1985 the appellant filed a revised classification list with the effective rates of its products with retrospective effect from 26.3.1985 which was also approved by the Assistant Collector of Central Excise.
On 30.10.1985 the appellant made an application under section 11B of the for refund of excise duty claiming that they had paid excess excise duty from 1.4.1985 to 31.8.1985.
By its order dated 13.12.1985 the Assistant Collector of Central Excise allowed the claim only partly but rejected the claim for the period from 1.4.1985 to 27.4.1985 on the ground that the claim was barred under section 11B of the Act because the 'relevant date ' for preferring the claim for the appellant was the date of payment of duty and the duty had been paid by adjustment in the personal ledger account as and when goods were removed; The order of the Assistant Collector was confirmed in the appeal by the Collector of Central Excise (Appeals).
Appellant 's further appeal to the Customs Excise and Gold (Control) Appellate Tribunal was also unsuccessful.
In appeal to this Court under section 35L of the it was contended on behalf of the appellant (i) that mere debiting in the personal ledger account should not be taken as the 2 starting point for limitation and the, relevant date should be the date on which ART 12 Returns, which were filed on a monthly basis, were assessed: and (ii) that clause (e) of Explanation to Section 11 (B) was applicable to the case.
Allowing the appeal, this Court, HELD: 1.
The scheme for payment of duty of goods under which the appellant was clearing his goods is known as 'self removal ' procedure.
There will be no time bar for refund if the duty is paid under protest.
The period of 6 months is prescribed in other cases.
[6H; 7A] 2.
In the instant case, the classification list filed by the appellant for the period 1.4.1985 to 27.4.1985 was not approved till 3.6.85.
From provisions of Rules 173B, 173C and 173CC of the Central Excise Rules, 1944 it is clear that clearances can be made only after the approval of the list by the particular officer.
However, if there is likely to be delay in accordance with the approval the officer can allow the assessee to avail himself of the procedure prescribed under Rule 9B for provisional assessment of goods.
Between 1st April, 1975 when the classification list was filed and 3rd June, 1985 when the list was approved, the assessee was clearing the goods by determining the duty himself and debiting the amount of duty in his personal ledger account.
The amount of duty paid by him was obviously provisional and subject to the result of the final approval by the officer concerned.
In these circumstances, the clearance of goods made by the appellant between 1st April and 3rd of June, 1985 were in accordance with the procedure for provisional assessment.
In such a situation clause (e) of para (B) of the Explanation under section 11 B will be attracted.
The RT 12 Return for the month of April, 1985 was filed on 8.5.1985 and the same was assessed on 29.10.1985.
It is, therefore, only from the date of this assessment that time bar in section 11 B will operate.
The refund application having been filed on 30th October, 1985 cannot, therefore, said to be time barred.
[7B D; E F] |
Criminal Appeal No. 168 of 1979.
From the Judgment and Order dated 29.9.1978 of the Madhya Pradesh High Court in Criminal Appeal No. 1094 of 1976.
U.R. Lalit, S.S. Khanduja, Y.P. Dhingra and B.K. Satija for the Appellants.
Uma Nath Singh for the Respondent.
The Judgment of the Court was delivered by FATHIMA BEEVI, J.
This appeal by special leave is di rected against the judgment of the High Court of Madhya Pradesh confirming the conviction of the appellants for the offences under sections 147 and 302/149, I.P.C., and sen tence to undergo imprisonment for life.
The appellants and four persons acquitted by the trial court were tried for the murder of one Hanuwa.
The prosecution alleged that motivated by group rivalry the accused persons attacked Hanuwa with tabbals and lathis on July 11, 1975 at about 8. 30 A.M.
The occurrence happened on the track across the field leading to village Mungeli.
Hanuwa accompanied by his mother Baiyanbai and sister Birjhbai was on his way to Mungeli to supply milk.
When he reached Ghotora near Nayagaon village.
the accused persons advanced towards him and mounted attack.
As a result of the injuries sustained, Hanuwa died on the 104 spot.
When Baiyanbai tried to intervene, she too was as saulted, Baiyanbai lodged the first information report at 12.00 noon the same day against these appellants and others who were finally chargesheeted.
Baiyanbai (PW 1) and Birjhbai (PW 5) were the two eye witnesses who unfolded the prosecution case.
Mangal (PW 4) and Dilashbai (PW 6) deposed to having seen appellants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance.
The medical evidence disclosed that Hanuwa sustained in all seven in juries: two incised wound on the scalp resulting in multiple fracture of the parietal bone and tear of right lobe of the brain: two confusions and three bruises on the forearm, right upper arm scapular region and buttock.
Injuries sus tained by PW 1 was incised wound in between right thumb and index finger which could be caused with any sharp object.
The plea of the accused was that they were falsely implicat ed due to enmity.
The learned Sessions Judge accepted the prosecution evidence and convicted these appellants finding that they were members of an unlawful assembly and death of Hanuwa was caused by the members in prosecution of the common object of the assembly.
Arjun, Bhikam, Nanku and Parethan were given the benefit of doubt in view of the discrepancies in mentioning their names and they were ac quitted.
The High Court on appeal agreed with the findings of the trial court and confirmed the conviction and sen tence.
The conviction of the appellants is assailed before us mainly on the ground that the two eye witnesses in the case are close relations of the deceased deeply interested in involving the appellants on account of the enmity and their evidence was required to be scrutinised with great care and caution and the trial court as well as the High Court failed to exercise the necessary caution with the result conviction has been wrongly recorded leading to miscarriage of justice.
According to the appellants ' learned counsel, the evidence of the eye witnesses read along with the medical evidence renders the prosecution case highly improbable and doubtful about the presence and participation of the appellants in the assault.
It is submitted that the tendency to involve innocent persons by merely mentioning their names is dis cernible and in the absence of independent corroboration the conviction based on the testimony of PW 1 and PW 5 is unwarranted.
We have considered these arguments in the light of the material evidence analysed and discussed by the courts below.
We find that the conviction of the appellants is principally based on the evidence of 105 PW 1 and PW 5, the mother and sister of the deceased.
Though their evidence is not to be discarded as interested, the necessary caution has to be observed in accepting the evidence of these witnesses.
It is an accepted proposition that in the case of group rivalries and enmities.
there is a general tendency to rope in as many persons as possible as having participated in the assault.
"The courts have, there fore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them", vide Baldev Singh vs State of Bihar, AIR 1972 SC 464.
This Court has in several decisions pointed out that "where there is enmity between the two factions then there is a tendency on the part of the aggrieved victim to give an exaggerated version and to rope in even innocent members of the opposite faction in a criminal case and that therefore the Court has in all such cases to sift the evidence with care and convict only those persons against whom the prose cution witnesses can be safely relied upon without raising any element of doubt", vide Raghubir Singh vs State of U.P., AIR 1971 SC 2 156.
On a perusal of the judgment of the High Court, we find that the necessary caution had not been observed in the approach to the evidence.
The occurrence happened on a narrow track.
The deceased Hanuwa was going ahead of his mother and his sister was still behind.
The witnesses noticed the assailants only when they approached the deceased.
The evidence is not clear that the assailants were seen by Baiyanbai or Birjhbai hiding behind the bushes and emerging from the hiding place.
Th witnesses stated that the accused persons surrounded the victim and each one of them assaulted him with the weapon they had.
PW 1 stated that some of the assailants had given more than one blow and Parsadi assaulted her when she tried to intervene.
If a group of more than 15 persons encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the victim.
We have re ferred to the medical evidence which shows that besides the two incised wounds on the scalp which proved fatal Hanuwa had only five minor injuries on his person.
PWs 1 and 5 did not state who caused the head injuries.
They have not at tempted to attribute any one of the injuries to any particu lar assailant.
The evidence is in general terms.
Even in the first information report, PW 1 only stated that the persons named therein attacked Hanuwa with tabbals and lathis and caused his death.
In a melee where several people are giving blows at one and the same time it will be impossible to particularize the blows.
If any wit 106 ness attempts to do it, his veracity is doubtful.
But it cannot be forgotten that it is simpler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close cross examination.
Therefore, the nature of the injuries sustained by the victim assumes importance.
The nature of the injury sustained in spite of the assertion of the concerted attack with lathis and tab bals by several assailants numbering over 15 renders the evidence doubtful about the participation of such a large number of persons.
When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased, Hanuwa, the necessary inference is that not more than seven persons might have participated in deliver ing the blows.
Therefore, the presence of more than seven persons is doubtful.
This aspect of the case has not been given due weight by the High Court while appreciating the evidence in the case.
"Where an occurrence takes place involving rival fac tions it is but inevitable that the evidence would be of a partisan nature.
In such a situation to reject the entire evidence on the sole ground that it is interested is to shut one 's eyes to the realities of the rural life in our coun try.
It has to be borne in mind that in such situation easy tendency to involve as many persons of the opposite faction as possible by merely naming them as having been seen in the melee is a tendency which is more often discernible and has to be eschewed and, therefore, the evidence has to be exam ined with utmost care and caution and the Court has to adopt a workable test for being assured about the role attributed to every accused" vide Muthu Naicker vs State of Tamil Nadu, We have therefore to see whether the testimony of PW I and PW 5 as against all or any of the appellants before us finds corroboration with the material on record.
The trial court had acquitted four persons for the reason that their names had been left out in the narration at some stage or the other.
PW 1 before giving the first information had deliberations with her son PW 3.
The finding of the trial court is that in narrating the incidence to him, PW 1 had omitted to mention the names of Arjun and Bhikam.
Before Court, PW 1 did not implicate Nanku.
The name of Parethan does not find a place in the F.I.R. It is for these reasons the trial court acquitted them.
On such acquittal, it is clear that there had been conscious effort to rope in inno cent persons by merely naming them.
Therefore, the apparent conflict between the medical evidence and the eye witness 's account could not have been overlooked.
We are of the opin ion that the High Court has not observed the necessary caution in accepting the evidence in 107 general terms to uphold the conviction of all the appel lants.
We are thus constrained to consider whether there is any evidence from independent sources to lend assurance to the version of PWs I and 5 regarding the participation of any of these appellants.
We have indicated that the presence of at least seven persons at the scene is probable having regard to the nature of the injuries and the manner of the attack.
It is also clear from the manner in which the incident happened that the assailants acted in prosecution of the common object to cause the death of the victim.
We have no doubt in our mind that more than five persons have actually participated in the crime.
We have clear evidence regarding the identity of only four persons.
Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident.
This evidence lends assurance to the testimony of PW I and PW 5 regarding their participation in the crime.
We are of the view that the conviction of these four persons i.e. Baran, Karan, Bhagau and Parsadi has been rightly sustained.
However, regarding the rest of the appellants, there is scope of genuine doubt and we are obliged to give the benefit of doubt to them.
We accordingly set aside the conviction and sentence of the appellants.
namely, Budhwa, Chandu.
Kushwa, Bhuwan, Rajaram.
Nanda, Chatur, Hari Gannu, Pardeshi and Dukhiram and they are acquitted of the charges.
Their bail bonds stand cancelled.
The appeal is dismissed so far as Parsadi, Baran, Bhagau and Karan are concerned.
These appellants shall surrender to suffer the unexpired portion of the sentence.
The appeal is disposed of as above.
P.S.S. Appeal dis posed of. | The appellants were convicted for offence under Ss. 147, 149 and 302 IPC for murdering a villager.
The prosecution case was that motivated by group rivalry the accused persons numbering over fifteen attacked the deceased with tabbals and lathis while he accompanied by his mother, PW 1, and sister, PW 5, was on his way to a nearby village to supply milk.
As a result of the injuries sustained the deceased died on the spot.
When PW 1 tried to intervene, site too was assaulted.
She lodged the FIR thereafter the same day against the appellants others.
At the trial PW 4 and PW 6 deposed to having seen appel lants Baran, Bhagau, Karan and Parsadi armed with lathis and tabbals hurriedly going towards the place of occurrence ahead of the deceased at a short distance.
The medical evidence disclosed that the deceased had sustained in all seven injuries, two incised wounds on the scalp, two contu sions and three bruises.
The trial court found that the appellants were members of an unlawful assembly and death of the deceased was caused by them in prosecution of a common object.
The High Court on appeal agreed with the findings of the trial court.
In the appeal by special leave, it was contended for the appellants that the courts below had failed to exercise the necessary care and caution that was required in scrutinising the evidence of the two eye witnesses who were close rela tions of the deceased and deeply interested in involving the appellants on account of enmity, and that in the absence of independent corroboration the conviction based on the testi mony of these witnesses was unwarranted.
Disposing of the appeal, the Court, 102 HELD: 1.1 It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to involve as many persons of the opposite faction as possi ble by merely naming them as having participated in the assault.
The court, therefore, has in all such cases to sift the evidence with utmost care and caution and convict only those persons against whom the prosecution witnesses can be safely relied upon without raising any element of doubt.
[107C D] Baldev Singh vs State of Bihar, AIR 1972 SC 464; Raghu bir Singh vs State of U.P., AIR 1971 SC 2156 and Muthu Naicker vs State of Tamil Nadu, , referred to.
1.2 The conviction of the appellants was principally based on the evidence of PW 1 and PW 5, the mother and sister of the deceased.
Though their evidence was not to be discarded as interested, necessary caution should have been observed in accepting the same in upholding the conviction of all the appellants.
[104H; 105A] 2.1 In a melee, as in the instant case, where several people are giving blows at one and the same time it will be impossible to particularize the blows.
If any witness at tempts to do it, his veracity is doubtful.
But, it is sim pler to make an omnibus statement that all the accused assaulted with their weapons because that obviates close crossexamination.
Therefore, the nature of injuries sus tained by the victim assumes importance.
[105H; 106A] 2.2 PWs 1 and 5 stated that the accused persons sur rounded the victim and each one of them assaulted him with the weapon they had.
PW 1 stated that some of the assailants had given more than one blow, They did not state who caused the head injuries.
They have not attempted to attribute any one of the injuries to any particular assailant.
The evi dence was in general terms.
If a group of more than fifteen persons had encircled the victim and simultaneously attacked him with tabbals and lathis without any resistance or any intervention, there would have been certainly corresponding injuries of the concerted attack on the person of the vic tim.
The medical evidence shows that besides the two incised wounds on the scalp which proved fatal the deceased had only five minor injuries on his person.
[105E G] 2.3 When the several blows with lathis and tabbals could produce only seven injuries on the person of the deceased the necessary inference would be that not more than seven persons might have participated in delivering the blows.
therefore, the presence of more than seven 103 persons is doubtful.
This aspect of the case has not been given due weight by the High Court while appreciating the evidence.
[105H; 106A C] 3.1 The manner in which the incident happened also makes it clear that the assailants acted in prosecution of the common object to cause the death of the victim.
There is no doubt that more than five persons had actually participated in the crime.
There is clear evidence regarding the identity of only four persons.
Appellants Baran, Karan, Bhagau and Parsadi had been located by PW 4 and PW 6, two independent witnesses, in the locality just before the incident.
This evidence lends assurance to the testimony of PW 1 and PW 5 regarding their participation in the crime.
[107B C ] 3.2 The conviction of these four persons has, therefore, been rightly sustained.
Regarding the rest of the appellants there is scope of genuine doubt.
Their conviction and sen tence are accordingly set aside.
[107D] |
vil Appeal No. 277 1 of 1981.
From the Judgment and Order dated 5.2.1980 of the Andhra Pradesh High Court in S .A.
No. 526 of 1977.
Jagdish K. Agarwal (N.P.) for the Appellant.
A Subba Rao for the Respondents.
KANIA, J. This is an appeal by special leave from the decision of a learned Single Judge of the Andhra Pradesh High Court in Second Appeal No. 526 of 1977.
As we are, with respect, in agreement with the conclu sions arrived at by the learned Single Judge of the High Court, we propose to set out only the bare facts essential for the purposes of our judgment.
The appellant was the plaintiff and the respondent was the defendant in Suit.
O.S. No. 789 of 1973 filed in the Court of the Third Assistant Judge, City Civil Court, Hyd erabad.
The appellant prayed for a decree for recovery of possession of the suit premises from the respondent and for mesne profits till the delivery of possession of the prem ises.
The case of the appellant was that she was the owner of the suit premises and the respondent was in the occupa tion of the said premises on payment of Rs.30 per month.
The respondent had been 215 irregular in the payment of the said rent and had been a source of perpetual nuisance.
It was on this ground that the eviction of the premises was sought by the appellant.
In his written statement the respondent took a preliminary objec tion that the City Civil Court had no jurisdiction to enter tain the suit as the suit fell within the jurisdiction of the Rent Controller at Hyderabad.
Two petitions had earlier been filed by the appellant before the Rent Controller for eviction of the respondent and the Rent Controller had rejected the same on the ground that the purported tenancy of the respondent was hit by section 3 of the A.P. Rent Control Act and hence, the eviction suit was not entertain able by the Court of Rent Controller.
This conclusion was arrived at on a plea to the said effect taken by the re spondent.
In the Court of learned Third Assistant Judge of the City Civil Court at Hyderabad the respondent took up the plea that the suit fell exclusively within the jurisdiction of the Rent Controller and hence the City Civil Court had no jurisdiction to entertain the suit.
Certain pleas were made regarding amendments in the law with which we are not con cerned in this appeal.
What is material to note for our purposes is that the learned Assistant Judge took the view that as the respondent had, before the Rent Controller, taken up the plea that it was not the Rent Controller but the City Civil Court which had the jurisdiction to entertain the eviction petition against him, and the said plea was upheld, it was not open to the respondent to take up the inconsistent plea before the City Civil Court that it was the Rent Controller and not the City Civil Court which had jurisdiction to entertain the proceedings.
It was held that the respondent could not be allowed to approbate and repro bate and that he was estopped by way of pleading to take up an inconsistent plea regarding jurisdiction.
On the basis of this conclusion, and other conclusions with which we are not concerned, the suit was decreed by the learned Assistant Judge in favour of the appellant.
The decision of the learned Assistant Judge was upheld in an appeal filed by the respondent in the Court of the learned Additional Chief Judge of the City Civil Court at Hyderabad.
On a second appeal preferred by the respondent, the learned Single Judge of the High Court took the view that in matters of jurisdiction the question of estoppel does not arise.
If the City Civil Court has no jurisdiction to entertain the suit, the doctrine of estoppel could not be invoked so as to confer jurisdiction on the Court of City Civil Court.
On the question of jurisdiction the learned Judge took the view that the City Civil Court had no jurisdiction to entertain the suit as it lay exclusively within the jurisdiction of the Rent Controller.
216 Learned counsel for the appellant submitted that the learned Judge of the High Court was in error,as the earlier decisions of the Rent Controller to the effect that it was the City Civil Court and not the Rent Controller who had the jurisdiction to entertain the suit for eviction filed by the appellant against the respondent, constituted res judicata between the parties on the question of jurisdiction.
It was submitted by him that, even if that decision was wrong, the issue of jurisdiction was finally decided between the par ties and that decision was that it was the Civil Court and not the Rent Controller that had the jurisdiction to enter tain and dispose of the suit for eviction.
He further sub mitted that the respondent could not be permitted to take inconsistent pleas as he was barred by the principles of estoppel from taking up the plea before the Civil Court that it was the Rent Controller who had the exclusive jurisdic tion to entertain the suit.
He placed reliance on a decision rendered by a Division Bench comprising two learned Judges of this Court in Avtar Singh and Others vs Jagjit Singh and Another, ; which took the view that the Civil Court 's decision regarding lack of jurisdiction will operate as res judicata in a subsequent suit.
In that case the Civil Court declined jurisdiction.
The Civil Court took the view that it had no jurisdiction to try the suit in question and directed the return of the plaint for representation to the appropriate Revenue Court.
When the claim was filed in the Revenue Court, the Court took the view that it had no juris diction to try the claim.
Thereupon, a suit was again insti tuted in the Civil Court for the lame relief.
This suit failed throughout on the ground of res judicata.
I?he High Court affirmed the dismissal and the Division Bench of this Court took the view that the High Court was right in taking the view hat the principles of res judicata were applicable to the issue of jurisdiction.
In our opinion, the contention of learned counsel for the appellant cannot be upheld.
We find that in Mathura Prasad Bajoo Jaiswal and Others vs Dossibai N.B. Jeejeebhoy; , at p. 836 a Bench comprising three learned Judges of this Court has taken the view that a decision on the question of jurisdiction of the court or a sure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit.
The Court observed: "It is true that in determining the application of the rule of res judicata the Court is not concerned with the correct ness or otherwise of the earlier judgment.
The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent court must in a subsequent litiga tion between the same parties be regarded as finally decided and cannot be reopened.
A mixed question of law and fact determined 217 in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceed ing between the same parties.
But, where the decision is on a question of law, i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression "the matter in issue" in section 11 of the Code of Civil Procedure means the right litigated between the par ties, i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue.
Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of proce dure cannot supersede the law of the land.
" The same view has been reiterated by a Bench comprising three learned Judges of this Court in Sushil Kumar Mehta vs Gobind Ram Bohra (dead) through his Lrs.; , We find that the decision of three learned Judges of this Court in Mathurn Prasad Bajoo Jaiswal and Others vs Dossibai N.S. Jeejeebhoy, has not been noticed at all by the Division Bench comprising two learned Judges of this Court which delivered the judgment in Avtar Singh and Others vs Jagjit Singh and Another, and hence, to the extent, that the judg ment in Avtar Singh 's case takes the view that the principle of res judicata is applicable to an erroneous decision on jurisdiction, it cannot be regarded as good law.
In our opinion a court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.
It is well settled that there can be no estop pel on a pure question of law and in this case the question of jurisdiction is a pure question of law.
In our view, therefore, the High Court was, with re spect, right in its conclusions arrived at and the appeal must be dismissed.
The appeal is dismissed.
Looking to the facts and cir cumstances of the case there will be no order as to costs.
G.N. Appeal dis missed. | The Respondent landlord filed a suit under the Andhra Pradesh Rent Control Act for recovery of possession and for mesne profits.
The apPellant defendant raised a preliminary objection that the City Civil Court had no jurisdiction to entertain the suit.
In the two eviction petitions filed earlier by the appellant, the Respondent took the plea that since the alleged tenancy was hit by Section 3 of the A.P. Rent Control Act, eviction suit was not entertainable by the Rent Controller.
Decreeing the suit in favour of the appellant, the trial Court held that it was not oPen to the Respondent to take such inconsistent plea regarding jurisdiction; that he cannot be allowed to approbate and reprobate and he was estopped from doing so.
On apPeal by respondent, the deci sion was upheld by the First Appellate Court.
On a second apPeal preferred by the respondent, the High Court reversed the trial court 's order.
Aggrieved by the decision of the High Court, the appel lant preferred this apPeal, by special leave, contending that the principles of Res Judicata and estopPel were ap plicable.
Dismissing the apPeal, this Court, HELD: 1.
A court which has no jurisdiction in law cannot be conferred with the jurisdiction by applying principles of res judicata.
It is well settled that there can be no estop pel on a pure question of law.
[217F] 214 Mahtura Prasad Bajoo Jaiswal and Ors.
vs Dossibai N.B. Jeejeebhoy; , ; Sushil Kumar Mehta vs Gobind Ram Bohra (dead) thro ' his Lrs.; , ; relied on.
Avtar Singh and Ors.
vs Jagjit Singh and Anr., ; ; referred to.
In the instant case, the question of jurisdiction is a pure question of law.
The High Court was right in its conclusions that in matters of jurisdiction to entertain the suit, doctrine of estoppel could not be invoked; and that the City Civil Court had no jurisdiction to entertain the suit, as it lay exclusively within the jurisdiction of the Rent Controller.
[216A B] |
Appeal No. 307 of 1963.
Appeal by special leave from the judgment and decree dated September 27, 1962, of the Madhya Pradesh High Court in Second Appeal No. 158 of 1962.
S.V. Gupte, Additional Solicitor General of India, O.C. Mathur, Revindra Narain and J.B. Dadachanji for the appellant.
M.C. Setalvad, Rameshwar Nath and S.N. Andley, for the respondents.
October 24, 1963.
The Judgment of the Court was delivered by MUDHOLKAR J.
This is an appeal by special leave against the judgment of the High Court of Madhya Pradesh dismissing the defendant 's appeal in which he had challenged the decision of the courts below ordering his ejectment from certain premises which are in his occupation as the tenant of the plaintiffs.
It is common ground that the defendant was a tenant of the plaintiffs and the rent of the premises in his occupation was Rs. 110 p.m.
It is not disputed that the defendant was in arrears of rent from April 1, 1958 to March 31, 1959 to the extent of Rs. 1,020.
On April II, 1959 the plaintiffs served a notice on the defendant bringing to his notice the fact of his being in arrears of rent for 12 months and requiring him to remit to them Rs. 1,020 within one month from the date of service of notice and stating that on his failure to do so, a suit for ejectment would be filed against him.
In addition to this the notice called upon the defendant to vacate the premises by April 30, 1959 upon two grounds: (1) that the premises were required by the plaintiffs "genuinely for business"; and (2) that the defendant had sublet a portion of the premises to two persons without the permission of the plaintiffs and without having any right to sublet the premises.
242 This notice was received by the defendant on April 16, 1959.
On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320.
It may be mentioned that this amount consisted of the rental arrears as well as the rent due right up to June 30, 1959.
The plaintiffs accepted the cheque and cashed it on July 4, 1959 and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July.
In their notice the plaintiffs also stated that they had cashed the cheque under protest.
The defendant did not vacate the premises and, therefore, the present suit for eviction was instituted on August 14, 1959.
The plaintiffs claim for eviction on the grounds that the premises were required by them bona fide for the purpose of their business and that the defendant had illegally let them out was negatived by the courts below and, therefore, must be left out of question.
The only question is whether the plaintiffs are entitled to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him.
The tenancy being from month to month it was open to the plaintiffs to terminate it by giving 15 days ' notice expiring at the end of the month of the tenancy as provided for in section 106 of the .
The premises are, however, situated in Jabalpur in which the Madhya Pradesh Accommodation Control Act,1955 (No. 23 of 1955) (herein referred as the Accommodation Act) is in force.
Section 4 of the Act provides that no suit shall be filed.
in any civil court against a tenant for his eviction from any accommodation except on one or more of the grounds set out in that section.
One of the grounds set out in that section is that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord.
It is because of this provision that before the plaintiffs 243 could succeed it was necessary for them to establish that the defendant had failed to pay rental arrears within one month of the receipt by him of a notice of demand.
From the undisputed facts it is clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl.
(a) of section 4.
According to the learned Additional Solicitor General, however, in spite of these circumstances the plaintiffs ' suit could not have been decreed because: (1) the notice of April 11, 1959 was invalid for the purpose of section 106 of the inasmuch as the defendant did not have 15 clear days notice expiring by the end of the month of tenancy; (2) that the notice as well as the default were both waived by the plaintiffs by reason of (a) acceptance of the cheque for Rs. 1,320, which included rent up to June 30, 1959; (b) giving a fresh notice on July 9, 1959 and (c) filing of a suit on August 14, 1959 in which reliance was placed only on the second notice.
(3) that the second notice was not valid with reference to the and the Accommodation Act; and (4) that there was no cause of action for the suit on August 14, 1959 under section 5 of the Accommodation Act because no rent was in arrears on that date.
We shall deal with the points in the order in which he has mentioned them.
The learned Additional Solicitor General contends and rightly that the provisions of section 4 of the Accommodation Act are in addition to those of the and that before a tenant 244 can be evicted by a landlord he must comply both with the provisions of section 106 of the and those of section 4 of the Accommodation Act.
The Accommodation Act does not in any way abrogate Ch.
V of the which deals with leases of immovable property.
The requirement of section 106 of the is that a lease from month to month can be terminated only after giving fifteen days ' notice expiring with the end of a month of the tenancy either by the landlord to the tenant or by the tenant to the landlord.
Such a notice is essential for bringing to an end the relationship of landlord and tenant.
Unless the relationship is validly terminated the landlord does not get the right to obtain possession of the premises by evicting the tenant.
Section 106 of the does not provide for the satisfaction of any additional requirements.
But then, section 4 of the Accommodation Act steps in and provides that unless one of the several grounds set out therein is established or exists, the landlord cannot evict the tenant.
Here the contention is that the ground set out by cl.
(a) of that section does exist because the defendant was in arrears of rent for a period of one year and despite service upon him of a notice to pay the amount within one month of receipt thereof, he has failed to pay it.
Now, the learned Additional Solicitor General states that the notice of April, 1959 may be a good notice for the purposes of section 4(a) of the Accommodation Act but it is not a good notice for the purposes of Is. 106 of the for two reasons: in the first place it does not purport to determine the tenancy and in the second place the notice falls short of the period of 15 days specified in section 106 of the .
The High Court has, however, treated this as a composite notice under section 4(a) of the Accommodation Act and section 106 of the and in our opinion rightly.
It has to be observed that the plaintiffs, after requiring the defendant to pay the rental arrears due up to the end of March, 1959 within one month from the date of service of the notice, Proceeded to say "failing which 245 suit for ejectment will be filed".
These recitals clearly indicate the intention of the landlord to terminate the tenancy of the defendant under the relevant provisions of both the Acts.
Even so, the question would arise whether the notice was ineffective under section 106 of the because it was not a notice of 15 clear days.
It was held by the Calcutta High Court in Subadini vs Durga Charan Lal(1) that the notice contemplated by section 106 must be notice of 15 clear days.
In calculating the 15 days ' notice the day on which the notice is served is excluded and even if the day on which it expires is taken into account it will be clear that the defendant had only 14 clear days ' notice.
Therefore, if the view taken in the aforesaid case is correct the period of notice falls short of that provided in section 1.06 of the by one day.
The correctness of the aforesaid decision was not questioned by the same High Court in Gobinda Chandra Saha vs Dwarka Nath Patita(2).
No decision was brought to our notice in which a contrary view has been expressed.
But Mr. Setalvad who appears for the plaintiffs, contends that a notice to quit should be liberally construed.
In this connection he referred us to a decision in Harihar Banerji vs Ramsashi Roy (3) In that case the Judicial Committee of the Privy Council has observed at p. 225: . . . that notices to quite, though not strictly accurate or consistent in the statements embodied in them, may still be good and effective in law; that the test of their sufficiency is not what they would mean to a stranger ignorant of all the facts and, circumstances touching the holding to which they purport to refer, but what they would mean to tenants presumably conversant with all those facts and circumstances; and, further, that they are to be construed, not with a desire to find faults in them which would render them defective, but to be construed at res magis valeat quam pereat." (1)ILR 28 Cal.118.
(2) A.I.R. 1915 Cal. 313, (3) 45 I.A. 222.
246 The decision really is of no assistance in this case because there the defect which was not said to invalidate the notice appertained to the description of the demised premises and the Privy Council held that the recipient of the notice would be quite conversant with the actual description and could know what the description stood for.
Here the question is entirely different and that is whether the landlord had given the minimum period contemplated by section 106 of the to the tenant within which to vacate the premises.
This provision is evidently intended to confer a facility on the tenant and must, therefore, be so construed as to enable him to have the fullest benefit of that facility.
It seems to us that a liberal construction of a notice which would deprive the tenant of the facility of having the benefit of the minimum period of 15 days within which to vacate is not permissible.
We, therefore, approve of the view taken in Subadini 's case(1) and hold that the notice dated April 11, 1959 was ineffective as it does not fulfil the requirements of section 106 of the .
Mr. Setalvad for the plaintiffs, however, points out that a notice complying with the requirements of section 106 was actually given by the plaintiffs to the defendant on July 9, 1959 and no fault could be found with it since it in fact gave more than 15 days ' clear notice to the defendant to vacate the premises.
He further points out that the suit was actually based upon this notice and, therefore, was competently instituted.
We think the contention to be correct.
This brings us to the second and the fourth points raised by the learned Additional Solicitor General which we will deal with together.
His contention is that there were actually no arrears on the date of suit and that unless a tenant is in arrears on the date of suit he is not liable to be evicted because of the provisions of section 4(a) of the Accommodation Act.
The opening words of section 4, cl.
(a) are as follows: (1) I.L.R. 247 "No suit shall be filed in any civil court against a tenant for his eviction from any accommodation except on one or more of the following grounds: (a) that the tenant has failed to make payment to the landlord of any arrears of rent within one month of the service upon him of a written notice of demand from the landlord;" This provision clearly speaks of a tenant having failed to make payment to the landlord of the arrears of rent due from him within the time prescribed in that clause.
It does not mean that the ground on which eviction is claimed must subsist till the date of suit.
It is well to bear in mind that this Provision is quite different from the analogous provisions of the Bombay Rent, Hotel and Lodging House Rates (Control) Act, 1947, or the West Bengal Premises Tenancy Act, 1956.
The protection to tenants given by these Acts is more extensive and a tenant in arrears of rent is given time to pay the arrears even after the institution of the suit.
Indeed, in order to bring the Madhya Pradesh law in line with these Acts the Accommodation Act has been substituted by the M.P. Accommodation Control Act, 1961 (Act 41 of 1961).
Clause (a) of section 12 of that Act entitles a landlord to bring a suit for the eviction of the tenant where the latter 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.
Sub section (3) of that section provides that no order for the eviction of a tenant could be made on the grounds specified in cl.
(a) of Sub section
(1) if the tenant makes payment of deposit as required by section 13.
Sub section (1) of section 25 gives a right to the tenant to make ail application within certain time for depositing the rental arrears in court.
The scheme of the new Act is thus a substantial departure in this respect from that of section 4 of the 1955 Act.
The learned Additional Solicitor General, however, 248 says that if we look to some of the other grounds specified in section 4 and to the provisions of sections 16 and 17 of the new Act it would appear that when a suit is instituted at the instance of the landlord for the eviction of the tenant the latter must be in arrears on the date of the institution of the suit.
In this connection he refers us to the provisions of cls.
(g),(h), (j) and (k) of s.4 and contends that the grounds referred to in those clauses must necessarily continue to exist till the dates the institution of the suit and that cl.
(a) should be read as containing a similar condition.
Clauses (g) and (h) deal with cases where the landlord, broadly speaking., requires the accommodation for his own residence or for his own business.
Clause (j) deals with a case where a tenant had given written notice to quit and in consequence of that notice the landlord has contracted to sell or let the accommodation or has taken any other step as a result of which his interests would seriously suffer if he is not put in possession of that accommodation.
Clause (k ) deals with accommodation which was let to the tenant for use as a residence by reason of his being in the service of the landlord and the tenant has ceased, whether before or after the commencement of the Act.
to be in such service.
It is not necessary for us to decide in this case whether the grounds referred to in these clauses must necessarily continue to exist on the date of suit.
It is sufficient to say that the language of cl.
(a) must be given its natural meaning and that there is no warrant for modifying that language because while dealing with other grounds set out in other clauses, the legislature has used different language.
If we were to uphold the contention of the learned Additional Solicitor General we would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to, make payment etc.
" It is certainly not open to a court to usurp the functions of a legislature.
Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by 249 it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords.
As far as sections 16 and 17 are concerned, they are of no assistance to the defendant.
It is not necessary for us to reproduce their provisions; but it is sufficient to say that they were intended to give a limited retrospective operation to the provisions of the new section 4.
We have no doubt, therefore, that the ground set out in cl.
(a) of section 4 need not be shown by the landlord to exist at the date of institution of the suit.
All that is necessary for him to establish is that the tenant was in fact in.
arrears, that he was given one month 's notice to pay up the arrears and that in spite of this he failed to pay those arrears within one month of service of notice on him.
It is said that such an interpretation will lead to this result that the landlord who had served notice upon a tenant under cl.
(a) of section 4 and in compliance with which the tenant had failed to pay the arrears within one month of the service of notice, may continue the tenancy of the defaulting tenant, go on receiving lent from him and then at his sweet will may terminate the tenancy.
The intention to give such a right to the landlord cannot reasonably, accord ing to the learned Additional Solicitor General, be attributed to the legislature.
Theoretically that is possible; but the argument based upon it is farfetched.
The landlord who wants to evict a tenant and, therefore, avails himself of the ground furnished by cl.
(a) of section 4 would not wait for years to file a suit against his defaulting tenant.
It seems to us that in furnishing the ground to the landlord the legislature intended to give only a limited protection to the tenant or to put it slightly differently, the legislature intended to give protection only to a tenant who was diligent and regular enough in the matter of payment of rent.
That is all.
Indeed, while it is open to a legislature to give wide protection to ever defaulting tenants, it does not follow from it that whenever it gives protection it must be deemed to have given him the protection of the widest amplitude.
250 Then it is said that such an interpretation will deprive a tenant, for whose benefit section 4 was enacted, of the benefit of section 114 of the which provides for relief against forfeiture for non payment of rent.
What is forfeiture is set out in section 111 (g) of the , which runs thus: "By forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re enter; or (2) 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 (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re enter on the happening of such event; 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;" The effect of cl.
(a) of section 4 is merely to remove the bar created by the opening words of section 4 on the right which a landlord has under section 106 of the to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy.
It does not convert a periodic tenancy into one of fixed or indefinite duration nor insert therein a clause of re entry on the ground of nonpayment of rent.
The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by section 106 will be exercisable only if one of the grounds set out in section 4 of the Accommodation Act is shown to exist.
The next question is whether, as contended by the learned Additional Solicitor General, the default made by the defendant in failing to pay the arrears within one month of the receipt of the notice dated April 11, 1959, can be said to have been waived by the plaintiffs.
It is no doubt true that by cashing the cheque for Rs. 1,320 on July 4, 1959 the plaintiffs received not merely the arrears of rent up to March, 1959 but also rent upto June 30, 1959.
There is no 251 substance in the plea made on their behalf that they had received the amount under protest.
In the first place this is not a case to which illustration (a) to section 113 of the which says that acceptance of rent falling due after the expiry of a notice to quit amounts to waiver of the notice applies.
Then again when the plaintiffs cashed the cheque they had not filed a suit on the basis of the notice of April 11, 1959.
Merely saying that they accepted the money under protest is, therefore, of no avail to them.
Even so, it is difficult to infer, merely from the acceptance of the payment, a, waiver of the right which had accrued to them under section 4(a) of the Act in consequence of the default made by the defendant in paying arrears of rent.
The reason is quite simple.
The tenancy, as was indeed argued by the learned Additional Solicitor General, hah not be en validly terminated by the notice of April 11 , 1959 and therefore the relationship of landlord and tenant continued.
Consequently the plaintiffs were within their right in accepting the rent and cannot be fastened with the intention to waive the default just because of this action since the defendant was, by virtue of the Accomodation Act entitled to remain in possession as tenant and liable to pay rent.
The learned Additional Solicitor General, however, faintly contended that if the notice of April 11, 1959 could also be construed as being intended to be notice under section 106 of the then even though it was ineffective the acceptance of rent by the plaintiffs on July 4, 1959 amounted to a waiver of the right accruing from the notice.
As we have already indicated, so far as the suit is concerned, it is based upon the notice of July 9, 1959, that is to say, the eviction of the defendant is claimed on the basis of a notice requiring him to quit by the end of July, 1959.
The right accruing to the plaintiffs to institute the suit on the basis of this notice has not been waived at all and the receipt by them of rent prior to this date does not by itself terminate the right accruing to them under the notice dated July 9, 1959.
It may be that if the notice of April 11 , 1959 is construed 252 as a composite notice, that is, one contemplated by cl.
(a) of section 4 as also one under section 106 of the , acceptance of the rent could, along with other circumstances, have led to the inference of waiver of the right flowing from the notice under section 106 of the .
But it is difficult to see how such a construction of the notice can at all support a plea of waiver of the right accruing from cl.
(a) of section 4.
As already pointed out, the notice of April 11, 1959 in so far as it purported to be under section 106 of the was ineffective and, therefore, the relationship of landlord and tenant continued between the plaintiffs and the defendant.
Accepting rent under such circumstances from the defendant cannot justify the inference of waiver of quite a different right and that is to take advantage of the statutory right under section 4 of the Accommodation Act accruing by reason of the default made in the payment of rental arrears.
Indeed, the notice of April 11, 1959 as it stands, could not by itself have furnished the plaintiffs with the right to institute a suit.
Till they acquired that right, not only were they entitled to accept the rent which accrued due from month to month but the defendant was himself liable to pay the rent whenever it fell due till the relationship of landlord and tenant was put an end to.
Therefore, from the sole circumstance of acceptance of rent after April 11, 1959 waiver cannot at all be inferred.
We are, therefore, unable to accept the argument of the learned Additional Solicitor General that by cashing the cheque for Rs. 1,320 the plaintiffs waived all rights which accrued to them under the notice dated April 11, 1959.
As we have already said, no right under section 106 of the had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises.
So far as the right accruing under section 4 (a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the 253 rent by the plaintiffs would not by itself operate as waiver.
As regards the last point, we have in fact dealt with it already.
What was contended was that the notice of April 11, 1959 was not a valid notice with reference to both the laws, that is, the and the Accommodation Act.
We have pointed out that though the notice could be construed to be composite notice it was ineffective in so far as it purports to be under section 106 of the .
It was not suggested that in so far as it was a notice under the Accommodation Act it was invalid.
There is, therefore, nothing more to be said about it.
For the foregoing reasons we uphold the decree of the High Court and dismiss the appeal with costs.
Appeal dismissed. | The defendant was a tenant of the plaintiffs.
The defendant was in arrears of rent for one year to the extent of Rs. 1,020.
On April 11, 1959 the plaintiffs served a notice on the defendant requiring him to remit to them Rs. 1,020 within one month from the date of service of notice, failing which suit for ejectment would be filed.
This notice was received by the defendant on April 16, 1959.
On June 25, 1959 the defendant sent a reply to the notice enclosing with it a cheque for Rs. 1,320.
This amount consisted of the rental arrears as well as the rent due right up to June 30, 1959.
The plaintiffs accepted the cheque and cashed it and gave a fresh notice on July 9, 1959 requiring the defendant to vacate the premises by the end of the month of July.
The defendant did not vacate the premises.
Then the plaintiffs filed a suit to eject the defendant upon the ground that the latter was in arrears of rent for one year and had failed to pay the arrears within one month of the service of the notice dated April 11, 1959 upon him.
From the undisputed facts it was clear that the defendant was in fact in arrears of rent and had failed to pay it within the time prescribed by cl.
(a) of section 4 of the Madhya Pradesh Accommodation Control Act, 1953.
Held:(i) Though the notice dated April 11, 1959 could be construed to be composite notice under section 4(a) of the accommodation Act and section 106 of the it was ineffective 240 under section 106 of the because it was not a notice of 15 clear days.
In the present case, the defendant had only 14 clear days ' notice.
Subadini vs Durga Charan Lal, I.L.R. and Gobind Chandra Saha vs Dwarka Nath Patita, A.I.R. 1915 Cal. 313, approved.
Harihar Banerji vs Ramsashi Roy, L.R. 45 I.A. 222, dis tinguished.
(ii)The suit was actually based upon the notice dated July 9, 1959 which gave more than 15 days ' clear notice to the defendant to vacate the premises.
This notice was a valid notice under section 106 of the .
(iii)The contention that a suit under cl.
(a) of section 4 of the Act is not maintainable unless a tenant is in arrears on the date of the suit, cannot be sustained.
If this contention had to be accepted it would be virtually rewriting the section by saying "that the tenant was in arrears of rent at the date of suit" in place of that the "tenant has failed to make payment etc.
" It is certainly not open to a court to usurp the functions of a legislature.
Nor again, is there scope for placing an unnatural interpretation on the language used by the legislature and impute to it an intention which cannot be inferred from the language used by it by basing ourselves on ideas derived from other laws intended to give protection to the tenants from eviction by landlords.
(iv)The ground set out in cl.
(a) of section 4 need not be shown by the landlord to exist at the date of institution of the suit.
All that is necessary for him to establish is that the tenant was in fact in arrears, that he was given one month 's notice to pay up the arrears and that in spite of this he failed to pay these arrears within one month of service of notice on him.
(v)The effect of cl.
(a) of section 4 is merely to remove the bar created by the opening words of section 4 on the right which a landlord has under section 106 of the to terminate a tenancy of a tenant from month to month by giving a notice terminating his tenancy.
The character of the tenancy as one from month to month remains; but to it is added a condition that the unfettered right to terminate the tenancy conferred by section 106 will be exercisable only if one of the grounds set out in section 4 of the Accommodation Act is shown to exist.
(vi)By cashing the cheque for Rs. 1,320 the plaintiffs did not waive all rights which accrued to them under the notice dated April 11, 1959.
No right under section 106 of the had accrued to them because of the ineffectiveness of the notice in so far as the termination of tenancy was concerned and, therefore, no question of waiver with respect to that part of the notice arises.
So far as the right accruing under section 4(a) of the Accommodation Act is concerned, the defendant having been under liability to pay rent even after the giving of notice the acceptance of the rent by the plaintiffs would not by itself of operate as waiver. |
ivil Appeal Nos.
1894, 1895 & 1896 of 1990.
From the Judgment and Order dated 9.2.1989 of the Punjab & Haryana High Court in Civil W.P. Nos.
1778, 1776 & 1777 of 1989.
528 Balbir Singh Wasu, N.S. Das Bahl for the Appellant.
Har Dev Singh and Ms. Madhu Moolchandani for the Re spondents.
The Judgment of the Court was delivered by KASLIWAL, J.
Special leave granted.
All these petitions by Special leave are disposed of by one single order as identical questions of law are involved and they are directed against the similar order of the High Court dated 9th February, 1989.
Short controversy raised in these cases is regarding the grant of benefits under amended Sections 23(1 A), 23(2) and 28 of the Land Acquisition Act, 1894 as amended by the Land Acquisition (Amendment) Act, 1984 (hereinafter referred to as the Amending Act).
The President Land Acquisition Tribu nal, Hoshiarpur (District Court) initially granted solatium at 15% on the compensation and interest at 6% per annum on the additional amount of compensation till the date of payment.
The claimants 'submitted an application for modifi cation of the award as regards solatium and interest in view of the Amending Act which came into force on 24th September, 1984.
The Land Acquisition Tribunal granted benefit of the Amending Act and modified the award by passing the following operative order which is subject matter of challenge in Special Leave Petition No. 9434 of 1989.
Similar orders have been passed in other two cases also.
"Accordingly, I modify the award to the extent that solatium shah be payable at the rate of 30% instead of 15% granted earlier.
Similarly, interest at the rate of 12% per annum is granted from the date of notification under Section 42 of the Punjab Town Improvement Act, 1922, till the date of award of the Collector, the date of possession of the land which ever is earlier.
Further interest is awarded at the rate of 9% per annum on the enhanced amount from the date of delivery of possession till the expiry of one year.
Thereaf ter interest is awarded at the rate of 15% per annum from the date of expiry of period of one year till payment.
The applicant shall be entitled to recover the solatium and interest as per the modification indicated above ' '.
529 Aggrieved against the above order, the Hoshiarpur Im provement Trust has come before this Court.
In order to decide the controversy, it would be neces sary to mention some important dates in each of the above cases.
In Special Leave Petition No. 9434 of 1989 the award was given by the Land Acquisition Collector on 6th January, 1979.
On a reference the award was given by the President Land Acquisition Tribunal, Hoshiarpur on 28th March, 1983.
The award was modified by the President Land Acquisition Tribunal by order dated 29th August, 1988.
The High Court dismissed the Writ Petition filed by the Improvement Trust on 9th February, 1989.
In Special Leave Petition No. 9521 of 1989 the award was given by the Land Acquisition Collector on 30th April, 1982.
On a reference the award was given by the President Land Acquisition Tribunal, Hoshiarpur on 29th August, 1985.
The President Land Acquisition Tribunal modified the award by order dated 29th August, 1988.
The Writ Petition filed by the Improvement Trust was dismissed by the High Court on 9th February, 1989.
In Special Leave Petition No. 10 130 of 1989 the award was given by the Land Acquisition Collector on 30th April, 1982.
On a reference the award was given by the President Land Acquisition Tribunal, Hoshiarpur on 29th August, 1985.
The award was modified by the President Land Acquisition Tribunal by order dated 14th September, 1988.
Writ Petition filed by the Improvement Trust was dismissed by the High Court on 9th February, 1989.
Learned Counsel appearing on behalf of the Improvement Trust contended that no benefit could have been given under Section 23(1 A) which was inserted by the Amending Act.
It was contended that in a recent decision given by this Court in Union of India & Ors.
vs Mr. Filip Tiago De Gama of Vedem Vasco De Gama, JT it has been held that the additional amount under Sec.
23(1 A) can only be allowed in those cases where proceedings for the acquisition of any land under the Principal Act were pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisi tion (Amendment) Bill 1982 in the House of People), in which no award has been made by the Collector before that date.
If the Collector has made the award before that date then, the additional amount cannot be awarded.
Thus it was contended that the additional benefit of interest 530 at the rate of 12% per annum from the date of notification till the award made by the Collector or the date of taking over possession which ever is earlier, is liable to be set aside.
In order to appreciate the argument advanced by the Learned counsel appearing for the Improvement Trust, it would be necessary to give a background of some important events and decisions having a bearing on the question.
The Land Acquisition Act, 1894 (hereinafter referred to as the Principal Act) was sought to be amended and in this regard on 30th April, 1982, the Land Acquisition (Amendment) Bill, 1982 was introduced in Parliament.
On 24th September, 1984 it became law as the Land Acquisition (Amendment) Act, 68 of 1984, when it received assent of the President.
Before the amendment, Section 23(2) of the Principal Act provided for solatium at 15% on the market value, in consideration of the compulsory nature of the acquisition.
After amendment by Act 68 of 1984 solatium was raised to 30% on the market value under Section 23(2).
A Constitution Bench in Union of India & Another vs Raghubir Singh (dead) by L.rs.
; , , overruled; Bhag Singh vs Union Territory of Chandi garh; , and State of Punjab vs Mohinder Singh, held that the higher solatium at the rate of 30% would be given in cases of awards made by the Collector or the Court between 30th April, 1982 and 24th September, 1934.
In the cases before us the claimants have been rightly held entitled to solatium at 30% applying the ratio in the case of Union of India & Ors.
vs Raghubir Singh, (supra).
So far as the award of interest at the rate of 9% for the first year from the date of taking possession and 15% for the subsequent years is concerned, the claimants have been rightly held entitled to the same under Section 28 as stood amended by the Amending Act.
Now, the only controversy which remains to be considered is with regard to the additional benefit allowed by way of rate of interest at 12% per annum from the date of notifica tion issued under Section 42 of the Punjab Town Improvement Act, 1922, till the date of award of the Collector or the date of possession of the land which ever is earlier.
It is important to note that in the case of Union of India vs Raghubir Singh, (supra) the above question was neither called for consideration nor decided.
In Union of India & Ors.
vs Mr. Filip Tiago De Gama of Vedem Vasco De Gama, (supra) the above question directly came up for considera tion before this Court.
It was held that the above benefit has been provided under the amended Sections 23(i A) & 23(2).
531 The Legislature has given new starting point for operation of Section 23(1 A) for certain cases and it would be deter mined from Section 30(1)(a,) & (b) of the Transitional Provisions which read as follows: Section 30: Transitional Provisions: (1) The provision of Sub section (1 A) of Section 23 of the Principal Act, as inserted by clause (a) of Section 16 of this Act, shall apply, and shall be deemed to have applied, also to, and in relation to: (a) every proceeding for the acquisition of any land under the Principal Act pending on the 30th day of April, 1982 (the date of introduction of the Land Acquisition (Amend ment) Bill 1982 in the House of the People), in which no award has been made by the Collector before that date.
(b) every proceeding for the acquisition of any land under the principal Act commenced after that date, whether or not an award has been made by the Collector before the date of commencement of this Act".
It was observed in the above case that Section 30(1)(a) provides that additional amount provided under Sec.
23(1)(a) shall be applicable to acquisition proceedings pending before the Collector as on 30th April, 1982 in which he has not made the award before that date.
If the Collector has made the award before that date then that additional amount cannot be awarded.
We agree with the view taken in the above case.
Thus applying the above principle in the cases in hand before us it would be clear that in Special Leave Petition No. 9434 of 1989 the award was made by the Land Acquisition Collector on 6th January, 1979 i.e. long before 30th April, 1982 and as such the claimant in the above case is not entitled to the benefit of Section 23(1 A) as inserted in the Principle Act by the Amending Act.
So far as the other two Special Leave Petitions, namely, 9521/89 and 10130/89 are concerned, the awards have been made by the Land Acqui sition Collector on 30th April, 1982 itself but not before that date.
Section 30 the Transitional Provisions clearly provide that the provisions of Subsection (1 A) of Section 23 of the Principle Act, as inserted by Clause (a) of Sec tion 16 of this Act shall apply to every proceeding for the acquisition of any land under the Principle Act pending on 30th day of April, 1982 in which no award has been made by the Collector before 532 that date.
In the above two cases the award has not been made by the Collector before 30th day of April, 1982 but made on 30th April, 1982 itself and as such the claimants in these two cases become entitled to the benefit of Section 23(1 A).
As a result of the above discussion the civil appeals in S.L.P. (C) Nos.
952 1 of 1989 & 10 130 of 1989 stand dis missed.
So far as appeal in Special Leave Petition No. 9434 of 1989 is concerned, it is allowed in part and the order of the High Court as well as that of the President Land Acqui sition Tribunal is modified only to the extent that interest shall be allowed at the rate of 6% per annum instead of 12% per annum from the date of Notification under Section 42 of the Punjab Town Improvement Act, till the date of award of the Collector or the date of possession of the land which ever is earlier.
So far as other additional benefits granted by the President Land Acquisition Tribunal are concerned, the same would remain in tact.
In the facts and circum stances of the case there would be no order as to costs.
T.N.A. Appeal allowed partly. | The lands of the respondents were acquired for a scheme of the Appellant Improvement Trust.
The awards for compensa tion were made by the Collector on 6th January, 1979 and 30th April, 1982 and the reference was disposed of by the Land Acquisition Tribunal by its award dated 28th March, 1983 and 29th August, 1985 by granting solatium @ 15% on compensation and interest @ 6% on excess compensation.
In view of the Land Acquisition (Amendment) Act, 1984 the landowner claimants made an application to the Tribunal seeking enhanced solatium and interest under the amended provisions of Land Acquisition Act, 1894.
The Tribunal allowed the application by granting higher solatium, addi tional benefit of interest and interest on excess compensa tion.
The writ petitions filed by the Appellant Improvement Trust against the decision of the Tribunal were dismissed.
Hence these appeals by the Improvement Trust.
Allowing the appeal in part (C.A. No. 1894 of 1990) and dismissing the connected appeals, this Court, HELD: 1.
The benefit of higher solatium @ 30% under section 527 23(2) of the Land Acquisition Act, 1894 is applicable to cases of awards made by the Collector or the Court between 30th April, 1982 and 24th September, 1984.
In the instant case since the awards were made between the aforesaid dates the claimants have been rightly held entitled to enhanced solatium.
[530E] Union of India vs Raghubir Singh, ; , fol lowed.
Section 30(1)(a) of the Land Acquisition (Amendment) Act, 1984 clearly provides that the additional amount of interest provided under Section 23(1 A) of the Land Acquisi tion Act, 1894 shall be applicable to acquisition proceed ings pending before the Collector as on 30th April, 1982 in which he has not made the award before that date.
If the Collector has made the award before that date then addition al amount Cannot be awarded.
[531E] 2.1 The claimant in the Appeal (No. 1894 of 1990) is not entitled to additional benefit of interest under Section 23(1 A) because the award in this case was made long before 30th April, 1982.
But the claimant in the connected appeals are entitled to this benefit since in their cases the awards were made on 30th April, 1982 itself.
[531F; 532A] Union of India vs Raghubir Singh, , explained and held inapplicable.
Union of India vs Filip Tiago De Gama, J.T. 1989 4 S.C. 529, followed.
The award of interest on excess compensation is valid since the claimants were entitled to the same under section 28 as it stood amended by the Amending Act.
[530F] 4.
The order of the High Court and the Land Acquisition Tribunal in Civil Appeal No. 1894 of 1990 is therefore modified, only to the extent that interest shah be allowed at the rate of 6% per annum instead of 12% per annum.
The other additional benefits granted by the Tribunal shall remain in tact.
[532B C] |
ivil Appeal Nos. 47(11 and 4702 of 1985.
From the Judgment and Order dated 12.12.
1983 of the Karnataka High Court in C.R.P. No. 3765 of 1981.
Dr. Y.S. Chitale Rameshwar Nath, Ravinder Nath and Sukumar Ghosh for the Appellants in C.A. Nos. 4701 and 4702 of 1985.
253 P. chidambram, S.S. Javali, H.R. Anantha Krishna Murthy and Ranjit Kumar for the Respondents in C.A. Nos. 4701 and 4702 of 1985.
The Judgment of the Court was delivered by VERMA, J.
These appeals by special leave are by the tenant and the sub tenant against a decree for eviction passed on the grounds of sub letting and the reasonable and bona fide requirement of the respondent landlord specified in clauses (f) & (h) of the proviso to sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961 (herein after called 'the Act ').
The Trial Court had rejected the landlord 's application.
for an order of eviction on these grounds, but the High Court in a revision under Section 50 of the Act has set aside the Trial Court 's order and passed the decree for eviction on these grounds.
Hence these ap peals.
The material facts are undisputed at this stage.
The premises comprises of two shops and a house adjoining the shops and belonged earlier to one T.A. Jotindranath Mudali ar.
The premises were let out by the original lessor to M/s. Bhoolchand Chandiram (Appellant in Civil Appeal No. 470 1 of 1985) on 4.10.1943 on terms contained in the letter dated 4.10.
1943 from the original lessor to M/s. Bhoolchand Chandiram which reads as under: "T.A. Jotindranath 933, Laxmipur Mudaliar.
Mysore, 4th October 43 To Messrs. Boolchand Chandiram, Silk Merchant, C/o Messrs. Bhagwandas Shyam sunder & Co., 112, Commercial Street, Bangalore Cantt.
Dear Sirs, With reference to your letter dated 30th Sept. 43 and your personal conversation about renting out my shops in 254 the Commercial Street, Bangalore Cantonment, it is agreed and confirmed that you are prepared to take the two shops at monthly rent of Rs.430 (Rs. Four hundred and thirty only) with two years agreement and three month 's advance and execute the necessary rental Deed, with the option of sub letting one of the shops.
As for the House adjoining the shops at monthly rent of Rs.50 (Rs. Fifty only) with one month 's advance and Eleven Month 's rental Deed.
You have the option of sub letting the house also.
Yours sincerely, sd/ T.A. Jotindernath Mudaliar" M/s. Bhoolchand Chandiram continued as a tenant in the premises and sometime in the year 1946 sublet one of the two shops to one 'Arts Palace '.
Later, w.e.f.
1.4.1948 the appellant M/s. Bhoolchand Chandiram inducted another sub tenant M/s. Super Dry Cleaners (Appellant in Civil Appeal No 4702 of 1985) in place of Arts Palace in the same shop.
In 1960, a partition took place in the Hindu Undivided Family of Mudaliar brothers, the original lessor and the suit premises fell to the share of Narendranath Mudaliar.
M/s. Bhoolchand Chandiram continued in the premises as the tenant with Super Dry Cleaners as the sub tenant in one shop from 1.4.
The original lessor (including Narendranath Mudaliar after partition in the HUF of Mudaliar brothers) continued to take rent from the tenant M/s. Bhoolchand Chandiram of the entire premises i.e. two shops and the house adjoining the shops till May, 1974.
On 28.6.1974, the said Narendranath Mudaliar executed a registered sale deed in favour of respondent No. 1, M/s. Kay Pee Cee Investments, a registered partnership firm comprising of three ladies of one family as partners, for the sale consideration of Rs. 1,40,000.
It may be mentioned that in a proceeding for fixation of standard rent between the original lessor and the tenant, monthly rent of Rs.325 was fixed for the entire premises i.e. two shops and the house and the rent due upto May, 1974 was paid by the tenant to the original lessor.
After execution of the said sale deed in favour of respond ent No. 1, the tenant attorned in favour of respondent No. 1 and paid rent for the entire premises @ Rs.325 per month to respondent No. 1.
The suit premises comprises of Shop.
Nos. 44 and 45 (New Nos. 1 & 2) in commercial Street, Bangalore Cantt.
and House No. 250 (New No. 22 Narain Pillai Street Cross).
Admittedly, the premises are 255 in a prestigious commercial locality of the city of Banga lore.
Respondent No. 1 landlord claims that the entire suit premises is reasonably and bona fide required by the land lord for its own business as agents of various textile mills for the purpose of opening a showroom for which it was purchased.
It is also alleged that one of the shops was unlawfully sublet w.e.f.
1.4.1948 giving rise to the other ground of sub letting also for eviction.
The respondent No. 1 gave a notice on 31.7.1975 terminating the appellant tenant 's tenancy.
Thereafter on 5.9.1975 a petition was filed by respondent No. 1 for eviction of the appellant on the grounds of sub letting and bona fide need of the land lord under clauses (f) & (h) of the proviso to sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961.
As earlier stated, the Trial Court dismissed the application, but the High Court has set aside that order and passed a decree for eviction on both the grounds.
The ground of sub letting is to be decided on the above undisputed facts on the basis of legality of the act of sub letting on 1.4.1948 in these circumstances.
The ground of bona fide need of the landlord is to be decided on the basis of the evidence led which is entirely oral from both the sides with reference to the infirmity, if any, in the High Court 's finding permitting interference therewith in these appeals.
Dr. Y.S. Chitale, learned counsel appearing for the appellant tenant assailed the High Court 's findings on both these questions.
Shri section Ghosh, learned counsel appearing for the sub tenant adopted the arguments of Dr. Chitale.
Shri Chidambaram, learned counsel appearing on behalf of the respondent No. 1 landlord has urged that there is no infirmity in the High Court 's decision on both the questions to permit any interference in these appeals.
We shall first take up the question relating to the landlord 's reasonable and bona fide requirement which is a ground for eviction under clause (h) of the proviso to sub section 1 of Section 21 of the Act.
It may be recalled that the Trial Court had negatived the existence of this ground while the High Court reversing that conclusion has held it to be proved.
The question before us is whether there is any infirmity in the High Court 's reversal of this finding justifying interference in these appeals.
Against the deci sion of the Trial Court, the provision made in Section 50 of the Act is of a revision and not an appeal to the High Court.
However, the power of revision is not narrow as in section 115 CPC but wider requiring the High Court to examine the impugned order for the purpose of satisfying itself as to the legality or correctness of such order or proceeding ' which enables the High Court to 'pass such order in refer ence thereto as it thinks fit '.
256 It is clear that the High Court in a revision under Section 50 of the Act is required to satisfy itself not only as to the legality of the impugned order or proceeding but also of its correctness.
The power of the High Court, therefore, extends to correcting not merely errors of law but also errors of fact.
In other words, the High Court in a revision under Section 50 of the Act is required to examine the correctness of not only findings on questions of law but also on questions of fact.
It is significant that the revi sion provided is directly against the Trial Court 's order and not after a provision of appeal on facts.
All the same, the power in revision under Section 50 of the Act cannot be equated with the power of the Appellate Court under Section 107(2) of the Code of Civil Procedure which is the same as that of the original court; and the revisional power under Section 50 of the Act even though wide as indicated, must fall short of the Appellate Court 's power of interference with a finding of fact where the finding of fact depends on the credibility of witnesses, there being a conflict of oral evidence of the parties.
It has, therefore, to be seen whether the High Court in the present case while reversing the Trial Court 's finding on the question of landlord 's reasonable and bone fide requirement of the suit premises exceeded its jurisdiction.
Admittedly, the only evidence led by the landlord for this purpose is oral comprising of the testimony of PW.
I Dinesh, the Power of Attorney holder of the landlord and son of one of the three ladies who were partners of that firm.
The evidence in rebuttal is also oral comprising essentially of denial of the plaintiffs requirement.
The credibility of the oral evidence adduced by the parties has to be assessed in the background of certain undisputed facts and circumstances.
It is undisputed that the respondent No. firm comprising of three partners, all women, belonging to a family of businessmen having textile business also was constituted in 1958 and the firm was registered in 1961; the power of attorney was given to PW 1 Dinesh, son of one of the partners, on 4.9.1970; the suit premises was purchased by the respondent No. 1 firm in 1974; respondent No. 1 firm has its business in one room on the third floor in a rented premises in Bangalore and it does not have any other premises for this purpose; and PW. 1 Dinesh is looking after the entire business of the respond ent No. 1 firm as a duly constituted attorney.
1 Thakur das Bhoolchand, proprietor of M/s. Bhoolchand Chandiram also admitted that the children of the ladies who were partners of the respondent No. 1 firm are carrying on the business and that business is being carried on 257 in a premise at Sakalji Market, Avenue Raod, Bangalore which according to respondent No. 1 is a rented accommodation.
RW. 1 has merely denied knowledge of the premises being taken on rent by respondent No. 1.
The question, therefore, is wheth er on these undisputed facts and circumstances the ,land lord 's reasonable and bona. fide need has been proved.
The Trial Court in deciding against the landlord was influenced considerably by the fact that in support of the landlord 's case 'no piece of documentary evidence is pro duced '.
The Trial Court accepted that the family of the respondent No. 1 carries on textile business but held it not proved that partition in the family has taken place to give rise to the requirement of respondent No. 1 firm for the suit premises when the joint family owns other premises in Bangalore.
According to the Trial Court, the respondent No. 1 firm is not a separate entity detached from the family.
The Trial Court was obviously in error in being influenced by the absence of any documentary evidence to support the need set up by respondent No. 1.
There is no finding record ed by the Trial Court of the existence of any document which was material for deciding the question and it being in possession of the respondent No. 1 had not been produced at the trial.
In the absence of any such finding, the effect of non production of any documentary evidence being put in scales against the landlord resulted in an infirmity permit ting the High Court to examine the correctness of the find ing even when it was based on the credibility of the oral evidence adduced by the parties.
Similarly, the suit prem ises belonging, admittedly, to the three ladies who were partners of the respondent No. 1 firm and to no other member of the family to which those ladies belonged, the premises, if any, belonging to other members of the family could not be taken into account for assessing the reasonable and bona fide need of the business of respondent No. 1 firm.
Since the three ladies constituting the respondent No. 1 firm come from a family having textile business and for the purpose of the suit premises, they being distinct from other members of the family with their separate business in a rented accommo dation in the same city, the Trial Court 's finding was vitiated by another infirmity when it failed to examine the need set up by respondent No. 1 firm in the correct perspec tive.
The High Court was, therefore, justified in re examin ing the correctness of the finding on this question correct ing both these errors which had vitiated the Trial Court 's finding.
These infirmities in the Trial Court 's finding clearly show that the weight of the Trial Court 's finding of fact in the present case was considerably reduced and the High Court in a revision under Section 50 of the Act was empowered to examine the cor 258 rectness of this finding after eliminating both the infirmi ties.
It is obvious that the partners of the respondent No. 1 firm belonging to a family already having large textile business would not purchase the suit premises in a presti gious commercial locality at Bangalore merely for earning the monthly rent of Rs.325 after investing the amount of Rs. 1,40,000 in 1974 to acquire the business premises.
This factor indicating the greater probability also has to be put in scales while assessing the landlord 's bona fide require ment set up in the present case.
Viewed in this manner, the High Court 's finding on this question based on the oral evidence adduced by the parties in the background of undis puted facts and circumstances of the case reaching the conclusion that the landlord 's reasonable and bona fide requirement of the suit premises for its own occupation is proved does not suffer from any infirmity which can justify interference therewith in these appeals.
This alone is sufficient to affirm the decree for eviction passed against the appellants in these appeals.
We shall now consider the other question relating to sub letting which is a ground for eviction specified in clause (f) of the proviso to sub section 1 of Section 21 of the Act.
The basic point for decision is whether the sub letting made by M/s. Bhoolchand Chandiram to M/s. Super Dry Cleaners of one shop which is a part of the suit premises w.e.f. 1.4, 1948 was unlawful being contrary to any provi sion of law then in force.
Considerable argument was ad vanced from both sides relating to the law then in force.
We may here indicate that existence of the ground of sub let ting loses much of its significance on our above conclusion that the landlord 's reasonable and bona fide need was right ly held proved by the High Court with the consequence that the decree for eviction can be sustained on that ground alone.
The ground of sub letting, however, remains of prac tical significance only for the purpose of applicability of sub section 4 of Section 21 of the Act since that would be attracted only if the ground of sub letting also found proved by the High Court, is not upheld herein.
If, however, this ground also is upheld, then the decree being passed even on this ground, the further question of greater hard ship to the landlord or the tenant under Section 21(4) of the Act would not arise.
It is for this reason that we consider it necessary to examine the question of subletting.
The main controversy between the two sides on the ground of sub letting is whether a written consent of the landlord for sub letting was necessary on 1.4.1948 when the sub letting was made and, if so, 259 was there such a written consent given by the landlord? The written consent of the landlord on which reliance is placed by the tenant as well as the sub tenant, the appellants in these appeals, is that contained in the above quoted letter dated 4.10.1943 of the original lessor.
Unless the written consent of the landlord contained in the above letter dated 4.10.1943 can be held to be subsisting on 1.4.1948 when the sub letting was made in favour of M/s. Super Dry Cleaners there , would, admittedly, be no written consent of the landlord to this subletting.
There is no controversy in this respect.
The first point for consideration, therefore, is whether the written consent of the landlord contained in the above quoted letter dated 4.10.1943 can be treated as subsisting and available on 1.4.
1948 when the subletting in question was, in fact, made.
There is no case set up by the tenant and sub tenant of any implied consent of the original lessor or waiver of the ground of sub letting and, therefore, that question does not arise for consideration.
The written consent of the landlord for sub letting on 1.4.1948 according to learned counsel for the appellants is to be found in the letter dated 4.10.1943 of the original lessor.
The consent of the landlord for sub letting is a question of fact.
Such consent is an act of volition of the landlord and is not to be inferred from any statutory provi sion.
The effect of the statute comes in, if at all, only for the purpose of ascertaining whether the landlord 's consent can be treated as subsisting after lapse of the period for which it was expressly given.
There being no compulsion on the landlord to give such consent it cannot ordinarily extend beyond the period for which alone it was expressly given.
Admittedly, the consent which was given by the original lessor in the present case is to be found only in the said letter dated 4.10.1943.
We must, therefore, see the consent given therein.
The aforesaid letter dated 4.10.1943 of the original lessor confirming the creation of the tenancy with effect from 4.10.1943 stated that two shops were let out on a monthly rent of Rs.430 for two years with the option of sub letting one of the shops; and the house adjoining the shops was let out on a monthly rent of Rs.50 for eleven months with the option of sub letting the house also.
There is no dispute that subsequently in a proceeding for fixation of the standard rent, the entire premises comprising of the two shops and the houses, was treated as one premises and the monthly rent of Rs.325 was fixed for the entire premises and this is how the tenancy was treated by both sides as one tenancy instead of two separate tenancies appearing in the 260 letter dated 4.10.1943.
The letter dated 4.10.1943 created contractual tenancy for a period of two years in respect of the two shops and for a period of eleven months for the adjoining houses.
Obviously, the consent of the landlord for sub letting mentioned therein by giving the tenant the option of sub letting cannot, therefore, be construed as consent for a period beyond the period of the contractual tenancy which was only two years in respect of two shops.
It would neither be reasonable nor appropriate to construe that the consent was given for any period after expiry of the period of contractual tenancy specified therein.
There is nothing in the said letter dated 4.10.
1943 10 suggest the continuance of the tenancy after the expiry of the specified period of contractual tenancy and, therefore, there could be no occasion to contemplate any consent for sub letting after expiry of the period of contractual tenancy of two years in respect of the two shops.
This is the factual position emerging from the aforesaid letter dated 4.10.1943 which alone is the basis of appellant 's assertion that sub letting w.e.f.
1.4.1948 was with the written consent of the original lessor.
Admittedly, creation of the sub tenancy w.e.f.
1.4.1948 in respect of one of these shops was long after the expiry of the period of contractual tenancy of two years specifically mentioned in that letter.
The question, there fore, is: whether the landlord 's consent given in the said letter dated 4.10.1943 could be treated as subsisting for creation of a valid sub tenancy w.e.f. 1.4.
1948 after the expiry of the period of contractual tenancy? The argument of Dr. Chitale, learned counsel for the appellanttenant, which has also been adopted by Shri Ghosh, learned counsel for the appellant sub tenant is that on expiry of the contractual tenancy, the tenant became a statutory tenant by virtue of the restriction on his evic tion except on one of the grounds for eviction provided in the statute and, therefore, all the terms and conditions of the contractual tenancy became the terms and conditions of the statutory tenancy.
On this basis, it was argued that the written consent of the landlord for sub letting during the period of the contractual tenancy continued to subsist as one of the terms and conditions of the statutory tenancy also.
It was argued that for this reason, even though the subletting was made w.e.f.
1.4.1948 after the period of the contractual tenancy, yet it too must be deemed to be with the written consent of the landlord which was available during the period of the contractual tenancy.
Dr. Chitale also referred to the fact that the first sub letting in 1946 to Arts Palace of the same shop which was later sublet w.e.f. 1.4.
1948 to M/s Super Dry Cleaners was also after expiry of the period of two years of the contractual tenan cy.
This fact, however, is not 261 material in the present case since the first sub letting ended before commencement of the second sub letting on 1.4.
1948 and it is only the validity of the subsisting sub letting w.e.f. 1.4.
1948 which is in question in the present proceedings.
Dr. Chitale relied on a number of decisions of this court in support of his contention ' that the written consent of the landlord for sub letting during the period of contractual tenancy continued as one of the terms and condi tions of the statutory tenancy when the sub letting was made w.e.f. 1.4.1948.
In reply, Shri Chidambram contended that the written consent of the landlord for sub letting is not one of the terms which ensures to the benefit of the tenant during subsistence of the statutory tenancy after expiry of the contractual tenancy.
The decisions cited at the Bar on this point are Damadilal and Others vs Parashram and Others, [1976] Supp.
SCR 645; Y. Dhanapal Chettiar vs Yesodai Ammal, ; ; Smt.
Gian Devi Anand vs Jeevan Kumar and Others, [1985] Supp. 1 SCR 1; Mahabir Prasad Verma vs Dr. Surinder Kaur; , ; M/s. Shalimar Tar Products Ltd. vs H.C. sharma and Others; , ; Shantilal Rampuria and Others vs M/s Vega Trading Corporation and Others, ; ; M/s. Bajaj Auto Limited vs Behari Lal Kohli, ; ; Duli Chand (Dead) by L.rs.
vs Jagmender Dass; , and Tara Chand and Another vs Ram Prasad, The decision in Damadilal 's case (supra) and others in the same line related primarily to the question of heritable interest in the premises of the legal representatives of the deceased tenant who was in occupation as statutory tenant.
Pointing out that the concept of statutory tenancy under the English Rent Acts and under Indian Statutes like the one with which we are concerned rests on different foundations, it was held that the statutory tenant had a heritable inter est in the premises which was not merely a personal interest but an interest in the estate like that of a contractual tenant.
On this conclusion, the right of legal representa tives of the statutory tenant to protect the possession and prosecute the appeal against eviction order was upheld.
The main question for decision in Damadilal 's case (supra) was the heritable nature of the statutory tenancy and it was in this context that the terms and conditions of a statutory tenancy were held to be the same as those of the contractual tenancy preceding it.
No question arose in Damadilal 's case (supra) of the right of a statutory tenant to create a sub tenancy after replacement of the contractual tenancy with the statutory 'tenancy.
The observations made and the deci sion rendered in Damadilal 's case (supra) cannot, therefore, be construed as holding that a statutory tenant has a right to create a sub tenancy 262 during subsistence of statutory tenancy after expiry of the contractual tenancy when the Rent Acts give the same protec tion against eviction tO the tenant except on one or more of the specified grounds.
Obviously, the protection to the statutory tenant and the heritable nature of the statutory tenancy providing the same protection against eviction to the tenant 's heirs does not further require conferral of the right of inducting a sub tenant which is not necessary for enjoyment of the tenancy and the protection against eviction given by the Rent Acts.
There is no rationale for inferring or extending the landlord 's written consent for sub letting beyond the period of contractual tenancy for which alone it is given.
No separate discussion of the later decisions in the same line is necessary because of the same distinction in all of them.
One decision which.
requires specific mention and is obviously nearest on facts to the present case is Mahabir Prasad Verma vs Dr. Surinder Kaur, ; In that case, the contractual tenancy was for a period of one month from 1.4.
1974 to 30.4.1974 with the landlord 's consent for sub letting.
The tenant continued to occupy the premises even after expiry of the contractual tenancy on 30,4.1974 and inducted therein a sub tenant.
The landlord sued for eviction of the tenant on the ground of unlawful sub letting of the premises which was a ground for eviction under the relevant Rent Act.
There was some dispute about the time of induction of the sub tenant, it being claimed by the tenant that the induction of the sub tenant was in the month of April, 1974 during subsistence of the contractual tenancy while the landlord contended that the sub letting was after the month of April, 1974.
It was found as a fact that the tenant had sublet in the month of April, 1974 when the written consent of the landlord subsisted and not subsequent to it in May as claimed by the landlord.
The crux of the question for decision therein was stated thus: "The crux of the question, therefore, is whether the sublet ting by the tenant with the written consent of landlord during the currency of the tenancy becomes unlawful and illegal on the determination of the tenancy and furnishes a ground for eviction within the meaning of section 13(2)(ii)(e) of the Act.
" On the finding that the sub tenant had been inducted during the period of contractual tenancy on the basis of the writ ten consent for subletting given by the landlord, the sub letting did not become unlawful merely because the contrac tual tenancy of the tenant came to an end and the protection against eviction to the tenant as a statutory tenant also 263 enured to the benefit of the lawful sub tenant recognised by the statute.
It was held as under: "Subletting lawfully done with the written consent of the landlord does not become unlawful merely on the ground that the contractual tenancy has come to an end.
Subletting to constitute a valid ground for eviction must be without the consent in writing of the landlord at the time when the tenant sub lets any portion to the sub tenant.
A subletting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub letting by the tenant without the written consent of the landlord Mere continuance in posses sion of a sub tenant lawfully inducted does not amount to any fresh or further sub letting.
We are, therefore, satis fied that in the instant case the tenant has not sub let any portion without the written consent of the landlady after the commencement of the Act . .
Mere continuance of possession by the subtenants lawfully inducted by the tenant with the written consent of the landlady contained in rent note does not afford any ground to the landlady for eviction of the tenant on the ground of sub letting, as the tenant has not sub let after the commencement of the Act any por tion without the consent in writing of the landlady." (emphasis supplied) Of all the decisions cited at the Bar, this decision is, admittedly, nearest on facts to the present case with the only difference that the sub letting in the present case was after expiry of the contractual tenancy and after the com mencement of the Act prohibiting subletting without the written consent of the landlord when it was made on 1.4.1948, while the sub letting in Mahabir Prasad 's case (supra) was during the period of contractual tenancy when the express written consent of the landlord for sub letting was available.
The principle for application, however, is the same with the only difference in the result since in Mahabir Prasad 's case (supra) the sub letting was made during subsistence of the contractual tenancy with the written consent of the landlord.
It is significant that the judgment in Mahabir Prasad 's case (supra) was by A.N. Sen, J. who also wrote the opinion in Gian Devi 's case (supra) relied on by Dr Chitale as one of the decisions in line with Damadilal 's case (supra).
It is clear that A.N. Sen, J., who wrote the 264 opinion of the Bench in Mahabir Prasad 's case (supra) as well as in Gian Devi 's case (supra) did not construe the earlier decisions starting with Damadilal 's case (supra) in the manner read by Dr. Chitale.
If Dr. Chitale is correct in his submission on this point, then the entire emphasis in Mahabir Prasad 's case (supra) on the sub letting being made during the period of contractual tenancy in April, 1974 and not thereafter being decisive of the validity of sub letting was misplaced and a futile exercise.
In our opinion this was not so and the correct premise is that landlord 's written consent for sub letting during the period of contractual tenancy cannot be construed as his consent subsisting after expiry of the contractual tenancy.
The submission of learned counsel for the appellants runs counter to the clear deci sion in Mahabir Prasad 's case (supra) which, in our opinion, is in no way contrary to the decisions starting with Damadi lal 's case (supra), the observations wherein are in the context of heritability of the statutory tenancy.
In fact.
it is rightly not even contended by Dr. Chitale that the decision in Mahabir Prasad 's case (supra) runs counter to Damadilall 's case Supra and other decisions following them.
This is sufficient to indicate that the appellants ' conten tion is untenable.
There is some controversy between the parties about the legislative history of the Rent Acts in the Bangalore Civil Station wherein the suit premises is located, but an in depth consideration of that controversy is not necessary.
The only question is: whether on 1.4.1948 when the sub letting was made in favour of M/s. Super Dry Cleaners, the contractual tenancy giving written consent for sub letting having expired was the written consent of the landlord for sub letting necessary under the statute then in force? It is sufficient to state that the Bangalore House Rent and Accom modation Control Act, 1946 was brought into force w.e.f. 1.10.1946 for a period of two years expiring on 1.10. 1948.
Later enactments were Mysore House Rent and Accommodation Control Act, 1951 and then Karnataka Rent Control Act, 1961 w.e.f.
31.12.1961.
The suit for eviction was filed in Sep tember, 1975 on the grounds contained in clauses (f) and (h) of the proviso to sub section 1 of Section 21 of the Karna taka Rent Control Act, 1961.
in the Bangalore House Rent and Accommodation Control Act, 1946 which applied at the time of sub letting in the present case on 1.4.1948 the provision for eviction of tenants was made in Section 9 thereof.
Sub section 2 specifies the grounds on which a landlord was entitled to seek eviction of his tenant.
One such ground in Sub section 2 is of sub letting and the relevant portion reads as under: "(iii) that the tenant has after the commencement of this 265 Law without the written consent of this landlord .
(a) sub let the entire building or any portion thereof; or ,, It is, therefore, clear that the written consent of the landlord for sub letting was necessary under the relevant statute applicable on 1.4.
1948 when the sub letting was made in the present case.
In fact.
this requirement of written consent of the landlord was the basis on which both sides argued the case and the main thrust of Dr. Chitale 's argument was that such a written consent was to be found in the letter dated 4.10.1943 of the original lessor.
We have, earlier, indicated that the landlord 's consent in the afore said letter dated 4.10.1943 was not available on 1.4.1948 after expiry of the contractual tenancy.
The rest is only a logical corollary to this conclusion leading to the inevita ble result that induction of the sub tenant M/s.
Super Dry Cleaners w.e.f. 1.4.1948 by the tenant M/s. Bhoolchand Chandiram was unlawful being made contrary to the provision of law then in force which constitutes the ground for evic tion contained in clause (f) of Sub section 1 of Section 21 of the Karnataka Rent Control Act, 1961.
There is, thus, no ground to differ with the conclusion reached by the High Court that the ground of sub letting has been made out, even though our reasons are different.
On the above conclusion that the ground of sub letting also was rightly held proved by the High Court in addition to the ground of landlord 's reasonable and bona fide re quirement, the question of applicability of Sub section 4 of Section 21 of the Karnataka Rent Control Act, 1961 does not arise and, therefore, it is not necessary to examine the question of comparative hardship.
In that view of the mat ter, the appeals must fail.
Consequently, both the appeals are dismissed.
In view of the fact that the appellants are carrying on their business in the suit premises for a long time and will, therefore, need some reasonable time to shift to some other place, we grant to the appellants time till 31.3.1991 for vacating the suit premises and delivering vacant possession thereof to the landlord respondent No. 1, subject to undertaking in the usual terms being filed by the appellants within a period of four weeks.
No costs.
Y. Lal Appeals dis missed. | T.A. Jotindranath Mudaliar, the original lessor, let out his premises viz. two shops and a house adjoining the shops to M/s,Bhoolchand Chandiram, appellant on 4.10.1943 on the terms contained in the letter dated 4.10.1943 whereby the shops were let out on a monthly rent of Rs.430 for two years with the option of sub letting one of the shops and the house adjoining the shops was let out on a monthly rent of Rs.50 for eleven months with the option of sub letting the house also.
The appellant sub let one of the two shops to one 'Arts Palace ' and later w.e.f.
1.4.1948, the appellant inducted another sub tenant M/s. Super Dry Cleaners, appel lant in the other appeal.
Consequent upon a partition in the family of original lessor, the premises in dispute came to the share of Narendranath Mudaliar.
The original lessor including Narendranath Mudaliar after partition continued to realise rent from the tenant of the entire premises till May 1974.
On 28.6.1974, Narendranath Mudaliar sold the property in question to respondent No. 1.
The appellanttenants at torned in favour of respondent No. 1 and paid rent for the premises @ Rs.335 (fair rent fixed) to respondent No. 1.
Respondent No. 1 filed petition on 5.9.1975 for eviction of the appellant on the grounds of sub letting and bona fide need of the landlord under clauses (f) and (h) of the provi so to sub section (1) of Section 21 of the Karnataka Rent Act.
The trial court dismissed the application, but the High Court set aside that order and passed a decree for eviction on both the grounds.
Hence these appeals by the tenant and sub tenant have been filed after obtaining special leave of the Court.
The appellants question the findings of the High Court on both the questions viz. bona fide requirement of the landlord as also sub letting.
252 Respondent No. 1 on the other hand urged that there is no infirmity in the High Court 's decision on both the questions so as to warrant any interference in these appeals.
Dismissing the appeals, this Court, HELD: Landlord 's written consent for sub letting during the period of contractual tenancy cannot be construed as his consent subsisting after the expiry of the contractual tenancy.
[265D] A sub letting by the tenant with the consent in writing of the landlord does not become unlawful on the expiry of the contractual tenancy of the tenant, unless there is any fresh sub letting by the tenant without the written consent of the landlord.
Mere continuance in possession of a sub tenant lawfully inducted does not amount to any fresh or further sub letting.
[265E F] The sub letting in the instant case was after expiry of the contractual tenancy and after the commencement of the Act prohibiting sub letting without the written consent of the landlord when it was made on 1.4.1948.
[265B] Damadilal and Ors.
vs Parashram and Others, [1976] supp.
SCR 645; Dhanapal Chettiar vs Yesodai Ammal ; ; Smt.
Gian Devi Anand vs Jeerart Kumar and Ors., [1985] Supp. 1 SCR 1; L. Mahabir Prasad Verma vs Dr. Surinder Kaur, ; ; M/s. Shalimar Tar Products Ltd. vs H.C. Sharma and Ors.
, ; ; Shantilal Rampuria and Ors.
vs M/s. Vega Trading Corpn.
and Ors., ; ; M/s. Bajaj Auto Ltd. vs Behari Lal Kohli, ; ; Duli Chand (dead) by Lrs. & Ors.
vs Jagmender Dass, ; and Tara Chand and Ant.
vs Ram Prasad, , referred to. |
been clearly mentioned that they shall be deemed to have been made ap plicable from 1st April, 1974.
The Board had set up 280 their case in the reply to the writ petition on the basis of these Regulations and it was the duty of the Division Bench of the High Court to have looked into the reply filed by the Board and to decide the effect of such statutory regulations in the present case.
[291D E] (5) The High Court committed a serious error in ignoring clause IX of the First Settlement dated 22.2.1972 as well as the Regulations made by the Board in 1978.
[291H] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2917 of 1985.
WITH Civil Appeal Nos.
2900 2901, 2903 2916 of 1985 and 2918 21 of 1985.
From the Judgment and Order dated 21.5.1984 (Judgment pronounced on 2.7. 1984) of the Rajasthan High Court in D.B. Civil Special Appeal No. 172 of 1984.
Dr. L.M. Singhvi, Sushil Kumar Jain, Shahid Rizvi, Dr. D.K. Singh, Pradeep Agarwal, Pratibha Jain and Sudhanshu Atreya for the Appellants.
Rajinder Singhvi, M.R. Singhvi and Surya Kant for the Respondents.
The Judgment of the Court was delivered by KASLIWAL, J.
All these civil appeals by special leave are directed against the Judgments of the Rajasthan High Court dated May 11, 1984, May 21, 1984 and the reasons whereof pronounced on 2.7.
Controversy raised in all these cases is whether the respondents are entitled to pay scale No. 2 or pay scale No. 3.
The Government of India vide its Resolution dated 20th May, 1966 constituted a General Wage Board for electricity undertakings for evolving wage structure, specialisation of nomenclature and job description.
The recommendations of the said Wage Board were accepted by the Government of India in July, 1970.
The Prantiya Vidyut Mandal Mazdoor Federation (in short the Federation) recognised trade union of the employees of the Rajasthan State Electricity Board presented their demands before the Labour Department of the 281 Government of Rajasthan for implementation of the recommen dations of the Wage Board.
While the said industrial dispute between the management of the Board and its employees was pending before the Conciliation Officer, a settlement was arrived at on February 22.
By this agreement the parties agreed that the existing scale of pay of various categories of posts would be revised w.e.f.
1st April, 1969.
The schedule of the said agreement set out various catego ries of posts under different pay scales.
At St. No. 21 Meter Reader/Meter Checker was mentioned under scale No. 3 i.e. Rs. 126 8 150 10 250.
In pursuance to the above settle ment the Board issued a notification dated 22nd March, 1972 revising the pay scales of its employees w.e.f. 1st April, 1969.
Subsequent to this agreement the Board entered into another agreement with the Federation on December 2, 1972 (hereinafter referred to as the Second Settlement).
In the second settlement.
it was mentioned that this was done in view of some anomalies and difficulties which had cropped up in the course of implementation of previous agreements dated January 26, 1970; April 27, 1971; and July 28, 1972.
It was also mentioned in the said settlement that it was considered desirable to remove the anomalies and clarify certain points by mutual negotiations.
The settlement was made effective w.e.f.
1st April, 1968.
In the second settlement it was agreed to have two categories for Meter Readers i.e. Meter Reader I/Meter Checker I and Meter Reader II/Meter Checker II.
The relevant Clause in this regard reads as under: "II.
Under pay scale No. 3 technical read 21" Meter Reader I/Meter Checker I and under pay scale No. 2 technical, insert "7 Meter Reader /I/Meter Checker II" and insert the following Note below pay scale No. 2: "Meter Reader II/Meter Checker II appointed/fixed, pro moted/adjusted on or before 31.3.
1968 will be fixed in pay scale No. 3 instead of pay scale No.2.
The Board in accordance with the second settlement issued another Notification dated 6.12.
1972 whereby the previous Notification dated March 22, 1972 was amended.
Some of the employees, namely, Jagdish Prasad, Brij Mohan, Madho Singh, Prakash Chander, section Samuel, Brij Lal and Chander Bhan filed writ petitions in the High Court of Judicature for Rajasthan at Jodhpur and challenged the Notification dated 6th December, 1972.
It may be noted that all these employees were appointees before 6.12.
Learned Single Judge of the High Court by Judgment dated 21st March, 1979 allowed the write 282 petitions and quashed the Notification dated 6th December, 1972 mainly on the ground that the second settlement could not have been made as no conciliation proceedings were pending before such settlement and that the date 1.4.1968 mentioned in the notification for making the settlement effective was arbitrary and without basis.
The Board filed on appeal before the Division Bench which by their judgment dated 19th December, 1979 dismissed the same and upheld the judgment of the Learned Single Judge.
The Board implemented the judgment of the High Court in respect of Jagdish Prasad & Ors.
and issued orders to provide scale No. 3 to all Meter Readers appointed upto 6.12.
After 6th December, 1972 some more persons were appoint ed on the post of Meter Reader/Meter Checker Grade II i.e. in the pay scale of Rs.80 5 110 6 152 7 194 between the period 1972 1979.
Some of the employees again filed writ petitions in the High Court.
The High Court vide its judg ment dated 29th March, 1982 allowed the writ petitions on the ground that the second settlement had already been quashed by the earlier judgment given in Brij Lal vs Rajas than State Electricity Board, [1979] WEN UC 221.
The High Court inter alia held and observed as under: "Once the second settlement dated December 6, 1972, no longer exists in view of non compliance with Section 19(2) of the aforesaid Act and in view of the decision of this Court in Brijlal 's case (supra), the only settlement which can be said to be in existence is the first settlement dated February 22, 1972.
The aforesaid settlement only provides one grade (scale No. 3 item No. 21) for Meter Reader/ Check er, and, therefore, the petitioner is entitled to be fixed in that grade.
Merely because the post of Meter Reader II/Checker II was advertised with pay scale No. 2 and the petitioner applied and was selected, it cannot be said that the petitioner is estopped now from challenging his fixation in the aforesaid pay scale.
There can be no estoppel against statute.
The petitioner was not knowing and could not know that it is the first settlement dated February 22, 1972 which was in force and the settlement dated December 6, 1972 was invalid, and, therefore, no case of estoppel is made out against the petitioner.
Once this Court had quashed the second settlement dated December 6, 1972 and held that the first settlement 283 dated 22,2, 1972 Was in force, it Was necessary for the Board to have fixed the Meter Reader/Meter Checker in scale No. 3 item No. 21 of Schedule 'A ' to the first settlement.
The Board in spite of demand made to it by the petitioner in this behalf refused to do it".
A bunch of 35 identical writ petitions directing the Board to fix the petitioners in the pay scale No. 3 (Rs. 126 250) as revised from time to time were allowed by learned Single Judge of the High Court by a common order dated November 15, 1983.
The Board filed special appeals before the Division Bench.
The Division Bench dismissed the special appeals by orders dated 11.5.1984, 21.5.1984 and observed that the reasons will be recorded later on.
The Division Bench thereafter pronounced the reasons by order dated 2.7.
The Board has now filed these appeals restricted to such employees who were appointed as Meter Readers/Checkers grade II after 1.4.1974.
It may also be mentioned at this stage that under Clause IX of the first settlement dated 22nd February, 1972 it was mentioned as under: "(IX) This agreement shall remain in force upto 31st March, 1974 and the Federation agrees not to raise any demand in respect of any of the matters covered by this agreement during the period of the operation of the agreement".
It may also be mentioned that in exercise of the powers conferred by Section 79, sub sec.
(c) and (k) of the Elec tricity (Supply) Act, 1948, the Board after obtaining con currence of the Government of Rajasthan and directives issued under Sec.
70(A) of the said Act and taking into consideration the suggestions made by the representatives of the employees, made regulations which are called Rajasthan State Electricity Board Employees (emoluments) Regulations, 1978.
These regulations were made applicable retrospectively from 1st April, 1974.
Under these regulations post of Meter Reader II/Meter Checker I1 was mentioned in scale No. 2 as revised in the pay sclae of Rs.260 8 324 10 464.
Dr. L.M. Singhvi, St. Advocate appearing on behalf of the Board contended that irrespective of the earlier judg ment given by the High Court in Brij Lal vs R.S.E.B. (supra) quashing the second notification dated 6.12.1972 the present appeals having been filed against the Meter Readers appoint ed on or after 1.4.1974, they are not entitled to scale 284 No. 3 as the first settlement dated 22.2.
1972 was to remain in force upto 31st March, 1974.
It was also argued that in the appointment orders of the respondent employees appointed after 1.4.1974, it was clearly mentioned that they were appointed as Meter Reader/Meter Checker II in pay scale No. 2 i.e. Rs.80 194.
Dr. Singhvi further argued that the Board had also made regulations which had statutory force and were made applica ble retrospectively from 1st April, 1974.
Under these regu lations also the post of Meter Reader II/Meter Checker II was mentioned in Scale No. 2.
It was thus contended that considering the matter from any angle, the respondents were not entitled to scale No. 3 but were only entitled to scale No. 2 as revised from time to time.
It was also pointed out by Dr. Singhvi that without prejudice to the above submis sions so far as respondents Laxman Lal, Sita Ram and Madhay Lal are concerned, they were otherwise also not entitled to get any relief in as much as they were appointed Meter Readers II after the notification of the Regulations of 1978.
The Regulations were notified vide notification No. RSEB.
F. RRBS/D.41 dated 4th May, 1978 whereas Laxman Lal, Sita Ram and Madhay Lal were appointed respectively on 19th August, 1978.8th October, 1979 and 9th April, 1979.
Learned counsel for the respondent employees on the other hand submitted that in the settlement dated February 22, 1972 no distinction was made of Meter Reader Gr.
I or II and the post of Meter Reader/ Meter Checker was placed in pay scale No. 3.
It was submitted that validity of second settlement and the notification dated December, 6, 1972 was challenged in Brij Lal 's case and a Division Bench of the High Court had quashed the aforesaid settlement and the said judgment was not challenged by the Board before this Hon 'ble Court and the same had become final.
Thereafter an arbitra tion award was given in 1979 between the Board and the Federation under which two categories of Meter Readers/Meter Checkers were again made.
According to this award Meter Reader/Meter Checker II was placed in the pay scale No. 2 of Rs.80 194 and Meter Reader/Meter Checker I was placed in the pay scale of No. 3 of Rs. 126 250.
It was thus submitted that all the Meter Readers appointed upto 1979 were entitled to scale No. 3.
It was further submitted that the first settlement dated February 22, 1972 and the notification issued thereafter on March 22, 1972 continued to operate and there was only one pay scale of Rs. 126 250 for all Meter Readers and there being no classification of Gr.
I or II, the pay scale of Rs. 126 250 remained in force, till the arbitration award was given on June 15, 1979.
It was submit ted that all the respondents having been 285 appointed prior to June 15, 1979, they were entitled to pay scale No. 3.
As regards the stand taken by the Board that it had framed Regulations regarding the fixation of pay scales it was contended that no such plea was taken in reply to the writ petitions filed by the employees.
It was pointed out that the contention with regard to the first settlement having come to an end on March 31, 1974 as well as the contention raised on the basis of regulations was rightly negatived by the Division Bench of the High Court in the following manner: "It was contended by the learned counsel for the appellants that the learned Single Judge did not take into considera tion the fact that first settlement came to an end on March 31, 1974 and was not in force after that date.
He submitted that the Board had powers under Sec.
79(c) and (k) of the to frame Regulations regard ing the fixation of pay scales.
Learned counsel for the appellants was asked to show from the writ petitions whether this point was taken in the writ petitions or not.
Learned counsel for the appellants candidly admitted that it was not raised in the writ petitions filed by the petitioners.
It was, then.
put to the learned counsel whether this point was argued before the learned Single Judge.
Mr. S.N. Deedwania submitted that in the absence of the affidavit of the coun sel who argued on behalf of the appellants before the learned Single Judge positive assertion to that effect cannot be made.
In the memo of appeal this ground, of course, has been taken but not in the manner in which it has been stated hereinabove.
As this point was not taken in the writ peti tions and it was not argued before the learned Single Judge, we do not consider it necessary to examine it.
We shall examine the validity of the order under appeal on the basis of the grounds that were argued on behalf of the petitioners before the learned Single Judge".
It was further contended that during the pendency of these appeals additional affidavit was filed on behalf of Laxman Lal respondent.
It was pointed out in the additional affidavit that Sh.
Udai Lal and Sh.
Shyam Lal were appointed as Meter Readers vide order dated 6.9.1974.
These persons filed writ petitions Nos.
1191/81 and 1181/81 respectively.
The aforesaid writ petitions were allowed by the High Court vide judgment dated 28.3.1982.
One Sh.
Prem Shankar who was appointed as Meter Reader vide order dated 16.5.
1974 also filed a writ petition 286 No. 120/81 in the High Court and it was also allowed by order dated 28th March, 1982.
The Board did not challenge the aforesaid orders and issued order on 23.8.1982 imple menting the judgment of the High Court.
The above examples were given in order to show that these persons were also appointed after 1.4.1974 and in their cases also relief was granted by the High Court and the Board never challenged the aforesaid judgments given in favour of Udai Lal, Shyam Lal and Prem Shankar.
It has also been submitted that the Board has also published a revised revenue manual on 1.9. 1986 in which vide para 124 duties of Meter Readers have been laid down.
It is contended that in the manual no dif ferent duties have been prescribed for Meter Reader II and Meter Reader I and thus in the discharge of duties there is no difference.
A supplementary affidavit has been filed by Shri R.C. Harit, Deputy Director, Rajasthan State Electricity Board.
It has been submitted in the supplementary affidavit as under: "That is so happened that after the aforesaid judgment dated 19th December, 1979 in the matter of R.S.E.B. vs Jagdish Prasad Brij Lal D.B. Appeal No. 179 of 1979 some other Meter Readers on the basis of this judgment filed various other writ petitions.
In these writ petitions the question above the applicability of Regulations or the question as to whether the Respondent can challenge his own appointment by which they were appointed to Meter Reader II post were not at all raised or decided by the High Court.
The High Court decided the said writ petitions only on the basis of the earlier judgment in the matter of R.S.E.B. vs Jagdish Prasad (Brij Lal).
The Appellant Board implemented the said order.
The respondent is trying to raise the said question which was neither been decided by the High Court and has been raised for the first time in this supplementary affidavit.
On account of lapse of time, the appellant is finding it difficult to give reply.
The Deponent has tried his best to locate the records but in such a short period he could not get the file of the case which was decided about eight years back as it appears to have been mixed up in the old record.
That the order passed in the matter of Shanti Lal was a Judgment inter parties and, therefore, simply because the Board did not challenge the said order, it does not mean that the respondent can also take advantage of the same and can raise the question of equal pay for equal work.
In this the 287 Appellants further state that all the persons except re spondent Shri Lehar Singh and Gharsi Lal (Geharial) in civil appeal in the present case were appointed after 7th Septem ber, 1974 and 16th May,1974 i.e. the date on which three persons whose matters were decided alongwith Shanti Lal 's case were appointed" We have thoroughly examined the record and have consid ered the arguments advanced b.y Learned counsel for the parties.
It may be noted that all the above appeals are in respect of such employees who were appointed after 1.4.1974.
In the appointment orders of all the respondents it was specifically mentioned that they were appointed as Meter Reader Gr.
II in the pay scale of Rs. 80 194 (subsequently revised to Rs. 260 464).
In Clause (ix) of the First Settle ment dated 22nd February, 1972 it was clearly mentioned that this agreement shall remain in force upto 31st March, 1974.
The stand taken by the Board all along was that this settle ment was subsequently amended by another agreement (Second Settlement) on December 2, 1972.
In this second Settlement certain anomalies and difficulties had cropped up in the course of implementation of earlier settlements and hence some clarifications were made by mutual negotiations.
The clarifications relevant for our purpose were that the First Settlement was made effective w.e.f.
1st April, 1968 instead of 1st April, 1969 and two categories were fixed for Meter Readers i.e. Meter Reader I/Meter Checker I and Meter Read er II/Meter Checker II.
Necessary amendments were made in the Schedules annexed to the Settlement according to which under pay scale No. 3 at Item No. 21 Meter Reader I/ Meter Checker I and under pay scale No. 2 at Item No. 7 Meter Reader II/Meter Checker II were inserted.
This Second Set tlement was subsequently notified by a Notification dated 6.12.
According to the Board this Second Settlement was merely a clarification settlement and not a new settle ment in as much as it sought to make clear the ambiguity which had cropped up in the First Settlement in the matter of fixing the grades and pay scales of the Meter Readers/Meter Checkers.
The Notification dated 6.12.1972 which related to the Second Settlement dated 2.12.1972 was challenged by some of the employees by filing writ petitions in the High Court and Learned Single Judge by Judgment dated 21st March, 1979 allowed the writ petitions and quashed the notification dated 6th December, 1972.
It may be noted that the Second Settlement was quashed on the ground that the Second Settlement could not have been made as no concilia tion proceedings were pending before such settlement and the date 1.4.1968 mentioned in the Notification was arbitrary and without any 288 basis.
An appeal filed by the Board against the aforesaid decision was dismissed by the Division Bench of the High Court on 19th December, 1979.
This litigation was commenced by such employees who were appointed prior to 6.12.1972.
Subsequently employees appointed between the period 1972 1979 filed writ petitions in the High Court.
The stand taken by these employees was that the Notification dated 6.12.
1972 had already been quashed by the High Court and as such they were to be governed by the First Settlement dated February 22, 1972 in which there was only one category Of Meter Reader/Meter Checker to whom pay scale No. 3 had been given and as such they were also entitled to pay scale No. 3.
The High Court allowed the writ petitions and granted pay scale No. 3 to all the 35 petitioners.
the Board has now come before this Court against such employees who were appointed after 1.4.1974.
The contention of the Board is that even if for arguments ' sake the earlier decision given by the High Court may be considered as final, that was in respect of employees who were appointed before 6th December, 1972.
As regards the present employees it has been submitted that no benefit can be granted in their case as the First Settlement itself was to remain in force upto 31st March, 1974 and in any case in the appointment orders of the re spondents it was clearly mentioned that they were appointed as Meter Reader/Meter Checker Gr.
II in the pay scale No. 2.
It has also been urged before us that the Board had made Rajasthan State Electricity Employees (emoluments) Regula tions 1978 published on 4.5.
1978 but the same were deemed to have been made applicable from 1st April, 1974.
Under these regulations post of Meter Reader II/Meter Checker II in pay scale No. 2 and Meter Reader I/Meter Checker I have been placed in pay scale No. 3.
Learned counsel for the employees respondents contended that though according to Clause IX of the First Settlement dated 22.2.
1972, it was mentioned that the same will remain in force till 31st March, 1974 yet the same would remain in operation until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement as provided under Sub section
(2) of Section 19 of the (hereinafter referred to as the Act).
It has been submitted that no such notice was given by the Board and the Second Settlement dated 2.12.
1972 and Notification dated 6.12.
1972 had already been quashed by the High Court in Brij Lal 's case (supra) and the same having become final, the first settle ment Would govern the parties.
Reliance in support of the above contention is placed on The Life Insurance Corporation of India vs D.J. 289 Bahadur and Ors., [1980] Lab.
I.C. Vol.
2 1218.
Our attention was drawn to para 33 of the above case which reads as under: "The core question that first fails for consideration is as to whether the settlements of 1974 are still in force.
There are three stages or phases with different legal effects in the life of an award or settlement.
There is a specific period contractually or statutorily fixed as the period of operation.
Thereafter, the award or settlement does not become honest but continues to be binding.
This is the second chapter of legal efficacy but qualitatively different as we will presently show.
Then comes the last phase.
If notice of intention to terminate is given under Section 19(2) or 19(6) then the third stage opens where the award or the settlement does survive and is in force between the parties as a contract which has superseded the earlier contract and subsists until a new award or negotiated set tlement takes its place.
Like Nature, Law abhors a vacuum and even on the notice of termination under Sections 19(2) or (6) the sequence and consequence cannot be just void but a continuance of the earlier terms, but with liberty to both sides to raise disputes, negotiates settlements or seek a reference and award.
Until such a new contract or award replaces the previous one, the former settlement or award will regulate the relations between the parties.
Such is the understanding of industrial law at least for 30 years as precedents of the High Courts and of this court bear testi mony.
To hold to the contrary is to invite industrial chaos by an interpretation of the ID Act whose primary purpose is to obviate such a situation and to provide for industrial peace.
To distil from the provisions of Sec. 19 a conclusion diametrically opposite of the objective, intendment and effect of the Section is an interpretative, stultification of the statutory ethos and purpose.
Industrial law frowns upon a lawless void and under general law the contract of service created by an award or settlement lives so long as a new lawful contract is brought into being.
To argue other wise i, to frustrate the rule of law.
If law is a means to an end order is society can it commit functional harakiri by leaving a conflict situation to lawless void"? In our view the above Sections 19(2) and 19(6) of the Act cannot give any benefit to the respondents in the fact of the present case.
It is not 290 in dispute that the period of the First Settlement was agreed upto 31st March, 1974.
The question which calls for our consideration is not the applicability of the First Settlement, but the real question to be considered is wheth er the Board could have appointed or not the respondents on the post of Meter Reader/Meter Checker Gr.
II in pay scale No. 2 after 1.4.
The respondents/employees in the present case want to take advantage of the First Settlement simply on the ground that it did not make any mention of Meter Reader/Meter Checker Gr.
I or II and it simply made mention of Meter Reader/Meter Checker to whom pay scale No. 3 was given.
The above ambiguity was clarified by an agree ment between the Board and the Union representing the em ployees as early as on 2.12.
1972 itself to the effect that Meter Reader/Meter Checker can be placed in two different grades.
After this there was no restriction on the Board to make appointment of the Meter Reader/Meter Checker in Grade II after 1.4.
That apart there was clear mention in the appointment orders of the respondents that they were appointed as Meter Reader/Meter Checker Gr.
II in pay scale No. 2.
Learned counsel for the respondents/employees were unable to place any law, Rule or Regulation of the Board to show that the Board had no power to make such appointments of the Meter Reader/Meter Checker in Gr.
The Board had already taken the stand the first settlement was clarified by the second settlement and as such even if the High Court had quashed the second settlement, it was at least a suffi cient notice within the meaning of Section 19(2) of the Act that the Board had terminated the first settlement after 31.3.
The Regulations deemed to have come into force from 1.4.1974 also clearly provided for pay scale No. 2 for Meter Reader/Meter Checker Gr.
The Division Bench of the High Court refused to consider the above argument placed on behalf of the Board on the ground that learned counsel for the appellants was asked to show from the writ petitions whether this point was taken in the writ petitions or not and the learned counsel candidly admitted that it was not raised in the writ petitions filed by the petitioners.
The High Court further observed in this regard that as this point was not taken in the writ peti tions and it was not argued before the Learned Single Judge, they did not consider it necessary to examine it.
We have already extracted in extenso the observations of the High Court in this regard in the earlier part of the Judgment.
There is a complete fallacy, in the above order in as much as the Board was not the petitioner before the High Court and there was no question of taking any such ground in the writ petitions.
In one of the above appeals No. 2901 of 1985 Rajasthan State Electricity 291 Board & Ors.
vs Sharad Chander Nagar reply to the writ petition filed by the Board has been placed on record as Annexure 'C '.
In the said reply in Para (8) it has been stated as under: "That the contents of Para No. 8 of the writ petition are wrong and denied.
The petitioner was not appointed at the time of settlement date 22.2.1972.
The Wage Board set tlement dated 22.2.1972, which was in force upto 31.3.
1974, and thereafter the Rajasthan State Electricity Board Employ ees (Emoluments) Regulation 1978 was (sic) come into force with effect from 1.4.1974 and wages of all the employees were revised in pursuance of the Rajasthan State Electricity Board (Emoluments) Regulation 1978.
The copy of the Board (Emoluments) Regulation 1978 is submitted herewith as Annex ure "B".
Apart from the above circumstances of the case the Board in its reply to the writ petition also took the stand that the post of the Meter Reader Gr.
I is a promotion post while the post of Meter Reader Gr.
II is filled by direct recruit ment.
The Rajasthan State Electricity Board (Emoluments) Regulation 1978 made in exercise of the powers conferred by Sec.
79 Sub sections (c) & (k) of the have Statutory force and it has been clearly mentioned that they 'shall be deemed to have been made applicable from 1st April, 1974.
The Board had set up their case in the reply to the writ petition on the basis of these Regulations and it was the duty of the Division Bench of the High Court to have looked into the reply filed by the Board and to decide the effect of such statutory regulations in the present case.
The Board under Clause (C) of Regulation 79 was fully empowered to provide for the duties of officers and other employees of the Board, and their salaries, allowances and other conditions of service or under the residuary clause (k) for any other matter arising out of the Board 's function under this Act for which it is necessary or expedient to make regulations.
We have gone through the regulations which have been brought into force from 1st April, 1974 and in Schedule II group 'B ' at Item No. 7 Meter Reader II/Meter Checker II has been fixed in the revised pay scale of Rs.260 464 (original scale Rs.80 194) and in group 'C ' at Item No. 21 Meter Reader I/Meter Checker I in scale No. 3 revised pay scale Rs.370 570 (original scale Rs. 126 250).
The High Court committed a serious error in ignoring Clause IX of the First Settlement dated 22.2.1972 as well as the Regulations made by the Board in 1978.
292 So far as the cases of Udai Lal, Shyam Lal and Prem Shankar are concerned even if the Board did not challenge the order of the High Court dated 28.3.1982 in their cases, it cannot act as res judicata or as estoppel against the Board in challenging the present order of the High Court before this Court.
There is no question of applying the principle of equal pay for equal work in the facts and circumstances of this case and to allow Meter Readers II/Meter Checker Gr.
II, the pay scale of Meter Reader/Meter Checker Gr.
I. Apart from that, these controversies have been raised by the respondents for the first time by filing affidavits before this Court at the fag end of arguments, and these questions being mixed questions of fact and law, cannot be permitted to be raised now.
In the result, we allow all these appeals, set aside the Judgment of the High Court, and dismiss all the writ peti tions.
In the facts and circumstances of the case we direct the parties to bear their own costs.
R.S.S. Appeals al lowed. | A settlement was arrived at on 22.2.1972 between the Rajasthan State Electricity Board and the Union representing its employees.
In pursuance of this settlement, notification dated 22.3.1972 was issued revising the pay scales of var ious categories of posts, effective from 1st April, 1969.
As per the settlement, Meter Reader/Meter Checker was mentioned under scale No. 3.
On December 2, 1972 a Second Settlement was entered into between the parties with a view to removing certain ambigui ties in the earlier settlement.
In this second Settlement, notified on 6.12.1972, it was agreed to have two categories of Meter Readers, that is, Meter Reader I/Meter Checker I and Meter Reader II/Meter Checker II.
This settlement was made effective w.e.f. 1.4.1968.
Some employees appointed before 6.12.1972 challenged the notification dated 6.12.1972.
The learned Single Judge of the High Court allowed the writ petitions and quashed the notification mainly on the ground that the Second Settlement could not have been made as no conciliation proceedings were pending before the second settlement.
The Division Bench dismissed the appeal filed by the Board.
Accordingly, the Board implemented the Judgment of the High Court and issued orders to provide scale No. 3 to all the Meter Readers appointed upto 6.12.1972.
Brijlal vs Rajasthan State Electricity Board, [1979] WLN (UC) 221, referred to.
During this period, the State Electricity Board in exercise of the powers conferred by section 79, sub section (c) and (k) of the made regulations which are cared Rajasthan State 278 Electricity Board Employees (Emoluments) Regulations, 1978.
These Regulations were made applicable retrospectively from 1st April, 1974.
Under these regulations, post of Meter Reader II/Meter Checker II was mentioned in scale No. 2.
In 1979, an arbitration award was given between the Board and the union under which two categories of Meter Readers/Meter Checkers were again made.
Subsequently, 35 employees appointed between the period 197279 filed the present writ petitions in the High Court.
The stand taken by these employees was that the Notification dated 6.12.1972 had already been quashed by the High Court and as such they were to be governed by the First Settlement dated February 22, 1972 in which there was only one category of Meter Reader/Meter Checker to whom pay scale No. 3 had been given and as such they were also entitled to pay scale No. 3.
The High Court allowed the writ petitions and granted pay scale No. 3 to all the petitioners.
The Division Bench dismissed the special appeal of the Board.
The Board has now come before this Court against such employees who were appointed after 1.4.1974.
The contentions of the Board before this Court were that (i) even if for arguments ' sake the earlier decision given by the High Court may be considered as final, that was in respect of the employees who were appointed before 6th December, 1972; (ii) as regards the present employees no benefit could be granted in their case as the First Settle ment itself was to remain in force upto 31st March, 1974; (iii) in any case in the appointment orders of the respond ents it was clearly mentioned that they were appointed as Meter Reader/Meter Checkers Gr.
II in the pay scale No. 2; and (iv) under the Rajasthan State Electricity Employees (Emoluments) Regulations 1978, which were made applicable from 1st April, 1974 Meter Reader II/Meter Checker II have been placed in pay scale No. 2 and Meter Reader I/Meter Checker I have been placed in pay scale No. 3.
On behalf of the employees respondents it was connected that (i) though according to Clause IX of the First Settle ment dated 22.2.1972 the settlement was to remain in force till 31st March, 1974 yet the same would remain in operation until the expiry of two months from the date on which a notice in writing of an intention to terminate the settle ment was given by one of the parties to the other party or parties to the settlement as provided under sub section (2) of Section 19 of the ; (ii) that an arbitration award was given in 1979 279 between the Board and the employees federation under which two categories of Meter Readers/Meter Checkers were again made and hence all the Meter Readers appointed upto 1979 before the arbitration award were entitled to scale No. 3, and (iii) the contention with regard to the first settlement having come to an end on March 31, 1974 as well as the contention raised on the basis of Regulations were rightly negatived by the Division Bench of the High Court as these points were not taken in the writ petitions and were not argued before the learned Single Judge.
Allowing the appeals, this Court, HELD: (1) The respondents/employees in the present case want to take advantage of the First Settlement simply on the ground that it did not make any mention of Meter Reader/Meter Checker Gr.
I or II and it simply made mention of Meter Reader/Meter Checker to whom pay scale No. 3 was given.
The above ambiguity was clarified by an agreement between the Board and the Union representing the employees as early as on 2.12.1972 itself to the effect that Meter Reader/Meter Checker could be placed in two different grades.
After this there was no restriction on the Board to make appointment of the Meter Reader/ Meter Checker in Grade II after 1.4.1974.
[290B C] (2) There was clear mention in the appointment orders of the respondents that they were appointed as Meter Readers/Meter Checkers Gr.
II in pay scales No. 2.
Learned Counsel for the respondents/employees were unable to show that the Board had no power to make such appointments of the Meter Reader/Meter Checker in Gr.
[290D] (3) The Board had already taken the stand that the first settlement was clarified by the second settlement and as such even if the High Court had quashed the second settle ment, it was at least a sufficient notice within the meaning of section 19(2) of the that the Board had terminated the first settlement after 31.3.1974.
[290E] The Life Insurance Corporation of India vs D.J. Bahadur (4) The Rajasthan State Electricity Board (Emoluments) Regulation, 1978 made in exercise of the powers conferred by Sec.
79 Subsections (c) and (k) of the |
ION: Civil Appeal No. 140 of 1977.
From the Judgment and Decree dated 31.1.
1973 of the Madras High Court in L.P.A. No. 6 of 1965.
A.T.M. Sampat and P.N. Ramalingam for the Appellants.
Ms. Lily Thomas for the Respondents.
The facts leading to the institution of the suit are as follows: On 3 239 March 1942, one Karuppanna Pillai (hereinafter referred to as "testator") executed his last Will and testament Ext.
Thereunder he disposed of all his properties described in five schedules, A, B, C, D and E. He directed that the properties under A, B .and
C schedules shall be respectively taken and be in the possession of the defendant, the first plaintiff and the second plaintiff.
In respect of E schedule properties, he has made a bequest creating an endowment that after his life time, it should be managed for the purpose and in the manner mentioned therein.
The dispute in the suit was as to the validity of the endowment.
One Palaniammal and Chellammal are the sisters of the plaintiffs and the defend ant.
The testator created a life estate in favour of those sisters in respect of D schedule properties with a direction that after their lifetime the properties shall be dealt with in the same manner as the E schedule properties.
We are not concerned in the present litigation with any of the proper ties in schedules A to D.
We are concerned only with the validity of the disposition of E schedule properties.
The Will is in Tamil but we are helpfully provided with the English translation of the relevant portion.
It is also found incorporated in the judgment of the District Judge.
It runs as follows: "After my lifetime, the aforesaid three persons, Ponnuswami Pillai, Malayalam Pillai and Thangavelu Pillai, shall take and manage the E schedule properties, from out of the income from the said properties pay the kist for the aforesaid E schedule properties, and out of the balance of income for the salvation of my soul after my lifetime, shall enter mY body, after my life is extinct, in the land S.F. No. 68/B, Punjai Thottakurichi Village pertaining to the aforesaid E schedule, build structure therefore and put up light every day shall plant flower plants in the said land and grow them, shall construct a Matam for annual ceremonies, install pictures therein, put up light in the Matam every day, conduct Guru Pooja, distribute saffron coloured clothes and on that day, shall feed the poor.
Since the aforesaid Pon nuswami Pillai is the eldest of the sons, he shall be the Manager, to conduct the above matters.
The surplus income shall be taken in the shares of 2/4 by Ponnuswami Pillai, 1/4 by Malayalam Pillai, and 1/4 by Thangavelu Pillai.
After the said Ponnuswami Pillai 's life, out of his make heirs, the eldest son shall conduct in the same manner as above and the surplus income shall be taken by the said eldest son.
" 240 There then follows a residuary clause which is as under: "The movable and immovable properties belonging to me and not mentioned herein shall be taken and enjoyed by the aforesaid three persons after my lifetime." The plaintiff 's case has been that the testator could not have created on endowment of properties for construction of his own tomb or Samadhi and for performing Pooja and ceremonies thereat.
Since the testator has bequeathed E schedule properties for "Samadhi Kainkaryam", the trust would be invalid and the said properties should be shared by the plaintiffs and defendant under the residuary clause in the Will as if they remain undisposed of by the testator.
The suit is also for account from the defendant regarding the income of the E schedule properties.
The defendant has resisted the suit and sought to justi fy the creation of the trust and its purposes.
It was con tended inter alia, that the Matam and the Samadhi were constructed for different purposes.
They are separated by a respectable distance.
At the Samadhi, there is no perform ance of pooja.
It is only at the Matam, the ceremonies and Guru Pooja are performed with feeding the poor and distribu tion of saffron clothes.
These acts are distinctly and substantially religious and charitable purposes.
It was also contended that the plaintiffs in any event are not entitled to claim partition and separate possession of the Schedule properties.
At the trial, learned Subordinate Judge accepted the plaintiff 's case declaring that the dedication of the E Schedule property for purposes enumerated under the Will was invalid and accordingly he decreed the suit as prayed for.
In appeal, the District Judge took a different view.
He held that the purposes for which the E Schedule properties have been dedicated were charitable or religious in nature.
He dismissed the suit but gave certain directions to the de fendant for rendition of accounts of the surplus income from the properties which the defendant as a manager is obliged to do.
In second appeal to the High Court, the learned single Judge expressed the view that the Trust in respect of the properties for construction of the Samadhi with raising flower garden and lighting up would not be valid as it is not recognised under the Hindu Law.
That part of E Schedule properties referable to the Samadhi and its maintenance should remain as the property undisposed of by the Will.
241 Neither the plaintiffs nor the defendants will be entitled to it under the terms of the Will.
He however, held that the endowment and directions as to application of the property for construction of the Matam and performance of ceremonies and pooja would be valid since they are religious and char itable in nature.
He dismissed the suit for partition while at the same time affirmed the decree for accounting the surplus income from the properties referable to the Matam and charities.
In the Letters Patent Appeal, the Division Bench has disagreed with the views expressed by learned Single Judge.
It has been observed that the Matam is close to the Samadhi and the former has been built for the purpose of providing a convenient place for the purpose of offering worship and performing ceremonies connected with the Samadhi and Matam are covered by one scheme, and therefore, the entire trust must fail.
In support of the conclusion, the Division Bench largely relied upon the decision of the Privy Council in N. Subramania Pillai vs A. Draviyasundaratn Pillai, AIR 1950 PC 37.
In the Privy Council case referred above, the testator by name 'Kanakasabhapathy ' in his Will constituted a Trust of his properties with certain directions as to its applica tion.
He directed that "his body should be buried in a Sa madhi and at the same place where the Samadhi is made, a Matam should be built with a stone inscription in the front portion of the Matam as Kanakesabhapathi Samadhi Matam '.
He also directed that regular worship should be conducted with Guru Pooja and poor feeding.
Construing the terms of the Will, the Privy Council observed that the directions given by the testator were embodied in a single scheme and they were primarily intended to keep his memory alive and to enhance his own posthumous reputation.
Feeding the poor was to be conducted during the daily pooja to be performed in connection with the burial place and it did not provide for any charity apart from the ceremonies to be conducted at his own burial place and therefore the trust must fail.
In Hindu system there is no life of demarcation between religion and charity.
On the other hand, Charity is regarded as a part of religion.
Hindu Law of Religious & Charitable Trusts, by B.K. Mukherjea, 5th Ed.
p. 11.
But "what are purely religious purposes and what religious purposes will be charitable must be entirely decided according to Hindu Law and Hindu notions.
" Mayne 's Hindu Law 10th Ed.
p. 9 12.
242 The perpetual dedication of property for construction of a Samadhi or a tomb over the mortal remains of an ordinary person and the making of provisions for its maintenance and for performing ceremonies in connection thereto however, has not been recognised as charitable or religious purpose among the Hindus.
But the Samadhi of a Saint stands on a different footing.
This was the consistent view taken by the Madras High Court in several cases, namely, Kunhamutty vs T. Ahmad Musaliar & Ors., ILR 1953 Mad. 29; A. Draivaisundram Pillai vs N. Subramania Pillai, ILR 1954 Mad. 854; Veluswami Goundan vs Dandapani, 1946 Mad.
This Court in Saraswati Ammal vs Rajagopl Ammal, ; has approved those decisions of the Madras High Court.
Jagannatha Das, J., who spoke for the Court said (at 289): "We see no reason to think that the Madras decisions are erroneous in holding that perpetual dedication of property for worship at a tomb is not valid amongst Hindus.
" The view taken in Saraswati Ammal case has been reiter ated in Nagu Reddiar & Ors.
vs Banu Reddiar & Ors., ; where Kailasam, J., observed (at 600): "The raising of a tomb over the remains of an ancestor, an ordinary person is not recognised as religious in nature.
The burden is on the person setting up a case of religious practice in the community to prove it.
This prohibition may not apply when an ancestor is cremated and a memorial raised for performing Shradha ceremonies and conducting periodical worship, for, this practice may not offend the Hindu senti ment which does not ordinarily recognise entombing the remains of the dead.
" We are, therefore, inclined to hold that the provision made by the testator for construction of a Samadhi over his burial place and for its maintenance cannot be regarded as valid.
But that however, does not mean that the entire dedica tion of E Schedule properties must fail.
It is one of the cardinal principles of construction of Wilts that wherever it is possible, effect should be given to every bequest of the testator unless it is opposed to law, custom or prac tice.
If the testator has set apart the property intended for endowment and disclosed his charitable intent in any one of his directions, such direction may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion 243 or Hindu Law.
Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved.
In the instant case, the E Schedule has been endowed for con struction of a Samadhi and Matam, and for performing reli gious rites and charitable acts.
The Samadhi and Matam are constructed in the same survey number but are independent of each other, separated by a distance of about 15 feet.
Per formance of annual ceremonies, conducting Guru Pooja, feed ing the poor and distribution of saffron coloured clothes to mendicants appear to be independent and have no connection with the Samadhi.
There is no indication in the Will that Guru Pooja should be performed to the testator.
In fact he has not even indicated that his photo should be kept in the Matam.
His directions are only to install pictures at the Matam, put up light every day in the Matam and perform Guru Pooja once a year with the other charities.
These provisions in the Will are not in close parallel with and indeed far removed from those obtained in the Privy Council decision in Subramania Pillai 's case.
The Division Bench of the High Court was therefore in error in relying upon that decision to invalidate the entire endowment.
Counsel for the plaintiffs nevertheless argued that the defendant has been performing Guru Pooja only to the testa tor and not for the deity.
He referred to us Ext.
A 5 to A 9 which are the invitations sent by the defendant for the annual ceremonies and Guru Pooja to be performed to the testator.
But in construing the validity of an endowment created under a Will, we cannot be guided merely by the acts of the manager or the manner in which the executor of the Will has understood the directions of the testator.
We are required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will.
The terms of the Will in this case clearly specify the religious or charitable purposes.
The defendant Ponnuswami Pillai (DW 1) in his cross examination has also explained that there was a mistake in the writing of Ext.
A 5 to A 9 for which he was not responsible.
He has testified that he performed really the annual ceremonies on the date of death of the testator and no pooja was performed at Samadhi.
The Poojas are performed only at Matam with Guru Pooja to Lord Subramania on 'Thai Poosam ' every year.
He has further stated that the annual ceremonies of the testator fall on Margali Mrisaseerusham Nakshatram and Guru Pooja is not performed on that day.
It is undisputed that the testator died on Margali Mrigaseerusham Nakshatram.
Ramaswamy Goundar (DW 2) has also deposed 244 that no Guru Pooja was performed on the date of death of the testator and it was performed only to Lord Subramania in Thai month every year.
He used to participate in the Guru Pooja every year alongwith the other villagers.
The evidence of Marudamuthu Pillai (DW 3) also supports these versions.
We have no reason to disbelieve the testimony of the defendant and his witnesses.
Even the evidence from the plaintiff indicates that the Matam is called 'Madam of Sri Subramanya Swami '.
B 2 is a printed marriage invitation of the plaintiff (PW 1) in which it has been expressly stated that the plaintiff 's marriage will be performed at our Madam Sri Subramaniaswami Sannadhi built by our grandfa ther Karuppanna Pillai . "Ext.
A 11 also refers to the Matam as Subramaniaswami Sannadhi.
A 2 is the Commis sioner 's Report.
The Commissioner has stated that there are pictures of Gods in the Matam.
There is pooja room.
Lord Subramania 's picture is also in the pooja room.
The deity of Sri Vinayagar in granite has been installed at a special place with material to indicate that pooja is also being performed to Sri Vinayagar.
It is true that the directions of the testator are in general terms, and there is no particular mention in the Will as to whom Guru Pooja is required to be performed since no particular deity is named in the Will.
But trust cannot be rendered invalid on that ground.
It is for the Court to ascertain the presumed intention of the testator and give effect to it.
As observed by Patanjali Shastri, J., as he then was, in Veluswami Goundan 's case where no deity is named in the deed of endowment, the court should ascertain the sect to which the donor belonged, the tenets which he held, the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained.
We agree that these are the safe guides.
If we peruse the various terms in the Will and the provisions made for offerings, it will be clear that the testator was a great devotee of Lord Subramaniaswami.
He has made provisions to perform annual pooja to Lord Subramanias wami and Sri Vinayagar in the different temples out of the income from A to C Schedules.
The Matam also goes by the name of "Subramanya".
The evidence of DW 1 to DW 2 further indicates that Guru Pooja is being performed to Lord Subra manya followed by poor feeding and distribution of saffron coloured clothes.
The endowment with regard to these pur poses must therefore be upheld.
245 The permanent dedication of properties for performance of annual ceremonies of the testator is equally valid.
Whether one terms it as annual Shradha or anniversary, it is certainly a religious rite and it is not uncommon among the Hindu testators to make provisions in their Wills for cele bration or performance of such anniversaries of themselves or their ancestors.
We are, therefore, unable to agree with the decision of the Division Bench of the High Court.
We are on the other hand in agreement with the views expressed by learned Single Judge.
In the result, the appeal is allowed.
In reversal of the judgment of the Division Bench, the judgment and decree of the learned Single Judge are restored.
The respondents must pay the costs of this appeal to the appellants.
T.N.A. Appeal al lowed. | K. bequeathed his properties describing them in five Schedules, A, B, C, D and E.
In respect of the 'E ' schedule properties, he created an endowment stating that after his death it should be managed for construction of his own tomb or samadhi and for performing poojas and ceremonies thereat.
Two of the legatees under the will filed a suit against the third legatee, the manager of the trust, for partition and possession of the E schedule properties as well as for rendition of accounts pertaining to the income from the said properties contending: (i) that under Hindu Law the testator could not have created an endowment of properties for con struction of his own tomb or samadhi for performing poojas and ceremonies thereat; (ii) since the testator had be queathed his properties for "Samadhi Kainkaryam", the Trust was invalid; and that the said properties should be shared by the plaintiffs and the defendant under the residuary clause of the will as if they remained undisposed of by the testator.
The defendant resisted the suit contending that Matam and the Samadhi were constructed for different purposes and it is only at the Matam that the ceremonies and Guru Pooja were performed with feeding the poor and distribution of saffron clothes; and that these acts were distinctly and substantially religious and charitable purposes.
The subordinate judge accepted the plaintiff 's case declaring that the dedication of the 'E ' schedule properties was invalid and accordingly he decreed the suit.
236 On appeal the District Judge dismissed the suit with a direction to the defendant for rendition of accounts of the surplus income from the properties on the ground that dedi cation of properties by the testator was for charitable or religious in nature.
On second appeal a single Judge of the High Court dismissed the suit for partition but affirmed the decree for accounting the surplus income from the properties referable to the Matam and charities by holding (i) that the trust in respect of the properties for construction of samadhi was not valid as it was not recognised under the Hindu Law; (II) but the endowment and directions as to application of the property for construction of Matam and performance of cere monies and pooja were valid since they were religious and charitable in nature.
On further appeal by Letters Patent the Division Bench of the High Court, relying upon the decision of the Privy Council in N. Subramania Pillai vs A. Draviyasundaram Pil lai, AIR 1950 PC 37, held that the entire endowment was invalid under Hindu Law.
Hence this appeal.
Allowing the appeal, this Court, HELD: 1.
The perpetual dedication of property for construction of a samadhi or a tomb over the mortal remains of an ordinary person and the making of provisions for its maintenance and for performing ceremonies in connection thereto is not recognised as charitable or religions purpose among the Hindus.
But the Samadhi of a Saint stands on a different footing.
Therefore, the provision made by the testator for construction of a Samadhi over his burial place and for its maintenance cannot be regarded as valid.
[242A B Kunhamutty vs T. Ahmad Musaliar & Ors., I.L.R. ; A. Draviyasundaram Pillai vs N. Subramania Pillai, I.L.R. and Veluswami Goundan vs Dandapani, , approved.
Saraswati Ammal vs Rajagopal Ammal, ; and Nagu Reddiar & Ors.
vs Banu Reddiar & Ors., ; , referred to.
It is one of the cardinal principles of construc tion of Wills that wherever it is possible, effect should he given to every bequest of the testator unless it is opposed to law, custom or practice.
If the testator has set apart the property intended for endowment and disclosed his 237 charitable intent in any one of his directions, such direc tion may be extricated leaving aside the directions which are repugnant to the recognised notions of Hindu religion or Hindu Law.
Attempt should be made to give effect to the provisions made for recognised charitable purposes even though the entire scheme of the testator cannot be saved.
[242G H] 2.1 In the instant case the scheduled properties have been endowed for construction of a Samadhi and Matam, and for performing religious rites and charitable acts.
The Samadhi and Matam are constructed in the same survey number but are independent of each other, separated by a distance.
The other provisions in the will relating to performance of annual ceremonies conducting Guru Pooja, feeding the poor and distribution of saffron coloured clothes to medicants are independent and have no connection with the Samadhi.
Consequently, the entire dedication of the Scheduled proper ties will not fail.
[243A B] N. Subramania Pillai vs A. Draviyasundram Pillai, A.I.R. , held inapplicable.
In construing the validity of an endowment created under a Will, the Court cannot be guided merely by the acts of the Manager or the manner in which the executor of the Will has understood the directions of the testator.
The Court is required to examine the dominant intention of the testator and that could be ascertained only by the terms of the Will.
3.1 A trust cannot be rendered invalid on the ground that the directions of the testator are in general terms and that there is no particular mention in the will as to whom Guru Pooja is required to be performed since no particular deity is named in the Will.
It is for the Court to ascertain the presumed intention of the testator and given effect to it.
Therefore where no deity is named in the deed of endow ment, the Court should ascertain the sect to which the donor belonged, the tenets which he held, the doctrines to which he was attached and the deity to which he was devoted and by such means the presumed intention of the testator as to the application of the property should be ascertained.
These are the safe guides.
[244E & F] Veluswami Goundan vs Dandapani, [1946] 1 MLJ 354 AIR 1946 Mad. 485, referred to. 3.2 In the instant case there is no indication in the Will that Guru Pooja should be performed to the testator.
On the other hand the terms 238 in the Will show that the testator was a great devotee of Lord Subramaniaswami.
The evidence also indicates that Guru Pooja is being performed to Lord Subramanya followed by poor feeding and distribution of saffron coloured clothes.
These terms of the will clearly specify the religious or charita ble purposes.
Therefore the endowment with regard to these purposes is upheld.
[244E & G H] 3.3 Annual Shradha or anniversary is a religious rite.
The permanent dedication of properties for performance of annual ceremonies of the testator is equally valid.
[245A] 4.
The Division Bench of the High Court was therefore in error in invalidating the entire endowment.
Accordingly, the judgment of the Division Bench is reversed and the judgment and decree of the Single Judge are restored.
[245B C] 5.
In Hindu system there is no line of demarcation between religion and charity.
On the other hand, charity is regarded as a part of religion.
But what are purely reli gious purposes and what religious purposes will be charita ble must be entirely decided according to Hindu Law and Hindu notions.
[241G H] Hindu Law of Religious & Charitable Trusts, by B.K. Mukherjea, 5th Edn.
p. 11; Mayne 's Hindu Law, 11th Edn.
p. 912, referred to. |
vil Appeal No. 262 (NC) of 1976.
From the Judgment and Order dated 24.4.1975 of the Rajasthan High Court in D.B. Civil I.T.R. No. 45 of 1969.
Mrs. Anjali Verma for JBD & Co. and D.N. Misra for the Appellant.
O.P. Vaish, section Rajappa, Vinay Vaish, S.K. Aggarwal and Ms. A. Subhashini for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
This appeal is directed against the judgment and order of the High Court of Rajasthan dated 24.4.1975 answering the question referred to it by the Income Tax Appellate Tribunal in the negative, in favour of the Revenue and against the assessee.
The question referred to the High Court was as under: "Whether on the facts and in the circumstances of the case, the Tribunal was right in holding that the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act.
1961?" The circumstances leading to the reference and the appeal was necessary to be stated.
The Natural Science (India) Ltd. predecessor ininterest of the assessee acquired a lease from the Maharaja of the 317 erstwhile Bikaner State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles at Jamsar.
The lease was liable to be renewed after expiring of 20 years.
The Natural Science (India) Ltd. by a deed of assignment dated December 11, 1948 assigned the rights under the lease to the Bikaner Gypsums Ltd., a compa ny wherein the State Government owned 45 per cent share.
The Bikaner Gypsums Ltd. (hereinafter referred to as the asses see) carried on the business of mining gypsum in accordance with the terms of conditions stated in the lease.
The asses see entered into an agreement with Sindri Fertilizers, a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5 per cent quality.
Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic, convenient and beneficial manner and to treat the same by calcination and other proc esses.
Clause 2 of Part II of the lease authorised the lessee to sink, dig, drive, quarry, make, erect, maintain and use in the said lands any borings, pits, shafts, in clines, drifts, tunnels, trenches, levels, water ways, airways and other works and to use, maintain, deepen or extend any existing works of the like nature in the demised land for the purpose of winning and mining of the mineral.
Clause 3 granted liberty to erect, construction, maintain and use on or under the land any engines, machinery, plant, dressing, floors, furnaces, brick kilns, like kilns, plaster kilns etc.
Clause 4 conferred liberty on the lessee to make roads and ways and use existing roads and ways.
Clause 7 granted liberty to the assessee to enter upon and use any part of parts of the surface of the said lands for the purpose of stacking, heaping or depositing thereon any produce of the mines or works carried on and any earth materials and substance dug or raised under the liberties and powers.
Clause 8 conferred liberty on the lessee to enter upon and occupy any of the surface lands within the demised lands other than such as are occupied by dwelling houses or farms and the offices, gardens and yards.
Clause 9 conferred power on the lessee to acquire, take up and occupy such surface lands in the demised lands as were then in the occupation of any body other than the Government on payment of compensation and rent to such occupiers, and if the lessee is unable to acquire such land from the tenants and occupiers, the Government undertook to acquire such surface land for the lessee at the lessee 's cost.
Clause 15 of Part II conferred liberty and power on the lessee to do all things which may be necessary for winning, working getting the said minerals and also for calcining, smelting, manufac turing, converting and making merchantable.
318 Part III of the lease contained restrictions and condi tions to the exercise of the liberties and powers and privi leges as contained in Part II of the lease.
Clause 2 of Part III provided that the lessee shall not enter upon or occupy surface of any land in the occupation of any tenant or occupier without making reasonable compensation to such tenant or occupier.
Clause 3 prescribed restriction on mining operation within 100 yards from any railway, reser voir, canal or other public works.
It reads as under: "Clause 3: No mining operations or working shall be carried on or permitted to be carried on by the lessee in or under the said lands at or to any point within a distance of 100 yards from any railway, reservoir, canal or other public works or any buildings or inhabited site shown on the plan hereto annexed except with the previous permission in writ ing of the Minister, or some officer authorised by him in that behalf or otherwise then in accordance with such in structions, restrictions and conditions either general or special which may be attached to such permission.
The said distance of 100 yards shall be measured in the case of a Railway Reservoir or canal horizontally from the outer of the bank or of outer edge of the cutting as the case may be and in the case of a building horizontally from the plinth thereof.
" The above clause had been incorporated in the lease to protect the railway track and railway station which was situate within the area demised to the lessee.
Clause 5 of Part VIII of the agreement stated as under: "Clause 5: If any underground or mineral rights in any lands or mines covered and leased to the lessee in accordance with the provisions of those presents be claimed by any 'Jagir dar ' 'Pattedar ', 'Talukdar ', tenant or other person then and in all such cases the Government shall upon notice from the lessee forthwith put the lessee in possession of all such lands and mines free of all costs and charges to the lessee and any compensation required to be paid to any such "Jagir dar", 'Pattedar ', 'Talukdar ', tenant or other person claim ing to have any underground or mineral rights shall be paid by the Government." The assessee company exclusively carried on the mining of 319 gypsum in the entire area demised to it.
The Railway author ities extended the railway area by laying down fresh track, providing for railway siding.
The Railways further con structed quarters in the lease area without the permission of the assessee company.
The assessee company filed a suit in civil court for ejecting the Railway from the encroached area but it failed in the suit.
The assessee company, there upon, approached the Government of Rajasthan which had 45 per cent share of it and the Railway Board for negotiation to remove the Railway Station and track enabling the asses see to carry out the mining operation under the land occu pied by the Railways (hereinafter referred to as the 'Rail way Area ').
Since, on research and survey the assessee company found that under the Railway Area a high quality of gypsum was available, which was required as raw material by the Sindri Fertilizers.
All the four parties namely, Sindri Fertilizers, Government of Rajasthan, Railway Board and the assessee company negotiated the matter and ultimately the Railway Board agreed to shift the railway station, track and yards to another place or area offered by the assessee.
Under the agreement the Railway authorities agreed to shift the station and all its establishments to the alternative site offered by the assessee company and it was further agreed and all the four parties, Sindri Fertilizers, Govern ment of Rajasthan, Indian Railway and the assessee company shall equally bear the total expenses of Rs. 12 lakhs in curred by the Railways in shifting the railway station, yards and the quarters.
Pursuant to the agreement, the assessee company paid a sum of Rs.3 lakhs as its share to the Northern Railway towards the cost of shifting of the Railway Station and other constructions.
In addition to that the assessee company further paid a sum of Rs.7,300 to the Railways as compensation for the surface rights of the leased land.
On the shifting of the Railway track and Sta tion the assessee carried out mining in the erstwhile Rail way Area and it raised gypsum to the extent of 6,30,390 tons and supplied the same to Sindri Fertilizers.
The assessee company claimed deduction of Rs.3 lakhs paid to the Northern Railway for the shifting of the Railway Station for the assessment year 1964 65.
The Income Tax Officer rejected the assessee 's claim on the ground that it was a capital expenditure.
On appeal by the assessee, the Appellate Assistant Commissioner confirmed the order of the Income Tax Officer.
On further appeal by the assessee the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, instead it was a revenue expenditure.
On an application made by the Revenue the Income Tax Appellate Tribunal (hereinaf ter referred to as the 320 Tribunal referred the question as aforesaid to the High Court under section 256 of the Income Tax Act, 1961.
The High Court held that since on payment of Rs.3 lakhs to the Rail way the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs. 3 lakhs was a capital expenditure and it could not be a revenue expendi ture.
On these findings the High Court answered the question in the negative in favour of the Revenue against the asses see and it set aside the order of the Tribunal by the im pugned order.
Learned counsel for the appellant contended that since the entire area had been leased out to the assessee for carrying out mining operations, the assessee had right to win, the minerals which lay under the Railway Area as that land had also been demised.
to the assessee.
Since, the existence of railway station, building and yard obstructed the mining operations, the assessee paid the amount of Rs.3 lakhs for removal of the same with a view to carry on its business profitably.
The assessee did not acquire any new asset, instead, it merely spent money in removing the ob struction to facilitate the mining in a profitable manner.
On the other hand, learned counsel for the Revenue urged that in view of the restriction imposed by Clause 3 of Part III of the lease, the assessee had no right to the surface of the land occupied by the Railways.
The assessee acquired that right by paying Rs.3 lakhs which resulted into an enduring benefit to it.
It was a capital expenditure.
Both the counsel referred to a number of decisions in support of their submissions.
The question whether a particular expenditure incurred by the assessee is of Capital or Revenue nature is a vexed question which has always presented difficulty before the Courts.
There are a number of decisions of this Court and other courts formulating tests for distinguishing the capi tal from revenue expenditure.
But the tests so laid down are not exhaustive and it is not possible to reconcile the reasons given in all of them, as each decision is rounded on its own facts and circumstances.
Since, in the instant case the facts are clear, it is not necessary to consider each and every case in detail or to analyse the tests laid down in various decisions.
However, before we consider the facts and circumstances of the case, it is necessary to refer to some of the leading cases laying down guidelines for deter mining the question.
In Assam Bengal Cement Co. Ltd. vs The Commissioner of Income Tax, West Bengal, , 'this Court observed that in the great diversity of human affairs and the complicated nature of business opera tion, it is difficult to lay down a test which would apply to all situations.
One has, therefore, to apply the criteria from the business 320 point of view in order to determine whether on fair appreci ation of the whole situation the expenditure incurred for a particular matter is of the nature of capital expenditure or a revenue expenditure.
The Court laid down a simple test for determining the nature of the expenditure.
It observed: the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring bene fit of the business it is properly attributable to capital and is of the nature of capital expenditure.
If on the other hand it is made not for the purpose of bringing into exist ence any such asset or advantage but for running the busi ness or working it with a view to produce the profits it is a revenue expenditure.
If any such asset or advantage for the enduring benefit of the business is thus acquired or brought into existence it would be immaterial whether the source of the payment was the capital or the income of the concern or whether the payment was made once and for all or was made periodically.
The aim and object of the expenditure would determine the character of the expenditure whether it is a capital expenditure or a revenue expenditure.
" In K.T.M.T.M. Abdul Kayoom and Another vs Commissioner of Income Tax, , this Court after consider ing a number of English and Indian authorities held that each case depends on its own facts, and a close similarity between one case and another is not enough, because even a single significant detail may alter the entire aspect.
The Court observed that what is decisive is the nature of the business, the nature of the expenditure, the nature of the right acquired, and their relation inter se, and this is the only key to resolve the issue in the light of the general principles, which are followed in such cases.
In that case the assessee claimed deduction of Rs.6, 111 paid by it to the Government as lease money for the grant of exclusive rights, liberty and authority to fish and carry away all chank shells in the sea off the coast line of a certain area specified in the lease for a period of three years.
The Court held that the amount of Rs.6,111 was paid to obtain an enduring benefit in the shape of an exclusive right to fish; the payment was not related to the chanks, instead it was an amount spent in acquiring an asset from which it may collect its stockin trade.
It was, therefore, an expenditure of a capital nature.
In Bombay Steam Navigation Co. Pvt. Ltd. vs Commissioner of Income Tax, Bombay, ; , the assessee pur chased.
the 321 assets of another Company for purposes of carrying on pas senger and ferry services, it paid part of the consideration leaving the balance unpaid.
Under the agreement of sale the assessee had to pay interest on the unpaid balance of money.
The assessee claimed deduction of the amount of interest paid by it under the contract of purchase from its income.
The court held that the claim for deduction of amount of interest as revenue expenditure was not admissible.
The Court observed that while considering the question the Court.
should con . sider the nature and ordinary course of business and the object for which the expenditure is in curred.
If the outgoing or expenditure is so related to the carrying on or conduct of the business, that it may be regarded as an integral part of the profit earning process and not for acquisition of an asset or a right of a perma nent character, the possession of which is a condition for the carrying on of the business, the expenditure may be regarded as revenue expenditure.
But, on the facts of the case, the Court held that the assessee 's claim was not admissible, as the expenditure was related to the acquisi tion of an asset or a right of a permanent character, the possession of which was a condition for carrying the busi ness.
The High Court has relied upon the decision of this Court in R.B. Seth Moolchand Suganchand vs Commissioner of Income Tax, New Delhi, , in rejecting the assessee 's contention.
In Suganchand 's case the assessee was carrying on a mining business, he had paid a sum of Rs. 1,53,800 to acquire lease of certain areas of land bearing mica for a period of 20 years.
Those areas had already been worked for 15 years by other lessees.
The assessee had paid a sum of Rs.3,200 as fee for a licence for prospecting for emerald for a period of one year.
In addition to the fee, the assessee had to pay royalty on the emerald excavated and sold.
The assessee claimed the expenditure of Rs.3,200 paid by it as fee to the Government for prospecting licence as revenue expenditure.
The assessee further claimed that the appropriate part of Rs. 1,53,800 paid by it as lease money was allow able as revenue expenditure.
The Court held that while considering the question in relation to the mining leases an empirical test is that where minerals have to be won, extracted and brought to surface by mining operations, the expenditure incurred for acquiring such a right would be of a capital nature.
But, where the mineral has already been gotten and is on the surface, then the expenditure incurred for obtaining the right to acquire the raw material would be a revenue expenditure.
The Court held that since the payment of tender money was for acquisition of capital asset, the same could not be treated as a revenue expenditure.
As regards the claim relating to the prospecting licence 322 fee of Rs.3,200 the Court held that since the licence was for prospecting only and as the assessee had not started working a mine, the payment was made to the Government with the object of initiating the business.
The Court held that even though the amount of prospecting licence fee was for a period of one year, it did not make any difference as the fee was paid to obtain a licence to investigate, search and find the mineral with the object of conducting the business, extracting ore from the earth necessary for initiating the business.
The facts involved in that case are totally dif ferent from the instant case.
The assessee in the instant case never claimed any deduction with regard to the licence fee or royalty paid by it, instead, the claim relates to the amount spent on the removal of a restriction which obstruct ed the carrying of the business of mining within a particu lar area in respect of which the assessee had already ac quired mining rights.
The payment of Rs.3 lakhs for shifting of the Railway track and Railway Station was not made for initiating the business of mining operations or for acquir ing any right, instead the payment was made to remove ob struction to facilitate the business of mining.
The princi ples laid down in Suganchand 's case do not apply to the instant case.
In British Insulated and Helsby Cables Ltd. vs Atherton, , Lord Cave laid down a test which has almost universely been accepted.
Lord Cave observed: ". when an expenditure is made, not only once and for all, but with a view to bringing into existence an asset or an advantage for the enduring benefit of a trade, I think that there is very good reason (in the absence of special circum stances leading to an opposite conclusion) for treating such an expenditure as properly attributable not to revenue out to capital." This dictum has been followed and approval by this Court in the cases of Assam Bengal Cement Co. Ltd. (supra); Abdul Kayoom (supra) and Seth Sugancha.nd (supra) and several other decisions of this Court.
But, the test laid down by Lord Cave has been explained in a number of cases which show that the tests for considering the expenditure for the purposes of bringing into existence, as an asset or an advantage for the enduring benefit of a trade is not always true and perhaps Lord Cave himself had in mind that the test of enduring benefit of a trade would be a good test in the absence of special circumstances leading to an opposite conclusion.
Therefore, the test laid down by Lord Cave was not a conclusive one as Lord Cave himself did not regard his test 323 as a conclusive one and he recognised that special circum stances might very well lead to an opposite conclusion.
In Gotan Lime Syndicate vs C. I. T., Rajasthan & Delhi, 18, the assessee which carried on the busi ness of manufacturing lime from limestone, was granted the right to excavate limestone in certain areas under a lease.
Under the lease the assessee had to pay royalty of Rs.96,000 per annum.
The assessee claimed the payment of Rs.96,000 to the Government as a revenue expenditure.
This Court after considering its earlier decision in Abdul Kayoom 's case (supra) and also the decision of Lord Cave in British Insu lated (supra), held that the royalty paid by the assessee has to be allowed as revenue expenditure as it had relation to the raw materials to be excavated and extracted.
The Court observed that the royalty payment including the dead rent had relation to the lime deposits.
The 'Court observed although the assessee did derive an advantage and further even though the advantage lasted at least for a period of five years there was no payment made once for all.
No lump sum payment was ever settled, instead, only an annual royal ty and dead rent was paid.
The Court held that the royalty was not a direct payment for securing an enduring benefit, instead it had relation to the raw materials to be obtained.
In this decision expenditure for securing an advantage which was to last at least for a period of five years was not treated to have enduring benefit.
In M.A. Jabbar vs C.I.T. Andhra Pradesh, Hyderabad; , , the assessee was carrying on the business of supplying lime and sand, and for the purposes of acquiring sand he had obtained a lease of a river bed from the State Government for a period of 11 months.
Under the lease he had to pay large amount of lease money for the grant of an exclusive right to carry away sand within, under or upon the land.
The assessee in proceedings for assessment of incometax claimed deduction with regard to the amount paid as lease money.
The Court held that the expenditure incurred by the assessee was not related to the acquisition of an asset or a right of permanent character instead the expenditure was for a specific object of ena bling the assessee to remove the sand lying on the surface of the land which was stock in trade of the business, there fore, the expenditure was a revenue expenditure.
Whether payments made by an assessee for removal of any restriction or obstacle to its business would be in the nature of capital or revenue expenditure, has been consid ered by courts.
In Commissioner of Inland Revenue vs Carron Company, [1966 69] 45 Tax Cases 13 the assessee carried on the business of iron founders which was incor 325 porated by a Charter granted to it in 1773.
By passage of time many of its features had become archaic and unsuited to modern conditions and the company 's commercial performance was suffering a progressive decline.
The Charter of the company placed restriction on the company 's borrowing powers and it placed restriction on voting rights of certain mem bers.
The company decided to petition for a supplementary Charter providing for the vesting of the management in Board of Directors and for the removal of the limitation on compa ny 's borrowing powers and restrictions on the issue and transfer of shares.
The company 's petition was contested by dissenting share holders in court.
The company settled the litigation under which it had to pay the cost of legal action and buy out the holdings of the dissenting share holders and in pursuance thereof a supplementary Charter was granted.
In assessment proceedings, the company claimed deduction of payments made by it towards the cost of obtain ing the Charter, the amounts paid to the dissenting share holders and expensed in the action.
The Special Commissioner held that the company was entitled to the deductions.
On appeal the House of Lords held that since the object of the new Charter was to remove obstacle to profitable trading, and the engagement of a competent Manager and the removal of restrictions on borrowing facilitated the day to day trading operation of the company, the expenditure was on income account.
The House of Lords considered the test laid down by Lord Cave L.C. in British Insulated Company 's case and held that the payments made by the company, were for the purpose of removing of disability of the company trading operation which prejudiced its operation.
This was achieved without acquisition of any tangible or intangible asset or without creation of any new branch of trading activity.
From a commercial and business point of view nothing in the nature of additional fixed capital was thereby achieved.
The Court pointed out that there is a sharp distinction between the removal of a disability on one hand payment for which is a revenue payment, and the bringing into existence of an advantage, payment for which may be a capital payment.
Since, in the case before the Court, the Company had made payments for removal of disabilities which confined their business under the out of date Charter of 1773, the expendi ture was on revenue account.
In Empire Jute Company vs C.I. T, [1980] 124 ITR I, this Court held that expenditure made by an assessee for the purpose of removing the restriction on the number of working hours with a view to increase its profits, was in the nature of revenue expenditure.
The Court observed that if the advantage consists merely in facilitat ing the assessee 's trading operations of enabling the man agement and conduct of the assessee 's business to be carried on more efficiently or more profitably while leaving 326 he fixed capital untouched, the expenditure would be on revenue account even though the advantage may endure for an indefinite future.
We agree with the view taken in the aforesaid two decisions.
In our opinion where the assessee has an existing right to carry on a business, any expendi ture made by it during the course of business for the pur pose of removal of any restriction or obstruction or disa bility would be on revenue account, provided the expenditure does not acquire any capital asset.
Payments made for remov al of restriction, obstruction or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset.
In the instant case the assessee had been granted mining lease in respect of 4.27 square miles at Jamsar under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire money, licence fee and other charges for securing the right of mining in respect of the entire area of 4.27 square miles including the right to the miner als under the Railway Area.
The High Court has held that on payment of Rs.3 lakhs, the assessee acquired capital asset of an enduring nature.
The High Court failed to appreciate that Clause 3 was only restrictive in nature it did not destroy the assessee 's right to the minerals found under the Railway Area.
The restriction operated as an obstacle to the assessee 's right to carry on business in a profitable man ner.
The assesse paid a sum of Rs.3 lakhs towards the cost of removal of the obstructions which enabled the assessee to carry on its business of mining in an area which had already been leased out to it for that purpose.
There was, there fore, no acquisition of any capital asset.
here is no dis pute that the assessee completed mining operations on the released land (Railway Area) within a period of 2 years, in the circumstances the High Court 's view that the benefit acquired by the assessee on the payment of the disputed amount was a benefit of an enduring nature is not sustain able in law.
As already observed, there may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit may not amount to acquisition of asset.
The facts of each case have to be borne in mind in consider ing the question having regard to the nature of business its requirement and the nature of the advantage in commercial sense.
In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered.
In the instant case existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to 327 the assessee 's business of mining.
The Railway Authorities agreed to shift the Railway establishment to facilitate the assessee to carry on his business in a profitable manner and for the purposes the assessee paid a sum of Rs.3 lakhs towards the cost of shifting the Railway construction.
The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advan tage of an enduring nature.
The Tribunal rightly allowed the expenditure on revenue account.
The High Court in our opin ion failed to appreciate the true nature of the expenditure.
We are, therefore, of the opinion that the High Court committed error in interfering with the findings recorded by the Income Tax Appellate Tribunal.
We, accordingly, allow the appeal, set aside the order of the High Court and re store the order of the Tribunal.
The appellant is entitled to its costs.
N.V.K. Appeal allowed. | The appellant assessee carried on the business of mining gypsum.
The predecessor in interest of the assessee acquired a lease from the Maharaja of one of the erstwhile princely State on September 29, 1948 for mining of gypsum for a period of 20 years over an area of 4.27 square miles in the State.
The lease was liable to be renewed after the expiry of 20 years.
By a deed of assignment dated December 11, 1948 the rights under the lease were assigned to the assessee company, in which the State Government owned 45% shares.
The assessee entered into an agreement with a Government of India Public Undertaking for the supply of gypsum of minimum of 83.5% quality.
Under the lease, the assessee was conferred the liberties and powers to enter upon the entire leased land and to search for win, work, get, raise, convert and carry away the gypsum for its own benefits in the most economic convenient and beneficial manner and to treat the same by calcination and other processes.
The lease agreement consisted of several parts and each part contained several clauses.
Clause 3 of part Iii prescribed restrictions on mining operation within 100 yards from any railway, reser voir, canal or other public works.
This clause had been incorporated in the lease to protect the railway track and railway station which was situated within the area demised to the lessee.
The assessee exclusively carried on the mining of gypsum in the entire area demised to it.
The Railway Authorities extended the railway area by laying down fresh track, pro viding for railway siding and further constructed quarters in the leased area without the permission of the assessee.
The assessee company filed a civil suit for ejecting the railways from the encroached area but it failed in the suit.
314 As the assessee company on research and survey found that under the railway area a high quality of gypsum was available, which was required as raw material by the Public Sector Company, all the parties (Public Sector Company, the Railway Board and the assessee company) negotiated the matter, the Railway Board agreeing to shift the railway station, track and yards to an alternative area offered by the assessee, the parties equally bearing the cost of the shifting.
Under the aforesaid agreement, the assessee company paid a sum of Rs.3 lakhs as its share towards the cost of shift ing of the Railway Station and other constructions, and claimed deduction of the said sum for the assessment year 1964 65.
The Income Tax Officer rejected the assessee 's claim on the ground that it was a capital expenditure.
The order was confirmed on appeal by the Appellate Assistant Commissioner.
On appeal by the assessee, the Income Tax Appellate Tribunal held that the payment of Rs.3 lakhs by the assessee company was not a capital expenditure, but a revenue expend iture.
The Tribunal referred the question to the High Court under section 256 of the Income Tax Act, 1961, on an appli cation by the revenue, which held that since on payment of Rs.3 lakhs to the Railways the assessee acquired a new asset which was attributable to capital of enduring nature, the sum of Rs.3 lakhs was a capital expenditure and it could not be a revenue expenditure.
In the appeal to this Court on the question whether the payment of Rs.3 lakhs to the Northern Railway was a revenue expenditure and was a deduction allowable under the Income Tax Act, 1961.
Allowing the appeal, this Court, HELD: 1(a) Where the assessee has an existing right to carry on a business, any expenditure made by it during the course of business for the purpose of removal of any re striction or obstruction or disability would be on revenue account, provided the expenditure does not acquire any capital asset.
[326A] (b) Payments made for removal of restriction, obstruc tion or disability may result in acquiring benefits to the business, but that by itself would not acquire any capital asset.
[326B] Gotan Lime Syndicate vs C.I.T., Rajasthan & Delhi, ; M.A. Jabbar vs C.I.T., Andhra Pradesh, Hyderabad, [1968] 315 2 SCR 413 and Commissioner of Inland Revenue vs Carron Company, [1966 69] 45 Tax Cases 18, referred.
Empire Jute Company vs C. I. T., ; , affirmed.
In the instant case, the assessee have been granted mining lease in respect of 4.27 square miles under which he had right to sink, dig, drive, quarry and extract mineral i.e. the gypsum and in that process he had right to dig the surface of the entire area leased out to him.
The payment of Rs.3 lakhs was not made by the assessee for the grant of permission to carry on mining operations within the railway area, instead the payment was made towards the cost of removing the construction which obstructed the mining opera tions.
On the payment made to the Railway Authorities the assessee did not acquire any fresh right to any mineral nor he acquired any capital asset instead, the payment was made by it for shifting the Railway Station and track which operated as hindrance and obstruction to the business of mining in a profitable manner.
[326C E] 2.
There may be circumstances where expenditure, even if incurred for obtaining advantage of enduring benefit would not amount to acquisition of asset.
The facts of each case have to be borne in mind in considering the question having regard to the nature of business, its requirement and the nature of the advantage in commercial sense.
[326F G] 3(a) The test for considering the expenditure for the purposes of bringing into existence an asset or an advantage for the enduring benefit of a trade is not always true and conclusive.
[327B] 3(b) In considering the cases of mining business the nature of the lease the purpose for which expenditure is made, its relation to the carrying on of the business in a profitable manner should be considered.
[326H] In the instant case, existence of Railway Station, yard and buildings on the surface of the demised land operated as an obstruction to the assessee 's business of mining.
The Railway Authorities agreed to shift the Railway establish ment to facilitate the assessee to carry on his business in a profitable manner and for that purpose the assessee paid a sum of Rs.3 lakhs.
The payment made by the assessee was for removal of disability and obstacle and it did not bring into existence any advantage of an enduring nature.
There was therefore.
no acquisition of any capital asset.
[326H; 327A] 316 British Insulated and Helsby.
Cables Ltd. vs Atherton, , explained.
Assam Bengal Cement Co. Ltd. vs The Commissioner of Income Tax, West Bengal, , referred to.
R.B. Seth Moolchand Suganchand vs Commissioner of Income Tax, New Delhi, , distinguished.
The Tribunal rightly allowed the expenditure on revenue account.
The High Court failed to appreciate the true nature of the expenditure.
It committed an error in interfering with the findings recorded by the Income Tax Appellate Tribunal.
[327B C] |
ition No. 5019 of 1982.
(Under Article 32 of the Constitution of India.) M.S. Ganesh for the Petitioner.
V.K. Kanth, N.S. Das Behal and Ms. Sushma Relan for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
This petition under Article 32 of the Constitution, in a representative capacity on behalf of the stenographers (Grade I) who are attached with officers in the pay scale of Rs.2500 2750 (Level I), seeks parity with the pay scale of the stenographers attached to the Joint Secretaries and officers above that rank.
It is stated that the petitioners are in the pay scale of Rs.550 900.
The petitioners claim that they should be placed in the pay scale of Rs.650 1040 with effect from 1st of January, 1973.
It must, however, be mentioned that this petition was filed on or about 7th of May, 1982 and submissions on this petition were made in the end of November, 1986.
Therefore, the position pertaining to the controversy in this case is prior to the report or the implementation of the Fourth Pay Commission.
In short, the petitioners are personal assistants and stenographers attached to the heads of the departments in the Customs and Central Excise Departments of the Ministry of Finance.
They assert that they have been and are discriminated vis a vis personal assistants and stenographers attached to the Joint Secretaries and officers above them in the Ministry.
In brief, it is the case of the petitioners that between 28th of January, 1955 to 8th of November, 1957 the Ministry of Finance prescribed certain educational qualifications and technical proficiency qualifications for both Stenographers and Steno typists.
On or about 26th of April, 1968, the Department of Revenue, Central Board of Excise and Customs made provisions for filling the posts of Stenographers by direct recruitment and prescribed qualifications etc.
for the same.
In July, 1969 the Government of India, Ministry of Home Affairs classified the posts of Stenographers sanctioned at different levels into four grades viz., Grade III, II, I and Selection Grade.
Posts attached to Secrataries and Additional Secretaries were classi 1002 fied as Selection Grade originally and were given pay of Rs.350 (500)900 with effect from 1st of August, 1969; Stenographers Grade II (Rs.210 530) placed with Joint Secretaries and officers of equivalent rank were upgraded to Grade I in the pay scale of Rs.350(400) 770;Grade II stenographers were given Rs.210 530; Grade III stenographers were given Rs.130 280 and Grade III in petitioners ' offices were given Rs.130 300.
It is the case of the petitioners that the counterparts of the petitioners (Grade II Stenographers) were in the pay scale of Rs.210 530 and petitioners in Rs.210 425.
Criteria of pay scales/status/rank of officers for the scale of pay of stenographers were made out.
In 1970 Ministry of Home Affairs set out the category of officers viz. Joint Secretaries to the Government of India and officers of equivalent rank are entitled to the sanction of scale of category of stenographers Grade I Sr.P.A. in the pay scale of Rs.350 770.
Criteria of status/rank of an officer was again established for the pay scale of stenographers.
Ministry of Home Affairs on or about 29th of June, 1972 pursuant to the decision taken on that date reached in the NCJCM relates to creation of posts of Stenographers Grade I and Grade II in subordinate offices and other offices of the Government of India and also identified/set out/clarified that the posts of Stenographers attached to officers whose status is higher than that of Deputy Secretary to the Government of India shall be in the scale of Rs.210 425.
Criteria of status of an officer for scale of pay of Stenographers was again established.
Thereafter there was the Third Pay Commission 's report which was accepted and recommendations were given effect to.
As a result of the various Government notifications thereafter and Rules framed, it is the case of the petitioners that their counterparts, that is to say, Stenographers Grade I attached/sanctioned to the Joint Secretaries and equivalent officers were given the pay scale of Rs.650(710) 1040; whereas the petitioners whose posts were/are sanctioned and attached with the officers of the same Government Ministry of Finance and the Department of Revenue and the same administration and Grade Level I (Rs.2500 2750) Joint Secretaries and Level II (Rs.2250 2500) Directors, who are also Heads of Departments, and are at par in seniority/promotion with the counterparts officers in the Department of Revenue were given only Rs.425 700, whereas the Stenographers Grade I/Senior Grade, the petitioners discharged the same functions and indeed, have sometimes more onerous duties and responsibilities than their counterparts attached with Joint Secretaries and Level II Directors, according to the petitioners.
From the affidavit filed on behalf of the petitioners in reply to the opposition by the respondents, it appears that the method of recruitment in respect of Grade I stenographers in the Department are as follows: 1003 (i) Petitioners ' counterparts in the so called Secretariat & participating attached offices CSSS.
_______________________________________________________ Grade of Classi Designation/level/ Date of Stenographers fication.
status/rank/grades sanction/ and scale of and pay scales of or up pay.
officers for whom gradation.
sanctioned/attached.
_______________________________________________________ (1) (2) (3) (4) _______________________________________________________ Grade B Central (i) Joint Secretaries (Grade I) Civil & Equivalent.
Rs.650 (710) Service Rs.2500 2750 1.1.1973 1040.
Group 'B ' (Gazetted)(ii) Directors & Equivalent.
Rs.2250 2500 12.11.1975 (iii) Directors & Equivalent.
Rs.2000 2250 23.1.1984 _______________________________________________________ (ii) Petitioners ' Officers i.e. so called non participating attached and subordinate offices (Directorates & Collectorates of Customs & Central Excise): _______________________________________________________ (1) (2) (3) (4) _______________________________________________________ Grade I Central (i) Heads of the Departments Rs.550 900 Civil *Directors/ Service Collectors of Group 'B ' Customs & Central (non Excise Level I gazetted).
Equivalent to Joint Secretaries Rs.2500 2750.
4.7.78 (ii) Directors/ Collectors of Customs & Central Excise Level II Equivalent to Directors (IRS IC & CE Service 1004 Rs.2250 2500 4.7.1978 (iii) Directors/ * * Generals/ Principal Collectors i.e. Level I Col lectors + Rs.250 S.P. Equivalent to pay scale of Addl.
Secretary Rs.3000 i.e. Rs.2500 2750 + SP of Rs.250 */** All Heads of the Depart ments.
x x x x x x x (iii) Comparative Position _______________________________________________________ Officers ' pay scales Pay scales of Petitioners in the two offices Stenographers pay scales with (Petitioners & their Gr.
I in Sectt.these officers.
counterparts) & Participating Offices (Petitioners counterparts) sanctioned with these officers.
(1) (2) (3) _______________________________________________________ Rs.2500 2750 Rs.650(710) 1040 Rs.425 700 w.e.f.1.1.1973. w.e.f.1.1.73 Rs.550 900 w.e.f.4.7.78 Rs.2250 2500 Rs.650(710) 1040 Rs.425 700 w.e.f.12.11.75.
w.e.f.1.1.73 Rs.550 900 w.e.f.4.7.78.
Rs.2000 2250 Rs.650(710)/1040 Rs.425 700 w.e.f.23.1.1984.
w.e.f.1.1.1973 Rs.2500 2750+ Rs.650(775) 1200 Rs.550 900 Spl Pay of Rs.250 w.e.f.1.1.73 i.e.Rs.3000 _______________________________________________________ 1005 In the rejoinder filed on behalf of the petitioners in this application by one Ved Bhardwaj, General Secretary of the Federation, it is stated that the correct position of recruitment and position vis a vis the petitioners counterparts in the so called secretariat and participating attached offices are as follows: "(i) The petitioners and their Secretariat counterparts are both members of the same Central Civil Service; (ii) They are both Stenographers Grade I belonging to Group 'B ' of the Service except that the Secretariat Stenographers are gazetted, whereas the petitioners are not.
This exception is a purely fortuitous circumstances; (iii) The petitioners and their counterparts are both sanctioned, assigned to and attached with officers who are in the pay scales of Rs.2500 2750, Rs.2250 2500 and Rs.2000 2250; (iv) Majority of the petitioners ' posts are sanctioned/ attached with Heads of the Department.
" The petitioners assert that the above facts reinforce the petitioners ' submissions that as between them and their Secretariat counterparts all things are equal i.e., all relevant considerations governing both are the same and they hold identical posts.
According to the petitioners they discharge the same functions and, indeed, some times more onerous duties and responsibilities than their counterparts whether in the Ministry of Finance or other Ministeries in the Central Secretariat.
In the very nature of their service and its concomitant duties and obligations, which concern the administration and execution of matters falling under the , the Central Excise and Salt Act, 1944, the Foreign Exchange Regulations Act, 1973 and other Acts.
The petitioners have various duties to perform which according to them are as follows: "(a) long and arduous hours of work, generally extending late in the evening beyond normal office hours and sometimes throughout the night in cases of emergency that have become all too frequent owing to increased punitive and preventive detention cases arising under these Acts resulting in proceedings before all levels of Courts including this Honourable 1006 Court, and a spate of Parliament Questions affecting the Ministry of Finance, Department of Revenue, and the petitioners ' Department in particular in all its administrative aspects and ramifications.
The petitioners have no option but to discharge these duties when called upon to do so and their willingness to forego overtime (in cases where the Stenographers are entitled) is not accepted by the officers as affording an excuse to relieve the petitioners of such duties and hours of work.
(b) an excessively recurring volume of dictation and typing, day to day to cope with the normal and emergent exigencies, including written correspondence, recording and transcribing of notes on inspection tours and preparation of investigation and tour reports for the superior officers; of notes and memoranda for counsel in court proceedings, of briefs for official statements and conferences and replies to Parliament Questions and the Public Accounts Committee, Chambers of Commerce, Customs and Central Excise Advisory Councils and other bodies on fiscal policies like Commissions/Committees, detailed reports constituting background material with reference to cases or matters falling within the purview of any one or more of the aforesaid Acts, and so on.
(c) observing the very stringent requirements of secrecy necessarily involved in such cases or matters, (d) the consequent constant exposure to security risks and to personal safety with accompanying mental tension and strain.
" The petitioners assert that basic qualifications, method, manner and source of recruitment and grades of promotions are the same as their counterparts attached to the Joint Secretaries/Secretaries and other officers in the Secretariat.
According to the petitioner even on the criteria adopted by the Third Pay Commission they seek herein to demonstrate that there was no basis for any differentiation between the petitioners and their counterparts.
While the petitioners get a grade of Rs.550 900 their counterparts are in the pay scale of Rs.650 1040.
The petitioners assert that this is discrimination.
This differenti 1007 ation without any rational basis is discrimination violative of Article 14 and Article 16(1) of the Constitution of India.
They clamour for equal pay for equal work.
They also allege that their has been discrimination in the adoption of the recommendations of the Third Pay Commission as detailed in their petition.
This petition has been disposed of on the basis of the position prevailing prior to the report of the Fourth Pay Commission and its acceptance or implementation.
The respondents on the other hand deny that their is any discrimination, differentiation without basis.
The respondents by their affidavit filed by one Shri S.P. Kundu, Under Secretary to the Government of India, Ministry of Finance assert that the Secretariat of the Ministries/Departments of the Government of India together constitute Headquarters Organisation.
In the administrative hierarchy of the Central Government, the Secretariat occupy according to respondents a key position and the main role of the Secretariat is to help the Government in the tasks of formulation of policies, to prepare programmes in order to translate these policies, into co ordinated action and to ensure the effective execution of Government policies through periodical review.
The Secretariat also helps Ministers to discharge their accountability to Parliament including the various Parliamentary Committees.
According to the respondents detailed execution of Government 's policies specially in the field is left to the agencies outside the Secretariat which are called attached or subordinate offices of the Ministries, but they are always subject to supervision by the Secretariat.
The respondents state that to man the various stenographic posts in the Headquarters, the Government constituted the Central Secretariat Stenographers Service (CSSS) which also cater to the needs of such posts in several attached offices which are known as participating offices.
But none of the attached offices, assert the respondents, of the Department of Revenue are participating offices.
Therefore, keeping in view the importance and the nature and the type of the work performed in the Ministries/Departments of the Government of India vis a vis those in the attached and subordinate offices and consequently the nature of stenographic assistance required, according to the respondents the Third Pay Commission recommended different scales of pay for Stenographers in CSSS and those in the non participating attached and subordinate offices.
The respondents in this connection have drawn our attention to the Report of the Third Pay Commission in recommending different and lower scales of pay for the stenographers of the non participating attached and subordinate offices in comparison with those in the Central Secretariat as follows: 1008 "As a general statement, it is correct to say that the basic nature of a stenographer 's work remains by and large the same whether he is working with an officer in the secretariat or with an officer in the subordinate office.
We feel, however, that the position needs to be examined a little more critically because the size of a stenographer 's job is very much dependent upon the nature of the work entrusted to that officer.
It would not be correct therefore to go merely by status in these matters and disregard the functional requirements.
By the very nature of Secretariat working the volume of dictation and typing work can be expected to be heavier than in a subordinate office.
Also the requirement of secrecy even in the civil offices of the Secretariat can be very stringent.
Considering the differences in the hierarchical structure and in the type of work transacted in the Secretariat and in the subordinate offices, we are not in favour of adopting a uniform pattern.
Once the functional requirements are seen to be different for the Secretariat and the subordinate office, it will not be worth while to aim for absolute parity in the pay scale of Stenographers working on the two sides.
" What was emphasised before us was that the difference in the functional requirements of the work done was one of the points.
The respondents say that in devising any scales of various posts/categories, inter alia, the degree of skill, experience involved, training required, responsibility taken, strain, fatigue, risk and confidentiality undertaken, mental and physical requirements are factors to be borne in mind.
It has been emphasised by the respondents that though the duties and works are identical between the petitioners and their counterparts attached to the Secretaries in the Secretariat, their functions are not identical with regard to their duties and responsibilities.
The respondents state that the stenographers attached with the officers in the Secretariat formed a distinguishable class as they have to assist the officers in the discharge of their duties and high responsibilities which according to the respondents are of a much higher nature than in the attached and subordinate offices.
According to the respondents the Joint Secretaries and Directors in the Central Secretariat performed functions and duties of higher responsibilities than those performed by the Heads of Departments although they are borne on identical scales of pay.
It is in this background of the facts that the claims of the petitioner have to be judged.
1009 Equal pay for equal work is a fundamental right.
But equal pay must depend upon the nature of the work done, it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities make a difference.
One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service.
So long as such value judgment is made bona fide, reasonably on an intelligible criteria which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination.
It is important to emphasise that equal pay for equal work is a concomitant of Article 14 of the Constitution.
But it follows naturally that equal pay for unequal work will be a negation of that right.
We may briefly note the principles evolved by this Court in this respect in the backdrop of varied set of facts.
Differentiation in implementing the award or the recommendations of Pay Commission without rational basis may amount to discrimination.
In Purshottam Lal & Others.
vs Union of India & Anr., it was held that implementation of the revised pay scale in a particular category of servants from a date later than that recommended by the Pay Commission and thus non implementation of its report only in respect of those persons amounts to violation of Articles 14 and 16 of the Constitution, the Constitution Bench held.
In Laljee Dubey and Others vs Union of India and Others, this principle was reiterated again.
This Court in Randhir Singh vs Union of India & Ors., ; had to deal with the case of a driver constable in the Delhi Police Force under the Delhi Administration.
The scale of pay in the Delhi Police Force was for non matriculate drivers Rs.210 70 and for matriculate drivers Rs.225 308.
The scale of pay of a driver in the Railway Protection Force was Rs.260 400.
The scale of pay of drivers in the non secretariat offices in Delhi was Rs.260 6 326 EB 8 350, while that of Secretariat offices in Delhi was Rs.260 6 290 EB 6 326 8 366 EB 8 8 8 390 10 400.
The scale of pay of drivers in the office of the Language Commission was Rs.260 300 while the drivers of heavy vehicles in the Fire Brigade and the Department of Light House was Rs.330 480.
The petitioner and other driver constables made a representation to the authorities that their case was omitted to be considered separately by the Third Pay Commission and that their pay scales should be the same as the drivers of heavy vehicles in other departments.
As their claims for better scales of pay did not meet with success, the said application was filed by the petitioner for the issue of 1010 a write under Art.32 of the Constitution.
It was allowed by the Court.
Chinnappa Reddy, J. speaking for a Bench of three learned judges of this Court reiterated the following principles: "(a) 'Equal pay for equal work ' is not a mere demagogic slogan but a constitutional goal capable of attainment through constitutional remedies, by the enforcement of constitutional rights (under Article 32 of the Constitution of India).
(b)The stand (of the Government of India) that the circumstance that persons belonging to different departments of the Government is itself a sufficient circumstance to justify different scales of pay irrespective of the identity of their powers, duties and responsibilities, is unacceptable and untenable.
(c) While equation of posts and equation of pay are matters primarily for the Executive Government and expert bodies like the Pay Commission and not for the Courts, where all things are equal i.e. where all relevant considerations are the same, persons holding identical posts may not be treated differentially in the matter of their pay merely because they belong to different departments.
(d) The principle of equal pay for equal work is not an abstract doctrine when applied to Government servants performing similar functions and having identical powers, duties and responsibilities.
(e) As matter of interpretation, the Directive Principles, e.g. Article 39(d) of the Constitution, have to be and have been read into the Fundamental Rights, e.g. Articles 14 and 16 of the Constitution.
So read, the principle of equal pay for equal work, though not expressly declared by our Constitution to be a fundamental right, is a constitutional goal.
Construing Articles 14 and 16 in the light of the Preamble and Article 39(d), the principle of 'equal pay for equal work ' is deducible from those Articles and may be properly applied to cases of unequal scales of pay based on no classification or irrational classification though those drawing the different scales of pay do identical work under the same employer.
" 1011 The Court further expressed the view that on the aforesaid interpretation in the facts of that case, it was proper to direct the Central Government to fix pay scales on par for persons doing identical work under the same employer.
It is, however, to be borne in mind what has been emphasised by the respondents in the instant case on this aspect.
That case related to the drivers who had been doing physical work, in the case of stenographers and personal assistants, there is an element of faith, reliability and responsibility and the functional responsibilities and the requirements of persons doing same amount of physical work may be different in some cases depending upon the officers with whom the stenographers and personal assistants are attached.
On behalf of the petitioners, it is emphasised that Heads of Departments who are in the senior Administrative Grade Level I (Rs.2500 2750) which is equivalent to the pay scale of the Joint Secretaries in the Ministries and their nature of work is virtually the same.
They have also to deal with sensitive matters.
The basic principles on which differentiation would not amount to discrimination, violative of either Article 14 of Article 16(1) of the Constitution are well settled.
Article 14 of the Constitution strikes at the arbitrariness in State action and ensures fairness and equality of treatment.
It is attracted where equals are treated differently without any reasonable basis.
The principle underlying the guarantee is that all persons similarly circumstanced shall be treated alike both in privileges conferred and liabilities imposed.
Equal laws must be applied equally and there should be no discrimination between one person and another if as regards the subject matter of either administrative action or of legislation, their position is substantially the same.
Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation or administrative mandate.
The classification must, however, be founded on an intelligible basis 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 with the object to be achieved by the differentiation made in the statute or order in question.
In other words, there ought to be causal connection between the basis of classification and the object of the classification.
See in this connection the observations of the Constitution Bench of this Court in the case of D.S. Nakara & Others vs Union of India, ; See also P.K. Ramachandra Iyer & Others vs Union of India & others, [1984] 2 S.C.R. 200, where this Court at page 226 of the Report reiterated that the principle of 'equal pay for equal work ' is deducible from those Articles 14 and 16 in the light of the Preamble and Article 39(d) of the Constitution and might be applied properly in the cases of unequal scales of pay based on no classification or irrational classification 1012 though those drawing the different scales of pay do identical work under the same employer.
In Delhi Veterinary Association vs Union of India & Others, ; , which was dealing with Veterinary Assistant Surgeons working in the Delhi Administration.
It was observed dismissing the writ petition that the question of the fixation of pay scale for Veterinary Assistant Surgeons should be left to be decided by the Government on the basis of the recommendation of the Fourth Pay Commission.
The question of discrimination cannot be decided in isolation.
This Court reiterated that in addition to the principle of 'equal pay for equal work ', the pay structure of the employees of the Government should reflect many other social values.
This Court also emphasised the need for evolution and implementation of a scientific national policy of incomes, wages and prices.
In P. Savita vs Union of India & Ors., [1985] Suppl.
1 S.C.R.101 this Court was dealing with Senior Draughtsmen doing the same work and discharging the similar functions and duties.
They were classified into two groups, on the basis of seniority with two different pay scales.
The question was whether it was discriminatory.
It was held that it was.
This Court reiterated that a group of draughtsmen entitled to higher scale of pay was not selected by any process nor is it based on any merit cum seniority basis, but is based only on seniority cum fitness.
Moreover, it was found that the senior draughtsmen divided into two groups were in the same department doing identical and same work.
It was not a case of different grades created on the ground of higher qualification either academic or otherwise or an entitlement by any other criteria.
Thus the classification between the two groups of senior draughtsmen was without any basis.
In view of the total absence of any plea in that case on the side of the respondents that the Senior Draughtsmen who were placed in the advantageous group do not perform work and duties more onerous or different from the work performed by the appellants groups in that case, it was held that this grouping violated Article 14 of the Constitution.
It reiterated that the principle of 'equal pay for equal work ' would be an abstract doctrine not attracting Article 14 if quality is made critarion for differentiation.
See also Surinder Singh and Anr.
vs Engineer in Chief, C.P.W.D. and Others, This Court in a different context had to decide this question in Frank Anthony Public School Employees ' Association vs Union of India and Others, [1986]4 SCC 707.
It was held that there cannot be discrimination in pay and other conditions of service of school teachers merely on the basis of aided and unaided minority schools.
As is evident the facts of the instant case are entirely different.
1013 Here the differentiation is sought to be justified on the similarity of the functional work but on the dissimilarity of the responsibility, confidentiality and the relationship with public etc.
In Dhirendra Chamoli and another vs State of U.P., , this Court was concerned with the casual workers on daily wage basis engaged by the Government in different Nehru Yuvak Kendras in the country performing the same duties as performed by the regular Class IV employees against the sanctioned strength.
The claim was allowed with certain directions on the basis of the facts found.
See in this connection Union of India & Anr.
vs R.G. Kashikar & Anr., AIR 1986 SC 431.
In Writ Petition (Civil) Nos.
13097 13176 of 1984, M.P. Singh Deputy Superintendent of Police, C.B.I. and Others vs Union of India & Others, (Judgments Today , this Court on the facts of that case found that among the employees of the Central Bureau of Investigation, there are two classes of officials deputationists and non deputationists amongst Sub Inspectors, Inspectors and Deputy Superintendent of Police.
There has been discrimination among two groups with regard to payment of special pay.
Special pay related to arduous nature of duties to be performed.
Whether they belong to the category of deputationists or non deputationists payment of different rates of Special pay, it was held in the facts of the case, did not pass the test of classification.
This Court reiterated that it was well settled that in order to pass the test of permissible classification of persons belonging to the same class into groups for purposes of differential treatment two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes persons who were grouped together from others left out of the group and that differentia must have a rational relation to the objects sought to be achieved by the law which brings about discrimination between the two groups.
In M/s. Mackinnon Mackenzie & Co. Ltd. vs Audrey D 'Costa & Anr., (SLP (CIVIL) No. 1265/87 decided on March 26,1987), the question was the different treatment between male and female stenographers.
But there differentiation was based on the ground of sex.
It was struck down.
It will clearly be violative of Article 14 and Article 16 of the Constitution.
In this case the differentiation has been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis.
The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less it varies from nature and culture of employment.
The problem about equal pay cannot always be translated into a mathematical formula.
If it has a rational nexus with the object to be sought for, as 1014 reiterated before a certain amount of value judgment of the administrative authorities who are charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived mala fide either in law or in fact.
In the light of the averments made and in the facts mentioned before, it is not possible to say that the differentiation is based on no rational nexus with the object sought for to be achieved.
In that view of the matter this application must fail and it is accordingly dismissed without any order as to costs.
We must, however, make it clear that this will not in any way prevent or prejudice the Government from reviewing the situation in the light of the report of the Fourth Pay Commission or any other appropriate body, if any, with such modification as the Government and the authorities concerned considered fit and proper.
S.L. Petition dismissed. | By this writ petition, Personal Assistants and Stenographers (Grade I) in the pay scale of Rs. 550 900 attached with officers in the pay scale of Rs.2500 2750 (Level I) i.e. heads of the departments in the Customs and Central Excise Departments of the Finance Ministry, sought parity with the pay scale of the stenographers attached to the Joint Secretaries and the officers above.
The petitioners asserted that they had been and were discriminated vis a vis the personal assistants and stenographers attached to the Joint Secretaries and the officers above in the Ministry, and claimed that they should be placed in the pay scale of Rs.650 1040 with effect from 1st January 1973.
They contended that the basic qualifications, method, manner and source of recruitment and grades of promotion were the same as of their counterparts attached to the Joint Secretaries/Secretaries and other officers in the Secretariat.
According to them, even on the criteria adopted by the Third Pay Commission there was no basis for any differentiation between the petitioners and their counterparts.
While the petitioners got a grade of Rs.550 900, their counterparts were in the pay scale of Rs.650 1040.
The petitioners asserted that this differentiation without any rational basis was discrimination violative of Articles 14 and 16(1) of the Constitution of India.
They contended for equal pay for equal work, and alleged discrimination in the adoption of the recommendation of the Third Pay Commission.
The respondents denied that there was any discrimination, differentiation without basis and referred to the Report of the Third Pay Commission, recommending different and low scales of pay for the 999 stenographers of the non participating attached and subordinate offices in comparison with those in the Central Secretariat.
It was emphasised that the difference in the functional requirements of the work done was a point.
In devising any scales of various posts/categories inter alia the degree of skill, experience involved, training required, responsibility taken, strain, fatigue, risk and confidentiality undertaken, mental and physical requirements were the factors to be borne in mind.
Dismissing the petition with an observation, the Court, ^ HELD: The petition had to be disposed of on the basis of the position prevailing prior to the report of the Fourth Pay Commission and its acceptance/implementation.
[1007B] Equal pay for equal work is a fundamental right.
But equal pay must depend upon the nature of the work done.
It cannot be judged by the mere volume of work; there may be qualitative difference as regards reliability and responsibility.
Functions may be the same but the responsibilities make a difference.
Often the difference is a matter of degree and there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service.
So long as such value judgment is made bonafide, reasonably on an intelligible criteria, having a rational nexus with the object of differentiation, such differentiation will not amount to discrimination.
Equal pay for equal work is a concomitant of Article 14 of the Constitution.
But it follows that equal pay for unequal work will be a negation of that right.
[1009A C] Differentiation in implementing the award or the recommendations of Pay Commission without rational basis may amount to discrimination.
However, in this case, there is an element of faith, reliability and responsibility and the functional responsibilities and the requirements of persons doing the same amount of physical work may be different in some cases, depending upon the officers with whom the stenographers and personal assistants are attached.
The basic principles on which differentiation would not amount to discrimination, violative of Article 14 or Article 16(1) of the Constitution are well settled.
Article 14 strikes at the arbitrariness in State action and ensures fairness and equality of treatment.
It is attracted where equals are treated differently without any reasonable basis.
Equal laws must be applied equally and there should be no discrimination between one person and another if as regards the subject matter of either administrative action or legislation, their position is substantially the same.
Article 14 forbids 1000 class legislation but permits reasonable classification for the purpose of legislation or administrative mandate.
The classification must, however, be founded on an intelligible basis which distinguishes persons or things grouped together from those left out of the group and that differentia must have a rational nexus with the object to be achieved by the differentiation made in the statute or order in question.
There ought to be causal connection between the basis of classification and the object of classification.
The observations of the Constitution Bench of this Court in D.S. Nakara & Ors.
vs Union of India, ; may be seen in this connection.
[1011B G] In this case, differentiation had been sought to be justified in view of the nature and the types of the work done, that is, on intelligible basis.
The same amount of physical work may entail different quality of work, some more sensitive, some requiring more tact, some less it varies with nature and culture of employment.
The problem about equal pay cannot always be translated into a mathematical formula.
If it has a rational nexus with the object to be sought for a certain amount of value judgment of the administrative authorities charged with fixing the pay scale has to be left with them and it cannot be interfered with by the Court unless it is demonstrated that either it is irrational or based on no basis or arrived at mala fide either in law or fact.
In the light of the averments made and in the facts of this case, it was not possible to say that the differentiation was based on no rational nexus with the object sought to be achieved.
This application must fail and was dismissed.
This, however, would not in any way prevent or prejudice the Government from reviewing the situation in the light of the report of the Fourth Pay Commission or any other appropriate body, if any, with such modification as the Government and the authorities concerned considered fit and proper.
[1013G H;1014A D] Purshottam Lal & Ors.
vs Union of India & Anr.
, ; Laljee Dubey & Ors.
vs Union of India & Ors.
, ; Randhir Singh vs Union of India & Ors., ; ; D.S. Nakara & Ors.
vs Union of India, ; ; P.K. Ramachandra Iyer & Ors.
vs Union of India & Ors.
, ; ; Delhi Vetrinary Association vs Union of India & Ors., ; ; P. Savita vs Union of India & Ors., [1985] Suppl.
1 SCR 101; Surinder Singh and Anr.
vs Engineer in chief, C.P.W.D. & Ors.
, ; Frank Anthony Public School Employees ' Association vs Union of India & Ors., ; ; Dhirendra Chamoli & Anr.
vs State of U.P., ; Union of India & Anr.
vs R.G. Kashikar & Anr., AIR 1986 SC 431; M.P. Singh Deputy Superintendent of Police, 1001 C.B.I. and Ors.v.
Union of India & Ors., J.T. and M/s. Mackinnon Mackenzie & Co. Ltd. vs Audrey D 'Costa & Anr., SLP (Civil) No. 1265/87 decided on March 26, 1987, referred to. |
ivil Appeal No. 4979 of 1990.
From the Judgment and Order dated 25.8.1989 of the Bombay High Court in W.P. No. 6058 of 1986.
468 V.M.
Tarkunde, D.R. Poddar and V.B. Joshi for the Appellant.
K.P. Parasaran (N.P.), Rama Subramaniam, A.K. Ganguli, R.P. Bhat, K. Swamy and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
Leave granted.
Counsel heard.
This is an appeal from the judgment of a learned Single judge of the Bombay High Court dismissing Writ Petition No. 6058 of 1986 filed by the appellant on the Appellate Side of that Court.
The appellant and respondent No. 1 are companies incorporated under the Indian Companies Act.
ReSpOndent No. 2 is a Cooperative Society registered under the Maharashtra Cooperative Societies Act, 1961 (hereinafter referred to as "the said Act").
Appellant is a member of respondent No. 2 Cooperative Society and has its office premises in the building owned by respondent No. 2.
Some time prior to September 10, 1985 the appellant entered into an agreement to sell the said office premises to respondent No. 1 subject to the approval of respondent No. 2.
The terms of the said agreement were incorporated in a letter dated September 10, 1985 addressed by the appellant to the Vice Chairman and the president of respondent No. 1: It was set out in the said letter that the price for the said premises was to be calcu lated at the rate of Rs. 2,000 per square feet.
The letter further stated: "We are agreeable to sell you the same subject to approval of the Cooperative Society owning the building.
We shall provide you vacant possession and hand over the same free of all incumbrances only after we are able to obtain alternate accommodation for our company . . ".
A sum of Rs. 50,000 was paid by a demand draft by re spondent No. 1 to the appellant under the said agreement.
By a letter dated November 15, 1985 the appellant sought the approval of respondent No. 2 to the transfer of the said office premises to respondent No. 1.
By its letter dated November 18, 1985 addressed to the appellant, respondent No. 2 stated that the appellant was requested to offer to trans fer of the said.
premises to the existing members of the society as a first preference as per the established prac tice of the society.
It further stated that in case the existing members of respondent No. 2 were not willing to buy the said premises, the premises could be given for trans 469 fer to an outside transferee.
By its letter dated November 22, 1985, addressed to respondent No. 1 the appellant point ed out that respondent No. 2 had declined to grant permis sion for transfer unless the premises were first offered to the existing members of the society by Way of a first pref erence.
The said letter then stated that it was not possible to continue negotiations any further.
Along with the said letter the demand draft of Rs.50,000 referred to above was returned by the appellant.
Without any further correspond ence respondent No. 1 filed a dispute in the Cooperative Court No. 17 Bombay against the appellant and respondent No. 1 by statement of claim which can be conveniently referred to as a plaint.
In the plaint respondent No. 1 inter alia stated that on the promises and representations made by the appellant to respondent No. 1 it had paid a sum of Rs.2,60,000 to one I.M. Choksey representing himself as the Chairman of the appellant and one section Ramakrishnan, claiming to be the repre sentative of his wife who was a Director of the appellant.
Respondent No. 1 further claimed that it had paid a further sum of Rs.40,000 in cash to the appellant without taking a .receipt.
Respondent No. 1 urged that but for the assur ance given by Choksey and Ramakrishnan acting on behalf of the appellant and one Col.
G.D. Hadep, acting on behalf of respondent No. 2 that the appellant would be in a position to transfer the said premises by the end of November 1985 and respondent No. 2 would not object to such transfer, respondent No. 1 would not have paid such a huge amount to the appellant.
Respondent No. 1 further stated that the appellant and respondent No. 2 had promised respondent No. 1 that they would complete the formalities of transfer of the said premises within a few days and there would be no objec tion or obstruction whatever in the said transfer.
Respond ent No. 1 went on to say that it was given to understand that the appellant and respondent No. 2 were conspiring to sell the said premises to a third party for a larger amount.
Respondent No. 1 was ready and willing to perform its part of the contract and prayed for an order for specific per formance of the contract.
The relevant portion of paragraph 10 of the plaint, which deals with jurisdiction, sets out that respondent No. 2 is a cooperative society and is vital ly interested in the transfer and sale of the said premises and to ensure that the transfer is done under the provisions of its bye laws, the said Act and the rules.
Respondent No. 2 had taken active part in the transaction entered into be tween respondent No. 1 and the appellant who _is a member of respondent No. 2, and that respondent No. 1 was claiming his rights through the appellant who was a member and hence, the subject matter of the dispute fell within the ambit of section 470 91 of the said Act.
Respondent No. 1 prayed for a declara tion that the aforesaid dispute was a dispute falling under section 91 of the said Act and prayed that the appellant and respondent No. 2 should be directed to specifically perform the agreement recorded in the letter of September 10, 1985 and transfer the said premises to respondent No. 1.
The rest of the prayers in the plaint are immaterial for our pur poses.
Pursuant to certain orders made by the Bombay High Court the Cooperative Court framed an issue as to whether it had jurisdiction to entertain the dispute.
The Court recorded evidence led by respondent No. 1 off this issue and dis missed the dispute for want of jurisdiction.
This order was set aside by the Maharashtra Cooperative Appellate Court, Bombay, by its order dated September 9, 1986.
The appellant herein filed a writ petition in the High Court to challenge the said order.
The learned Single Judge who heard the said writ petition dismissed the same and held that the case was governed by the provisions of section 91 of the said Act.
; It is this decision which is sought to be challenged before us by the appellant.
It is submitted by Mr. Tarkunde, learned counsel for the appellant that the agreement to sell the said premises with which we are concerned, was entered into between the appel lant, a member of respondent No. 2, a Cooperative Society and respondent No. 1, a nonmember.
The said agreement was for transfer of premises belonging to the appellant to respondent No. 1, a non member, in a building owned by respondent No. 2, a cooperative society.
The claim in the dispute was for obtaining the specific performance of the said agreement and the prayer for directing respondent No. 2 to approve the said agreement was in the nature of an ancil lary prayer to complete the relief.
The main relief was for specific performance of the said agreement.
It was submitted by him that such a dispute cannot be said to be a dispute "touching the management or business of a society" as con templated in sub section (1) of section 91 of the said Act nor can it be said that respondent No. 1, a non member was making a claim against respondent No. 2 society through a member, namely, the appellant.
The main relief sought was for specific performance of an agreement by a member to sell the premises in the society building to a non member and such a claim can never be said to be made against the socie ty through a member.
In order to appreciate the submissions made, it is desirable to set out the material portion of Section 91 of the said Act which runs as follows: 471 "91(1) Notwithstanding anything contained in any other law for the time being in force, any dispute touching the con struction, elections of the office beares. | The appellant company, a member of Cooperative Society, respondent No. 2, was having its office premises in a build ing owned by respondent No. 2.
It entered into an agreement to sell the said premises to respondent No. 1, a non member subject to the approval of the Cooperative Society.
The Cooperative Society declined to grant permission for trans fer of the premises.
Respondent No. 1 filed a dispute against the appellant and respondent No. 2 Cooperative Society in the Cooperative Court under section 91 of the Maharashtra Cooperative Societies Act, 1960 praying for a decree of specific performance of the contract and a direc tion to the Cooperative Society to approve the said agree ment.
The Cooperative Court dismissed the dispute for want of jurisdiction.
On appeal by respondent No. 1, the Maharashtra Cooperative Appellate Court set aside the order of the Cooperative Court.
Against the order of the Cooperative Appellate Court, the appellant filed a writ petition in the High Court which was dismissed by holding that the dispute was governed by Section 91 of the Act.
In the appeal to this Court against the Judgment of the High Court, it was contended on behalf of the appellant that the dispute between the parties was not governed by Section 91 since it was neither a dispute "touching the business of the society" nor was it a dispute between a person claiming through a member against the society.
467 Allowing the appeal and setting aside the judgment of the High Court, this Court, HELD: 1.
Before a dispute can be referred to a Coopera tive Court under the provision of section 91(1) of the said Act it is not only essential that the dispute should be of a kind described in sub section (1) of section 91 but it is also essential that the parties to the said dispute must belong to any of the categories specified in clauses (a) to (e) of subsection (1) of the said section.
[473B] 2.
In the instant case the main claim of Respondent No. 1 a nonmember, was for a decree for specific performance of the agreement.
The prayer for an order that respondent No. 2 Society should be directed to give their approval to the said agreement was merely an ancillary prayer made with a view to complete the relief of specific performance.
The main claim to have the agreement specifically performed cannot be said to be a claim made by a person (non member) against the Society.
The claim against the society cannot be said to be made through a member, the appellant, because it is only when a decree for performance of the said agreement is passed against the appellant, that it could be contended that the other relief namely, for an order directing re spondent No. 2 to approve the said agreement is claimed against the society through a member.
Consequently, the dispute cannot be said to fall within the scope of section 91(1)(b) of the Act.
Therefore, the High Court committed an error in coming to the conclusion that both the parties to the dispute belonged to the categories covered under section 91(1)(b) of the Act.
[473E H; 474A] Deccan Merchants Cooperative Bank Ltd. vs M/s Dalichand Jugraj Jain and Ors., [1969] 1 S.C.R. 887; M/s Leong and Anr.
vs Smt.
Jinabhai G. Gulrajami and Ors., A.I.R. 1981 Bom.
244 and Sanwarmal Kejriwal vs Vishwa Cooperative Hous ing Society Ltd. and Ors., [1990] 2 SCC 288, distinguished.
O.N. Bhatnagar vs Smt.
Rukibai Narsindas & Ors., ; , referred to. |
ivil Appeal No. 330 of 1976.
From the Judgment and Order dated 13.3.1972 of the Allahabad High Court in ITR No. 457 of 1968.
V. Gauri Shankar, section Rajappa and Ms. A. Subhashini for the petitioner.
Harish N. Salve, A.T. Patra, Ms. Bina Gupta, Ms. Monika Mohil, Rajiv Shakhdhar and Praveen Kumar for the Respondent.
The following Order of the Court was delivered: This appeal is directed against the Judgment dated 13.3.1972 made by a Division Bench of the Allahabad High Court in Income Tax Reference No. 457 of 1968 deciding the following question of law in favour of the assessee and against the Revenue.
"Whether on the facts and in the circumstances of the case the assessee can be said to have complied with the provi sions of proviso (b) to section 10(2)(vib) of the Income Tax Act, 1922 and was, therefore, entitled to allowance of development rebate on the plant and machinery installed after 1.1. 1958.
" It would be unnecessary to detail out facts which led to the framing of the question and the answer given.
The dis pute centered around the timing of the creation of the reserve known as the development rebate reserve.
In Commis sioner of Income Tax, Madras vs Veeraswami Nainar & Ors., 55 ITR p. 35, the Madras High Court took the view that develop ment rebate reserve should be made at the time of making up the Profits and Loss Account.
This view was affirmed by this Court in Indian Overseas Bank 's Ltd. vs Commissioner of Income Tax, 12.
Both cases arose under the Indian Income Tax Act, 1922.
Distinction was drawn between develop ment rebate reserve and other reserves creatable under the Companies Act and the Income Tax Act and it was required to be separately created.
On appearance of the Indian Overseas Bank 's case on the scene it appears that an 464 important circular of the Central Board of Direct Taxes was unwittingly mowed down.
That circular was of October 4, 1965 and stands reproduced in circular No. 189 dated 30th Janu ary, 1976 at page 90 in 102 Income Tax Reports (Statutes).
The Board 's Explanation with regard to the position for creation of statutory reserve for allowance of development rebate was in these terms: (a) In the case of certain industrial undertakings, particularly those in which there is Government participa tion either by way of capital, loan or guarantee, and where there are certain obligations by law or agreement about the maintenance of reserve for development purposes, the devel opment rebate reserve may be treated as included in the said reserve though not specifically created as a development rebate reserve.
(b) In a case where the total income computed before allowing the development rebate is a loss there was no legal obligation to create any statutory reserve in that year as no development rebate would actually be allowed in that year.
(c) Where there was no deliberate contravention of the provisions, the Income tax Officer may condone genuine deficiencies subject to the same being made good by the assessee though operation of adequate additional reserve in the current year books in which the assessment is framed.
This led to a spate of litigation, pressing the Indian Overseas Bank 's case some taxing authorities in some cases took revisional and rectificatory actions.
These reached various High Courts.
The Gujarat High Court in Surat Textile Mills Ltd. vs Commissioner of Income tax Gujarat, 80 I.T.R.P. 1 opted for what may be called a narrow view in assuming that besides Explanation (a) reproduced above explanations (b) and (c) as well too stood wiped out by Indian Overseas Bank 's case.
In these circumstances the Central Board of Direct Taxes took the step of withdrawing in the year 1972 the Circular dated October 14, 1965 to the extent it stood superseded by decision in Indian Overseas Bank 's case and the judgment of the Gujarat High Court in Surat Textile Mills Ltd. vs Commissioner of Income Tax.
Other High Courts took what may be called a broader view.
The trend of reasoning in those cases was that expla nation (a) only was done away with by this Court in Indian Overseas Bank 's case but explanations (b) and (c) were still alive.
In this connection Veerabha 465 dra Iron Foundary & Anr.
vs Commissioner of Income Tax, ; Tata Iron and Steel Co. Ltd. vs
N.C. Upadhyaya, 96 I.T.R.p.
1 and The Commissioner of Income Tax vs Sardar Singh, may be seen.
In the face of such difference of opinion, it was repre sented to the Board that earlier instructions dated October 14, 1965 represented the correct position of law and that the withdrawal to the extent it was presumed to be overruled by this Court in Indian Overseas Bank 's case had created unnecessary hardship to the assessees.
It appears that the instant case, out of which this appeal has arisen, was decided by the Allahabad High Court taking the broader view, Special leave was sought by the Revenue from this Court on the question of resolving the conflict between the two views.
Leave was granted at a time when the Board itself had clarified the matter vide Circular No. 189 dated 30th January, 1986 of which hint has been left earlier.
The Board states to have re examined the issue involved coming to the view that except the clarification given in paragraph (a) above, which stood superseded by the decision of this Court in Indian Overseas Bank 's case, the clarifications given in paragraphs (b) and (c) quoted above hold good.
It can thus legitimately be stated that the Board has itself opted for the view expressed in Tara Iron and Steel Companies ' case and other cases of the kind taking the broader view in the matter.
When the Board has itself opted for that view and that view is being followed by Income Tax authorities concerned, we see no reason to do the exercise of taking any side of the two views and leave the matter at that.
It is undisputed that the Board 's view is not only valid under the new Income Tax Act of 1961 but to the Indian Income Tax Act, 1922 as well.
For the foregoing discussions this appeal fails and the judgment of the High Court is left untouched.
In the circum stances of the case there will be no order as to costs.
V.P.R. Appeal dis missed. | In Commissioner of Income Tax, Madras vs Veeraswami Nainar & 9rs.
, , the Madras High Court took the view that the development rebate reserved should be made at the time of making up the Profits and Loss Account, and this was affirmed by this Court in Indian Overseas Bank 's Ltd. vs Commissioner of Income Tax, A distinction was drawn between development rebate reserve and other reserves createable under the Companies Act and the Income Tax Act and it was required to be separately created.
Consequent to this decision it was noticed that an important circuit of the Central Board of Direct Taxes dated October, 4, 1965 was unwittingly mowed down.
This circular gave the Board 's Explanation three paragraphs (a), (b) and (c) regarding the position for creation statutory reserve for allowance of development rebate.
A spate of litigation ensued and some of the taxing authorities, relying on the Indian Overseas Bank 's case in some cases, took revitional and rectificatory actions, and these reached various High Courts.
The Gujarat High Court in Surat Textiles Mills Ltd. vs Commissioner of Income tax Gujarat, opted for the narrow view in assuming that all the 3 Explanations contained in the 1965 Circular stood wiped out by Indian Overseas Bank 's case.
The Central Board of Direct Taxes, therefore, took the step of withdrawing in the year 1972 the Circular dated October 14, 1965 to the extent it stood superseded by deci sion in Indian Overseas Bank 's case.
Other High Courts, however, took a broader view to the effect that Explanation contained in para (a) only was done away with by this Court 's decision in Indian Overseas Bank 's case and that contained in paras (b) and (c) were still alive.
462 On account of the aforesaid difference of opinion, it was represented to the Board that the earlier instructions dated October 14, 1965 represented the correct position of law and that the withdrawal to the extent it was presumed to be overruled by the decision in Indian Overseas Bank 's case had created unnecessary hardships to the assessees.
In the instant appeal the question, whether the respond entassessee was entitled to allowance rebate on the plant and machinery after 1.1.1958, after due compliance with the provisions of proviso (b) to section 10(2)(vib) of the Income Tax Act, 1922 was answered by the Division Bench of the Allahabad High Court in favour of the assessee and against the Revenue.
The Revenue appealed to this Court.
Dismissing the appeal, this Court, HELD: 1.
The Board itself had clarified the matter by Circular No. 189 dated 30th January, 1986.
It states to have re examined the issue involved coming to the view that except the clarification contained in Explanation para (a) which stood superseded by the decision of this Court in Indian Overseas Bank 's case, the clarification given in paragraphs (b) and (c) hold good.
[465D] 2.
The Board itself has opted for the broader view expressed in the matter in the,Tata Iron and Steel Compa nies ' case and other cases.
There is, therefore, no reason to do the exercise of taking any side of the two views.
[465E] 3.
It is undisputed that the Board 's view is not only valid under the new Income Tax Act of 1961, but to the Indian income Tax Act, 1922 as well.
[465F] Commissioner of Income Tax, Madras vs Veeraswami Nainar and Ors., , affirmed.
Indian Overseas Bank Ltd. vs Commissioner of Income Tax, , followed.
Surat Textile Mills Ltd. vs Commissioner of Income Tax Gujarat, , overruled.
Veerabhadra Iron Foundary & Anr.
vs Commissioner of Income I.T.R. 425; Tata Iron and Steel Co. Ltd. vs
N. C Upadhyaya, and The Commissioner of Income Tax vs Sardar Singh, 86ITR 387, approved. |
utory Application No. 1 of 1989.
IN W.P. No. 16093 of 1984 etc.
(Under Article 32 of the Constitution of India).
S.M. Jain, S.K. Jain, Ms. Pratibha Jain and Pradeep Agarwal for the petitioner.
Arun Jaitly, Additional Solicitor General, Kailash Vasdev and Ms. A. Subhashini for the Respondent.
The following order of the Court was delivered: Petitioner was a member of the Rajasthan Judicial Service and was elevated as a Judge of the Rajasthan High Court on July 1, 1975.
He was transferred to the Delhi High Court from where he retired on July 21, 1984.
A dispute relating to his pension became the subject matter of a writ petition before this Court and was disposed of on April 9, 1985 This Court fixed his pension at Rs. 21,500 per annum.
In the meantime, certain changes in the High Court Judges (Conditions of Service) Act,1954, were brought about, firstly, by Central Act 38/86 and again by Central Act 20/88.
Petitioner applied to this Court in Civil Miscellaneous Petition No. 18044/88 asking for benefits under the Amending Act.
This Court by its decision on August 18, 1988, refixed petitioner 's pension at Rs. 41,600 per annum with effect from January 1, 1986, and at Rs. 46,100 per annum with effect from November 1,1986, keeping the two amendments referred to above in view ; In paragraph 19 of this Court 's order, it was stated: "We refrain from expressing any opinion as to the effect of lifting of the ceiling on the special additional pension at Rs. 8,000 per annum placed by clause (b) of paragraph 2 of Part III of the First Schedule.
The question really does not arise for our consideration at the moment and is left open.
" 100 The petitioner has now applied to this Court challenging the ceiling on additional pension appearing in clause (b) of paragraph 2 of Part III of the first Schedule to the of 1954.
The First Schedule Deals with pension of Judges.
Judges in High Court are recruited from three sources: (a) from the Bar; (b) Members belonging to the former Indian Civil Service; and (c) Officers of the State Judicial Service.
In this case we are concerned with as petitioner had been elevated as a Judge of High Court from the Rajasthan State Judicial Service.
In respect of such a Judge the pension payable is prescribed to be: "(a) the pension to which he is entitled under the ordinary rules of his service if he had not been appointed a Judge, his service as a Judge being treated as service therein for the purpose of calculating that pension; and (b) a special additional pension or Rs.1,600 per annum in respect of each completed year of service for pension,but in no case such additional pension together with the additional or special pension, if any, to which he is entitled under the ordinary rule of his service exceed Rs.8,000 per annum.
Provided that the pension under clause (a) and additional pension under clause (b) together shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs. 48,000 per annum in case of any other Judge.
" Since this Court had fixed the pension at Rs. 46,100 and petitioner 's claim for being put at par with other Judges by fixing his pension at Rs. 48,000 per annum had not been accepted, petitioner has approached this Court challenging the ceiling of Rs. 8,000.
According to the petitioner, he had put in nine years of completed service as a Judge and on the basis of the provision for special additional pension of Rs. 1,600 per annum in respect of each completed year of service for pension he was entitled to Rs.14,400 but the limit in the proviso would have the effect of fixing ceiling at Rs. 48,000 per annum.
There was no justification to introduce a further ceiling of Rs. 8,000 per annum irrespective of the years of completed service rendered and allow a discrimination to operate.
Once the proviso has a limit which meets the purpose there is no basis for the further limit of Rs. 8,000 as contained in paragraph (2) above.
The counter affidavit filed on behalf of the Ministry of Law and Justice sought to justify the limit by referring to cases of Central Civil Service Officers retiring as Secretaries to Government where full credit was not being given for the entire period of service rendered and aceiling was fixed.
Such a ceiling actually is fixed in respect of all the three situations covered by the First Schedule.
A Member of the Bar with 14 years of completed service out of which six years are served as a Chief Justice or as a Judge of the Supreme Court gets the maximum pension of Rs. 54,000 and in the event of his retirement without becoming Chief Justice or a Judge of the Supreme Court, his pension entitlement is Rs. 48,000 per annum.
Similar is the provision relating to the members of the Indian Civil Service who were earlier elevated as Judges.
It is the contention of the petitioner that once a ceiling limit was fixed as contained in the proviso of the Third Part, there was no further justification for the Paragraph 2(b) ceiling.
We find full force in the submission.
The reasons which weighed with this Court on the earlier occasion for enhancing the petitioner 's pension fully apply to the present aspect.
The ceiling of Rs. 8,000, therefore, is not necessary to be imposed and if that is applied, a situation giving rise to the application of article 14 of the Constitution does arise.
In fact, the presence of the proviso clearly brings out the intention that no ******** sought to be made between Judges recruited from the different sources for the matter of the ceiling on pension.
We, therefore, modify the order of this Court fixing petitioner 's pension at Rs. 46,100 and require his pension to be fixed at Rs. 48,000 per annum by holding that the ceiling in paragraph 2(b) of Part III of the First Schedule is unsustainable under article 14 of the Constitution and would not be operative.
We direct that petitioner 's pension from November 1, 1986, shall be fixed at Rs. 48,000 a year.
We would make it clear that as we have held that paragraph 2(b) is ultra vires, it will follow that all cases to which the present situation applied should be revised by the Union of India without requiring representations or applications from the retired Judges concerned.
There would be no order as to costs.
V.P.R. Petition allowed. | Petitioner was a member of the state Judicial Service and was elevated as a Judge of the High Court on 1.7.1975, and was later transferred to another High Court where he retire on 21.7.1984.
A dispute relating to pension was disposed of by this Court on 9.4.1985 fixing it at Rs.21,500 per annum.
Meanwhile, the High Court Judges (Conditions of Services) Act,1954 was amended by Central Acts 38/86 and 20/88, and he applied under the said Amending Acts asking for benefits there under, and this Court refixed the petitioner 's pension at Rs.41,600 per annum w.e.f 1.1.1986 and at Rs. 46,100 per annum w.e.f. 1.11.1986.
In an interlocutory petition the petitioner challenged the ceiling on additional pension appearing in clause (h) of paragraph 2 of Part III of the First Schedule to the .
Allowing the petition, this Court, HELD: 1.
There was no justification to introduce a further ceiling of Rs.8,000 per annum irrespective of the years of completed service rendered and allow a discrimination operate.
Once the proviso has a limit which meets the purpose there is no basis for the further limit of Rs 8,000.
[101A} 2.
The ceiling of Rs. 8,000 is not necessary to be imposed and if that is applied, a situation giving rise to the application of Article 14 of the Constitution does arise.
[101E] 3.
Fixing the pension at Rs. 48,000 per annum held that the ceiling in paragraph 2(b) of Part III of the First Schedule is unsustainable under Article 14 of the Constitution and would not be operative.
[101F] |
ivil Appeal No. 672 of 1962.
Appeal by special leave from the judgment and order dated December 10, 1958, of the Patna High Court in Appeal from Appellate Decree No. 716 of 1954.
S.P. Varma, for the appellants.
Sarjoo Prasad and Mohan Behari Lai, for the respondents.
107 October 10, 1963.
The Judgment of P.B. Gajendragadkar, K. Subba Rao, K.N. Wanchoo and J.C. Shah JJ., was delivered by Subba Rao J. Raghubar Dayal J. delivered a separate Opinion.
SUBBA RAO J.
This appeal by special leave is directed against the judgment of the High Court of ' Judicature at Patna and raises mainly the question of the scope of the right of pre emption under the Mohamedan law as applied by custom in Bihar.
The facts lie in a small compass.
On June 17, 1930, Chathilal Sah of Sahebganj, who was the owner of a house and two golas bearing holdings Nos. 184 and 185 situated in mahalla Sahebganj, executed a will bequeathing the said property to his daughter Parbati Kuer and nephew Ram Swarup in equal shares.
Under the said will Ram Swarup was to get the entire property in case Parbati Kuer died unmarried or issueless.
On July 18, 1940, Ram Swarup sold one half of the said property to the plaintiff respondent 1.
On July 27, 1942, the plaintiff respondent 1 acquired under a patta some lands adjoining the said property.
On October 10, 1949, defendant 3 (respondent 3 herein), alleging to be the husband of the said Parbati Kuer, sold the remaining half of the disputed property to defendants 1 and 2.
It may be mentioned at this stage that the land on which the said house and golas stand is Dih Basgit Lagani (rent paying) land.
On December 10, 1949, respondent 1 filed Title Suit No. 214 of 1949 in the First Court of the Munsif at Chapra for a declaration that he has a right to pre empt the property purchased by appellants 1 and 2 and for directing them to transfer the said property to him.
To that suit, the first appellant and his two sons were made defendants 1, 2 and 2A and their vendor was made defendant 3.
The defendants contested the suit, inter alia, on the ground that the ceremonies of pre emption were not performed and that under the Mohamedan, law the plaintiff was not entitled to pre emption, as the land on which the said house and golas stood was "rent paying" land.
The learned Munsif dismissed the suit.
But, on appeal the Subordinate 108 Judge of Chapra allowed the appeal and granted a decree for pre emption in favour of the plaintiff respondent 1.
On appeal, the High Court agreed with the Subordinate Judge and dismissed the appeal.
Defendants 1, 2 and 2A have preferred the present appeal by 'special leave against the Judgment of the High Court.
Mr. Varma, learned counsel for the appellants, raised before us the following four points: (1) the right of pre emption infringes the fundamental right of a citizen under article 19(1) (f) of the Constitution and it is not saved by cl.
(5) thereof: (2) the first respondent failed to establish his title and, therefore, his suit should have been dismissed on that ground; (3) the ceremonies of pre emption were performed only on October 11, 1949 whereas the sale deed in favour of the appellants was executed and registered on October 20, 1949 and, as the said performance of the ceremonies was premature, they having been performed before the sale was completed, the right of pre emption could not be enforced; and (4) there is no right of pre emption in respect of leasehold interest and, therefore, there cannot be a right of pre emption in respect of a house standing on such land, as Mohamedan law does not recognize a right of pre emption in mere super structure.
Mr. Sarjoo Prasad, learned counsel for the respondents controverts the correctness of the said propositions.
We shall deal with his arguments in the course of the judgment.
To appreciate the first contention, some dates may be recapitulated.
Respondent 1 purchased one half share of the property by a sale deed dated July 18, 1940.
Appellants 1 and 2 purchased the other half of the property on October 10, 1949.
The suit was filed on December 10, 1949.
The Munsif dismissed the suit on April 14, 1953.
The Constitution came into force on January 26, 1950.
The appellants had no fundamental right on the date when they purchased the property.
But it is said that under the law of pre emption a person who seeks the assistance of a court with a view to enforce the right of pre emption is bound to establish that the 109 right existed on the date of the sale, on the date of the institution of the suit, and also on the date of the decree of the primary court See Nuri Mian vs Ambica Singh(1) and, therefore, the restriction on the appellants ' fundamental right to acquire the property was not finally imposed before the Constitution, but became crystallized into an irrevocable restriction only at the time of the passing of the decree which was subsequent to the coming into force of the Constitution.
We need not express our opinion on this question, as it has been held by this Court in Bhau Ram vs Baij Nath(2) that a right of pre emption vis a vis co sharers was not an unreasonable restriction on the fundamental right of a person to acquire, hold and dispose of property.
But learned counsel contends that decision should be confined to a case of co sharers who are related to each other, and should not be extended to co sharers who are not related to each other.
Reliance is placed upon the following observations in that judgment found at p. 1483: "If an outsider is introduced as a co sharer in a property it will make common management extremely difficult and destroy the benefits of ownership in common.
" This sentence does not, in our view, sustain the distinction sought to be made by the learned counsel between co sharers who are relatives and co sharers, who are not relatives.
The word "outsider" in the said passage can only mean a person who is not a co sharer.
The judgment of this Court finally settled the question as between co sharers.
Following the decision we hold that the law of pre emption vis a vis co sharers does not infringe the fundamental right conferred under article 19 (1) (f) of the Constitution.
The second question, namely, that of the plaintiff 's title does not call for consideration by us.
It was not raised in the courts below, and it being a pure question of fact, we cannot allow it to be raised for the first time before us.
We, therefore, disallow it.
(1) Cal.
(2) ; 110 The next point raised by the learned counsel is that the ceremonies of pre emption performed in this case were premature, as the sale was completed only on October 20, 1949 whereas the ceremonies were performed on October 11, 1949.
This Court, by a majority, held in Ram Saran vs Domini Kuer(1) that the registration under the Registration Act is not complete till the document to be registered has been copied out in the records of the Registration Office as provided in section 61 of that Act.
Learned counsel contends that a perusal of the sale deed dated October 10, 1949, ex facie shows that it was copied only on October 20, 1949.
The question as to when a document was copied out in the concerned register is certainly a question of fact.
The argument was not raised either before the trial court or before the first appellate court.
No issue was framed on the point.
It was raised for the first time before the High Court.
The learned Judges of the High Court pointed out that if the appellants wanted to take advantage of the said point, it was their duty to have raised it either in the trial court or in the first appellate court and to have adduced evidence by calling for the register from the registration department to show on what date the actual copying of the record was made under section 61 of the Registration Act.
In the circumstances, the learned Judges refused to allow the appellants to raise the point.
The High Court, in our opinion, was certainly right in disallowing the appellants from raising the question of fact for the first time in second appeal.
If the plea had been taken at the earliest point of time, the respondents might have had many defences and might have explained the various dates found on the documents.
We cannot allow the appellants to raise the said plea.
Now we come to the substantial point raised in the appeal.
The right of pre emption is sought to be enforced in respect of a rent paying land with a house thereon.
Learned counsel for the appellants contends that the right of pre emption does not arise (1) ; 111 on the sale of a leasehold interest in land and that in the absence of such a right there cannot be a right of pre emption in respect of the super structure alone.
Learned counsel for the respondents, on the other hand, contends that under Mohamedan law the right of pre emption exists in the case of akar i.e., a house or mansion, to enable the co sharer to have peaceful enjoyment thereof and that the fact that there is no right of pre emption in respect of a leasehold interest in land does not in any way detract from that right.
He further contends that whatever might have been the strict incidents of the right of pre emption under Mohamedan law, this Court cannot ignore the modern evolution of law recognizing the transferability and heritability of leasehold interest in land.
Before we consider the problem thus presented for our decision, it would be convenient at the outset to notice certain general principles relevant to the present enquiry.
It has not been disputed that Hindus in the Province of Bihar came to adopt the Mohamedan law of pre emption as a custom.
This was because under the Muslim rule the law of pre emption under the Mohamedan law was administered as a rule of common law of the land in those parts of the country which came under their domination.
We must, therefore,.
look to Mohamedan law to ascertain the incidents of the right of pre emption unless it is established in a particular case that by custom the said law has been modified to any extent.
Being a customary law, it is not permissible for courts to extend the custom beyond the limits within which upto now it has been recognized.
The concept of rationalization is out of place in the ascertainment of the customary incidents of the right of pre emption.
This Court in Bishan Singh vs Khazan Singh(1) considered the law on the subject and laid down the propositions flowing from the discussion.
The following propositions are relevant to the present enquiry: (1) The right of pre emption is simply a right of sub (1) 78.
112 situation, but not of re purchase i.e., the pre emptor takes the entire bargain and steps into the shoes of the original vendee; (2) it is a right to acquire the whole of the property sold and not a share of it; and (3) the right being a very weak right, it can be defeated by all legitimate methods, such a.s the vendee allowing the claimant of a superior or equal right being substituted in his place.
It is, therefore, settled law that the pre emptor must take the entire bargain: he cannot split up the bargain and claim to be substituted in respect of a portion of it either on the ground that he does not require a part of it or for the reason that he is entitled to claim pre emption only in respect of a part of it.
Further, the right being a weak one, a court need not be astute to rationalize the doctrine so as to make it fit into modern trends of property law.
Indeed, it should be reluctant to extend it beyond the incidents clearly recognized by Mohamedan law or by custom.
With this background let us now turn to the question that arises in this case.
The subject can conveniently be considered under three heads: the pre emptor; (ii) the vendor; and (iii) the property in respect of which the right is claimed.
In Baillie 's "Digest of Moohummudan Law" the following passage appears at p. 478: "When it is said that akar (such as mansions, vine yards and other kinds of land) are proper objects of the right of pre emption, it is by virtue of a right of milk, or ownership, that they are so.
" Mahmood 3.
in Gobind Dayal vs Inayatullah(1) observed at p. 779 thus: "pre emption is a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as these 113 on which such latter immovable property is sold to another person.
" The same learned Judge in Sakina Bibi vs Amiran(1) states that in the pre emptive tenement (the tenement by the ownership of which the pre emptor wants to exercise his right of pre emption ), the pre emptor should have vested ownership and not a mere expectancy of inheritance or a reversionary right, or any other kind of contingent right, or any interest which falls short of full ownership.
Beaumont C.J. in Dashrathlal vs Bai Dhondubai(2), after considering the law on the subject, accepted the view that the custom of preemption only exists as between free holders, that is to say neighbouring lands in respect whereof the custom is claimed to apply must be freehold and that the land sought to be pre empted must also be free hold.
This Court, in Shri Audh Bihari Singh vs Gajadhar Jaipuria(3), has laid down the correct legal position thus: ". . the benefit as well as the burden of the right of pre emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre emptor does not amount to an interest in the land itself." This legal requirement of the full ownership of the pre emptor may be traced either to the fact that "in ancient times Mohamedan law did hot recognize leases although it recognized hire of|and for the purpose of user, or to the circumstance that the right was conferred to enable the pre emptor to prevent an undesirable person from becoming his neighbour" which would not be the case if he was only a temporary occupant of the property in respect whereof the right arose.
Whatever may be the reason, it may safely be held now that the pre emptor must be the owner of the property in respect whereof he claims the right of pre emption.
(1) (1888)I.L.R.10 All. 472, 477.
(2) A.I.R. 1941 Bom.262.
(3) ; , 80. 1 SCI/64 8 114 The next question, namely, the quantum of interest which the vender shall possess in the land sought to be pre empted depends upon the doctrine of reciprocity.
Unless the land in respect of which the custom is claimed and the land sought to be pre empted are freeholds, the principle of reciprocity will be defeated.
To illustrate: "A" has full ownership in a land in respect of which he claims the right of pre emption;the co sharer vendor has only a leasehold interest in respect of the land sought to be pre empted; if the pre emptor had sold the land earlier, the vendor having only a leasehold interest in his land, could not have claimed the right of pre emption in respect of his land, for he had no full ownership in the land.
The absence of this reciprocity gives an advantage to one of the sharers which the Mohamedan law does not permit.
This doctrine of reciprocity has been succinctly stated by Mahmood J. in Gobind Dayal vs Inavatullah(1) in the passage we have extracted earlier.
In Mt. Bibi Saleha vs Amiruddin(2) the said doctrine was restated.
It was held therein that a mukarraridar holding under a co sharer had no right to pre empt as against another co sharer and as a mukarraridar could not claim pre emption, the co sharer on the doctrine of reciprocity, which is well understood in the Mohamedan law, could not claim pre emption against the mukarraridar.
A Full Bench of the Bombay High Court in Deshrathlal vs Bai Dhondubai(3) has given its approval to the said principle.
This Court in Shri Audh Behari Singh vs Gajadhar Jaipuria(4) succinctly put the legal position in the following words: "The crux of the whole thing is that the benefit as well as the burden of the right of pre emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre emptor does not amount to an interest in the land itself.
" That leasehold interest is not subject to the law of pre emption has been well settled: see Baboo Ram (1) All.
(2) [1929] I.S.R. 8 pat 251.
(2) A.I.R. 1941 Bom.
(4) ; ,80. 115 Golam Singh vs Nursingh Sabey(1), Mohammad Jamil vs Khub Lal Raut(2); Sakina Bibi vs Amiran(3); Phul Mohammad Khan vs Qazi Kutubuddin(4); Moorooly Ram vs Baboo Hari Ram(5); Rameshwar Lal vs Ramdeo Jha(6); and Nathuni Ram vs Gopinath(7).
Indeed this legal position has not been controverted by learned counsel for the respondents.
Now let us address ourselves to the main contention of the respondents, namely, that the right of pre emption exists in the Mohamedan law in respect of akar which includes a building, that the main purpose intended to be served by the said right is to prevent an undesirable person from becoming the sharer of the house and that, therefore, it would be unrealistic to negative that right in the case of a house on the ground that the land on which the house stands is a leasehold interest.
Reliance is placed upon the following passage in Charles Hamilton 's "The Hedaya", 2nd Edn., at p. 558: "It is observed, in the abridgment of Kadooree, that Shaffa does not affect even a house or trees when sold separately from the ground on which they stand.
This opinion (which is also mentioned in the Mabsoot) is approved; for as buildings and trees are not of a permanent nature, they are therefore of the class of movables.
" Relying upon this passage it is contended that, as in the present case the house was sold along with the ground, the doctrine of "Shaffa" applies to the house.
But this passage must be understood on the assumption that the right of pre emption exists in respect of the land on which the house stands.
In Baillie 's "Digest of Moohummudan Law", the legal position is made clear.
Therein the author says at pp.
479 480: "When a person has purchased a palm tree to cut it down, or when he has purchased it absolutely, there is no right of pre emption in it.
But (1) (2) [1921] 5 Pat.
L.J. 740.
(3)[1888] I.L.R. 10 All. 472, 477.
(4) A.I.R. 1937 Pat.
(5) [1867] 8 W.R.106.
(6) A.I.R. 1957 Pat.
(7) A.I.R. 1962 Pat.
226 (F.B.) 116 if it be purchased with its roots and the ground on which it stands, it is liable to the right.
The rule is the same with regard to buildings purchased for removal, and the same buildings purchased with their foundations; and there is no preemption in the former case, while there is in the latter.
" This passage indicates that a building sold as a superstructure is not subject to the right of pre emption, for it would be in effect a sale of a movable.
Unless the house is sold with its foundations, that is to say with the land on which it stands, there is no right of pre emption in regard thereto.
Though it may be said that in the present case the house was sold with its foundations, the same principle will have to be applied, for the right of pre emption cannot be invoked in the case of a leasehold interest.
In effect and substance the right is sought to be invoked in the case of the building decors the foundations which the law does not permit.
Reliance is placed upon the proposition found in para.
370 of Wilson 's Anglo Muhammadan Law, which reads: "If a house is sold apart from the ground on which it stands with a view to being pulled down, so that it is in fact a sale of the materials, no right of pre emption arises with respect to it.
If it is sold for occupation as a house, then preemption can be claimed on the ground of vicinage by the owner of any adjoining land or house (and perhaps by the owner of the site itself, supposing him to be a different person from the vendor of the house, even though he should happen to own no land except that covered by the house).
" It is said that the words in the brackets conceding the right of the owner of a site to pre empt the house sold as a house indicates that the real principle is whether the house is sold as a habitate or only as materials and that in the former case irrespective of the ownership of the land or the existence of the right of pre emption in respect thereof, the sale of the house can be pre empted.
The opening word 117 of the passage, namely, "perhaps", shows that the author himself is not sure of the legal position.
That apart, the illustration only deals with a land in respect of which there can be a right of pre emption, i.e., the owner of the land has a freehold interest therein.
Strong reliance is placed upon the decision of a Division Bench of the Allahabad High Court in Zahur vs Nur Ali(1).
There, a dwelling house was sold as a house to be inhabited as it stood with the same right of occupation as the vendor had enjoyed, but without the ownership of the site.
It was held that the right of pre emption under the Mohamedan law attached to such house.
The judgment is not a considered one.
The learned Judges observed at p. 100 thus: "The seller not only sold the materials of the house, but such interest as he possessed as an occupier of the soil.
The house was sold as a house to be inhabited on the spot with the same right of occupation as the seller had enjoyed. ' ' The learned Judges distinguished the texts cited on the ground that they applied only to the sale of the materials of a house or a house capable of and intended to be removed from its site.
This judgment no doubt supports the contention of learned counsel for the respondents; but the learned Judges have not considered the well settled principle that there cannot be a right of pre emption in respect of a land over which the vendor has no full ownership.
The decision suffers from the infirmity that the said well settled principle has escaped the attention of the court.
Reliance is also placed on the decision of a Division Bench of the Patna High Court in Chariter Dusadh vs Bhagwati Pandey(2).
There, the question was whether the pre emptor had the milkiyat or ownership in the property on account of which he claimed the right of pre emption.
The pre emptor was birtdar though he was described as a tenant in the Record of Rights for a particular purpose.
The court held (1) (1880)I.L.R. 2 All.
(2) A.I.R. 1934 Pat.
596. 118 that he was a full owner.
This decision does not really support the respondents.
There is a direct decision of a Full Bench of the Patna High Court on the question now raised, in Nathuni Ram vs Gopinath(1).
There, as here, a right of pre emption was claimed in respect of a house which stood on a leasehold land.
After a full discussion of the subject, Choudhary J., speaking for the Full Bench, came to the following decision, at p. 229: "On a careful consideration of the authorities and the principle of law involved in the case, my concluded opinion is that,in case of a sale of different properties, the.
right of pre emption cannot be exercised with respect to one or some of them only if the enjoyment thereof is dependent on the property over which that right is not and cannot be exercised in law and consequently, where the land is sold with a house thereon, pre emption cannot be allowed.
with respect to the house only apart from the land over which the right could not be exercised on account of its being a leasehold property.
The sale of a house for inhabitation or occupation, without the sale of its foundations and the land over which the foundations stand, is inconceivable, except, as pointed out in Hedaya, in case of the sale of the upper story of a house.
" We agree with the conclusion.
As this judgment has considered the earlier decisions on the subject, we need not again refer to them.
To summarize: A right of pre emption is annexed to full ownership of property of co sharers.
It is not attached to property held on subordinate tenure, such as leases etc.
It is an incident of the co sharer 's property operating both as a right and as a burden in different situations.
It is a right of substitution taking in the entire bargain.
It must take the whole or nothing.
It does not matter if the inability to take the whole arises out of a voluntary act or out of a legal limitation inherent in the nature of the (1) A.I.R. 1962 Pat. 226 (F.B.) 119 property transferred.
It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre emptor, he should be in a position to pre empt the co sharer 's whole bargain.
The two doctrines which may, for convenience, be referred to as "entire bargain" and "reciprocity" cannot ' operate unless both the co sharers are full owners of their respective properties.
Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing.
As there is no right of preemption in respect of a land held on a subordinate tenure, the right of pre emption cannot be enforced against the house either, as the pre emptor cannot be substituted for the entire bargain.
The right must fall also on the ground that the super structure disannexed from the land would be movable property and it is well settled that the right of pre emption cannot be enforced in respect of movables.
We, therefore, hold that the first respondent has no right to pre empt the sale executed in favour of the appellants.
In the result, the appeal is allowed, the decrees of the Subordinate Judge 's Court and the High Court are set aside and that of the trial Court is restored.
The appellants will have their costs throughout.
RAGHUBAR DAYAL J.
I agree that the law of pre emption regarding co sharers does not infringe the fundamental right conferred under article 19(1)(g), that the pre emptor must be the owner of the property in respect whereof he claims the right of pre emption, that the vendor must have proprietary right in the property sold and sought to be pre empted, that the sale of lease hold interest is not subject to the law of pre emption and that the sale of the super structure of a house is not pre emptible.
I also agree that the pre emptor must pre empt for the entire property sold if that be pre emptible.
I would, however, not like to express an opinion upon the point whether, in certain circumstances, the pre emptor can or cannot 120 pre empt part of the property sold.
There have been cases where partial pre emption has been allowed.
Some of the exceptional cases have been referred to at p. 778 of 'Muslim Law as Administered in India & Pakistan ' by K.P. Saksena, IV Edition.
In Zainab Bibi vs Umar Havat Khan(1) the preemptor was allowed to pre empt that part of the property sold which was pre emptible and in support of the decision it was stated at p. 457: "So far as the Mohammedan Law is concerned, there is no doubt that where several properties are sold in portions of which a pre emptor has the right of pre emption, he is entitled to preempt that portion only on payment of a proportionate price.
On this point there was a consensus of opinion among the three Imams as quoted in the Fatawa Alamgiri, referred to in Omur Khan vs Mooras Khan (1865 N.W.P. H.C.R. 173, 174)" This Court did express an opinion in Bishan Singh vs Khazan Singh(2): "The general law of pre emption does not recognize any right to claim a share in the property sold when there are rival claimants.
It is well established that the right of pre emption is a right to acquire the whole of the property sold in preference to other persons (See Mool Chand vs Ganga Jal: ILR 11 Lah.
258, 273) " In that case the dispute lay between two rival preemptors and arose in these circumstances.
One preemptor pre empted the entire sale and obtained the decree on condition that he would deposit a certain amount within a certain time.
But, before he could deposit the amount, the rival pre emptor instituted another suit for the pre emption of the entire property sold and impleaded in that suit the first pre emptor.
The rights of the two pre emptors were found to be equal.
The entire property sold was clearly pre emptible.
It was, in this context, that the observation (1) (2) ; ,884.
121 was made.
It would be a matter for consideration at the appropriate time whether there can be any exception to this general rule that the entire property sold must be pre emptor by the pre emptor in his suit.
I would therefore rest my decision on the facts that the sale of the lease hold interest in land is not pre emptible and that the super structure of the house is also not pre emptible and that therefore the plaintiff pre emptor cannot pre empt the sale of the property sold.
I therefore agree that the appeal be allowed, the decrees of the Subordinate Judge and the High Court be set aside and that of the trial Court be restored and that the appellants would have their costs throughout.
Appeal allowed. | One Chathilal Sah of Sahebganj, Bihar, was the owner of a house and two golas which stood on a rent paying land and he executed a will bequeathing the said property to his daughter and nephew in equal shares.
In 1940 the nephew sold one half of the property to respondent No. 1 who two years later acquired under a patta some adjoining lands.
In 1949 respondent No. 3 alleging to be the husband of the daughter sold the remaining half of the property to appellants 1 and 2.
In December 1949 respondent filed a title suit for declaration that he has a right to pre empt the property purchased by appellants 1 and 2 and for directing them to transfer the same to him.
The trial court dismissed the suit but in the appeal before the Subordinate Judge he succeeded and the High Court dismissed the appeal presented by the appellant.
The present appeal is by special leave granted by this Court.
Before this Court four contentions were raised by the appellants, two of which being pure questions of fact and not having been raised in the courts below were not considered by this Court.
The questions of law raised were (a) the right of pre emption infringes the fundamental right of a citizen under article 19 (1) (f) of the Constitution and (b) there is no right of pre emption in respect of leasehold interest and therefore there cannot be a right of pre emption in respect of a house standing on such land.
Held: (i) The law of pre emption vis a vis co sharers does not infringe the fundamental right conferred under article 19(1) (f) of the Constitution.
Bahu Ram vs Baij Nath, [1962] Supp. 3 S.C.R. 724 and Nuri Mian vs
Ambica Singh, Cal.
(ii) A right of pre emption is annexed to full ownership of property of co sharers.
It is not attached to property held on subordinate tenure, such as lease etc.
It is an incident of the co sharer 's property operating both as a right and as a burden in different situations.
It is a right of substitution taking in the entire bargain.
It must take the whole or nothing.
It does not matter if the inability to take the house arises out of a voluntary act or out of a legal limitation inherent in the nature of the property transferred.
It is reciprocal in operation, that is, if the situation was reversed and the vendor became the pre emptor, he should 106 be in a position to pre empt the co sharers ' whole bargains.
The two doctrines which may, for convenience be referred to as "entire bargain" and "reciprocity" cannot operate unless both the co sharers are full owners of their respective properties.
Akar or a house standing on a freehold land is subject to the right of preemption, but a house on a leasehold land stands on a different footing.
As there is no right of pre emption in respect of a land on subordinate tenure the right of pre emption cannot be enforced against the house either, as the pre emptor cannot be substituted for the entire bargain.
The right must fail also on the ground that the super structure disannexed from the land would be movable property and it is well settled that the right of pre emption cannot be enforced in respect of movables.
Case law reviewed.
Bishan Singh vs Khazan Singh, ; , Goblad Dayal vs Inayatullah, All 775, Sakina Bibi vs Amiran, All 472, Dashrathlal vs Bai Dhondubai, A.I.R. (1941) Bom.
262, Shri Audh Behari Singh vs Gajadhar Jaipuria; , , Mr. Bibi Saleha vs Amiruddin(1929)I.L.R. 8 Pat. 251, Baboo Ram Golam Singh vs Nursingh Sabey, Mohammad Jamil vs Khub Lal Raut, , Phul Mohammad Khan vs Qazi Kutubuddin, A.I.R. 1937 Pat.
578, Mooroof ly Ram vs Baboo Hari Ram, , Rameshwar Lal vs Ramdeo Jha, A.I.R. 1957 Pat.
695, Nathuni Ram vs Gopinath, A.I.R. 1962 Pat. 226 (F.B), Zahur vs Nur Ali, All 99 and Chariter Dusadh vs Bhagwati Pandey A.I.R. 1934 Pat.
Per Raghubar Dayal J While agreeing with the majority judgment on other points, no opinion is expressed on the point whether in certain circumstances the pre emptor can or cannot pre empt part of the property sold.
There have been cases where partial pre emption has been allowed.
Zainab Bibi vs Umar Hayat Khan, (1936) All.
L.J. 456 and Bishan Singh vs Khazan Singh, ; Sale of leasehold interest in land is not pre emptible and that the super structure of the house is also not pre emptible and therefore the plaintiff pre emptor cannot pre empt the property sold.
The appeal should be allowed. |
ivil Appeal Nos.
2646 52 of 1986.
From the Judgement and order dated the 12.10.1981 of the Punjab and Haryana High Court in Regular First Appeal Nos. 758, 760, 787, 814, 769, 1011 and 789 of 1979.
Govind Mukhoty, R.P. Bhatt, D.K. Garg, Prem Malhotra, K.C. Sharma and R.C. Kaushik for the Appellants.
S.P. Goel and Mahabir Singh for the Respondents.
The Judgement of the Court was delivered by PUNCHHI, J.
This bunch of appeals and special leave petitions are at the instance of the dissatisfied land owners whose lands were acquired in bulk by the State of Haryana, in the town of Hissar, for establishing a residential cum commercial complex.
The land totalled approximately 331 acres.
The Acquisition Collector appointed to determine the compensation belted the land in three parts awarding for block `A ' compensation at the rate of Rs. 4.13 per sq.
; for block `B ' at the rate of Rs. 2.43 per sq.
and for block `C ' at Rs. 1.65 per sq. yd.
The dissatisfied claimants took the matter in reference to the Addl.
District Judge, Hissar who maintained the belting, but raised the compensation for block `A ' to Rs. 10 per sq.
, block `B ' to Rs. 6 per sq.
and block `C ' to Rs. 4.50 per sq.
When the matter was taken up in First Appeal before the High Court, it was persuaded to wipe out `C ' and confine it to belting `A ' & `B '.
The entire evidence was considered by the High Court meticulously to come to the conclusion that belt `A ' should fetch compensation at the rate of Rs. 23 per sq.
and belt `B ' Rs. 16 per sq.
Still 3 not satisfied the claimants/appellants by special leave have approached this Court for further enhancement.
The goal of the appellants is that the belting as such should go and the land should uniformally be assessed to compensation at the rate of Rs. 42 per sq.
The foundation for the argument in the first instance is that the acquired land comprises of a large area, situated alongside the G.T. Road leading from Delhi to Hissar town in a strip approximately 3 kms.
in length on the other side of which was the railway line.
It was also commented that the belting had been done in a haphazard way.
Keeping in regard the nature of the land, it was asserted that the land having been acquired for building purposes, its quality as agricultural land should not have weighed with the courts below and compensation should have assessed uniformally space wise.
These arguments does not appeal to us.
Though the acquisition of ground space is the object in view, yet the tiller 's affect to keep his land more productive cannot be lost sight of in awarding compensation.
In fact the belting has kept in regard the quality of the land.
This is the reason for its appearing to be a haphazard line on the plan.
On the second limb of the argument, that it should have fetched uniform rate of compensation, we find no supportive material on record and done has been pressed before us on which we could change the decision, merely on the comment that belting is normally not resorted to.
We are not persuaded in the instant case to discard the belting system and lean towards uniformity.
The rate of Rs. 42 per sq.
is claimed on the basis that a part of land measuring about 125 sq.
which formed part of the acquired land, was, before the acquisition, purchased by a purchaser at the rate of Rs. 42 per sq.
and that was an indication that the land acquired would have fetched Rs. 42 per sq.
The High Court had rejected the contention of the appellants taking the twin view that firstly the land involved was small in measure and secondly it was fully constructed having a house and a godown facing the G. T. Road itself.
We find this reasoning sound.
Having not been able to persuade us, each of learned counsel for the appellants differently putforth that the sole instance which the High Court had rejected had later been relied by it in another case pertaining to other land under acquisition under the same notification and having awarded the rate of Rs. 42 per sq.
We regret our inability to entertain the argument because there is nothing on record to support the same.
The judgement in which such view has statedly been taken has not been brought on record as a piece of evidence to be relied upon by the claimants and no permission has 4 been sought to adduce additional evidence.
The said judgement cannot be used as a precedent even to persuade us to take the view that the rate should be Rs. 42 per sq.
for belt `A ' if not uniformally.
All these factors cumulatively lead us to the view that appellants have no case for enhancement and have been adequately compensated for the land acquired.
No interference is thus required in the instant case.
Accordingly for the view above taken, we dismiss the appeals as also the special leave petitions.
I.A. for condonation of delay in SLP unnumbered titled Kanhya Lal vs State of Haryana, is dismissed as withdrawn at the askance of the learned counsel for the appellant.
There shall be no order as to costs in all these cases.
V.P.R Appeals dismissed. | The appellants were the claimants land owners, whose lands were acquired for establishing a residential cum commercial complex.
The Land Acquisition Collector belting the land in three parts awarded compensation for block `A ' at the rate of Rs. 4.13 per sq.yd.; for block `B ' at the rate of Rs. 2.43 per sq.yd.
and for block `C ' at Rs. 1.65 per sq.
In First Appeal the High Court was persuaded to confine to belting `A ' & `B '.
The High Court fixed compensation at the rate of Rs. 23 per sq.yd.
for belt `A ' and for belt `B ' Rs. 16 per sq.yd.
The Claimants by special leave filed present appeals for enhancement contending that the acquired land comprises of a large area, situated alongside the G.T. Road in a strip approximately 3 kms.
in length on the other side of which was the railway line; that the belting had been done in a haphazard way; that the land having been acquired for building purposes, its quality as agricultural land should not have weighed; and compensation should have been assessed uniformally.
Dismissing the appeals, this Court, HELD: 1.
The rate of Rs. 42 per sq.yd. is claimed on the basis that a part of land measuring about 125 sq.yd. which found part of the acquired land, was, before the acquisition, purchased by a purchaser at the rate of Rs. 42 per sq.
and that was an indication that the land acquired would have fetched Rs. 42 per sq.yd.
[3E] 2.
The High Court had rejected the contention of the appellants taking the twin view that firstly the land involved was small in measure and secondly it was fully constructed having a house and a godown facing the G.T. Road itself.
This reasoning is sound.
[3F] 3.
The judgement in which Rs. 42 had been awarded in another 2 case has not been brought on record as a piece of evidence to be relied upon by the claimants, and no permission has been sought to adduce additional evidence.
The said judgement cannot therefore be used as a precedent even to persuade this Court to take the view that the rate should be Rs. 42 per sq.yd.
for belt `A ' if not uniformally.
All these factors cumulatively lead to the view that appellants have no case for enhancement and have been adequately compensated for the land acquired.
[3H; & A B] |
ivil Appeal (C) No. 137 of 1991.
From the Judgment and Order dated 20.2.1989 of the Allahabad High Court in W.P. No. 3096 of 1980.
Yogeshwar Prasad and Ms. Shoba Dixit for the Appellants.
R.B. Datar, R.K. Khanna and Surya Kant for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Leave granted.
This appeal is directed against the judgment of the Allahabad High Court (Lucknow Bench) setting aside the order dated 23.9.1980 terminating the respondent 's services.
The sole question which falls for consideration in this appeal is whether the order dated 23.9.1980 terminating the respondent 's services, who was admittedly an ad hoc and temporary employee is vitiated in law.
The High Court has held that since juniors to the respondent were retained in service while the respondent 's services were terminated, the order of termination was discriminatory in nature.
It further held that since the order of termination was founded on an adverse entry awarded to the respondent his character roll without giving him any opportunity on the ground that he was not suitable, the order "cannot be said to be a decision given in good faith.
" The High Court further observed: "Even if any punishment was to be awarded, it should have been proportionate to the alleged offence , if any." On these findings the High Court held that the order of termination suffered from apparent error of law, it accordingly allowed the respondent 's writ petition and quashed the order of termination.
The factual matrix of the case is in a short compass.
The respon 32 dent, was appointed on ad hoc basis on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examinater of the State of Uttar Pradesh, for a fixed period ending on 31.8.1977.
In December, 1977 the respondent was again appointed on ad hoc basis for a period ending on 28.2.1978.
Since the regular appointment could not be made in time, the respondent 's services were extended from time to time.
The last extension was granted on 21.1.1980 and the extended period of service was to expire on 28.2.1981.
The terms and conditions of respondent 's service as contained in the order of appointment stated that the appointment was ad hoc, purely temporary for the term fixed in the order and his services were liable to be terminated at any time without assigning any reason.
He was awarded an adverse entry in his character roll for the year 1977 78.
The entry stated that the respondent 's work was poor and he should work hard and take interest in the work.
The respondent made representation against the entry but the same was rejected.
The respondent and Rajendra Prasad Pandey another Sub Auditor both were deputed to audit the accounts of Raja Raghunbar Dayal Inter College, Sitapur for the year 1979 80.
While carrying on the Audit the respondent and Rajendra Prasad Pandey both are alleged to have acted in excess of their authority in auditing the "Boys Fund Accounts" of that College for the year 1978 79 on their own accord without any authority for the same.
They issued audit note under their own signatures and also irregularly demanded a high amount of Rs. 13,250.70 as audit fee and collected an amount of RS.
2,000 as audit fee for which they issued receipts under their own signatures.
On receipt of complaint a preliminary inquiry was held that it was found that the allegations against the respondent and Rajendra Prasad Pandey were correct and both of them had acted beyond their authority and collected a sum of Rs. 2,000 as audit fee for the audit of the Boys Fund Accounts, although the Boys Fund of the Institution did not fall within the purview of audit of the Local Funds Audit and no fee was chargeable for the audit of such Fund.
After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duties at Allahabad, but the respondent proceeded on leave and did not join his duties at Allahabad.
Ultimately, the respondent 's services were terminated by the order dated 32.9.1980 and on the same day by another order, service of Rajendra Prasad Pandey were also terminated.
Both the aggrieved persons filed writ petitions in the High Court at Lucknow Bench under Article 226 of the Constitution contending that their termination orders were illegal, having been passed in violation of Article 311 of the Constitution.
The writ petition filed by Rajendra prasad pandey was dismissed but the respondent 's writ petition was allowed by a 33 Division Bench of the High Court on the ground as noted earlier.
There is no dispute that the respondent was an ad hoc and temporary employees and the terms and conditions of his employment were regulated by the U.P. Temporary Government Servant (Termination of Services0 Rules, 1975.
The contract of service as contained in the appointment letter also stipulated the terms and conditions of the respondent 's employment that his services were liable to be terminated at any time without assigning any reason or compensation.
In the counter affidavit filed before the High Court the order of termination was defended on the ground that the respondent 's work and conduct were not satisfactory and he was unsuitable for the service, therefore his services were terminated.
To support that contention the appellant placed reliance on the adverse entry awarded to the respondent in the year 1977 78 and also on the allegations made against him with raged to the audit of the Boys Fund of Raja Raghubar Dayal Inter College.
The High Court held that since junior persons to the respondent in service were retained, the order of termination was rendered illegal.
In our opinion, the principle of 'last come first go ' is applicable to a case where on account of reduction of work or shrinkage of cadre retrenchment takes place and the services of employees are terminated on a count of retrenchment.
In the event of retrenchment the principle of 'last come first go ' is applicable under which senior in service is retained while the junior 's services are terminated.
But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with terms and conditions of his service.
if out of several temporary employees working in a department a senior is found unsuitable on account of his work and conduct, it is open to the competent authority to terminate his services and retain the services of juniors who may be found suitable for the service.
Such a procedure does not violate principle of equality, enshrined under Articles 14 and 16 of the Constitution.
if a junior employees is hard working, efficient and honest his services could not be terminated with a view to accommodate the senior employee even though he is found unsuitable for the service.
if this principle is not accepted there would be discrimination and the order of the termination of a junior employee would be unreasonable and discriminatory.
On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service.
The view taken by the High Court is not sustainable in law.
34 The High Court held that the termination of respondent 's services on the basis of adverse entry in the character roll was not in good faith and the punishment imposed on him was disproportionate.
it is unfortunate that the High Court has not recorded any reasons for this conclusion.
The respondent had earned an adverse entry and complaints were made against him with regard to the unauthorised audit of the Boys Fund in an educational institution, in respect of which a preliminary inquiry was held and thereupon, the competent authority was satisfied that the respondent was not suitable for the service.
The adverse entry as well as the preliminary inquiry report with regard to the complaint of unauthorised audit constituted adequate material to enable to competent authority to form the requisite opinion regarding the respondents suitability for service.
Under the service jurisprudence a temporary employee has no right to hold the post and his services are liable to be terminated in accordance with the relevant service rules and the terms of contract of service.
If on the perusal of the character roll entries or on the basis of preliminary inquiry on the allegations made against an employee, the competent authority is satisfied that the employee is not suitable for the service whereupon the services of the temporary employee are terminated, no exception can be taken to such an order of termination.
A temporary Govt.
Servant has no right to hold the post, his services are liable to be terminated by giving him one month 's notice without assigning any reason either under the terms of the contract providing for such termination or under the relevant statutory rules regulating the terms and conditions of temporary Govt.
servants.
A temporary Govt.
servant can, however, be dismissed from service by way of punishment.
Whenever, the competent authority is satisfied that the work and conduct of a temporary servant is not satisfactory of that his continuance in service is not in public interest on account of his unsuitability, misconduct or inefficiency, it may either terminate his services in accordance with the terms and conditions of the service or the relevant rules or it may decide to take punitive action against the temporary Government servant.
if it decides to take punitive action may hold a formal inquiry by framing charges and giving opportunity to the Govt.
servant in accordance with the provisions of article 311 of the Constitution.
since, a temporary Govt.
servant is also entitled to the protection of Article 311(2) in the same manner as a permanent Govt.
servant, very often, the question arises whether an order of termination is in accordance with the contract of service and relevant rules regulating the temporary employment or it is by way of punishment.
It is now sell settled that the form of the order is not conclusive 35 and it is open to the Court to determine the true nature of the order.
in Parshotam Lal Dhingra vs Union of India; , a Constitution Bench of this Court held that the mere use of expressions like 'terminate ' or 'discharge ' is not conclusive and in spite of the use of such expressions, the Court may determine the true nature of the order to ascertain whether the action taken against the Govt.
servant is punitive in nature.
The Court further held that in determining the true nature of the order the Court should apply two tests namely: (1) whether the temporary Govt.
servant had a right to the post or the rank or (2) whether he has been visited with evil consequences; and if either of the tests is satisfied, it must be held that the order of termination of a temporary Govt.
servant is by way of punishment.
It must be borne in mind that a temporary Govt.
servant has no right to hold the post and termination of such a Govt.
servant does not visit him with any evil consequences.
The evil consequences as held in Parshotam Lal Dhingra 's case (supra) do not include the termination of services of a temporary Govt.
servant in accordance with the terms and conditions of service.
The view taken by the Constitution Bench in Dhingra 's case has been reiterated and affirmed by the Constitution Bench decisions of this Court in the State or Orrisa and anr.
vs Ram Narayan Das; , ; R.C. Lacy vs The State of Bihar & Ors., C.A. No. 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah vs The Union of India, ; Jagdish Mitter vs The Union of India, ; A.G. Benjamin vs Union of in`ia, C.A. No. 1341/66 decided on 13.12.1966 and Shamsher Singh & Anr.
vs State of Punjab,[1975] 1 SCR 814, These decisions have been discussed and followed by a three Judge Bench in State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, ; Learned counsel for the respondent urged that the allegations made against the respondent in respect of the audit of Boys Fund of an educational institution were incorrect and he was not given any opportunity of defence during the inquiry which was held ex parte.
had he been given the opportunity, he would have placed correct facts before the inquiry officer.
His services were terminated on allegation of misconduct founded on the basis of an ex parte enquiry report.
He further referred to the allegations made against the respondent in the counter affidavit filed before the High Court and urged that these facts demonstrate that the order of termination was in substance, an order of termination founded on the allegations of misconduct, and the ex parte enquiry report.
In order to determine this question, it is necessary to consider the nature of the respondent 's right to hold the post and to ascertain the nature and purpose of the inquiry held against 36 him.
As already observed, the respondent being a temporary Govt.
servant had no right to hold the post, and the competent authority terminated his services by an innocuous order of termination without casting any stigma on him.
The termination order does not indict the respondent for any misconduct.
The inquiry which was held against the respondent was preliminary in nature to ascertain the respondent 's suitablity and continuance in service.
There was no element of punitive proceedings as no charges had been framed, no inquiry officer was appointed, no findings were recorded, instead a preliminary inquiry was held and on the report of the preliminary inquiry the competent authority terminated the respondent 's services by an innocuous order in accordance with the terms and conditions of his service.
Mere fact that prior to the issue of order of termination, an inquiry against the repondent in regard to the allegations of unauthorised audit of Boys Fund, was held does not change the nature of the order of termination into that of punishment as after the preliminary inquiry the competent authority took no steps to punish the respondent instead it exercised its power to terminate the respondent 's services in accordance with the contract of service and the Rules.
In State of Orissa & Anr.
vs Ram Narain Dass, ; a Constitution Bench of this court considered the question and indicated "the fact of the holding of an inquiry is not decisive of the question.
What is decisive is whether the order is by way of punishment in the light of the tests laid down in Purshottam Lal Dhingra 's case." In Jagdish Mitter 's case (supra) a Constitution Bench of this Court held that every order terminating the services of a temporary public servant does no amount to dismissal or removal from service merely because an inquiry was held before the order of termination was passed.
The Court observed that the appropriate authority has power to terminate a temporary public servant either by discharging him under the terms of contract or the relevant rules or by holding departmental disciplinary inquiry and dismissing him from service.
Before passing order of termination the competent authority may hold inquiry in fairness to ascertain whether the temporary servant should be continued in service or not.
While discussing the nature of preliminary inquiry the Court observed as under: "There is no element of punitive proceedings in such an enquiry; the idea in holding such an enquiry is not the punish the temporary servant but just to decide whether he 37 deserves to be continued in service or not.
If as a result of such an enquiry, the authority comes to the conclusion that the temporary servant is not suitable to be continued, it may pass a simple order of discharge by virtue of the powers conferred on it by the contract or the relevant rule; in such a case, it would not be open to the temporary servant to invoke the protection of article 311 for the simple reason that the enquiry which ultimately led to his discharge was held only for the purpose of deciding whether the power under the contract or the relevant rule should be exercised and the temporary servant discharged.
" In Champaklal chiman lal Shah 's case (supra) the appellant therein was a temporary employee of the Union Government.
His services were terminated without assigning any reasons and without affording him opportunity of showing cause.
Before passing the order of termination the competent authority had issued a notice to Champaklal Chimanlal Shah calling upon him to explain certain irregularities and to show cause why disciplinary action should not be taken against him.
In response to the notice, he submitted his explanation thereupon, certain preliminary enquiries were held, but he was not given opportunity to place his case during the preliminary enquiry.
However, after the preliminary enquiry to regular departmental enquiry was held instead proceedings for departmental enqiury were dropped and the services of Chimanlal Shah were terminated in accordance with the terms and conditions of service of a temporary Govt.
servant.
The termination order was assailed on the ground that the order of termination was in substance an order of punishment.
the Constitution Bench held that the order of termination was not an order of punishment and the appellant was not entitled to the protection of Article 311(2) of the Constitution.
The Court emphasised that when a preliminary enquiry is held against a temporary Govt.
employee, it must not be confused with the regular departmental inquiry which usually follows the preliminary inquiry, after the government decides to frame charges and to get a departmental enquiry made, with a view to inflict one of the three major punishments on the Govt.
servant.
So far as the preliminary enquiry is concerned, there is no question of it being governed by Article 311(2) of the Constitution, as it is made for the purpose of collection of facts to enable to the competent authority to decide whether punitive action should be taken or action should be taken in terms and under the contract of service or the rules applicable to a temporary government servant.
A Govt.
servant has no right to insist for affording him opportunity during such enquiry and such an 38 ex parte enquiry is not initiated in law in view of the purpose and object of preliminary enquiry.
On an elaborate discussion, the Court observed as under: "In short a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under article 311 for inflicting one of the three major punishments mentioned therein.
Such a preliminary enquiry may even be held ex parte for it is merely for the satisfaction of government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry.
But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the Government, and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of article 311 and all the rights that protection implies as already indicated above.
There must therefore be no confusion between the two enquiries and it is only when the government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments.
indicated in article 311 that the government servant is entitled to the protection of that Article.
That is why this Court emphasised in Parshotam Lal Dhingra 's case (supra) and in Shyamlal vs The State of Uttar pradesh; , that the motive or the inducing factor which influences the government to take action under the terms of the contract of employment or the specific service rule is irrelevant.
" The above principles were reiterated by another Constitution Bench of this Court in R.C. Lacy 's case (supra) dealing with the case of reversion of a permanent Govt.
servant officiating on a higher post.
The Bench observed that the Government might find it necessary to terminate the services of a temporary employee if it is not satisfied with the conduct or work of an employee and the same reasoning applies to a public servant who is reverted from a higher post to his substantive lower post, if the higher post was held in a temporary nature.
Before terminating the services of a temporary servant or reverting the person 39 officiating in a higher post to his substantive post, the Govt.
may hold a preliminary enquiry to form the requisite satisfaction for the continuance of the officiating govt.
servant.
Such an inquiry does not change the nature of the order of the termination or reversion.
In A.G. Benjamin 's case (supra) the appellant was temporarily employed as a Store Officer in the Central Tractor Organisation, his services were terminated under the Central Civil Service (Temporary Service) Rules, 1949 by granting him one month 's salary in lieu of notice.
Benjamin contended that the order of termination was in fact an order of punishment, which had been passed without affording him the protection under Article 311(2) of the Constitution.
In that case before the issue of termination order, a notice had been issued to Benjamin for showing cause as to why disciplinary action should not be taken on the allegations made against him in respect of which the charges had been framed and an enquiry officer had been appointed.
After the charges were framed and the explanation of Benjamin was obtained, the Chairman of the Central Tractor Organisation submitted a note to the Government that the departmental proceedings may take much longer time and he was not sure that after going through all the formalities of departmental enquiry Benjamin will be dealt in the way he deserved, therefore, he suggest that action should be taken under Rule 5 of the Central Civil Service (Temporary Service) Rules, 1949 for terminating his services by giving him one month 's salary in lieu of notice as he was a temporary Govt.
servant.
The Minister concerned accepted the recommendations, whereupon, order of termination was issued terminating the services of Benjamin.
While assailing the order of termination, it was seriously contended before this Court that in view of the charges being framed and the enquiry officer having been appointed the order of termination in substance was an order of punishment and the recourse to the temporary service rules had been taken only to circumvent article 311 of the Constitution.
The Constitution Bench repelled the contention and held that the preliminary enquiry held against the Govt.
servant must not be taken to mean that the Govt. had taken decision to inflict major punishment on Benjamin.
The Court held that no temporary Govt.
servant is entitled to opportunity in the preliminary inquiry as "there is no element of punitive proceedings in such an inquiry; the idea in holding such an inquiry is not to punish the temporary government servant but just to decide whether he deserves to be continued in service or not.
" Further the Constitution Bench held that even if formal departmental inquiry is initiated against the temporary Govt.
servant, it is open to the competent authority to drop further proceedings in the departmental enquiry 40 against the temporary govt.
servant and to have recourse to Rules applicable to a temporary Govt.
servant for terminating his services.
The Court observed as under: "If therefore the authority decides, for some reason, to drop the formal departmental enquiry even though it had been initiated against the temporary govt.
servant, it is still open to the authority to make an order of discharge simpliciter in terms of the contract of service or the relevant statutory rule.
In such cases the order of termination of services of the temporary govt.
servant which in form and in substance is no more than his discharge affected under the terms of contract or the relevant rule cannot, in law, be regarded as his dismissal, because the appointing authority was actuated by the motive that the said servant did not deserve to be continued in service for some alleged inefficiency or misconduct.
" We have referred to the above decision in detail to dispel any doubt about the correct position of low.
It is erroneous to hold that where a preliminary enquiry into allegations against a temporary govt.
servant is held or where a disciplinary enquiry is held but dropped or abandoned before the issue of order of termination, such order is necessarily punitive in nature.
Learned counsel for the respondent placed reliance on the decisions of this Court in Nepal Singh vs State of U.P. & Ors.; , and Ishwar Chand Jain vs High Court of Punjab & Haryana & Anr., ; in support of his contention that the termination order is punitive in nature.
In Nepal Singh 's case a disciplinary inquiry was instituted against Nepal Singh who was a temporary sub Inspector of Police, on the charge of having contracted a second marriage during the life time of his first wife without prior permission of the Government in violating of Rule 29 of the U.P. Government Servants ' Conduct Rules, 1956.
Before any finding could be rendered the inquiry was dropped for want of territorial jurisdiction of the concerned Superintendent of Police, and thereafter, his services were terminated in accordance with the rules applicable to the temporary Government servants by giving him one month 's pay in lieu of notice.
nepal Singh unsuccessfully challenged the order of termination before the High Court, but his appeal was allowed by a three Judge Bench of this Court.
This Court quashed the order of termination on three grounds.
Firstly,it held that the order of termination was arbitrary, violative of 41 Articles 14 and 16 of the Constitution as power of termination had not been exercised honestly, in good faith for valid considerations.
Secondly, the grounds mentioned in the report of the superintendent of Police on the basis of which the services of the Sub Inspector had been terminated were mere allegations and there was no definite material for terminating his services.
Thirdly, the Court held that since the inquiry against Nepal Singh on the charges had been dropped for want of jurisdiction and since no attempt was made to institute a proper inquiry, instead his services were terminated on the allegation of misconduct the order of termination was violative of Article 311(2) of the Constitution.
The Court further held that the termination order had been passed to circumvent the constitutional provision of article 311(2) of the Constitution.
The facts and circumstances in Nepal Singh 's case were quite different than those in the instant case.
However, Nepal Singh 's case is no authority for the proposition that the services of an ad hoc and temporary employee cannot be terminated even if the competent authority on an assessment of the work and the conduct of the employee finds him unsuitable for the service.
The Court 's observations in Nepal Singh 's case that since the enquiry against nepal Singh on certain charges was dropped and his services were terminated under the rules applicable to the temporary govt.
servant with a view to circumvent the protection of Art 311(2) of the Constitution and as such the order of termination was illegal, must be confined to the facts of that case.
It appears that he decisions in the case of Champaklal (supra) and R.C. Lacy (supra) and the principles laid down therein were not brought to the notice of the Bench.
Had those decisions been placed before the Court, the finding that the termination order had been passed to circumvent the provision of article 311(2) merely because departmental inquiry was dropped and the termination order had been passed, may not have been made.
The decision of Nepal Singh 's case in this regard is per incurium.
In Ishwar Chand Jain 's case the order of termination of Probationary Judicial Officer was set aside by this Court on the ground that no relevant material had been taken into consideration in assessing the satisfactory nature of the work and conduct of the Officer on probation.
The Court held that some of the material which had been taken into account in adjudging the Judicial Officer 's work and conduct as unsatisfactory was not relevant.
The decision has no relevance to the instant case.
We are, therefore, of the opinion that neither of the two cases relied upon by the respondent lend any support to his case.
On the other hand our view is fully supported by the decision of three Judge Bench of this Court in R.K. Misra vs U.P. State Handloom Corporation, In the instant case the repondent was a temporary Government servant and there was adverse report regarding his work which was reflected in the adverse remarks made for the year 1977 78.
The competent authority held a preliminary inquiry in the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of an educational institution, On result of the preliminary enquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent 's services in exercise of its power under the terms of contract as well as under the relevant rules applicable to a temporary Govt.
servant.
It never intended to dismiss the respondent from service.
Holding of preliminary inquiry does not affect the nature of the termination order.
The allegations made against the respondent contained in the counter affidavit by way of a defence filed on behalf of the appellants also do not change the nature and character of the order of termination.
The High Court failed to consider the question in proper perspective and it interfered with the order of termination in a casual manner.
We, accordingly, allow the appeal and set aside the order of the High Court and dismiss the respondent 's Writ Petition.
There will be no order as to costs.
Y.Lal Appeal allowed. | The respondent was appointed on 18.2.1977 as an Assistant Auditor under the Local Funds Audit Examiner of State of U.P. on ad hoc temporary basis for the term fixed in the order of his appointment and his services were liable to be terminated at any time without assigning any reason.
After his initial appointment, his services were extended from time to time till 28.2.1981.
He was awarded an adverse entry in his character roll for the year 1977 78 both regarding his conduct as also his work.
The respondent alongwith one Rajendra Prasad Pandey, another Sub Auditor, were deputed to audit the accounts of Raja Raghbar Dayal Inter College, Sitapur in respect of the year 1979 80.
It is alleged that while auditing the account, they acted in excess of their authority in as much as they audited the 'Boys Fund Accounts ', issued audit note and also irregularly demanded and collected Rs. 2,000 as audit fee, and issued receipt under their signature.
On complaint a preliminary enquiry was held and the allegations were found to be correct.
After the preliminary inquiry report, the respondent was relieved from his duties from Sitapur and directed to join his duty at Allahabad.
Whereupon the respondent proceeded on leave and did not join his duty at Allahabad.
The respondent 's services were therefore terminated by order dated 23.9.1980 and by another order services of Pandey were also terminated.
Both of them filed writ petitions in the High Court contending that their termination orders were illegal having been passed in violation of Article 311 of the Constitution.
Whereas the writ petition filed by Pandey was dismissed, the one filed by the respondent was allowed.
The High Court held that since juniors to the respondent were retained in service while the respondent 's services were terminated, the order of termination was discriminatory in nature.
The High Court further held that the order of termination was founded on an adverse entry awarded to the respondent hence it was not in good faith; the punishment awarded to the respondent was not proportionate to the alleged offence.
Against the 30 said order, the State of U.P. filed a appeal after obtaining special leave.
The question involved for consideration is whether the order terminating the services of the respondent is vitiated in law? Allowing the appeal, this Court, HELD: Holding of preliminary inquiry does not affect the nature of the termination order.
[42C) In the instant case the respondent was a temporary Government Servant and there was adverse regarding his work which was reflected in the adverse remarks made for the year 1977 78.
The competent authority held a preliminary inquiry in regard to the allegations of improper conduct in carrying out unauthorised audit of Boys Fund of educational institution.
On result of the preliminary inquiry no charges were framed against the respondent, no officer was appointed for holding the departmental inquiry instead the competent authority chose to terminate the respondent 's services in exercise of its powers under the terms of contract a well as under the relevant rules applicable to a temporary Government servant.
[42A C] The principle 'last come first go ' is applicable to a case where on account of reduction of work or shrinkage of cadre, retrenchment takes place and the services of employees are terminated on account of retrenchment.
But this principle is not applicable to a case where the services of a temporary employee are terminated on the assessment of his work and suitability in accordance with term and conditions of his service.
On the admitted set of facts, the order of termination in the instant case, could not be rendered illegal or unjustified on the ground of juniors being retained in service.
The view taken by the High Court is not sustainable in law.
[33D H] Appeal allowed, High Court order set aside as it interfered with order of termination in a casual manner.
[42D] Parshotam Lal Dhingra vs Union of India.
[1958] S.C.R. 828; The State of Orissa & Anr.
vs Ram Narayan Das, ; ; R.C. Lacy vs The State of Bihar & Ors., C.A.No 590/62 decided on 23.10.1963; Champaklal Chimanlal Shah vs The Union of India, [1964] AIR S.C.449; A.G. Benjamin vs Union of India, C.A. No. 1341/66 decided on 13.12.1966; Shamsher Singh & Anr.
vs State of Punjab, [1975] 1 S.C.R. 814; State of Punjab & Anr.
vs Shri Sukh Raj Bahadur, [1968] 3 S.C.R. 31 234; R.K. Misra vs U.P. State Handloom Corporation, , referred to.
Nepal Singh vs State of U.P. & Ors., [1985] 1 S.C.C. 56; Ishwar Chand Jain vs High Court of Punjab & Haryana & Anr., ; distinguished. |
Civil Appeal No. 1046 of 1982.
From the Order dated 20.9.1980 of the Madhya Pradesh High Court in M.P. No. 84 of 1978.
Dr. N.M. Ghatate, S.V. Deshpande and S.K. Agnihotri for the Appellants.
Aman Vachher, S.K. mehta, Mrs. Anjali Verma, D.N. Mishra (for JBD & Co.) and Ashok Srivastava for the Respondents.
The Judgment of the Court was delivered by T.K. THOMMEN, J.
This appeal by the State of Madhya 176 Pradesh arises from the Order of the Madhya Pradesh High Court in Misc.
Petition No.84 of 1978 quashing Order dated 1.10.1977 of the Additional Collector, Gwalior, whereby he initiated proceedings against the 3rd respondent, the Gwalior Dairy Limited (hereinafter called `the Company ') under section 182(2)(i) of the M.P. Land Revenue Code, 1959 (`the Code ').
Respondent Nos.
1,2 and 4 are shareholders of the third respondent.
The High Court by the impugned Order held that the Company was not a Government lessee within the meaning of section 181 [read with section 2(h)] and was, therefore, not liable to be proceeded against in terms of section 182.
The Order of the Additional Collector, Gwalior, which was impugned in the High Court, was made consequent on the failure of the Company to pay the rent agreed upon between the Government and the Company subsequent to the unconditional withdrawal by the Company of its Civil Appeal No. 299 of 1967 which was pending in this Court.
That appeal had been brought to this Court by the Company against an earlier judgement of the High Court dated 30.6.1`964 in First Appeal No. 1 of 1961 whereby the High Court, confirming the judgement of the trial court and dismissing the Company 's appeal, held that the land admeasuring 495.05 acres was held by the Company in terms of the lease granted by the State and the Company was not a `pakka ' tenant and did not enjoy the status of a " Gair Maurusi" tenant.
The Company entered into a contract of lease with the Gwalior State Government (Sanitary Engineering Department) for a period of one year in Samvat 1999.
The lease was extended for a further period of ten years in Samvat 2000.
When proceedings were initiated on 16.7.1952 to eject the Company, the Company filed Suit No. 14 of 1960 for declaration of title and perpetual injunction.
Issue No. 1(1) in that Suit was in the following words: "Whether the plaintiff in accordance with paras 5 & 6 of the Plaint was a `gair Maurusi tenant ' and now by virtue of the Revenue Administration and Ryotwari Land Revenue and Tenancy Act of Samwat 2007 has become a `Pakka Tenant '.
If so, what is its effect on the suit?" That issue was answered in the negative.
The Court held that the Company did not enjoy the status of Gair Maurusi tenant and that it had not become a `pakka ' tenant under section 54(vii) of Part II of Act 177 No. 66 of 1950 in respect of the land in question.
The Court held that the Company was "a Government lessee under section 181 of the M.P. Land Revenue Code, 1959 with the rights and liabilities enumerated in section 182".
It was also held that the Company was not an occupancy tenant under section 185 of the Code as it had not become an ordinary tenant earlier in Madhya Bharat under Act No. 66 of 1950.
This judgement, as stated earlier, was affirmed by the High Court by its judgement dated 30.6.1964 in First Appeal No. 1 of 1961.
The High Court observed that the land held by the Company under the lease was neither zamindari nor ryotwari land.
The Zamindari Abolition Act did not apply to the land as it had become vested in the State long prior to the Act.
The High Court observed: ". .the lands comprised in the Gwalior Sewage Farm were never notified to be a Ryotwari village.
The lands which have been acquired by the Gwalior State in connection with the Gwalior Sewage Farm could not, after their acquisition for a public purpose be notified to be part of a Ryotwari village. the lands were not `Pandat ' lands nor were the lands included in Ryotwari village.
Special leases granted by the erstwhile Gwalior State in respect of such lands as had been acquired for a public purpose, namely construction of a sewage system were governed not by any law for the time being in force but by the terms of lease in each case.
I have already explained above that to these lands the provisions of the Zamindari Abolition Act did not apply, since they were already held by the State when that came into force. the defendant (the State) has been successful in showing that the plaintiff (the Company) never acquired the status of a Gair Maurusi tenant in respect of the land in dispute at any time prior to the coming into force of the Act No. 66 of 1950 and that he could not, by virtue of the provisions of that Act become a Pukka tenant thereof".
It was from that judgement that the Company had brought to this Court Civil Appeal No. 299 of 1967 and that appeal was, as stated earlier, unconditionally withdrawn by the Company in 1971.
Subsequently, the State entered into an agreement with the Company to grant a fresh lease for a period of ten years from 9.2.1971 subject to the payment of enhanced rent as agreed upon between the parties.
Since the Company failed to pay the agreed rents and thus contravened the conditions of the lease, proceedings were initiated by the 178 Additional Collector by his Order dated 1.10.1977 for eviction of the Company from the land in question.
That Order was made under section 182(2)(i) of the Code.
It was that Order which was quashed by the High Court by its impugned Order dated 20.9.1980.
The High Court held that the lease in question was not covered by section 181 of the Code and that the Company could not be evicted by the summary proceeding provided for under that section.
As stated earlier, the High Court had, in the earlier proceeding held that the Company was not a `pakka ' tenant.
That judgement of the High Court became by the unconditional withdrawal of the appeal filed in this Court against it.
The Madhya Pradesh Land Revenue and Tenancy Act, Samvat 2007 (Act No 66 of 1950), which was the law in force until repealed by the M.P. Land Revenue Code, 1959, defined "pakka tenant" as follows: "section 54 (vii).
Pakka tenant means a tenant who has been or whose predecessor in interest had been lawfully recorded in respect of his holding as a `Ryot Pattedar ', `Mamuli Maurusi ' `Gair Maurusi ', and `Pukhta Maurusi ' when this Act comes into force or who may in future be duly recognised as such by a competent authority.
Explanation The term `Pukhta Maurusi ' included Istmurardar tenants, Malikana Haq holder tenants, Hakkiyat Mutafarrikat Sharah Muayyana and Sakitul Mikiyat tenants".
An `ordinary tenant ' is defined by Act No. 66 of 1950 as "a tenant other than a Pakka tenant and shall not include a sub tenant".
The position, therefore, was that, in terms of Act No. 66 of 1950, the Company was not a pakka tenant, as found by the High Court in the earlier judgement, and, therefore, it was, according to the said Act, an ordinary tenant.
The High Court had found in the earlier proceeding that the land in question was held by the Company under lease from the Government after it had been acquired by the Government for a public purpose of the State.
The question, therefore, is whether the Company was, as found by the Additional Collector, a Government lessee within the meaning of the Code.
It is to be noticed that subsequent to the withdrawal of the appeal from this Court, fresh terms were agreed upon between the Company and the Government to enable the Com 179 pany to remain in possession of the land as a lessee.
The Company is thus a person holding the land from the State Government.
This is so whether or not the Company is deemed to be holding over under the old lease or holding, upon termination of that lease, under and in terms of the fresh conditions agreed upon between the parties to enable the Company to remain in possession of the land as a lessee.
In either event, the Company has been holding the land from the State.
It is not and cannot be disputed that the original lease was obtained from the predecessor State and the Company continued to remain in possession of the land under the newly stipulated terms agreed upon between the Company and the successor State, namely, the Madhya Pradesh State.
A `Government Lessee ' is defined under the M.P. Land Revenue Code, 1959 as "a person holding land from the State Government under section 181", Section 181 of the Code reads: "181.
Government Lessees.
(1) Every person who holds land from the State Government or to whom a right to occupy land is granted by the State Government or the Collector and who is not entitled to hold land as a Bhumiswami shall be called a Government lessee in respect of such land.
(2) Every person who at the coming into force of this Code (a) hold any land in the Madhya Bharat region as an ordinary tenant as defined in the Madhya Bharat Land Revenue and Tenancy Act, Samvat2007 (66 of 1950); or (b). . . . . . . . . (c). . . . . . . . . shall be deemed to be a Government lessee in respect of such land".
These provisions show that whether or not the Company has been holding the land in terms of the original lease or under the newly stipulated terms of the lease, the Company has been holding the land 180 from the State Government and it has never been an ordinary terms as defined in the Madhya Bharat Act No. 66 of 1950.
Accordingly whether considered in terms of sub section (1) or sub section (2) of section 181, the Company has been at all material times a Government lessee in respect of the land in question.
Accordingly, section 182 of the Code is attracted.
That section reads: "182.
Rights and liabilities of Government lessee (1) A Government lessee shall, subject to any express provision in this Code, hold his land in accordance with the terms and conditions of the grant, which shall be deemed to be a grant within the meaning of the (XV of 1985).
(2) A Government lessee may be ejected from his land by order of a Revenue Officer on one or more of the following grounds, namely: (i) that he has failed to pay the rent for a period of three months from the date on which it became due; or (ii) that he has used such land for purpose other than for which it was granted; or (iii) that the term of his lease has expired or (iv) that he has contravened any of the terms and conditions of the grant: Provided that no order for ejectment of a Government lessee under this sub section shall be passed without giving him an opportunity of being heard in his defence".
It was in terms of sub section 2(i) of section 182 that the Additional Collector made his order for eviction of the Company.
The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings.
His finding shows that large amounts are due and payable by the Company as rent and that the rents have remained unpaid for a period far in excess of three months from the dates on which they became due.
In the circumstances, the Additional Collector was well justified in having recourse to the proceeding prescribed under section 182 of the 181 Code.
The finding of the High Court to the contrary was, in our view, totally unjustified and opposed to law.
In the circumstances, the impugned Order of the High Court dated 20.9.1980 in Misc.
Petition No 84 of 1978 is set aside.
The Order of the Additional Collector dated 1.10.1977 in Case No. 1 75 76A 39: 182 shall stand restored.
The appeal by the State is allowed with costs throughout.
V.P.R. Appeal allowed. | The Company Respondent No. 3 entered into a contract of lease with the State Government for a period of one year and later it was extended for a further period of ten years.
When proceedings were initiated on 16.7.1952 to eject the Company, the Company filed suit for declaration of title and perpetual injunction.
The trial Court holding that the Company did not become a `pakka ' tenant under Section 54(vii) of Part II of Act No. 66 of 1950 in respect of the suit land and that the Company was "a Government lessee under section 181 of the M.P. Land Revenue Code, 1959, and was not an occupancy tenant under section 185 of the Code, dismissed the suit.
This judgment, was affirmed by the High Court in First appeal, observing that the land held by the Company under the lease was neither zamindari nor ryotwari land.
Against that judgment, the Company filed an appeal in this Court which was withdrawn in 1971.
Subsequently, the State entered into an agreement with the Company to grant a fresh lease for a period of ten years from 9.2.1971 subject to the payment of enhanced rent as agreed upon between the parities.
Since the Company failed to pay the agreed rents and contravened the conditions of the lease, proceedings were initiated under Section 182(2)(i) of the Code, for eviction of the Company from the land in question.
175 Eviction order was quashed by the High Court holding that the lease in question was not covered by section 181 of the Code and that the Company could not be evicted by the summary proceeding provided for under that section, against which the appeal has been filed.
Allowing the appeal, this Court, HELD: 1.
A `Government lessee ' is defined under the M.P. land Revenue Code, 1959 as "a person holding land from the State Government under section 181".
[178E] 2.
As per the provisions in section 181 of the M.P. Land Revenue Code, 1959 whether or not the company has been holding the land in terms of the original lease or under the newly stipulated terms of the lease, the Company has been holding the land from the State Government and it has never been an ordinary tenant as defined in the Madhya Bharat Act No. 66 of 1950.
Accordingly, whether considered in term of sub section (1) or sub section (2) of section 181, the Company has been at all material times a Government lessee in respect of the land in question.
[179 G 180 A] 3.
It was in terms of sub section 2(i) of section 182 that the Additional Collector made his Order for eviction of the Company.
The finding of the Additional Collector is a finding of fact based on evidence and is not liable to be questioned in these proceedings.
Large amounts are due and payable by the Company as rent.
In the circumstances, the Additional Collector was well justified in having recourse to the proceeding prescribed under section 182 of the Code.
[180 F 181 A] |
Civil Appeal No. 653 of 1991.
284 From the Judgment and Order dated 11.
12.1989 of the Central Administrative Tribunal, Chandigarh in O.A. No. 694 of 1988.
Avadh Behari, A.K. Sharma and Inderjit Singh Mehra for the Appellants.
Dr. Anand Prakash, B. Krishna Prasad and S.M. Ashri for the Respondent.
The Judgment of the Court was delivered by SINGH, J.
Leave granted.
Whether family pension payable under the service rules could be bequeathed by means of a will by the deceased employee during his life time, is the question involved in this appeal.
Briefly, the facts giving rise to this appeal are that, Issac Alfred was employed in the Railway Workshop, Jagadhri as a Skilled Mechanic, Tool Shop, he died in harness on 16.10.1984.
On his death a dispute arose between Mrs. Violet Issac, widow of the deceased Railway employee, his sons, daughters and Elic Alfred, brother of the deceased regarding family pension, gratuity and other emoluments, payable by the Railway Administration.
Violet Issac, widow of the deceased employee made an application before the competent Railway Authority for the grant of family pension and for payment of gratuity and other dues to her, her four sons and one daughter, who are appellant Nos. 2 to 6.
The Railway Authorities did not pay any amount to the appellants as an injunction order had been issued by the Sub Judge, 1st Class, Jagadhri in Civil Suit No. 365/85 filed by Elic Alfred, brother of the deceased employee, restraining the appellants from claiming or receiving any amount which were to the credit of the deceased Railway employee towards C.T.D. Account, gratuity, family pension and other dues.
It appears that the relations between late Issac Alfred and his widow Smt.
Violet Issac and the children were not cordial, as a result of which he had made nomination in favour of his brother and further he had executed a will dated 9.9.1984 in favour of Elic Alfred bequeathing all his properties to him including the family pension, gratuity etc.
When the appellants raised claim for family pension and other dues before the Railway Authorities, Elic Alfred filed Civil Suit No. 365/85 for the issue of a permanent injunction restraining the appellants from receiving or claiming any monetary benefits from the Railway Administration.
In his suit Elic Alfred had 285 pleaded that in view of the will, his deceased brother 's widow and children were not entitled to any benefit from the Railway Authorities, instead he was entitled to the deceased 's estate including the right to receive family pension and other dues.
The Civil Court issued an injunction order restraining the appellants from receiving any amount from the Railway Authorities as a result of which the Railway Administration did not pay any amount to them.
The appellants, thereupon, made an application before the Central Administrative Tribunal, Chandigarh for the issue of a direction for the release of the amounts on account of gratuity, group insurance, provident fund, CTD account, and family pension.
The appellants pleaded that the will relied upon by Elic Alfred was a forged one and Elic Alfred was not entitled to receive pensionary benefits.
On an application made by the appellants the suit pending before the Civil Court was also transferred to the Tribunal 's file.
The Tribunal by its order dated 11.
12.1989 held that since the dispute related to rival claims based on title arising from relationship in one case and from a will in the other, it has no jurisdiction to decide the same.
The Tribunal further directed for the transfer of the civil suit to the Civil Court for trial in accordance with law.
The appellants have challenged the order of the Tribunal by means of the present appeal.
The dispute between the parties relates to gratuity, provident fund, family pension and other allowances, but this Court while issuing notice to the respondents confined the dispute only to family pension.
We would therefore deal with the question of family pension only.
Family Pension Rules 1964 provide for the sanction of family pension to the survivors of a Railway Employee.
Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower to the minor children of a Railway servant who may have died while in service.
Under the Rules son of the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, which ever is earlier.
The Rules do not provide for payment of family pension, to brother or any other family member or relation of the deceased Railway employee.
The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee.
The Rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family pension.
Thus, no other person except those designated under the Rules are entitled to receive family pension.
The Family Pension Scheme confers monetary benefit on the 286 'wife and children of the deceased Railway employee, but the employee has no title to it.
The employee has no control over the family pension as he is not required to make any contribution to it.
The Family Pension Scheme is in the nature of a welfare scheme framed by the Railway Administration to provide relief to the widow and minor children of the deceased employee.
Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same.
Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary disposition.
In Jodh Singh vs Union of India & Anr., [ ; this Court on an elaborate discussion held that family pension is admissible on account of the status of a widow and not on account of the fact that there was some estate of the deceased which devolved on his death to the widow.
The Court observed: "Where a certain benefit is admissible on account of status and a status that is acquired on the happening of certain event, namely, on becoming a widow on the death of the husband, such pension by no stretch of imagination could ever form part of the estate of the deceased.
If it did not form part of the estate of the deceased it could never be the subject matter of testamentary disposition.
The Court further held that what was not payable during the life time of the deceased over which he had no power of disposition could not form part of his estate.
Since the qualifying event occurs on the death of the deceased for the payment of family pension, monetary benefit of family pension cannot form part of the estate of the deceased entitling him to dispose of the same by testamentary disposition.
We, accordingly hold that Mrs. Violet Issac the widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding, the will alleged to have been executed by the deceased on 9.9.1984 in favour of his brother Elic Alfred.
As regards appellant Nos. 2 to 6 are concerned, it has been stated on behalf of the Railway Administration that they are not minors, therefore, under the Rules they are not entitled to any family pension.
We, accordingly allow the appeal, set aside the order of the Tribunal and direct the respondent Railway Adminstration to sanction family pension in accordance with the Rules to the appellant No. 1 and to pay the arrears within two months.
The respondent 's suit, so far as it relates to the 287 family pension cannot proceed but we do not express any opinion, with regard to other claims raised therein.
It has been brought to our notice on behalf of the respondent Railway Administration that the appellants have been occupying the Railway quarter which had been allotted to late Issac Alfred, even though they are not entitled to occupy the same.
On behalf of the appellants, it was urged that since they had not been paid any dues by the Railway Administration they were not in a position to vacate the premises.
The Railway Administration is free to evict them in accordance with the Rules, only after arrears of family pension are paid to Mrs. Violet Issac.
The Railway Administration will charge rent from the appellants at the rate on which the quarter had been let out to the deceased Railway employee.
There will be no order as to costs.
V.P.R. Appeal allowed. | On the death of a Railway employee, dispute arose among his wife, sons, daughters and brother for the family pension, gratuity and other emoluments.
The brother of the deceased employee filed a civil suit in the court of Sub judge for a permanent injunction restraining the appellants. the wife, sons and daughter from claiming or receiving any monetary benefits from the Railway Administration, contending that by a will dated 9.9.1984 of the deceased employee, he was entitled to receive the benefits to the deceased employee 's widow.
The Railway Authority did not pay any amount, as an injunction had been issued by the Civil Court.
The appellants there upon made an application before the Central Administrative Tribunal for a direction for the release of the amounts on the grounds that the will was a forged one, and the beneficiary was not entitled to receive pensionary benefits.
The Tribunal held that since the dispute related to rival claims based on title arising from relationship, it had no jurisdiction to decide the same.
It also directed transfer of the case to the Civil Court for trial.
In the appeal to this court on the question was: whether family pension payable under the service rules could be bequeathed by means of a will.
Allowing the appeal, this Court, HELD: 1.
Family Pension Rules, 1964 provided for the sanction of family pension to the survivors of a Railway Employee.
Rule 801 provides that family pension shall be granted to the widow/widower and where there is no widow/widower, to the minor children of a Railway servant, who may have died while in service.
Under the Rules, son of 283 the deceased is entitled to family pension until he attains the age of 25 years, an unmarried daughter is also entitled to family pension till she attains the age of 25 years or gets married, whichever is earlier.
The Rules do not provide for payment of Family Pension to brother or any other family member or relation of the deceased Railway employee.
The Family Pension Scheme under the Rules is designed to provide relief to the widow and children by way of compensation for the untimely death of the deceased employee.
The rules do not provide for any nomination with regard to family pension, instead the Rules designate the persons who are entitled to receive the family Pension.
Thus, no other person except those designated under the Rules are entitled to receive family pension.
[285E H] 2.
The Family Pension Scheme confers monetary benefit on the wife and children of the deceased Railway employee, but the employee has no title to it.
The employee has no control over the family pension as he is not required to make any contribution to it.
The family pension Scheme is in the nature of welfare scheme framed by the Railway administration to provide relief to the widow and minor children of the deceased employee.
[285H 286B] 3.
Since, the Rules do not provide for nomination of any person by the deceased employee during his life time for the payment of family pension, he has no title to the same.
Therefore, it does not form part of his estate enabling him to dispose of the same by testamentary dis position.
[286B C] [The appellant No. 1, widow of the deceased Railway employee is entitled to receive the family pension, notwithstanding the will alleged to have been executed by the deceased on 9.9.1984 in favour of his brother.
As regards appellant Nos. 2 to 6 are concerned, they are not minors, therefore, under the Rules they are not entitled to any family pension.
[286F H] The Railway Administration is free to evict them in accordance with the Rules, only after arrears of family pension are paid to the widow.] [287B C] Jodh Singh V. Union of India & Anr., [1980] 4 S.C.C. 306, followed. |
ON: Criminal Appeal No. 50 of 1979.
From the Judgment and Order dated 23.12.1977 of the Delhi High Court in Criminal Appeal No. 162 of 1975.
R.K. Garg, R.K. Jain, Ranjan Mahapatra and P.K. Jain for the Appellant.
V.C. Mahajan, Ashok Bhan (NP) and Ms. A. Subhashini (NP) for the Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
The appellant, the sole accused in this case, has been convicted under Section 302 I.P.C. and sentenced to imprisonment for life by the High Court of Delhi for causing the murder of one Champat Rai, the deceased in the case.
The prosecution case mainly rests on the evidence of P.W. 2, the sole eye witness.
Learned counsel for the appellant contended that the uncorroborated testimony of P.W. 2 is not wholly reliable and therefore the conviction cannot be sustained.
However, we may at this stage point out that the main submission has been that even if the prosecution case is to be accepted, an offence of murder is not made out as the accused was entitled to the right of private defence.
Even otherwise, according to the learned counsel, having regard to the fact that as the appellant is alleged to have inflicted only a single injury which proved fatal, the offence committed would be one amounting to culpable homicide.
To appreciate these submissions in a proper perspective, we 205 think it necessary to state the facts of the case.
The deceased was married to Agya Devi examined as P.W. 3.
He lived with his wife in a house in East Azad Nagar, Shahdra, Delhi.
In the adjoining house were living his mother, P.W. 1 and his two brothers P.Ws 2 and 5.
The appellant was married to a cousin of Agya Devi, P.W. 3 and he used to visit the house of the deceased ostensibly as a relative.
The deceased, P.Ws 1,2 and 5 objected to the appellant 's visit as they suspected illicit relation between the appellant and Agya Devi P.W. 3, wife of the deceased.
On August 18, 1973 at about 11 P.M. when the deceased was not in the house , the appellant came to visit Agya Devi.
A few minutes later the deceased also came home and he objected to the presence of the appellant.
On this there was an altercation and exchange of hot words.
Then the appellant took out a kirpan (churra) from his waist and stabbed the deceased in the chest.
The deceased fell down crying that the appellant has killed him.
The appellant with the weapon ran out of the house.
The incident was witnessed by P.W. 2 from the roof where he had retired for sleeping during the night.
P.W. 2 and his another brother P.W. 5 chased the appellant but as the appellant who was armed with a lethal weapon threatened them and made good his escape.
On return they found the deceased dead.
P.W. 3 was sitting next to the body and was crying.
The information was sent to the police and P.W. 18, the Sub Inspector, Kotwali Police Station came to the scene of occurrence and recorded the statement of P.W. 2 on the basis of which the case was registered against the appellant.
He seized certain incriminating articles, held the inquest and sent the dead body for post mortem.
He also recorded the statement of the material witness.
One of the recoveries made by him consisted of a sheath of the kirpan.
The Doctor, P.W. 17, examined the dead body and conducted the post mortem.
He found one incised stab wound on the left chest which proved fatal.
The particulars of the injury are: (1) One incised stab wound, horizontally placed on the (L) side of the chest 1" lateral to the left side and 2" below and medial to the (L_) Nipple size 1" x 1/2" x with spindle shaped appearance and with either margins pointed.
The margins of the wound were smooth and the collection of blood in the soft tissues.
(2) One incised wound over right little finger at the base of second phalynx on dorcal surface size 3/4" x 4/10" x bone deep.
There is collection of blood in the soft tissues and there was cut 206 mark on the base of second phalnyx right little finger.
The wound was bandaged with a piece of bandage and cotton soiled in blood.
The wound is not spindle shaped in appearance.
The margins were smooth.
This injury was a simple one and not due to a separate blow.
The Doctor opined the injury NO.1 was sufficient to cause death in the ordinary course of nature.
The cause of death was haomorrhage and shock due to injuries.
The accused was arrested on 28.8.73 and at his instance the kirpan was recovered.
After completion of the investigation, the charge sheet was laid.
The accused pleaded not guilty and denied the recoveries.
The prosecution examined P.W. 2, the brother of the deceased and P.W. 3 Agya Devi, wife of the deceased.
But P.W. 3 turned hostile.
Consequently the prosecution was left with the testimony of P.W. 2, the remaining eye witness.
Both the courts below relied on the evidence of P.W. 2 and they also held that his evidence was corroborated by that of P.Ws 1 and 5.
As hereinbefore mentioned, the learned counsel for the appellant submitted that the evidence of P.W. 2 on which the case entirely rests, cannot be accepted.
We have gone through his evidence carefully as well as that of P.Ws. 1 and 5.
The evidence of P.W. w does not suffer from any serious infirmity.
At any rate there is other corroborative evidence also.
We see absolutely no reason to disagree with the findings of the courts below regarding their evidence.
The learned counsel, however, submitted that the accused must have acted in right of self defence.
According to the learned counsel, P.W. 2 himself has deposed that there was exchange of hot words between the appellant and the deceased which would have resulted in a fight and the appellant having reasonably apprehended danger to his life, inflicted the injury on the deceased in self defence.
We see no basis for this submission.
P.W. 2 has no doubt stated that there was exchange of hot words between the appellant and the deceased but he did not speak about any fight between the two.
On the other hand his evidence shows that when the deceased came and questioned the accused then there was exchange of hot words.
The accused immediately took out a kirpan (churra) from his waist and stabbed the deceased.
Both the courts below also have rightly rejected this plea.
Therefore we see absolutely no grounds to come to a different conclusion.
207 The next and rather the main submission is that the offence committed by the appellant would only amount to culpable homicide inasmuch as he has inflicted only one injury.
In support of his submission, he relied on some of the decisions of this Court.
In Tholan vs State of Tamil Nadu, the accused who dealt a single knife below on the chest found to be sufficient to cause death, was convicted under Section 304 Part II I.P.C., disagreeing with the contention on behalf of the State that Clause III of Section 300 I.P.C. would be attracted in such a case.
In arriving at such a conclusion, this Court took into consideration various surrounding circumstances namely that the presence of the deceased at the scene of occurence was wholly accidental and that the accused dealt only one blow.
It must also be mentioned that the deceased, who was a stranger in that case, came out of his house and cautioned the accused not to indulge in abusive language as ladies were present in that area.
The accused thereupon questioned him and when both were remonstrating, he took out a knife from his waist and stabbed the deceased on the right side of the chest.
On these facts, this Court held: "We are satisfied that even if Exception I is not attracted, the requisite intention cannot be attributed to the appellant.
But in the circumstances herein discussed he wielded a weapon like a knife and therefore he can be attributed with the knowledge that he was likely to cause an injury which was likely to cause death.
In such a situation, he would be guilty of committing an offence under Section 304 Part II of the Indian Penal Code.
" In support of this view, reliance is placed on some earlier decision of this Court in Jagrup Singh vs State of Haryana, ; ; Randhir Singh vs State of Punjab, ; Kulwant Rai vs State of Punjab, ; Hari Ram vs State of Haryana, ; Jagtar Singh vs State of Punjab, and Ram Sunder vs State of U.P., Criminal Appeal No. 555/83 decided on 24.10.1983.
The learned counsel submitted that the observations made in these cases apply on all fours to the facts of this case.
According to him, there was an altercation and during the same the appellant suddenly whipped out a kirpan and inflicted only one injury and it is therefore reasonable to infer that he would not have intended to cause that particular injury and consequently Clause Thirdly of Section 300 is not attracted.
The submission though put forward in a simple way leads to an important legal quandary regarding the interpretation of Clause Thirdly Section 300 I.P.C. which is considered be a 208 difficult and interact issue by the courts.
However, Virsa Singh vs State of Punjab, ; is considered to be an authoritative pronouncement in this regard.
But perhaps inspired by some of the decisions rendered thereafter both by the High Courts and the Supreme Court there is a marked change in the trend of the contentions regarding the scope of Clause Thirdly Section 300 I.P.C.
It has reached a stage over simplification and it is very often argued that whenever death is due to a single blow the offence would be a culpable homicide and not murder.
Somewhat to the same effect is the contention in the instant case.
In our view it is fallacious to contend that when death is caused by a single blow Clause Thirdly is not attracted and therefore it would not amount to murder.
The ingredient `Intention ' in that Clauses is very important and that gives the clue in a given case whether offence involved is murder or not.
For the purpose of considering the scope of Clause 3 it is not necessary for us to embark upon an examination of the entire scope of Section 299 and 300 I.P.C.
It is enough if we start with Virsa Singh 's case.
Clause Thirdly of Section 300 I.P.C. reads thus: "3rdly If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or " We may note at this stage that `intention ' is different from `motive ' or `ignorance ' or `negligence '.
It is the `knowledge ' or `intention ' with which the act is done that makes difference, in arriving at a conclusion whether the offence is culpable homicide or murder.
Therefore, it is necessary to know the meaning of these expressions as used in these provisions.
Before doing so we shall first refer to the to the ratio laid down in Virsa Singh 's case and the meaning given to the expression `intention '.
The appellant Virsa Singh was sentenced to imprisonment for life under Section 302 I.P.C.
There was only one injury on the deceased and that was attributed to him.
It was caused as a result of the spear thrust and the Doctor opined that the injury was sufficient in the ordinary course of nature to cause death.
The Courts also found that the whole affair was sudden and occurred on a chance of meeting.
Peritonit is also supervened which hastened the death of the deceased.
It was contended that the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in 209 the ordinary course of nature and therefore the offence was not one of murder.
This contention was rejected.
After analysing the Clause Thirdly it is held the Court that the prosecution must prove: "First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; there are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds further and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature.
This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
" The Court Further added thus: "One of these four elements is established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under Sec.
300, 3rdly.
It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two).
It does not even matter that there is no knowledge that an act of that kind will be likely to cause death.
Once the intention to cause the bodily injury actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of of nature to cause death.
No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder.
If they inflict injuries of that kind, they must face the consequences; and they can 210 only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
" (emphasis supplied) The learned Judge also observe thus: "In the absence of evidence, or reasonable explanation, that the prisoner did not intend to stab in the stomach with a degree of force sufficient to penetrate that far into the body, or to indicate that his act was a regrettable accident and that he intended otherwise, it would be perverse to conclude that he did not intend to inflict the injury that he did.
Once that intent is established (and no other conclusion is reasonable possible in this case and in any case it is a question of fact), the rest is a matter for objective determination from the medical and other evidence about the nature and seriousness of the injury.
" Adverting to the contention that there is only a single blow, it is further held: "The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present.
If he can show that he did not, or if the totality of the circumstances justify such an inference, then, of course, the intend that the section requires is not proved.
But if there is nothing beyond the injury and the fact that the appellant inflicted it, the only possible inference is that he intended to inflict it.
Whether he knew of its seriousness, or intended serious consequences, it neither here nor there.
The question, so far as the intention is concerned, is not whether he intended to kill, or to inflicit an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question; and once the existence of the injury is proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion.
But whether the intention is there or not is one of fact and not one of law.
Whether the wound is serious or otherwise, and if serious, how serious, is a totally separate and distinct question and has nothing to do with the question whether the prisoner intended to inflict the injury in question.
" 211 At another passage which has to be noted in this context reads thus: "It is true that in a given case the enquiry may be linked up with the seriousness of the injury.
For example, if it can be proved, or if the totality of the circumstances justify an inference, that the prisoner only intended a superficial scratch and that by accident his victim stumbled and fell on the sword or spear that was used, then of course the offence is not murder.
But that is not because the prisoner did not intended the injury that he intended to inflict to be a serious as it turned out to be but because he did not intend to inflict the injury in question at all.
His intention in such a case would be to inflict a totally different injury.
The difference is not one of law but one of fact; and whether the conclusion should be one way or the other is a matter of proof, where necessary, by calling in aid all reasonable inferences of fact in the absence of direct testimony.
It is not one for guesswork and fanciful conjecture.
Referring to these observations, Divisional Bench of this Court in Jagrup Singh 's case observed thus: "These observations of Vivian Bose, J. have become locus classicus.
The test laid down in Virsa Singh 's case for the applicability of clause Thirdly is now ingrained in our legal system and has become part of the rule of law.
" The Division Bench also further held that the decision in Virsa singh 's case has throughout been followed as laying down the guiding principles.
In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended.
In other words the 3rd Clause consists of two parts.
The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature.
Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury.
whereas the second part whether it was sufficient to cause the death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury.
The language of Clause Thirdly of Section 300 212 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that Clause.
The `intention ' and `knowledge ' of the accused are subjective and invisible state of mind and their existence has to be gathered from the circumstances, such as the, weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances.
The framers of the code designedly used the words `intention ' and `knowledge ' and it is accepted that the knowledge of the consequences which may result in doing an act is not the samething as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he, must have been aware that certain specified harmful consequences would or could follow.
But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue.
As compared to `knowledge ', `intention ' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end.
Kenny in "Outline of Criminal Law" (17th Edition at page 31) has observed: "Intention: To intend is to have in mind a fixed purpose to reach a desire objective; the noun `intention ' in the present connexion is used to denote the state of mind of a man who not only forsees but also desires the possible consequences of his conduct.
Thus if one man throws another from a high tower or cuts off his head it would seem plain that the both foresees the victim 's death and also desires it: the desire and the foresight will also be the same if a person knowingly leaves a helpless invalid or infant without nourishment or other necessary support until death supervenes.
It will be noted that there cannot be intention unless there is also foresight, since a man must decide to his own satisfaction, and accordingly must foresee, that to which his express purpose is directed.
Again, a man cannot intend to do a thing unless he desires to do it.
It may well be a thing that he dislikes doing, but he dislikes still more the consequences of his not doing it.
That is to say he desires the lesser of two evils, and therefore, has made up his mind to bring about that one." Russel on Crime (12th Edition at Page 41) has observed: 213 "In the present analysis of the mental element in crime the word `intention ' is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so.
He shapes his line of conduct so as to achieve a particular end at which he aims.
" it can thus be seen that the `knowledge ' as contrasted with `intention ' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive.
On the otherhand, `intention ' is a conscious state in which mental faculties are aroused into activity and summoned into action for the purpose of achieving a conceived end.
it means shaping of one 's conduct so as to bring about a certain event.
Therefore in the case of `intention ' mental faculties are projected in a set direction.
Intention need not necessarily involve premediation.
Whether there is such an intention or not is a question of fact.
In Clause Thirdly the words "intended to be inflicted" are singnificant.l; As noted already, when a person commits an act, he is presumed to expect the natural consequences.
But from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that the offender intended to cause the injury of that nature.
However, the presumption arises that he intended cause that particular injury.
In such a situation the Court has to ascertain whether the facts and circumstances in the case are such as to rebut the presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.
However, as pointed out in Virsa Singh 's case the weapon used, the degree of force released in wielding it, the antecedent relation of the parties, the manner in which the attack was made that is to say sudden or premeditated, whether the injury was inflicted during a struggle or grappling, the number of injuries inflicted and their nature and the part of the body where the injury was inflicted are some of the relevant factors.
These and other factors which may arise in a case have to be considered and if on a totality of these circumstances a doubt arises as to the nature of the offence, the benefit has to go to the accused.
In some cases, an explanation may be there by the accused like exercise of right of private defence or the circumstances also may indicate the same.
Likewise there may be circumstances in some cases which attract the first exception.
In such cases different considerations arise and the Court has to decide whether the accused is entitled to the benefit of the exception, though the prosecution established that one or the other clauses of Section 300 I.P.C. is attracted.
In the present enquiry we need not advert to that aspect since we are concerned only with scope of clause Thirdly of Section 300 I.P.C. 214 The decision in Virsa Singh 's case has throughout been followed in a number of cases by the High Courts as well as by the Supreme Court.
Such decisions are too numerous and it may not be necessary for us to refer to all those cases.
However, it would be useful to refer to a few decisions which have a bearing to the point in issue.
In Chahat Khan vs State of Haryana, the deceased was waylaid by the accused who were armed with lathis.
The accused had both gun and a lathi but he used only the lathi and struck a blow on the head with sufficient force and the solitary below with the lathi was found to be sufficient in the ordinary course of nature to cause death and it was held that the case fell within clause Thirdly as there was clear intention to cause such bodily injury which in the ordinary course of nature was sufficient to cause death.
In Chamru Budhwa vs State of Madhya Pradesh, AIR 1954 SC 652 there was exchange of abuses between the two parties armed with lathis and in the course of the fight, the accused struck one lathi blow on the head of the deceased which causes a fracture of the skull resulting in death, and it was held that he had given the blow with the knowledge that it was likely to cause death.
In Willie (Williams) Slaney vs State of Madhya Pradesh, there was a sudden quarrel leading to an exchange of abuses and in the heat of the moment a solitary blow with a hockey stick had been given on the head.
It was held that the offence amounted to culpable homicide punishable under Section 304 Part II I.P.C.
In Harjinder Singh (alias Jinda) vs Delhi Admn.
, ; the facts are that there was a sudden commotion and when the deceased intervened in the fight, the accused took out a knife and stabbed the deceased and the deceased was in crouching position presumably to intervene when he received the blow.
Though the injury was found sufficient in the ordinary course of nature to cause death.
, he was convicted for the offence of culpable homicide.
The intention to cause that particular injury was not present.
To the same effect is the decision in Laxman Kalu Nikalji vs State of Maharashtra; , where the accused lost his temper and took out a knife and gave one blow during a sudden quarrel.
In all these cases the approach has been to find out whether the ingredient namely the intention to cause the particular injury was present or not and it is held that circumstances like a sudden quarrel in a fight or when the deceased intervenes in such a fight, would create a doubt about the ingredient of intention as it cannot definitely be said in such circumstances that the accused aimed the blow at a particular part of the body.
When an accused inflicts a blow with a deadly weapon the presumption is that he intended to inflict that injury but 215 there may be circumstances like those, as mentioned above, which rebut such presumption and throw a doubt about the application of clause Thirdly.
Of course much depends on the facts and circumstances of each case.
Now let us examine some of the cases relied upon the learned counsel for the appellant.
In Kulwant Rai 's case a Bench consisting of D.A. Desai and R.B. Misra, JJ.
held in a hit and run case that where it cannot be said that the accused intended to inflict the very fatal injury, clause Thirdly is not attracted.
That was a case were only one blow was given with the dagger in the epigastrium area and the facts would go to show that there was no pre meditation, no prior enmity and a short quarrel preceded the assault.
However, we do not find any discussion about the scope of clause Thirdly.
Randhir Singh 's case was decided by a Bench consisting of D.A. Desai and Baharul Islam, JJ.
In that case, a single head injury was inflicted by a college student on the deceased with a weapon supplied by his father and the deceased died after six days and there also an assault was preceded by a quarrel between the father of the accused and the deceased.
The Bench observed that: "Merely because the blow landed on a particular spot on the body divorced from the circumstances in which the blow was given it would be hazardous to say that the accused intended to cause that particular injury.
The weapon was not handy.
He did not possess one.
Altercation took place between his father and the deceased and he gave blow with kassi.
In our opinion in these circumstances it would be difficult to say that the accused intended to cause that particular injury.
" Before the same Bench, in Gurmail Singh and others vs State of Punjab, this question again came up for consideration.
In that case, an indecent joke cut by the accused with the wife of a P.W. led to a quarrel and the deceased who was nowhere in the picture tried to intervene, two of the accused gave some blow on him.
Then Gurmail Singh, the appellant therein, gave a single blow with spear on the chest which proved fatal.
It was contended by the State that clause Thirdly of Section 300 I.P.C was attracted.
it is observed that: "But it was said that the case would be covered by Para 3 of Section 300 in that Gurmail Singh intended to cause an injury and the injury intended to be inflicted was proved to 216 be sufficient in the ordinary course of nature to cause death.
This argument is often raised for consideration by this Court and more often reliance is placed on Virsa Singh vs State of Punjab; , We would have gone into the question in detail but in Jagrup Singh vs State of Haryana ; , Sen. J. after examining all the previous decisions on the subject, observed that in order to bring the case within Para 3 of Section 300, I.P.C., it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death.
This view was further affirmed in a decision rendered in Randhir Singh vs State of Punjab, We are of the opinion that in the facts found by the High Court it could not be said that accused 1 Gurmail singh intended to cause that particular bodily injury which in fact was found to have been caused.
May be, the injury inflicted may have been found to be a sufficient in the ordinary course of nature to cause death.
What ought to be found is that the injury found to be present was the injury that was intended to be inflicted.
It is difficult to say that with confidence in the present case keeping in view the facts found by the High Court that accused 1 Gurmail Singh intended to cause the very injury which was found to be fatal." Therefore this decision also affirms the view taken in Virsa Singh 's case.
Then came the decision in Jagtar Singh 's case rendered by a Bench consisting of D.A.Desai and Amarendra Nath Sen, JJ.
In that case a single knife blow was inflicted in the chest and it was found to be sufficient in the ordinary course of nature to cause death.
The Bench held that clause Thirdly was not attracted in view of circumstances i.e. there the accused was a young man and inflicted the injury on the spur of the moment and some extent on deceased 's provocation in a sudden chance quarrel and on a trivial issue.
The Bench observed that: "The cause of quarrel though trivial was just sudden and in this background the appellant, a very young man gave one blow.
He could not be imputed with the intention to cause death or the intention to cause that particular injury which proved fatal.
" In this case, there is no reference to Virsa Singh 's case but there is a 217 references to Jagrup Singh 's case which decision, as noted already, has followed the ratio in Virsa singh 's case.
Then came the decision in Tholan 's case on which the counsel has heavily relied upon.
In that case also the appellant inflicted only a single knife blow on the chest of the deceased sufficient to cause death but it was on the spur of the moment.
The Division Bench, consisting of D.A. Desai and R.B.Misra, JJ.
took into the consideration that the deceased had nothing to do with the chit organised by one K.G. Rajan in respect of which there was a quarrel between the appellant and the organisers of the chit and when the accused was abusing the organisers, the deceased seemed to have told the accused not to misbehave in the presence of the ladies and not to use vulgar and filthy language.
The presence of the deceased was wholly accidental and the appellant on the spur of the moment inflicted the fatal injury on the chest.
The Division Bench relying on the earlier decision under similar circumstances convicted the accused under Section 304 Part II.
A reference is also made to the decision in Jagrup Singh 's case.
Therefore in this case also, the ratio laid down in Virsa Singh 's case is presumably followed.
In all these cases, injury by a single blow was found to be sufficient in the ordinary course of nature to cause death.
The supreme Court took into consideration the circumstances such as sudden quarrel, grappling etc.
as mentioned above only to assess the state of mind namely whether the accused had the necessary intention to cause that particular injury i.e. to say that he desired expressly that such injury only should be the result.
It is held in all these cases there was no such intention to cause that particular injury as in those circumstances, the accused could have been barely aware i.e only had knowledge of the consequences.
These circumstances under which the appellant happened to inflict the injury it is felt or atleast a doubt arose that all his mental faculties could not have been roused as to form an intention to achieve the particular result.
We may point out that we are not concerned with the intention to cause death in which case it will be a murder simpliciter unless exception is attracted.
We are concerned under clause Thirdly with the intention be cause that particular injury which is subjective inquiry and when and when once such intention is established and if the intended injury is found objectively to be sufficient in the ordinary course of nature to cause death, clause Tirdly is attracted and it would be murder, unless one of the exceptions to Section 300 is attracted.
If on the otherhand this ingredient of `intention ' is not established or if a reasonable doubt arises in this regard then only it would be reasonable to infer that Clause Thirdly is not 218 attracted and that the accused must be attributed knowledge that in inflicting the injury he was likely to cause death in which case it will be culpable homicide punishable under Section 304 Part II I.P.C. Bearing these principles in mind, if we examine the facts in the present case, clause Thirdly of Section 300 I.P.C. is fully attracted.
The appellant was having illicit relation with Agya Devi, wife of the deceased and his visits to her house were resented and objected.
On the day of occurence, the accused visited the house when the deceased was not there and he went there armed with a kirpan.
When the deceased came and objected to his presence there was only an altercation and exchange of hot words, and not a fight.
Thereupon he took out a knife and stabbed on the chest of the deceased resulting instantaneous death of the deceased.
The above circumstances would show that the accused intentionally inflicted that injury though it may not be pre mediated one.
All the above circumstances would certainly indicate such a state of mind namely he aimed and inflicted that injury with a deadly weapon.
As observed in Virsa Singh 's case in the absence of evidence or reasonable explanation show that the appellant did not intend to stab in the chest with a kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did.
When once the ingredient `intention ' is established then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death.
Therefore an offence of murder is made out.
Accordingly the appeal is dismissed.
Y.Lal Appeal dismissed. | The appellant, had illicit connection with Agya Devi (P.W. 3), wife of the deceased and in that connection he used to visit her house quit frequently to which the deceased and his two brothers & mother living separately in the adjacent house used to object.
It may be pointed that the Agya Devi was related to the appellant 's wife.
On August 18, 1973, at about 11 p.m. when the deceased was not in house, the appellant came to visit Agya Devi.
A shortwhile later, the deceased also came home and he objected to the presence of the appellant whereupon an altercation and exchange of hot words ensued between the appellant and the deceased.
The appellant took out a kirpan (chhurra) from his waist and stabbed the deceased in the chest.
The deceased fell down crying that the appellant has killed him and the appellant fled away with the weapon.
the incident was witnessed by Agya Devi (P.W. 3) and P.W. 2, deceased 's brother from the roof of the house.
The deceased died as a result of the injury.
The prosecution was thereupon launched against the appellant and the prosecution examined and amongst others P.W. 2 and P.W. 3.
P.W. 3 turned hostile, with the result the prosecution was left with only P.W. 2 (brother of the deceased) as eye witness.
The trial court relied on the evidence of P.W. 2 and also held that his evidence was corroborated by the P.Ws. 1 and 5 and recorded the conviction under section 302, I.P.C. and sentenced him to imprisonment for life for causing the death of Champat Rai, the deceased, which order was later affirmed by the Delhi High Court.
Hence this appeal by the appellant, after obtaining special leave.
The main contention of the appellant is that even if the prosecution case is to be accepted, an offence of murder is not made out as the accused was entitled to the right of private defence; even otherwise the accused having inflicted only one injury which proved fatal, the offence would be one amounting to culpable homicide.
203 Dismissing the appeal, this Court, HELD: `Intention ' is different from ``motive ' or ignorance or ``negligence '.
It is the `knowledge ' or `intention ' with which that act is done that makes difference, in arrival at a conclusion whether the offence is culpable homicide or murder.
[208 E] The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the can can fall in that Clause.
The `intention ' and `knowledge ' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances.
The framers of the Code designedly used the words `intention ' and `knowledge ' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue.
Firstly, when an act is done by a person, it is presumed that he , must have been aware that certain specified harmful consequences would or could follow.
But the knowledge is bare awareness and not the same thing as `intention ' that such consequences should ensue.
As compared to `knowledge ', `intention ' requires something more than the mere foresight of the consequences, namely the purposely doing of a thing to achieve a particular end.[211H 212C] `Knowledge ' as contrasted with `intention ' signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive.
On the other hand, `intention ' is a conscious state in which mental faculties are aroused into actively and summoned into action for the purpose of achieving a conceived end.
[213B C] The circumstances would show that the accused intentionally inflicted that injury though it may not be pre mediated one.
All the circumstances would certainly indicate such a state of mind namely that he aimed and inflicted that injury with a deadly weapon.
In the absence of evidence or reasonable explanation to show that the appellant did not intend to stab in the chest with kirpan with that degree of force sufficient to penetrate the heart, it would be perverse to conclude that he did not intend to inflict that injury that he did.
When once the ingredient `intention ' is established then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death.
Therefore an offence of murder is made out.
[218D E] 204 Tholan vs State of Tamil Nadu, ; Jagrup Singh vs State of Haryana, ; ; Randhir Singh vs State of Punjab ; Kulwant Rai vs State of Punjab, ; Hari Ram vs State of Haryana, ; Jagtar Singh vs State of Punjab, ; Ram Sunder vs State of U.P., Crl.
Appeal No. 555/83 decided on 24.10.1983; Chahat Khan vs State of Haryana ; Chamru Budhwa vs State of Madhya Pradesh, AIR 1954 SC 652; Willie (William) Slaney vs State of Madhya Pradesh, ; ; Harjinder Singh alias Jinda vs Delhi admn.
; , ; Laxman Kalu Nikalji vs State of Maharashtra, ; ; Gurmail Singh and Ors.
vs State of Punjab, , referred to.
Virsa Singh vs State of Punjab, ; , followed. |
ivil Appeal Nos.
160 63 of 1990.
From the Order dated 25.9.89 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E/1883/85 C, E/2031/85 C, E/ 1468/88 C and E/ 1986/88 C (Order No. 543 546 of 1989 C).
M.L. Lahoty, Mrs. Meeta Sharma and P.S. Jha (NP) for the Appellant.
M. Chander Sekaran, Additional Solicitor General (N.P.).
M. Gouri Shanker Murthy, G. Venkatesh Rao and P. Parameshwaran for the Respondent.
The Judgment of the Court was delivered by 320 S.C. AGRAWAL, J.
These appeals raise for consideration the question as to whether egg trays and other similar products manufactured by the appellant can be regarded as 'Containers ' under the relevant entries in the Central Excise Tariff.
Till February 28, 1986 the excise tariff was contained in the First Schedule to the (hereinafter referred to as 'the old Tariff ') and with effect from March 1, 1986, the excise tariff is contained in the Schedule to the (hereinafter referred to as 'the new Tariff).
The relevant entry in the old Tariff was Item 17.
During the period March 1, 1982 to February, 1983, the said Item 17 read thus: "Paper and paper board, all sorts (including paste board, mill board, straw board, cardboard and corrugated board) and articles thereof specified below, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (1) Uncoated and coated printing and writing paper (other than poster paper) (2) Paper board and all other kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating, corrugation, creping and design printing), not elsewhere specified.
(a) All sorts of paper commonly known as Kraft paper, including paper and paper board of the type known as Kraft liner or corrugating medium, of a substance equal to or exceedings 65 gram per square metre in each case.
(b) Others.
(3) Carbon and other copying papers (including duplicator stencils) and transfer papers, whether or not cut to size and whether or not put up in boxes.
(4) Boxes, cartons, bags and other packing containers (including flattened or folded cartons, whether or not printed and whether in cartons), whether or not printed and whether in assembled or unassembled conditions." 321 Item 68 of the old Tariff was in the nature of residuary entry.
By notification No. 66/82 CE dated February 28, 1982, the Central Government, in exercise of the powers conferred by sub rule (1) of rule 8 of the Central Excise Rules, 1944, exempted articles of paper or paper board falling under sub item (4) of item 17 of the old Tariff from the whole of the duty of excise leviable thereon.
The said exemption was, however, not applicable to printed boxes and printed cartons (including flattened or folded printed boxes and flattened or folded printed cartons) whether in assembled or unassembled condition.
With effect from March 1, 1983, Item 17 was substituted and during the period March 1, 1983 to February 28, 1986, it read as under: c "Paper and Paper board, all sorts (including pasteboard, mill board, strawboard, cardboard and corrugated board), and articles thereof specified below, in or in relation to the manufacture of which any process is ordinarily carried on with the aid of power (1) Paper board and all other kinds of paper (including paper or paper boards which have been subjected to various treatments such as coating, impregnating, corrugation, creping and design printing), not elsewhere specified.
(2) Carbon and other copying papers (including duplicator stencils) and transfer papers, whether or not put up in boxes.
(3) Boxes, cartons, bags and 'Other packing containers (including flattened or folded boxes and flattened or folded cartons), whether or not printed and whether in assembled or unassembled conditions.
" In the new Tariff, the relevant entry under Heading 48.18 in Chapter 48 is as follows: G "48.18 OTHER ARTICLES OF PAPER PULP, PAPER.
PAPERBOARD, CELLULOSE WADDING OR WEES OF CELLULOSE FIBRES: Cartons, boxes, containers and cases (including flattened or folded boxes and flattened or folded cartons), whether in assembled or unassembled condition: 322 4818.11 Intended for packing of match sticks 4818.12 Printed cartons, boxes, containers and cases, made wholly out of paper or paper board of heading No. or sub heading No. 48.04, 4805.11, 4806.19, 4807.91, 4807.92, 48.08 or 4811.10, as the case may be 4818.13 Other printed cartons, boxes and cases 4818.19 Other" 4818.20 Toilet tissues, handkerchiefs and cleansing tissues of paper 4818.90 Other." On products falling under sub Heading 4818.19, the excise duty was nill whereas on products falling under sub Heading 4818.90, the excise duty was payable at the rate of 12%.
M/s. G. Claridge & Company Ltd. the appellant herein manufactures (i) egg filler flats, (ii) egg cartons, (iii) tube light packing trays, (iv) duck egg trays and (v) apple trays.
It filed a classification list for the above goods effective from April 1, 1981 classifying the products under Item 68 of the old Tariff and it was paying duty at the prevailing rate under Item 68.
After the introduction of the revised Item 17 with effect from February 28, 1982/March 1, 1982, the said appellant filed a revised classification list effective from March 1, 1982 for the aforesaid five products seeking classification under Item 17(4) and claiming full exemption from central excise duty under notification dated February 28, 1982.
This classification list was approved by the Assistant Collector of Central Excise, Pune Division on March 11, 1982, but on re examination Department felt that the said products did not merit classification under Item 17(4) but under Item 68 of the old Tariff and a show cause notice dated May 4, 1984 was issued.
After considering the reply of the appellant to the said show cause notice, the Assistant Collector of Central Excise, Pune Division passed an order dated January 28, 1985 whereby he held that 'egg trays ' manufactured by the appellant were correctly classifiable under Item 68 of the old Tariff and not under Item 17(4) and the appellant was required to pay central excise duty at the appropriate rate leviable on all types of egg trays manufactured and cleared from its unit during the period of six months prior to the notice dated May 4, 1984.
The Assistant Collector was of the view that the articles manufactured by the appellant were articles manufactured directly from the pulp and were, therefore, classifiable as 'articles of pulp ' under Item 68.
The said order of the Assistant Collector was reversed in appeal by the Collector of Central Excise 323 (Appeals) by his order dated April 30, 1985 on the view that the products manufactured by the appellant were made out of waste paper and they were classifiable under Item 17(4) as 'articles of paper and paper board '.
Feeling aggrieved by the said order of the Collector (Appeals), the Department filed appeals Nos.
E/1883/85 C and E/2031/85 C before the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as 'the Appellate Tribunal ').
After the introduction of the new Tariff with effect from March 1, 1986, the appellants filed a classification list classifying their products as 'containers ' falling under sub heading 4818.19 of the new Tariff and since no duty was payable under the said sub heading, the appellants claimed exemption from payment of excise duty on their products.
The said classification list was approved provisionally but subsequently the Assistant Collector, Central Excise issued a show cause notice dated October 16, 1986 proposing to classify the goods under sub heading 4818.90 chargeable to duty @ 12% ad valorem.
After considering the reply to the said show cause notice, the Asstt.
Collector, Central Excise, by his orders dated April 15, 1987 and July 1, 1987 held that the products manufactured by the appellant were not 'containers ' but were 'articles of pulp ' falling under sub heading 4818.90.
The said orders were set aside by the Collector of Central Excise (Appeals) by his orders dated March 22, t988 and June 6, 1988.
The Collector (Appeals) held that the products manufactured by the appellant were 'packing containers ' and classifiable under sub heading orders of the Collector (Appeals), 4818.19.
Feeling aggrieved by the Department filed appeals before the Appellate Tribunal which were registered as Appeals Nos.
E/1468/88 C and E/1986/88 C.
All the above four appeals were disposed by the Appellate Tribunal by a common order whereby the said appeals were allowed.
The Appellate Tribunal held that the products manufactured by the appellant cannot come within the sub classification below containers and were not classifiable under sub heading 4818.19 but were classifiable under sub head ing 4818.90 of the new Tariff and similarly they were not classifiable under item 17(4) or 17(3) of the old Tariff.
The Appellate Tribunal was also of the view that the products manufactured by the appellant are articles of paper because starting raw materials is waste paper.
The Appellate Tribunal has held that the duty demanded by the Assistant Collector for six months prior to the issue of show cause notice dated May 4, 1984, i.e., from November 4, 1983 is legally sustainable and with regard to recovery of the duty for the earlier period from March 1, 1982 by invoking the proviso to Section 11 A(l) of the , the Appellate Tribunal remanded the matter to the Collector (Appeals) for considering the said question.
324 The question which arises for consideration in these appeals is whether the egg trays and other similar products manufactured by the appellants are 'containers ' falling under Item 17(4) of 17(3) of the old Tariff and sub heading 4818.19 of the new Tariff.
The learned counsel for the appellant has urged that the products manufactured by it are 'containers ' and in support of this submission the learned counsel has invited our attention to the meaning of the term 'container ' as contained in the Dictionaries and the Indian Standard Glossary of Terms relating to paper or paper board, packaging materials, Glossary of Packaging Terms (USA) and Glossary of Packaging Terms (Australia).
The submission of the learned counsel is that a 'container ' is a receptacle which holds, restrains or encloses the item to be stored or transported and that the egg tray and other similar products manufactured by the appellant are 'containers ' because they are receptacles for holding, storing and transporting the things kept in them.
It has been urged that a 'tray ' is a shallow lidless container and merely because an egg tray is described as a tray does not mean that it is not a 'container '.
It is contended that egg trays are so designed as to protect the eggs from breakage and that egg trays provide the best mode for storage and transport of eggs.
The learned counsel has submitted that the Appellate Tribunal was in error in proceeding on the basis that egg tray and other similar products manufactured by the appellant cannot be regarded as 'containers ' because when a single egg tray is reversed or turned upside down or tilted sideways vertically at 90% angle, the contents would fall down.
The submission of the learned counsel is that it is not required that a container should be closed from all sides and that a container can also be open.
The expression 'container ' has been thus defined in the dictionaries and Glossaries of Packaging Terms: "Container: One that contains; a receptacle or flexible covering for shipment of goods.
(Abstract from Webster 's New Collegiate Dictionary, 1975) "Container: that which contains that in which goods are enclosed for transport.
(Abstract from Chambers ' 20th Century Dictionary) "Containers Any receptacle which holds, restrains or 325 encloses any article or commodity or articles or commodities to be stored or transported.
(Abstract from Indian Standard Glossary of Terms: 1.8. 4261 1967) "Container.
(1) In general, any receptacle or enclosure used in packaging and shipping.
(2) Relatively large, reusable enclosures to be filled with smaller packages and discrete objects, to consolidate shipments and allow transport on railway flat cars, flatbed trailers, aircraft, in ships ' holds or as deckloads, etc.
(See CARGO TRANSPORTER; CONTAINERIZATION).
(3) Any receptacle for holding a product." [Abstract from Glossary of Packaging Terms (USA)] "Container.
A large box for intermodal transport, containing many smaller boxes of different shapes and sizes as well as individual articles.
[Abstract from Glossary of Packaging Terms (Australia)] The above definitions would show that the expression 'container ' is used in three different senses: in a broad sense, it means a receptacle which contains; in a narrower sense, it means a receptacle in which articles are covered or enclosed and transported; and in a more limited sense, it means enclosure used in shipping or railway for transport of goods.
If used in a broad sense, 'container ' would include a tray because it is a receptacle which contains articles and, therefore, an egg tray would be a 'container '.
But an egg tray would not be a 'container ' in a narrower sense because articles placed in it are not covered or enclosed and they cannot be transported as such.
It is,therefore, necessary to ascertain whether the expression 'container ' in Item 17 of the old Tariff and Heading 48.18 of the new Tariff has been used in the broad sense to include all receptacles or in a narrower sense to mean those receptacles in which the articles are covered or enclosed and transported.
For this purpose, the context in which the word 'container ' has been used in these entries has to be examined.
In Item 17 of the old Tariff, the word 'containers ' is preceded by the words 'boxes, cartons, bags and other packing ' and in Heading 48.18 of the new Tariff, the word 'containers ' is preceded by the words cartons, boxes ' and is followed by the words 'and cases '.
It is a well accepted canon of statutory construction that when two or more words which are susceptible of analogous meaning are coupled together they 326 are understood to be used in their cognate sense.
It is based on the principle that words take as it were their colour from each other, that is, the more general is restricted to a sense analogous to a less general.
[See: Dr. Davendra M Surti vs State of Gujarat, ; at p. 240].
Considering the expression 'containers ' in the context in which it is used in the relevant tariff items, we are of the opinion that the said expression has to be construed to mean 'packing containers ' which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles.
Egg trays being receptacles which are not covered or enclosed cannot be used for transportation of articles and, therefore, they cannot be regarded as 'containers ' under the abovementioned entries in the Excise Tariff.
According to the New Encyclopaedia Britannica, the practice followed in the various countries for the packaging of eggs for transport is as follows: "Packaging.
For retail use in the United States, eggs are repackaged in dozen and half dozen paperboard cartons.
In some other countries they are packed with straw or excelsior in long wooden boxes.
In many parts of the world, they are marketed in baskets or boxes and the individual eggs are sold by weight.
Several European countries stamp each egg with a date and number to meet the import restrictions of other nations." [p. 444, Vol. 6, 1974 edition] The Glossary of Packaging Terms (USA) also shows that moulded pulp egg trays are put in a standard case which indicates that the egg trays containing the eggs are put in a case for the purpose of transport.
In other words, the case in which the egg trays are put are `containers ' and not the 'egg tray ' itself.
For the reasons aforesaid, we are of the opinion that the Appellate Tribunal was right in taking the view that the egg trays and other similar products manufactured by the appellant cannot be regarded as `containers ' under the relevant items of the Excise Tariff.
The appeals, therefore, fail and are accordingly dismissed.
There will be no orders as to costs.
R. P. Appeals dismissed. | The appellant was a manufacturer of egg trays and other similar items.
Before the introduction of (new Tariff) effective from 1.3.1986, Central Excise and Salt Act, 1944 (old Tariff) was applicable to the relevant products.
The appellant, classifying its product under Item 68 of the old Tariff, was paying duty accordingly.
By Notification dated February 28, 1982, issued under Rule 8(1) of the Central Excise Rules, 1944, the Central Government exempted articles of paper and paper board falling under Item 17(4) of the old Tariff.
The appellant filed a revised classification list for its products seeking classification under item 17(4).
The Asstt.
Collector, Central Excise held the products classifiable as 'articles of pulp ' under Item 68 of the old Tariff, and the appellant was required to pay excise duty accordingly.
On appeal, the Collector (Appeals) reversed the order of the Asstt.
Collector, and held that the products were made out of waste paper and were classifiable under Item 17(4) as 'articles of paper and paper board '.
The Revenue filed appeals before the Customs, Excise and Gold (Control) Appellate Tribunal.
On introduction of the new Tariff, the appellant classified the relevant products as 'containers ' under sub heading 4818.19 and claimed exemption.
The Asstt.
Collector held that the products were not 'containers ' but were 'articles of pulp ' falling under sub heading 4819.90 and accordingly chargeable to duty.
Setting aside the order in 318 appeal, the Collector held that the products were 'packing containers ' and classifiable under sub heading 4818.19.
The Revenue appealed before the Appellate Tribunal, which allowed all the appeals by a common judgment, but remanded the matter to the Collector (Appeals) with regard to the recovery for a certain period.
In the assessee 's appeal to this Court it was contended that the `egg trays ' manufactured by the appellant were 'containers ' under Item 17 and Heading 48.18 of the respective Tariffs; that merely because the egg tray was described as a tray does not mean that it was not a container; and that it was not required that a container should be closed from all sides.
On the question whether: egg trays and other similar products manufactured by the appellant are 'containers ' falling under Item No. 17(4) or 17(3) of the First Schedule to the and Heading 48.18 of the .
Dismissing the appeals, this Court, HELD: 1. 1 'Egg trays ' being receptacles which are not covered or enclosed cannot be used for transportation of articles and cannot be regarded as 'containers ' under Item 17 of the First Schedule to Central Excise and Salt Act, 1944 and Heading 48.18 of the Schedule to .
[326B] 1.2 Moulded pulp egg trays containing the eggs are put in a standard case for the purpose of transport.
The case in which the egg trays are put, are 'containers ' and not the 'egg trays ' itself.
[326E F] 1.3 The expression 'container ' is used in three different senses: in a broad sense, it means a receptacle which contains; in a narrower sense, it means a receptacle in which articles are covered or enclosed and transported; and in a more limited sense, it means enclosures used in shipping or railway for transport of goods.
If used in a broad sense, `container ' would include a tray because it is a receptacle which contains articles and, therefore, an egg tray would be a 'container '.
But an egg tray would not be a 'container ' in a narrower sense because articles placed in it are not covered or enclosed and they cannot be transported as such.
[325D F] 319 1.4 In item 17 of the First Schedule to the word 'containers ' is preceded by the words 'boxes, cartons, bags and other packing ' and in Heading 48.18 of the Schedule to , the word 'containers ' is preceded by the words 'cartons, boxes ' and is followed by the words 'and cases '.
Considering the expression 'containers ' in the context in which it is used in the relevant tariff items, the said expression has to be construed to mean 'packing containers ' which are analogous to boxes and cartons, that is, an enclosed receptacle which can be used for storage and transportation of articles.
[325G, 326A B] Webster 's New Collegiate Dictionary, 1975 Chambers ' 20th Century Dictionary Indian Standard Glossary of Terms Glossary of Packaging Terms (USA) Glossary of Packaging Terms (Australia) New Encyclopedia Britannica, referred to. 2.
It is a well accepted canon of statutory construction that when two or more words which are susceptible of analogous meaning are coupled together they are understood to be used in their cognate sense.
It is based on the principle that words take as it were their colour from each other, that is, more general is restricted to a sense analogous to a less general.
[325G H, 326A) Dr. Devendra M. Surti vs State of Gujarat, ; , relied on. |
ivil Appeal Nos.
1335 36 of 1976.
853 From the Judgment and Order dated 9.12.75 of the Punjab & Haryana High Court in L.P.A. Nos. 231 and 267 of 1974.
Markandey Singh, Appellant in person, in CA.
No. 1335 of 1976 and Respondent in person in CA.
No. 1336 of 1976.
Girish Chandra, C.V. Subba Rao and K.S. Guruswamy for the appellants in CA.
No. 1336 of 1976.
V.C. Mahajan, for the Respondent In 1335 of 1976.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These two appeals are connected.
These deal with the rectification of year of allotment of absorption of the appellant in the first appeal and respondent in the second one Shri Markandey Singh (hereinafter called the appellant in the first appeal and respondent in the second appeal) in the Indian Police Service.
Shri M.L. Bhanot is the respondent in the first appeal.
He is appellant in the second appeal being Civil Appeal No. 1336 of 1976.
By the order dated 21st July, 1973, Shri Markandey Singh was assigned 1956 as the year of allotment in I.P.S. cadre.
Shri Bhanot challenged the said order.
The same was quashed by the learned single judge of Punjab & Haryana High Court on 4th April, 1974.
Letters Patent Appeal against the said order was dismissed by the Division Bench of the said High Court on 9th December, 1975.
The first appeal aforesaid arises from the said decision.
In order to appreciate the position, it may be relevant to note that Shri Markandey Singh the appellant in the first appeal joined the U.P. State Service as Deputy Superintendent of Police on 17th November, 1950 by passing a competitive examination.
Two years later he was confirmed as such.
In November, 1953, he joined on deputation the Union Territory of Delhi which had at that time no police service of its own.
While on deputation in 1958 and again in 1959 60, the appellant had officiated as Superintendent of Police but for administrative reasons was reverted back.
In July, 1960, Himachal Pradesh Indian Police Service was created and thereafter the Delhi Himachal Pradesh Police Service in March, 1961.
On 6th December, 1961, Shri Singh was again promoted to officiate as Superintendent of Police.
During the period of his officiation, his request for being absorbed in the Himachal Pradesh State Police Service was accepted and by an order dated 7th February, 1963, he was absorbed in the State Service with effect from 27th November, 1962.
While he was continuing to officiate in the senior post as aforesaid, on 854 30th April, 1965, he was confirmed in the Union Territory Cadre of I.P.S. with effect from 14th May, 1964.
He was assigned 1958 as the year of allotment.
He, however, made representation against the order of allotment in August, 1969 to the Central Government claiming the benefit of officiation from 6th December, 1961 to 13th May, 1963 in the matter of fixation of his year of allotment.
On 14th May, 1963, the appellant 's name had been brought on the select list of the officers to be promoted to the Indian Police Service and he was recruited with effect from the same date.
It may be noted that during the preceding period of officiation as mentioned hereinbefore he was not on the select list.
On 23rd April, 1970, his representation was rejected by the Central Government.
He made a second representation on 23rd June, 1970.
Shri Bhanot had appeared in the I.P.S. Examination.
He was successful and recruited in the Police Service in October, 1957.
The year of allotment assigned to him was 1957.
Shri Bhanot, was allotted the year 1957 on his joining the service by examination and the appellant allotted the year 1958 as mentioned hereinbefore.
In November, 1962, the respondent, Shri Bhanot was promoted as Superintendent of Police in the Union Territory of Delhi with effect from 13th May, 1961.
In November, 1966, reorganisation of State of Punjab took place and at that time Shri Bhanot was allotted to the joint I.P.S. Cadre of Delhi and Himachal Pradesh.
On coming to know in December, 1972 about the second representation made by Shri Singh, Shri Bhanot wrote to the Central Government that he having been allotted the year 1957 was senior to Shri Singh and if any change was brought about in the year of allotment of Shri Singh which was 1958, he, the respondent, should be intimated of the reasons so as to enable him to make an effective representation.
According to the respondent, which has been accepted by the Division Bench of the High Court of Punjab & Haryana in the impugned judgment, he did not hear anything from the Central Government in spite of the several reminders.
On 21st June, 1973, the Central Government by its order of the same date gave the benefit of officiation for a period from 6th December, 1961 to 13th May, 1963 to Shri Singh and accepted his representation and assigned to him 1956 as the year of allotment.
In consequence, Shri Singh was placed below one Shri B.P. Marwaha and above Shri Bhanot in the gradation list of Union Territory of I.P.S. Feeling aggrieved, Shri Bhanot filed the writ petition being Writ Petition No. 12 of 1974 before the High Court.
The learned single judge allowed the same.
He held that Shri Singh being on deputation was not entitled to the benefit of officiation on senior post prior to 27th November, 1962 with effect from which he was absorbed in Delhi Himachal Pradesh State Police Service.
The representation made by Shri Singh was barred by time.
855 It was further held by the learned single judge that acceptance of the second representation of Shri Singh without giving an opportunity to Shri Bhanot was in violation of the principles of natural justice.
In the premises the order dated 21st June, 1973 was quashed by the learned single judge.
There were two appeals before the Division Bench one was filed by Shri Singh against the judgment of the learned single judge and the other was filed by the Union of India.
Both these appeals were disposed of by the Division Bench by judgment in Letters Patent Appeal No. 231 of 1974 and for the reasons given in Letters Patent Appeal No. 231 of 1974, the appeal by the Union of India was also dismissed and being aggrieved by the said decision, the Union of India has preferred the second appeal herein namely Civil Appeal No. 1336 of 1976.
The question involved in these appeals is whether the year of allotment given to Shri Singh as 1958 was correct or not and whether the order passed by the High Court both of the learned single judge which was later upheld by the Division Bench to quash the year of allotment in favour of Shri Singh for the year 1956 was bad or not.
this depends upon the interpretation of various rules and provisions.
The main question which falls for consideration in these two appeals is whether the service rendered by one in a senior post in the I.P.S. Cadre of a particular State while the incumbent was on deputation to the State Police Service of that State from another State was entitled to the benefit for the purpose of working out the year of allotment in accordance with second proviso to rule 3(3)(b) of the Seniority Rules.
We are concerned with the unamended rule 3(3) of the said Rules.
The relevant part of the said rule reads as follows: "3(3) The year of allotment of an officer appointed to the Service after the commencement of these rules, shall be (a) Where the officer is appointed to the Service on the result of a competitive examination, the year following the year in which such examination was held; (b) Where the officer is appointed to the Service by promotion in accordance with rule 9 of the Recruitment Rules, the year of allotment of the junior most among the officers recruited to the 856 Service in accordance with rule 7 of those rules who officiated continuously in a senior post from a date earlier than the date of commencement of such officiation by the former; Provided that the year of allotment of an officer appointed to the Service in accordance with rule 9 of the Recruitment Rules who started officiating continuously in a senior post from a date earlier than the date on which any of the officers recruited to the Service, in accordance with rule 7 of those Rules, so started officiating shall be determined adhoc by the Central Government in consultation with the State Government concerned.
Provided further that an officer appointed to the Service after the commencement of these Rules shall be deemed to have officiated continuously in senior post prior to the date of the inclusion of his name in the Select List prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulation framed under rule 9 of the Recruitment Rules, if the period of such officiation prior to that date if approved by the Central Government in consultation with the Commission.
Explanation 1.
An officer shall be deemed to have officiated continuously in a senior post from a certain date if during the period from that date to the date of his confirmation in the senior grade he continues to hold without any break or reversion a senior post otherwise than as a purely temporary to local arrangement.
Explanation 2.
An officer shall be treated as having officiating in a senior post during any period in respect of which the State Government concerned certifies that he would have so officiated but for his absence on leave or appointment to any special post or any other exceptional circumstances.
" On behalf of the appellant before us, reliance was placed on the decision of this Court in Arun Ranjan Mukherjee vs Union of India & Ors., [1971] Suppl.
S.C.R. 574 A.I.R.
It may be mentioned that in 1954 the Central Government, in 857 exercise of the powers vested in it by section 3 of the All India Services Act, 1951 (hereinafter called the 'said Act ') framed certain rules.
The Indian Service (Recruitment) Rules (hereinafter called the 'Recruitment Rules '), the Indian Police Service (Cadre) Rules (hereinafter referred to as the 'Cadre ') and the Indian Police Service (Regulation of Seniority) Rules (hereinafter referred to as the 'Seniority Rules ').
The Indian Police Service (Fixation of Cadre Strength) Regulations ', 1955 (hereinafter referred to as the 'Cadre Regulations ') were also framed for determining the strength and composition.
It is not necessary to refer to the various rules to which the Division Bench in the impugned judgment has made exhaustive reference.
It is indisputable that Shri Singh, the appellant herein, was holding a substantive position in the U.P. State Police Service until he was taken over in the joint Police Service of Delhi and Himachal Pradesh in February, 1963, with effect from 27th November, 1962.
He was brought on the select list of officers to be promoted to I.P.S. cadre of the Union Territories of Himachal Pradesh and Delhi on 14th May, 1963.
Prior to that, he had been continuously officiating in a senior post since 6th December, 1961.
He claimed that he should be given the benefit of that period.
This was rejected by the learned single judge and this rejection was upheld by the Division Bench of the High Court.
He was on deputation in Delhi Himachal Pradesh State Police Service.
The question is what is the correct position.
The first representation that the appellant made for fixing the year of allotment to be given the benefit of continuous officiation on a senior post from 6th December, 1961, to 13th May, 1963 was rejected by an order dated 23rd April, 1970.
The said order of rejection is Annexure R. 4.
It stated that in accordance with the orders contained in Letter No. 1/2/62 Delhi IDH(S) dated 23.8.1963, of the Home Ministry, all cadre posts held by non cadre officers not on the Select List were deemed to have been kept in abeyance with effect from 27th September, 1961 onwards; and according to the Seniority Rules, the service rendered by an officer prior to his inclusion in the Select List could not be counted for seniority unless approved by the Central Government in consultation with the Union Public Service Commission under the Second proviso to rule 3(3)(b) of the Seniority Rules.
The requisite approval, it was stated, was not there.
In the second representation made by the appellant, the Division Bench noted the fact that Shri Singh had noted in Madan Gopal Singh vs Union of India, the Division Bench of Delhi High Court had quashed the aforesaid letter of the Home Ministry.
A 858 perusal of the order dated 21st June, 1973 made by the Central Government showed that the representation was accepted but not on the ground urged by him.
The reason why the second representation was accepted by the Central Government was that in November, 1972, the Union Public Service Commission had approved of the officiation of Shri Singh in the I.P.S. cadre post during the period 6th December, 1961 to 13th May, 1963 under the second proviso to rule 3(3)(b) of the Seniority Rules, "as they stood in May, 1963".
Accordingly, Shri Singh was allowed the year of 1956 and placed above Shri Bhanot.
Old rule 3(3)(b) of the Seniority Rules applicable in this case has been set out hereinbefore.
It was urged before the Division Bench that nowhere rule 3(3)(b) and the second proviso thereto in particular excludes the officiating period of deputation.
In this connection reliance was placed on the decision of the Division Bench in the case of Arun Ranjan Mukherjee vs Union of India and others (supra).
In as much as good deal of reliance was placed by the Division Bench as well as by the appellant before us on the said decision.
It may be mentioned that the appellant in that case joined the Indian Army as a Commandant Officer in 1942.
He became a Major in 1945.
His services were lent to the state of West Bengal and accordingly on 10th January, 1949, he was posted as a Commandant of the Special Armed Police Battalion, a post corresponding to a senior post in the I.P.S.
The said appellant with his consent was appointed to the West Bengal State Police Service on 1st July, 1953.
On 8th September, 1954, the Indian Police Service (Recruitment) Rules, 1954, Indian Police Service (Cadre) Rules, 1954 and the Indian Police (Regulation of Seniority) Rules, 1954 were framed by the Government of India under section 3 of the All India Services Act 61 of 1951.
On 6th June, 1955, the Indian Police Service (Appointment by Promotion) Regulations, 1955 were also issued under which 25% of the senior posts were allotted to the Indian Police Service cadre in each State.
The appointment of the appellant was outside the quota.
On 31st July, 1958, the appellant was appointed on probation in the State cadre of West Bengal.
In December, 1959 he was substantively appointed to a senior post in the Indian Police Service and confirmed thereon with effect from 21st July, 1958.
In December, 1958, the Ministry of Home Affairs conveyed to the Government of West Bengal its decision to fix the pay of the appellant in the senior scale of the Indian Police Service notionally from 10th January, 1949, the date from which he held an Indian Police Service Cadre post continuously.
On 19th January, 1960, the Indian Police Service (Seniority of Special Recruits) Regulations 1960 were framed pursuant to rule 5 A of the Seniority Rules on 11th October, 859 1960, the Government of India in consultation with the Union Public Service Commission decided to allot to the appellant the year 1948.
The year of allotment was subsequently changed to 1947 on the basis that the officiation of the appellant as well as that of the junior most direct recruit, in a senior scale did not start before 19th May, 1951.
The appellant filed a writ petition under Article 226 of the Constitution.
The learned single judge, allowing the petition, held that the date from which the appellant continuously officiated was 10th January, 1949 and that accordingly the year 1943 allotted to D the Junior most direct recruit, should also be allotted to the appellant.
The learned Single Judge also held that the first and second proviso to rule 3(3)(b) of the Seniority Rules were not applicable to the appellant.
The Division Bench in appeal agreed with the learned single judge, that the date of continuous officiation of the appellant was 10th January, 1949.
But the High Court thought that the year 1947 allotted to the appellant on the basis of his officiation from 19th May, 1951 could not be sustained because the latter date had been held by this Court to be irrelevant in the case of D.R. Nim, I.P.S. vs Union of India, ; Non the less the year of allotment 1948 assigned to the appellant in the order of 11th October, 1960 was sustained because it was on an ad hoc basis.
Against the High Court 's order the appellant appealed to this Court.
He urged under the main clause of rule 3(3)(b) of the Seniority Rules the year 1943 should be allotted to him as the said year had been allotted to D the junior most direct recruit and that the first proviso to rule 3(3)(b) did not apply to him as it applied only to those in the joint cadre; and that this Court should deduct the 'P ' factor from the date of officiation which as held by the High Court was 10th January, 1949 and allot to him the year 1943 as the year of allotment.
This Court dismissed the appeal and held that D was an Indian Police Officer recruited in 1945.
He became a member of the Indian Police Service under sub rule(1) of rule 3 of the Indian Police Service (Recruitment) Rules, 1954 on the date when the said Rules came into force in 1954, and was not an officer recruited to the service in accordance with rule 7 of those Rules.
The year of allotment assigned to D was not therefore available to the appellant under the main part of rule 3(3)(b).
This Court further held that the first proviso to rule 3 nowhere referred or even remotely indicated that it was only applicable to the persons in the joint cadre.
In fact rule 2(1) of the Seniority Rules and the words "State cadre" and "joint cadre" had been defined as having the meaning respectively assigned to them in the Indian Police Service (Cadre) Rules, 1954.
By reference to rule 7 of the Cadre Rule it is 860 apparent that what is to be determined is the authority which is to appoint, to the respective cadres i.e. in the case of State Cadre it is the State Government and in the case of Joint Cadre it is the State Government concerned.
The first proviso did not refer to any appointment to any cadre it only dealt with Regulation of Seniority and the reference to State Government concerned is for the purpose of fixing the date of officiation ad hoc in consultation with the Central Government.
When there are several State Governments the consultation by the Central Government must necessarily be with the State Government concerned in relation to the officer who was appointed to the cadre of that State.
Whether the first proviso applied or the second proviso applied, it was the Central Government that had to determine ad hoc, the year of allotment after approving the period of officiation in consultation with the Public Service Commission.
This Court further held that in view of the judgment in Nim 's case (supra) the order assigning 1947 as the year of allotment to the appellant on the basis of an arbitrary date of officiation namely 19th May, 1951 was bad and had been quite properly struck down by the High Court.
The High Court however had no power to direct the year 1948 to be fixed as the year of allotment for the determination of the seniority of the appellant on the basis that that was fixed on an ad hoc basis in an earlier occasion by the Government of India.
Once the Government of India had on a memorial presented by the Appellant decided finally in supersession of its previous decision that his year of allotment was 1947, the previous decision fixed on ad hoc basis could not be revived.
It was for the Government of India in consultation with the Commissioner to determine ad hoc the year of allotment to be assigned to the appellant in relation to the date of his continuous officiation.
This Court would not trespass upon the jurisdiction of the Government of India to determine ad hoc in consultation with the Commission on a consideration of the relevant materials, the date of the appellant 's continuous officiation and assign him a year of allotment.
This Court reiterated that it was for the Central Government to examine year of allotment after approving the period of officiation in consultation with the Union Public Service Commission.
It may be relevant to mention that this Court noted the observations of the Division Bench judgment of the Calcutta High Court which was under appeal in that case and noted that there was nothing in clause (b) of the said Rules which showed that while officiating in a "senior post", the officer concerned must be an officer belonging substantially to the State Police Service in question and could not be an officer on deputation from some other service.
It was urged before the Divi 861 sion Bench that this Court had approved the view of the Calcutta High Court that benefit of the period of deputation should be given to Shri Mukherjee.
The Division Bench was unable to accept the position.
The Division Bench was of the view that this Court had reiterated that it was relevant material which had to be taken into consideration by the Government of India but it was for Government to determine in consultation with the Union Public Service Commission the date of a person 's continuous officiation and assign to him a year of allotment and the High Court as such had no such power.
The Division Bench was of the view that the learned single judge of the High Court was right that this Court had not given any decision whether the period of deputation of Shri Mukherjee in that case before his absorption could be taken into account in assigning the year of allotment to him.
The learned single judge in Chambers as noted by the Division Bench further found support to this view with reference to relevant noting in the file of Shri Mukherjee which was produced before the learned single judge.
Rule 3(3)(b) of the Seniority Rules and the provisos thereto should not be read in isolation.
This rule is in the setting of other rules.
The Cadre rules read with Indian Police Service (Fixation of Cadre Strength) Regulations of 1955 fixed the strength of the Indian Police cadre of the Union Territories a particular figure.
Out of them, not more than 25% officers eligible for recruitment to the I.P.S. cadre had to be the substantive members of the State (U.T.) Police Service at that time.
The scheme as it stood, fixed the strength of the I.P.S. cadre State wise.
Recruitment by promotion thereto could only be from the substantive members of the Police Service of that particular State.
So long as Shri Singh remained as a substantive member of the U.P. State Police Service, he could not possibly be promoted to the joint I.P.S. cadre of the Union Territories of Delhi and Himachal Pradesh.
He became eligible to his promotion to the Union Territory I.P.S. Cadre only after he had been absorbed in the Delhi Himachal Pradesh State Police Service.
Proviso (1) to Rule 3(3)(b) of the Recruitment Rules gave a clear indication that for determining the year of allotment ad hoc the Central Government consulted the State Government concerned.
In Explanation (2) again, there was reference to a certificate by the State Government concerned that an officer would have officiated in a senior post but for his absence on leave or appointment to any special post.
It is apparent therefore that the State Government is the one, of the Police Service of which the Officer concerned is a substantive member.
In this case as found by the Division Bench, Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and he 862 had gone back to his parent State of U.P.
In case Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and he had gone back to his parent State of U.P., then according to Explanation (2) the U.P. State Government might have issued the certificate to facilitate his promotion to the I.P.S. cadre of the U.P. State.
The Promotion Regulation of 1955 laid down the determination of the eligibility of a substantive member of the State Police Service.
Thereafter, the names of the eligible officers were brought on the Select List, which were to be approved by the commission.
Appointments by promotion to the I.P.S. cadre are made from the Select List.
In the event of promotion, but for second proviso the benefit of continuous officiation on a senior post for fixing his year of allotment is given to an officer from the date after his being nominated on the Select List.
In Explanation (1) of rule 3(3), there is no mention that deputationist before his absorption in the State Police Service can get the benefit of such officiation.
That is the position.
Therefore before his absorption, it is not possible to accept the position that Shri Singh was entitled to the benefit of his officiation.
The Division Bench so held.
We are of the opinion that the Division Bench was right on this aspect of the matter.
It may be mentioned that Seniority Rules 1954 including rule 3(3)(b) quoted above were amended with effect from 22nd April, 1967.
Before the amendment, the appellant Shri Singh, had been confirmed in the Union Territory cadre of Indian Police Service with effect from 14th May, 1964 and had been allotted 1958 as the year.
The first representation was made by him in August, 1969 and the second in June, 1970.
The second proviso to old seniority rule 3(3)(b) referred to hereinbefore had laid down that where a promotee had officiated continuously in a senior post prior to the date of inclusion of his name in the Select List prepared in accordance with the Promotion Regulations, he could get the benefit of such officiation if approved by the Central Government in consultation with the Commission.
The Seniority Rules as amended in 1967, however, did not provide for such approval.
Hence, after the amendment of the Seniority Rules, the Central Government was not empowered to grant the approval as aforesaid in favour of Shri Singh in November, 1972.
This was the submission on behalf of the respondent, Shri Bhanot.
The argument was not accepted by the Division Bench because the question of allotment of Shri Singh in accordance with the Seniority Rules ripened before the amendment of 1967.
There is no rule vitiating the operation of the old seniority rules.
As a matter of fact, the party had proceeded all along in this case on the basis that the old seniority rules applied.
863 In Government of India and Anr.
vs C.A. Balakrishnan and Ors., this question was considered.
In that case the promotion in question was made in November, 1957.
The change in the relevant rules of promotion came in September, 1960.
This Court affirmed the decision of the High Court and held that in November, 1957 the post in question was a selection post and that the basis of seniority cum fitness introduced by the amendment rules in September, 1960 was not applicable.
The question, therefore, was held to be governed by the old rules.
The Division Bench held that the second representation made by Shri Singh was barred.
As mentioned hereinbefore, in support of the appeal, the appellant submitted that the Division Bench was in error in not following the ratio of the decision in the case of Arun Ranjan Mukherjee (supra).
We are unable to accept this submission.
Arun Ranjan Mukherjee 's case proceeded on the basis of the decision of this Court in the case of D.R. Nim, I.P.S.v.
Union of India (supra).
There under rule 3 of the Indian Police Service (Regulation of Seniority) Rules, 1954 issued under section 3(1) of the All India Services Act, 1951, the mode of determining the seniority of officers of the Indian Police Service was laid down.
It was provided that the officers were divided into categories: namely, (1) those in the Service at the commencement of the Rules, and (2) those appointed to the Service after the commencement of the Rules.
The second category was divided into two sub categories: namely, (a) officers appointed as a result of a competitive examination, and (b) officers appointed by promotion in accordance with rule 9 of the Recruitment Rules.
The year of allotment of an officer which determined his seniority, was determined according to rule 3(3)(a) or (b) of the present rules.
But if an officer started officiating continuously in a senior post from a date earlier than the date on which any of the officers was recruited to the Service by competition, the year of allotment had to be determined ad hoc by the Central Government under proviso (1) to rule 3(3)(b) and under proviso (2) to rule 3(3)(b), the period of officiation before the date of inclusion of the name of an officer in the Select List prepared in accordance with the requirements of the Indian Police Service (Appointment by Promotion) Regulations would be counted only if such period was approved by the Central Government in consultation with the Public Service Commission.
In that case the appellant was officiating as Superintendent of Police from June, 1957 that is from a date earlier than the date of any officer recruited by competition, and was appointed to the Indian Police Service by promotion in 1955 after the commencement of the Seniority Rules.
His name was included in the Select List in 1956.
The 864 government passed an order on 25th August, 1955, that officers promoted to the Indian Police Service should be allowed the benefit of their continuous officiation with effect only from 19th May, 1951.
The appellant challenged the order by a petition under Article 226 before the High Court because the period of his officiation from June, 1947 to May, 1951 was excluded for the purpose of fixation of his seniority.
The High Court dismissed the petition.
This Court under appeal held that the impugned order dated 25th August, 1955 should be quashed and the Central Government directed to fix the year of allotment and seniority of the appellant according to the law.
The date 19th May, 1951 in that case was an artificial and arbitrary date having nothing to do with the application of the first and second proviso to rule 3(3).
It has some relevance for the Indian Administrative Service, but why it should be applied to the Indian Police Service was not adequately explained.
Under the two provisos, this Court held, the Central Government had to determine ad hoc the year of allotment after approving or not approving the period of officiation in consultation with the Public Service Commission taking into consideration all the relevant facts.
The Central Government cannot pick out a date and say that a period prior to that date would not be deemed to be approved by the Central Government within the second proviso.
In view of the fact that he was officiating for eight years, that he was never reverted and that he was appointed to the post when vacancies fell, it could not be held that the appellant 's continuous officiation a mere temporary or local or stop gap arrangement, within the meaning of Explanation (1) to rule 3(3)(b).
In the instant case, the Central Government had not fixed the date of appellant 's absorption in the Select List as 1958 out of the hat so to say.
It had relevance as it appears from the basis of the order of the Central Government.
In this case, the appellant who was a deputationist before the absorption in the State Public Service could not be entitled to get such officiation.
In case Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and he had gone back to his parent State of U.P., then according to explanation (2), U.P. State Government might have issued the certificate to facilitate his promotion to the I.P.S. cadre of the U.P. State.
But so long as Shri Singh remained a substantive member of the U.P. State Police Service, he could not possibly be permitted to join I.P.S. cadre of the Union Territories of Delhi and Himachal Pradesh.
In accordance with the rules, he became eligible to his promotion to the Union Territory I.P.S. cadre only after he had been absorbed in Delhi Himachal Pradesh Police Service. 865 Reading the rules with which we are concerned which state that certain year should be assigned by the Government in consultation with Public Service Commission must be interpreted in the light of the well established rule of construction that if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound these words in their natural and ordinary sense, the words themselves in such a case best declaring the intention of the legislature.
See in this connection the observations of this Court in The Collector of Customs, Baroda vs Digvijaysinhji Spinning & Weaving Mills Ltd.,[1962] 1 SCR 896 at 899.
This Court in Ram Prakash Khanna and others etc.
vs S.A.F. Abbas and others etc.
; , dealing with the aforesaid rule proviso 2, observed that under the second proviso to Rule 3(3)(b) a promotee could obtain the advantage of officiation continuously in a senior post prior to the inclusion of the name in the Select List if the period of such officiation is approved by the Central Government in consultation with the Union Public Service Commission.
This Court reiterated that approval as contemplated in Rule 3(3)(b) is a specific approval and is directed to the particular matter mentioned therein as to whether there was approval of the period of officiation prior to the inclusion in the names in the select list.
The officiation in a senior post is one of the indispensable ingredients in the application of rule 3(3)(b).
But it must be borne in mind that this was not a sine qua non.
This Court found on the materials in the appeal before this Court in that case that it could not be held that the Central Government gave any approval in consultation with the Union Public Service Commission to have the benefit of the period claimed by the appellant.
In the instant case, before the absorption of the appellant in the Himachal Pradesh Delhi, I.P.S. Cadre, his officiation had not been taken by the Central Government into consideration.
We are unable to say that the Central Government had not acted properly.
This appeal is not concerned with the assignment of year 1958 to Shri Singh but rule 16 clause (1)(iii) of the Service Rules provides for certain penalties and one of the penalties, inter alia, is the effect of superseding him in promotion to a Selection Post and as such is appealable.
We are of the opinion that the High Court was right that appeal does not necessarily lie only against the order imposing penalty and is also open to entertain appeal when the service rule was interpreted to the disadvantage of member of the service but rule 17 bars the filing of appeal after the expiry of 45 days.
Proviso to the said rule, however, gives discretion to the appellate authority to condone the delay if 866 sufficient cause is shown.
Rule 24 of All India Services (Discipline and Appeal) Rules, 1969 provides for review within different periods.
Under that rule since Shri Singh could have filed an application for review within one year, in this case remedy of review by Shri Singh had also become barred when the second order was passed.
Rule 25 regulates memorials.
It reads as follows: "A member of the Service shall be entitled to submit a memorial to the President against any order of the Central Government or the State Government by which he is aggrieved within a period of three years from the date of the passing of such order.
It appears that there is provision for appeal in the order of this nature.
Failure to prefer an appeal or apply for review was no bar to the submission of memorials to the President.
In December, 1963 in this case the year of allotment was assigned to Shri Singh.
Shri Singh made the first representation in August, 1969, after the period of limitation had expired.
It was contended, however, on behalf of the appellant relying on the Full Bench decision of the Punjab and Haryana High Court in Sunder Lal and others vs The State of Punjab, that in a case of bona fide mistake, there was always the power to rectify.
It was emphasised that every administrative authority has an inherent right to rectify its own mistakes.
So far as fixing the year 1957 was concerned, we are unable to accept the submission.
It is doubtful that inherent power can be invoked, if there is no reason for refixing the appellant 's year of 1957.
If belated claims are allowed arbitrarily, an atmosphere of uncertainty would prevail.
There should be no sense of uncertainty among public service.
Furthermore it is clear that if the fixation of year 1958 allotment is a mistake, the first representation was rejected with the order dated 23rd April, 1970 which has been set out in extenso in the judgment under appeal.
There the Government 's order reiterates that in accordance with the order contained in the Home Ministry 's letter to which reference is made, all cadre posts held by non cadre officers not on the Select List were deemed to have been kept in abeyance with effect from 27th September, 1961 onwards.
As such Shri Singh could not have claimed that he was officiating in the cadre post prior to coming on the Select List.
In those circumstances, Shri Singh could not be deemed to have officiated in cadre post during the period 6th December, 1961 to 14th May, 1963.
The order further reiterated that according to the seniority rules, the service rendered by an officer prior to inclusion in the Select List could not be counted for seniority unless approved by the Central Government in consultation 867 with the Union Public Service Commission.
It is clear that the Central Government was of the view that decision taken by it in 1963, fixing the said year of allotment was correct.
Good and cogent reasons were given for it.
It is true that the Home Ministry 's letter referred to in annexure R 4 has been quashed by the Delhi High Court but the same has no bearing on the correctness of the decision taken by the Central Government in 1963, because at the relevant time the letter was there and the Central Government was bound to act in accordance thereto.
The contention of the appellant that there was no period of limitation for the grant of the approval is not relevant.
It is therefore clear that there was no scope of the acceptance of second representation.
In the said order there is no mention of any mistake.
When the first order was made, it may be that it was not necessary to give any notice to Shri Bhanot but when the second order was made it affected adversely Shri Bhanot because he in the meantime having been absorbed in the I.P.S. in 1957.
In our opinion it is not that the constitutionality of any provision was challenged as was the case in A. Janardhana vs Union of India and Others, ; at 967 and in General Manager, South Central Railway Secundrabad and Anr.
vs A.V.R. Siddhanti and Ors.
; , , it was held that those would be affected by the grant of the year of seniority need not join as party.
But the position here is different.
Here Shri Bhanot would be adversely affected and his seniority would be affected and here the change was sought from the Government reversing the previous decision and in the meantime Shri Bhanot has acquired a year of allotment.
Therefore, in our opinion it should have been done upon notice to Shri Bhanot.
In any case, Shri Bhanot has been heard.
Our attention was drawn to certain observations of Administrative Law Cases & Materials, second edition by Peter Brett and Peter W. Hogg on the nature of appeal and in the light of the view we have taken, it is not necessary to refer to the said observations.
In the aforesaid view of the matter we are of the opinion that the High Court was right in dismissing the writ petition of the appellant herein.
We, however, having regard to the facts set out hereinbefore, direct the Central Government that the salary scale of the appellant should be refixed taking into consideration the appellant 's service in U.P. and Himachal Pradesh cadre in the senior position as a deputationist.
The appeals are, therefore, dismissed with the aforesaid directions without any order as to costs.
S.L. Appeals dismissed. | Shri Markandey Singh, the appellant in the first appeal had joined the U.P. State Service as Deputy Superintendent of Police by passing a competitive examination.
In November, 1953, he joined on deputation the Union Territory of Delhi which at that time had no police service of its own.
While on deputation and again in 1959 60, he officiated as Superintendent of Police but was reverted back for administrative reasons.
In July, 1960, Himachal Pradesh Indian Police Service was created and thereafter, the Delhi Himachal Pradesh Police Service, in March 1961.
On 6th December, 1961, Shri Singh was again promoted to officiate as Superintendent of Police.
During the period of his officiation, his request for being absorbed in the Himachal Pradesh State Police Service was accepted and he was absorbed in the State Service with effect from 27th November, 1962.
He was confirmed in the Union Territory Cadre of I.P.S. with effect from 14th May, 1964.
He was assigned 1958 as the year of allotment.
He made a representation against the order of allotment to the Central Government, claiming the benefit of officiation from 6th December, 1961 to 13th May, 1963 in the matter of fixation of his year of allotment.
The Central Government rejected the representation by order dt.
23rd April, 1970, which stated that in accordance with the orders contained in letter NO.
1/2/62 Delhi IDH(S) dated 23.8.1963 of the Home Ministry, all cadre posts held by non cadre officers not on the Select List were deemed to have been kept in abeyance with effect from 27th September, 1961 onwards, and according to the seniority rules, the service rendered by an officer prior to his inclusion in the Select List could not be counted for seniority 848 unless approved by the Central Government in consultation with the Union Public Service Commission under the Second Proviso to rule 3(3)(b) of the Seniority Rules.
The requisite approval was not there.
Shri Singh made a second representation on 23rd June, 1970.
The Central Government by order dt.
21st June, 1973, accepted the second representation, gave the benefit of officiation in question and assigned to him 1956 as the year of allotment.
The reason why the second representation was accepted was that in November, 1972, the Union Public Service Commission had approved of the officiation of Shri Singh in the I.P.S. cadre for the relevant period under the second proviso to rule 3(3)(b) of the Seniority Rules "as they stood in May, 1963.
" In consequence, he was placed above Shri M.L. Bhanot, respondent, in the gradation list of Union Territory of I.P.S. Feeling aggrieved by the order of the Central Government, Shri Bhanot filed a writ petition before the High Court.
A Single Judge allowed the same, and quashed the order dt.
21st June, 1973.
Against the judgment of the Single Judge, two appeals were filed before the Division Bench of the High Court one by Shri Singh, and the second, by the Union of India.
Both the appeals were dismissed by the Division Bench.
Aggrieved by the decision of the High Court, Shri Singh and the Union of India filed these two appeals for relief in this Court.
Dismissing the appeals with directions, the Court, ^ HELD: The question involved in the appeals was whether the year of allotment given to Shri Singh as 1958 was correct or not and whether the order of the High Court, quashing the year of allotment given to Shri Singh as 1956 was bad or not.
This depended upon the interpretation of the various rules and provisions and the determination of the question whether an officer was entitled to the benefit of the service rendered by him in a senior post in the I.P.S. cadre of a particulare State while he was on deputation to the State Police Service of that State from another State, for the purpose of working out the year of allotment in accordance with the second proviso to unamended rule 3(3)(b) of the Indian Police Service (Regulation of Seniority) Rules (The 'Seniority Rules ').
[855D F] Rule 3(3)(b) of the Seniority Rules and the provisos thereto should not be read in isolation.
This rule is in the setting of other rules.
The Indian Police Service (Cadre) Rules (The 'Cadre Rules ') read with the Indian Police Service (Fixation of Cadre Strength) Regulations of 1955 849 fixed the strength of the Indian Police cadre of the Union Territories at a particular figure.
Out of them not more than 25% officers eligible for recruitment to the I.P.S. cadre had to be substantive members of the State (U.P.) Police Service at that time.
The scheme, as it stood, fixed the strength of the I.P.S. cadre State wise.
Recruitment by promotion thereto could only be from the substantive members of the Police Service of that particular State.
So long as Shri Singh remained as a substantive member of the U.P. State Police Service, he could not possibly be promoted to the joint I.P.S. Cadre of the Union Territories of Delhi and Himachal Pradesh.
He became eligible to his promotion to the Union Territory, I.P.S. cadre only after he had been absorbed in the Delhi Himachal Pradesh State Police Service.
Proviso (1) to Rule 3(3)(b) of the Recruitment Rules gives a clear indication that for determining the year of allotment ad hoc the Central Government consulted the State Government concerned.
In Explanation (2) again there is a reference to a certificate by the State Government concerned that an officer would have officiated in a senior post but for his absence on leave or appointment to any special post.
It is apparent, therefore, that the State Government is the Government of the Police Service of which the officer concerned is a substantive member.
In this case, as found by the Division Bench of the High Court, Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and he had gone back to his parent State of U.P.
In case Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Service and had gone back to his parent State of U.P., then according the Explanation (2), the U.P. State Government might have issued the certificate to facilitate his promotion to the I.P.S. Cadre of the U.P. State.
The Promotion Regulations of 1955 laid down the determination of the eligibility of a substantive member of the State Police Service.
Thereafter, the names of the eligible officers were brought on the Select List, who were to be approved by the Public Service Commission.
Appointments by promotion to the I.P.S. cadre are made from the Select List.
In the event of promotion, but for the second proviso, the benefit of continuous officiation on a senior post for fixing his year of allotment is given to an officer from the date after his being nominated on the State List.
In Explanation (1) of rule 3(3), there is no mention that deputationist before his absorption in the State Police Service can get the benefit of such officiation.
Therefore, it was not possible to accept the position that before his absorption Shri Singh was entitled to the benefit of his officiation.
The Division Bench of the High Court so held.
The Division Bench was right on this aspect of the matter.
[861D H;862A D] The Seniority Rules 1954 including rule 3(3)(b) were amended with 850 effect from 22nd April, 1967.
Before the amendment, the appellant Shri Singh had been confirmed in the Union Territory cadre of the Indian Police Service with effect from 14th May, 1964, and had been allotted 1958 as the year.
The question of allotment of Shri Singh in accordance with the Seniority Rules had ripened before the amendment of 1967.
There is no rule vitiating the operation of the old seniority rules.
Reliance was placed by the appellant Shri Singh on the decision of this Court in Arun Ranjan Mukharjee vs Union of India & Ors., , and the appellant submitted that Division Bench was in error in not following the ratio of the decision in that case.
The Court could not accept this submission.
[862D E;863C] In this case, the Central Government had not fixed the date of appellant 's absorption in the Select List as 1958 out of the hat, so to say.
It had relevance as it appeared from the basis of the order of the Central Government.
The appellant, who was a deputationist before the absorption in the State Police Service could not be entitled to get such officiation.
In case, Shri Singh had not chosen to be absorbed in the Delhi Himachal Pradesh State Police Service and had gone back to his parent State of U.P., then, according to explanation (2) the U.P. State Government might have issued the certificate to facilitate his promotion to the I.P.S. cadre of the U.P. State.
But so long as Shri Singh remained a substantive member of the U.P. State Police Service, he could not possibly be permitted to join I.P.S. cadre of the Union Territories of Delhi and Himachal Pradesh.
In accordance with the rules, he became eligible to his promotion to the Union Territory I.P.S. cadre only after he had been absorbed in the Delhi Himachal Pradesh Police Service.
[864F H] The rules with which the Court was concerned, which state that certain year should be assigned by the Government in consultation with the Public Service Commission, must be interpreted in the light of the well established rule of construction that if the words of a statute are in themselves precise and unambiguous no more is necessary than to expound these words in their natural and ordinary sense, the words themselves in such a case best declaring the intention of the legislature.
See in this connection the observations of this Court in The Collector of Customs, Baroda vs Digvijaysinhji Spinning & Weaving Mills Ltd., ; , 899.
[865A B] The officiation in a senior post is one of the indispensable ingredients in the application of rule 3(3)(b).
But it must be borne in mind that this was not a sine qua non.
In this case, before the absorption of 851 the appellant in the Himachal Pradesh Delhi I.P.S. cadre, his officiation had not been taken by the Central Government into consideration.
The Court could not say that the Central Government had not acted properly.
[865E F] This appeal was not concerned with the assignment of year 1958 to Shri Singh but rule 16, clause (1)(iii) of the Service Rules provides for certain penalties and one of the penalties, inter alia, is the effect of superseding him in promotion to a selection post and such is appealable.
The High Court was right that appeal does not necessarily lie only against the order imposing penalty and it is also open to entertain appeal when the service rule was interpreted to the disadvantage of member of the service but rule 17 bars the filing of appeal after the expiry of 45 days.
Proviso to the said rule, however, gives discretion to the appellate authority to condone the delay if sufficient cause is shown.
Rule 24 of All India Services (Discipline and Appeal) Rules 1969 provides for review within different periods.
Under that rule since Shri Singh could have filed an application for review within one year, in this case remedy of review by Shri Singh had also become barred when the second order was passed.
[865G H;866A B] It appeared that there is provision for appeal in the order of this nature.
Failure to prefer an appeal or apply for review was no bar to the submission of memorials to the President.
In December, 1963, in this case, the year of allotment was assigned to Shri Singh.
Shri Singh made the first representation in August, 1969, after the period of limitation had expired.
It was contended by the appellant relying on the full Bench decision of the Punjab & Haryana High Court in Sunder Lal & Ors.
vs The State of Punjab, that in a case of bona fide mistake, there was always the power to rectify.
It was emphasized that every Administrative authority has an inherent right to rectify its own mistakes.
It was doubtful that inherent power could be invoked if there was no reason for re fixing the appellant 's year.
If belated claims are allowed arbitrarily, an atmosphere of uncertainty would prevail.
There should be no sense of uncertainty among public service.
Furthermore, it was clear that if the fixation of year 1958 was a mistake, the first representation was rejected with the order dated 23rd April, 1970.
There, the Government 's order reiterated that in accordance with the order contained in the Home Ministry 's letter to which reference was made, all cadre posts held by the non cadre officers not on Select List were deemed to have been kept in abeyance with effect from 27th September, 1961, onwards.
As such Shri Singh could not have claimed that he had been officiating in the cadre post prior to coming on the Select List.
In 852 those circumstances, Shri Singh could not be deemed to have officiated in cadre post during the period 6th December, 1961 to 14th May, 1963.
The Central Government was of the view that the decision taken by it in 1963, fixing the year of allotment was correct.
It is true that Home Ministry 's letter referred to in Annexure R 4, had been quashed by the High Court but the same had no bearing on the correctness of the decision taken by the Central Government in 1963, because at the relevant time, the letter was there and the Central Government was bound to act in accordance therewith.
The contention of the appellant that there was no period of limitation for the grant of the approval was not relevant.
It was, therefore, clear that there was no scope of acceptance of the second representation.
In the said order, there was no mention of any mistake.
[866C H;867A C] When the second order was made, it affected Shri Bhanot adversely because he in the meantime had been absorbed in the I.P.S. in 1957.
It was not that the constitutionality of any provision was challenged as was the case in A. Janardhana vs Union of India & Ors., ; , 967.
In this case, seniority of Shri Bhanot would be adversely affected as he had acquired a year of allotment.
In the opinion of the Court, it should have been done upon notice to Shri Bhanot.
[867C E] The High Court was right in dismissing the writ petition of the appellant.
Having regard to the facts of the case, the Central Government was directed to refix the salary scale of the appellant, taking into consideration the appellant 's service in U.P. and Himachal Pradesh cadre in the senior position as a deputationist.
[867G] Arun Ranjan Mukherjee vs Union of India & Ors., ;Madan Gopal Singh vs Union of India, ;D.R. Nim, I.P.S. vs Union of India, ; ;Government of India and Anr.
vs C.A. Balakrishnana & Ors., ;The Collector of Customs, Baroda vs Digvijaysinhji Spinning & Weaving Mills Ltd., ; , 899;Ram Prakash Khanna & Ors., etc.
vs S.A.F. Abbas & Ors., etc.; , ;Sunder Lal & Ors.
vs The State of Punjab, ;A. Janardhana vs Union of India & Ors., ; ,967 and General Manager, South Central Railway Secundrabad & Anr., etc.
vs A.V.R. Siddhanti & Ors., etc.; , , referred to. |
Civil Appeal No.2877 of 1977.
From the Judgment and Decree dated 19.8.1977 of the Punjab and Haryana High Court in R.S.A. No. 334 of 1975.
R. Bana for the Appellants.
Harbans Lal and G.K. Bansal for the Respondents.
The following Order of the Court was delivered: Kehar Singh had two wives, Basant Kaur and Sahib Devi.
Sahib Devi died during Kehar Singh 's life time.
Sahib Devi 's son was Niranjan Singh who also died during Kehar Singh 's life time.
Niranjan Singh had four sons and one daughter.
On 26th April, 1947 Kehar Singh in lieu of maintenance made three oral gifts of properties situated in three different villages in favour of his wife Basant Kaur.
The question which arose for consideration before the lower Court was whether Basant Kaur got an absolute estate in the gifted properties as result of the passing of the .
In regard to the land in village Ballowal the lower Courts have held that she got an absolute estate.
The High Court was concerned in the second Appeal with the lands in village Dhaipai and Chominda, and it held the gift having been without any power of alienation would fall under Section 14(2).
The Exhibit D I was the report of the Patwari in connection with the mutation proceedings and it said: "Today Kehar Singh owner of Khewat came alongwith Narain Singh Lambardar and stated that he had on 14th April, 1947, made an oral gift of land half of total land measuring 8 bighas Pukhta, 3 Biswas and 3 Biswani, which is 4 Bighas Pukhta, 12 Biswas and 1 Biswani as detailed in favour of his wife Mst.
Basant Kaur, and given possession of the same.
I had only one son who is dead and he had four sons and no other male issue.
There is no certainty of life.
She served me.
Lambardar attests so the mutation is entered.
" 387 On 30th July, 1947, the Assistant Collector made the following orders: "In the gathering, Kehar Singh donor and Basant Kaur donee, identified by Kishan Singh Lambardar are present.
The change of possession of this case is admitted and verified by the donor and the donee.
Donor stated that he has got no son.
I had got two wives.
My grand sons, it is possible may not gift maintenance to my wife.
With this view I make the gift.
Gift is for maintenance.
After gift there would be no powers of mortgage or sale.
After the death of Basant Kaur Malkiat Singh, Amar Singh, Gurdeep Singh and Mohan Singh, children would be heirs.
This gift is of 1/2 share or Khasra No.4658/2468 measuring 4 Bighas, 12 Biswas 1 Biswani, Khewat Nos. 324 to 326, which is attested in favour of Mst.
Basant Kaur donee.
" The High Court on interpretation of the Assistant Collector 's report came into conclusion that Basant Kaur derived only a limited estate inasmuch as such a gift, according to the high Court, would fall directly under section 14(2) of the and as such the limited estate of Basant Kaur would not stand enlarged into an absolute estate.
The challenge was to the gift made by Basant Kaur in favour of two step grand sons ignoring the other two.
There is no doubt that Basant Kaur had the right of maintenance and the gift was explicitly in lieu of maintenance.
As such we are of the view that it was not a case of her acquiring any new property by virtue of the gift but it was a case of her right of maintenance being given to her by way of a gift.
It was a property acquired by gift in lieu of maintenance.
This acquisition on 26th April, 1947 having been prior to the , we are of the view that she having acquired this property by way of gift in lieu of her antecedent right to maintenance, it would fall under sub section (1) and not under sub section (2) of section 14 of the .
In this view we are in consonance with the decisions in Bai Vijia (Dead) by Lrs.
vs Thakorbhai Chelabhai & Ors., ; ; Gulwant Kaur & Anr.
vs Mohinder Singh & Ors., [19871 3 SCC 674; Maharaja Pillai Lakshmi Ammal vs Maharaja Pillai Thillanayakom Pillai & Anr., ; and Jaswant Kaur vs Major Harpal Singh, In view of the facts and circumstances, we are of the view that the decisions of Mst.
Karmi vs Amru & Ors., [ and Kothi Satyanarayana vs Galla Sithayya & Ors.
, [ ; are distinguishable on facts.
388 In the result, the Judgment and decree of the High Court are set aside, this appeal is allowed and the suit is dismissed.
However, under the facts and circumstances of the case, we make no orders as to costs.
G.N. Appeal allowed. | The grandfather of the appellants and respondents had two wives.
The first wife and her only son died during his life time.
The pre deceased son left behind four sons and a daughter.
In 1947, the grand father made three oral gifts of certain properties in favour of his second wife, in lieu of maintenance.
Later, the grandmother gifted some of these properties to two step grandsons.
The gift was challenged by the other two grandsons.
The lower court held that she had the absolute estate in the properties after the possing of the .
In Second Appeal, the High Court held that she derived only a limited estate inasmuch as the gift in her favour would fall directly under section 14(2) of the and as such her limited estate would not stand enlarged into an absolute estate.
This appeal is against the said judgment of the High Court.
Allowing the appeal, this Court, HELD: 1.
There is no doubt that the donee had the right of maintenance and the gift was explicitly in lieu of maintenance.
It was a case of her acquiring any new property by virtue of the gift but it was a case of her right of maintenance being given to her by way of a gift.
It was a property acquired by gift in lieu of maintenance.
The acquisition made on 26th April, 1947 having been prior to the , and she having acquired the property by way of gift in lieu of her antecedent right to maintenance, it would fail under sub section (1) and not under sub section (2) of section 14 of the and she derived absolute estate in the properties.
[387E F] Bai Vajia (Dead) by Lrs.
vs Thakorbhai Chelabhai & Ors. ; ; Gulwant Kaur & Anr.
vs Mohinder Singh & Ors., ; ; Maharaja Pillai Lakshmi Ammal vs Maharaja Pillai Thillanayakom Pillai & Anr.
, ; ; Jaswant Kaur V. Major 386 Harpal Singh, ; relied on.
Karmi vs Amru & Ors., ; Kothi Satyanarayana vs Galla Sithayya & Ors.
, ; ; distinguished. |
ivil Misc.
Petition No. 15001 of 1989.
AND I.A. No. 1 of 1989 in S.L.P. No. 12288 of 1984.
From the Judgment and Order dated 20.4.1984 of the Andhra Pradesh High Court Appeal No. 472 of 1976.
K. Mahadeva Reddy, Ms. Manjul Gupta, T.V.S.N. Chari and A. Subba Rao for the Petitioner.
K. Ram Kumar, S.A. Ahmed, Tanweer Abdul and Mohan Pandey for the Respondents.
The following Order of the Court was delivered: 540 The special leave petition under Article 136 of the Constitution is directed against the affirming judgment of the Andhra Pradesh High Court in a suit for title and injunction.
In view of the fact that a petition of compromise in respect of the entire subject matter of litigation has been filed in this Court it is unnecessary to refer to the facts leading to the litigation.
We shall, therefore, confine the discussion to matters pertinent to the compromise.
Subbamma adopted one K.V Seshiah.
Seshiah married two wives.
Through the first wife he had a son born to him by name Sudarshan Gupta and through the second another son by name Anand Babu.
In February, 1985, during the pendency of the special leave petition the adoptive mother died.
Sudarshan and Anand Babu led claim to the entire property of Subbamma exclusively to each of them under two different wills said to be by subbamma and each contended that the other will was a forged one.
With the death of the adoptive mother, Seshiah led claim to the entire property as heir.
While each of the parties had taken such stand in the litigation a compromise was brought about on 21.8.1987 between the father and his two sons and the same was filed in this Court.
The terms of the compromise stipulated payment of Rs. 1 lakh by the father to each of his two sons in lieu of relinquishment of their interest.
When the matter was listed before the Court for recording of the compromise, Sudarshan Gupta, second respondent herein, maintained that he had not been paid Rs.1 lakh as stipulated and he had no intention to accept the compromise.
The question as to recording of the compromise was taken up by the Court and parties have been heard.
One of the stipulation in the compromise deed which has admittedly been signed by the father and his two sons stipulates: "The petitioner has given to the second and third respondents (the two sons) an amount of Rs. 1 lakh each and the second and third respondents have received the same." In the face of such a statement in the compromise deed signed by the parties the second respondent had disputed the fact of payment and has, in the meantime, alienated about 81 acres of property which constitutes the subject matter of dispute to third parties.
The alienees 541 have now been brought on record unders order of this Court.
We have heard counsel for the original parties as also the alienees.
The alienations are for about a purported consideration of Rs. 4 lakhs.
The sale deeds indicate that a sum of Rs. 1 lakh had been received earlier and a net amount of Rs.77,124 out of the consideration money under these documents has been paid before the registering authority.
The alienees have admittedly been in possession of the property from the date of the sales which is more than three years ' old by now.
Admittedly, the transfers are pendente lite.
In fact, if the compromise is valid and binding the alienor respondent No. 2 had no interest in the property to part with in view of the stipulation in the compromise that on receipt of Rs. 1 lakh he relinquished his entire interest in the property.
The alienees have made an attempt to hold out that there were agreements for sale prior to the compromise for which there is no acceptable evidence.
We think we have to find that the alienees had no interest in the property prior to the compromise and we must hold that the sale deeds are subsequent to 21.8.1987.
Mr Ram Kumar who appeared for the second respondent, apart from maintaining that his client has not received the sum of Rs.1 lakh has not been able to point out any justification as to why the compromise should not be acted upon and on the basis of it the litigation may not be disposed of.
The factum of compromise is not in dispute.
Respondent No. 2 and his counsel Mr. Ram Kumar have accepted the fact that the parties have signed the compromise petition which contain terms which they had accepted and all parties have accepted the document of compromise to be genuine.
Counsel for the alienees has taken the stand that the said alienations are valid and the transferees have become owners of the property and has even maintained that there have been improvements of the property by the alienees.
He sought to rely on certain decisions which on being referred to were found to be totally inapplicable to the facts of the case.
On the other hand, we find that a similar question arose before the Orissa High Court in the case of Bhoja Govinda Maikap & Anr.
vs Janaki Dei & Ors., AIR (1980) Ori.
108 where the power of the Court under Order 23, rule 3 of the Code of Civil Procedure in the face of an objection of one of the parties to the compromise was considered.
Relying upon several authorities of different High Courts and one of the Privy Council referred to in the decision, the High 542 Court held that once the Court was satisfied that there was a compromise it was for the Court to record the same and no option lay before the Court to act otherwise.
We are in accord with the principle indicated in the said decision and are of the view that as the compromise petition is genuine and lawful the same has to be acted upon.
We direct that the compromise petition shall be accepted and in terms thereof the suit shall be disposed of and the terms of the compromise shall form part of the order to be drawn up in this Court for disposing of the special leave petition.
With a view to settling all equities between the parties and with the consent of Seshiah who is present in Court, and counsel for the sons and after hearing the Advocate for the alienees, we make the following directions: 1.
Seshaiah shall pay a sum of Rs. 1 lakh more to Sudarshan Gupta within eight weeks from today.
This amount shall be deposited in the Registry of this Court within the time indicated and Sudarshan Gupta shall be free to withdraw the amount.
Rs 77,124 being the amount paid by the alienees before the Sub Registrar in respect of the sale deeds shall be deposited within the same period in the Trial Court and the alienees of the different sale deeds would be entitled to withdraw the amounts on the basis of the record made by the Sub Registrar on each of the sale deeds.
The alienees have no right created under the alleged sale deeds.
Their possession is without authority of law.
Ordinarily, they would have been liable to account for mesne profits.
In view of the fact that there was the allegation of payment of Rs. 1 lakh to Sudarshan Gupta which we have not investigated and to meet the further allegation that some improvements have been made to the property which too we have not gone into, we direct that the mesne profits shall be set off against the same.
Under orders of this Court security has been furnished for mesne profits.
In view of the aforesaid direction, the security furnished in the Trial Court shall stand discharged and the alienees will have no liability to account for mesne profits.
We declare and clarify that none of the sale deeds is valid and none of the alienees has any interest in the aforesaid property.
543 4.
The alienees shall deliver vacant possession of the property by 30th of April, 1991, to Seshiah and in the event of failure to do so the Trial Court is directed by our present order to deliver vacant possession of the entire property in suit including those which are covered by the sale deeds in favour of the alienees to Seshiah within one month therefrom.
If necessary, the Trial Court may appoint a Commissioner and take police help for executing this order and such cost shall ultimately be borne by the defaulting alienees but may initially be met by Seshiah.
There would be no order for costs. | Respondent No. 1 adopted petitioner appellant, who married two wives and through the first wife he had a son, the respondent No. 2 and through the second, another son, the respondent No. 3.
During the pendency of the special leave petition the adoptive mother of appellant died.
Respondent 2 and 3 laid claim to the entire property of respondent No. 1 exclusively under two different wills said to be by the respondent No. 1 and each contended that the other will was a forged one.
On the death of the adoptive mother, the appellant laid claim to her entire property as heir.
While each of the parties had taken such stand, in the litigation a compromise was brought about on 21.8.1987 between the appellant and his two sons, the respondents 2 and 3 and the same was filed in this Court and in terms of the compromise the appellant, to make payment of Rs. 1 lakh to each of his two sons in lieu of relinquishment of their interest.
When the matter was listed for recording the compromise, the respondent No. 2 contended that as he had not been paid Rs. 1 lakh as stipulated in the compromise, in the meanwhile he had alienated about 81 acres of the suit properties to the third parties.
The alienees had been also impleaded as parties under the orders of this Court.
Disposing of the petition, this Court, HELD: 1.
Once the Court was satisfied that there was a compromise it was for the Court to record the same and no option lay before the Court to act otherwise.
[542A B] 539 2.
As the compromise petition in the instant case is genuine nd lawful the same has to be acted upon.
[542B] 3.
It is directed that the compromise petition shall be accepted and in terms thereof the suit shall be disposed of and the terms of the compromise shall form part of the order to be drawn up in this Court for disposing of the special leave petition.
[542B C] 4.
With a view to settling all equities between the parties, directed that the appellant to pay a sum of Rs.1 lakh more to respondent No. 2 within eight weeks.
Rs. 77,124 being the amount paid by the alienees before the Sub Registrar in respect of the sale deeds shall be deposited.
[542C E] 5.
The alienees have no right created under the alleged sale deeds.
Their possession is without authority of law and clarified that none of the sale deeds is valid.
[542F H] 6.
The alienees shall deliver vacant possession of the property by 30th of April, 1991, and in the event of failure to do so the Trial Court directed to deliver vacant possession.
[543A B] Bhoja Govinda Maikap & Anr.
vs Janaki Dei & Ors., , approved. |
Appeal No. 204/1956.
Appeal from the judgment and decree dated February 23, 1951, of the Madras High Court in O. section Appeal No. 13/1948.
R. Keshva Aiyangar and M. section K. Aiyangar, for the appellant.
A. V. Viswanatha Sastri and Naunit Lal, for .respondent No. 1.
B. K. B. Naidu, for respondent No. 6. 1961.
January 27.
The Judgment of the Court was delivered by GAJENDRAGADKAR, J.
This appeal arises out of a suit filed by the respondent M. Raghava Mudaliar who claims to be the reversioner of Madhava Ramanuja Mudaliar.
In his suit the respondent alleges that after the death of Madhava Ramanuja Mudaliar which took place on March 22, 1893, his property came into the possession of his widow Manickammal.
Sub sequently the said Manickammal and Rengammal, the widowed mother of the deceased Madhava Ramanuja Mudaliar alienated the properties without any legal necessity.
According to the respondent the said alienation was not binding on him and so he was entitled to recover possession of the said property free of any encumbrance or charge.
Manickammal died on October 18, 1941, whereas Rengammal died in June, 1921.
On the death of the widow Manickammal reversion fell open and that has given a cause of action to the respondent for his present suit.
Madhava Ramanuja Mudaliar died issueless and was survived by his widow, his widowed mother, his sister Andalammal and the respondent and his sister Apurupammal who are the children of Ammakannu Ammal the second sister of Madhava Ramanuja Mudaliar, and Ethirajammal the daughter of the third sister of Madhava Ramanuja Mudaliar.
To his suit the respondent impleaded the appellant Andalammal, Krishnasami Mudaliar, son of the said Apurupammal (defendant 1) and Susila Bai Ammal daughter of 626 Ethirajammal as defendants 2 to 4.
The Udayavar Temple by the sole trustee Bysani Krishnaiah Chetty was joined as defendant 5.
After her husband 's death Manickammal obtained letters of administration to his estate from the High Court at Madras.
It appears that the relations of the widow with her mother in law were embittered, and that led to disputes between them.
These disputes were settled by the two widows in pursuance of the advice of certain arbitrators who mediated between them.
The settlement thus reached was recorded in writing on May 27, 1893 (exhibit D 2).
It would be relevent to refer to the main terms of the settlement at this stage.
This settlement set out the properties covered by it as Serial Nos. 1 to 5.
Item No. 1 which was a house in three blocks was divided between the respondent and his sister Apurupammal who were to take one share; Ethirajammal who was to take another share; and Andalammal who was to take the third share.
House No. 62, which, was Serial No. 2, and houses and shops Nos. 126 and 127 which were shown as Serial No. 3 were agreed to be sold, and it was settled that out of the sale proceeds the debts of the deceased Madhava Ramanuja Mudaliar and his father should be discharged; expenses incurred in obtaining the letters of administration should then be deducted along with the expenses of sale, and the balance should be divided equally between the two widows subject to a payment of Rs. 1,000/ to the mother in law in lieu of her jewels.
The two cawnies of lands which were Serial No. 4 were agreed to be given to the maternal uncle of the deceases Madhava Ramanuja Mudaliar, whereas the moveables which were shown as Serial No. 5 had to be divided half and half between the two widows.
This document con tained a clause which provided that " in case any one of us contravenes the terms the other party shall not only cancel this agreement but his title to the estate of Madhava Ramanuja Mudaliar prior to the agreement shall in no way be affected subject to.
which this agreement has been entered into.
" The document thus executed was attested by four attesting witnesses.
627 It appears that soon after this agreement was finalised, Krishnasamy Mudaliar, defendant 3, objected to its validity and disputed the right of the widows to deal with the property in the manner specified in it.
He was, however, persuaded to abandon his objections. ' and a sale deed was executed by him conveying his reversionary rights to the two widows for consideration ' on September 10, 1894.
By this document defendant 3 purported to recognise and grant an absolute title to the two widows in regard to the estate of the deceased (exhibit D 3).
Subsequent to this document the two widows began to enjoy the properties as agreed between them.
On February 4, 1895 the two widows sold item No. 1 in Schedule 11 attached to the plaint, i.e., Nos. 126 and 127, Anna Pillai Street and Audiappa Naick Street respectively to Thatha Venkata Raghava Subbu Chetty.
The appellant is the successor in title of the said division in respect of the said item No. 1 in Schedule II.
In the present appeal we are concerned only with this item.
On May 27, 1895, a composite deed of partition and administration of property of the deceased was executed by and between the two widows (exhibit D 5).
By this document the three blocks in the house shown as Serial No. 1 in exhibit D 2 were delivered into the possession of the respective donees.
The maternal uncle of the deceased was given two cawnies of lands as therein stipulated and the debts of the deceased were discharged and expenses incurred in respect of the letters of administration were met.
It is under these circumstances that the respondent filed his present Suit No. 56 of 1946 on the Original Side of the Madras High Court;.
and he claimed that the alienations made by the two widows were not binding on him and he was entitled to the possession of the property left by the deceased Madhava Ramanuja.
The schedule attached to the plaint referred to four items of property, and as we have already pointed out it is only with item No. 1 out of these four items with which we are concerned in the present appeal.
628 In regard to the said item the appellant urged that the agreement between the two widows (exhibit D 2) and the subsequent composite deed executed in pursuance of it (exhibit D 5) were in the nature of a family arrangement, and as such they were binding on the respondent.
In was also alleged by the appellant that the respondent had received benefit under the said arrangement and by his conduct had ratified it.
The appellant further pleaded that the transfer in favour of his predecessor was supported by legal necessity.
Incidentally a plea of surrender was also raised by the appellant.
Mr. Justice Kunhiraman, who tried the suit, held that there was a family arrangement which bound the respondent.
He also observed that the respondent had received benefit under the said arrangement and was therefore precluded from challenging its validity.
The learned Judge incidentally made some observations which showed that he was inclined to uphold the plea of surrender raised by the appellant.
In the result the respondent 's suit was dismissed.
The respondent then took the matter in appeal and succeeded.
The appeal court held that the impugned arrangement cannot be said to be a bona fide family settlement which would bind the respondent.
Before the appeal court it was conceded that the plea of surrender raised by the appellant could not be sustained, and that the contention that the respondent was bound by the family arrangement could not also be sustained.
It was, however, urged on behalf of the appellant that the respondent 's conduct precluded him from disputing the validity of the arrangement but this argument was rejected by the appeal court; likewise, the contentions that the transfer in favour of the appellant 's predecessor was justified by legal necessity also failed.
As a result of these findings the respondent 's appeal was allowed, the decree passed by the trial court was set aside, and the claim for possession made by the respondent was decreed.
The respondent 's suit was accordingly directed to go before the Official Referee for ascertainment of mesne profits 629 claimed by him.
It is against this decree that the appellant has come to this Court in appeal.
The principal point which has been urged before us by Mt% R. Keshav Aiyangar on behalf of the appellant is that in substance the respondent has ratified the impugned transaction, has received benefit under it, and by his conduct has affirmed it, and so it is not open to him to challenge its validity and binding character.
In support of this argument he has canvassed for our acceptance the proposition that if a person with full knowledge of his rights assents to a transaction which may otherwise be voidable at his instance and takes benefit under it, he is subsequently precluded from disputing its validity.
In support of this argument he has relied on a decision of this Court in Sahu Madho Das vs Pandit Mukand Ram (1).
In that case this Court has held that it is settled law that an alienation by a widow in exercise of her powers is not altogether void but only voidable by the reversioners who may either singly or as a body be precluded from exercising their right to avoid it either by express ratification or by acts which treat it as valid or binding.
This Court also observed that it is a principle of general application underlying many branches of the law that a person who with full knowledge of his rights has once elected to assent to a transaction voidable at his instance and has thus elected not to exercise his right to avoid it, cannot go back on that election and avoid it at a later stage ; having made his election he is bound by it.
The argument is that though the respondent may not be a party to the impugned transaction, if by his conduct it can be said that he has elected to uphold it and has received benefit under it he cannot be allowed to go back upon the election.
There is of course no doubt about the correctness of the principle thus enunciated, but the difficulty in the way of the appellant arises when the applicability of the said principle is tested in the light of the relevant material findings in that case.
That is why it is necessary to refer very briefly to the findings of fact on which the decision in Sahu (1) ; , 630 Madho Das 's case (1) rests.
In that case this Court considered the question as to whether the plaintiff Mukand Ram had assented to the impugned family arrangement, and observed that as he was not a party to the arrangement his assent to the arrangement itself and not to something else must be clearly established, and also his knowledge of the facts.
Then, having thus posed the question the material evidence was examined, and it.
was held that the cumulative effect of the said evidence led to the reasonable inference that the plaintiff 's assent was to the very arrangement itself, and his conduct as well as the conduct of his brother Kanhaiya Lal was consistent only with that hypothesis; in other words, the examination of the material evidence justified the inference that Mukand Ram had in fact elected to assent to the transaction and had received benefit under it, and so the doctrine of election or ratification precluded him from disputing the validity of the said transaction.
It is, however, significant that dealing with the case of the minor sons, who were not parties either personally or through their guardians, and who did not claim title either through Pato or her daughters, this Court expressly observed that so far as they were concerned what they received were gifts pure and simple and the only assent that could be inferred from the mere acceptance of the gifts and nothing more would be assent to that particular gift and not assent to the gifts similarly made to others.
This observation brings out in bold relief by contrast the relevant findings in the light of which the plaintiff was held precluded from disputing the validity of the impugned transaction.
The appellant has also relied on another decision of this Court in Dhiyan Singh vs Jugal Kishore (2).
In that case it was held that even if the impugned award was invalid the plaintiff who disputed its validity was barred from making that claim by reason of estoppel.
Brijlal against whom the plea of estoppel was effectively raised appeared to have made a claim to the estate in question in 1884 when the impugned (1) [1955] a S.C.R. 22.
(2) [1952] S.C.R. 478.
631 transaction took place,, and it was as a result of this claim that settlement was reached and the impugned transaction effected.
This Court held that even if the award which was challenged was invalid Brijlal by his conduct had precluded himself from raising the contention against the validity of the award.
In , coming to this conclusion this Court observed that, the case before it was very similar to the one which the Privy Council had decided in Kanhai Lal vs Brij Lal (1).
When we turn to the Privy Council decision itself we find that Kanhai Lal, who was held by the Privy Council to be precluded from challenging the arrangement to which he was a party, had set up a title in himself on the strength of an alleged adoption, and when, having regard to the said title, a settlement was reached and a compromise arrangement was made, it was held by the Privy Council that the doctrine of estoppel came into play.
Kanhai Lal, who subsequently became a reversioner according to the Privy Council, was bound by the previous arrangement and " cannot now claim as a reversioner.
" These two decisions also emphasise, the fact that if a person having full knowledge of his rights as a possible reversioner enters into a transaction which settlers his claim as well as the claim of his opponents at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open.
There are two other decisions of the Privy Council to which reference may be made.
In Rangaswami Gounden vs Nachiappa Gounden (2) the Privy Council had to deal mainly with the question of surrender, its theory and its essential features.
Incidentally it had also to deal with the case of reversioner who had taken from an alienee from a Hindu widow a mortgage of a property which included a part of the property alienated, and the question raised was whether by reason of the fact that the reversioner had a mortgage of the said property he was precluded from challenging the validity of the said alienation; and the Privy Council held that he was not so precluded.
In dealing with this aspect of the question the Privy Council (1) (1919) L.R. 45 I.A. 118.
(2) (1918) L.R. 40 I.A. 72.
632 observed that it is well settled that though he who may be termed a presumptive reversionary heir has a title to challenge an alienation at its inception, he need not do so, but is entitled to wait till the death of the widow has affirmed his character, a character which up to that date might be defeated by birth or by adoption The Privy Council then examined the nature of the mortgage, the properties included in it, and observed that the said mortgage consisted of 2/14ths of the mitta which had come to the mortgagors in right of their own succession, and the remaining share had come to them through the impugned deed of gift.
Then it was observed that at the time of the mortgage the mortgagee did not know whether he would ever be such a reversioner in fact as would give him a practical interest to quarrel with the deed of gift; and the Privy Council asked "why should he not take all that the mortgagers could give or propose to give. " " To hold that by doing so ", observed the Privy Council, " he barred himself from asserting his own title to a part of what was mortgaged seems to their Lordships a quite unwarrantable proposition." This decision shows that the principle of election or estoppel or ratification must be applied with due circumspection and the mere fact that the reversioner has received some benefit under the transaction or has not challenged the validity of the transaction when it took place cannot bar his rights as a reversioner when reversion in his favour falls open.
The last case on which reliance has been placed by the appellant is the decision of the Privy Council in Ramgouda Annagouda vs Bhausaheb (1).
In this case the widow of the last male holder had alienated nearly the whole of the property of her husband by three deeds executed and registered on the same day.
One of the deeds was in favour of a presumptive reversioner.
The Privy Council held that the three deeds had to be regarded as forming one transaction entered into by all the persons interested in the properties, and that after the reversion fell open, the reversioners who were parties to the said transactions (1) (1927) L.R. 54 I.A. 396. 633 were precluded from disputing the two alienations by reason of their conduct.
According to the Privy Council the three deeds in question were inseparably connected together and in that view Annagouda, the reversioner, who challenged two of the three transactions, not only consented to the sale to Shivgouda and the gift to Basappa which were the two transactions impeached but these dispositions formed part of the same transaction by which he himself acquired a part of the estate.
Thus it may be taken to be well settled that if a presumptive reversioner is a party to an arrangement which may properly be called a family arrangement and takes benefit under it, he would be precluded from disputing the validity of the said arrangement when reversion falls open and he becomes the actual reversioner.
The doctrine of ratification may also be invoked against a presumptive reversioner who, though not a party to the transaction, subsequently ratifies it with full knowledge of his rights by assenting to it and taking benefit under it.
It is, however, clear that mere receipt of benefit under an arrangement by which a Hindu widow alienates the property of her deceased husband would not preclude a presumptive reversioner from disputing the validity of the said alienation when he becomes the actual reversioner.
It must always be a question of fact as to whether the conduct of the said reversioner on which the plea of ratification is based does in law amount to ratification properly so called.
It is in the light of these principles that we must now consider the relevant facts in the present appeal.
There can be no doubt that the transaction which took place on May 27, 1893, as a result of the dispute between the two widows and with the intervention of the well wishers of the family is not a family arrangement as understood under Hindu Law.
This position was conceded before the High Court and is not disputed before us (exhibit D 2).
Similarly, the sale deed which was executed by defendant 3 in favour of the two widows is of no assistance because it was obviously a sale by defendant 3 of his reversionary rights which were then no better than spes suwessionis and as 634 such this transaction (exhibit D 3) cannot help to validate the earlier arrangement between the two widows.
The composite document (exhibit D 5) of May 27, 1895, is in substance no more than an alienation no doubt executed for the purpose of carrying out the original arrangement between the two widows.
Thus in dealing with the question as to whether the respondent is precluded from challenging the validity of the impugned transaction it is necessary to bear in mind that the original transaction is not a transaction in the nature of a family arrangement.
Besides, he was then a minor and admittedly he was not a party to any of the said transactions.
It is, however, urged that the respondent obtained a certificate or a patta from the Collector in regard to the property conveyed to him under exhibit D 5, and the argument is that he has deliberately withheld the said patta because he apprehended that if produced the patta would go against him.
The explanation given by the respondent for not producing the patta is attacked as unsatisfactory, and it is urged that the said explanation cannot possibly conceal his intention to keep back the document from the Court.
In his cross examination the respondent stated that the Collector 's certificate which had been given to him by his grandmother had been filed by him in Suit No. 495 of 1916 in the City Civil Court, and he added that his advocate in the said suit had not returned the document to him.
We may assume that the respondent has not produced the document though it was in his possession; but we have on the record two documents which were issued to the other donees, and all that the appellant is entitled to assume is that a similar document had been issued in favour of the respondent.
In our opinion, the two documents on the record do not assist the appellant 's argument that any representation had been made by the respondent to the Collector before he obtained a patta in his favour.
In fact the issue of the patta is a routine matter which would necessarily follow on the execution of the registered sale deed (exhibit D 5).
On the registration of the said document persons who got certain immoveable properties 635 under it were given the certificates by the Collector in ordinary course, and so no argument can be built up against the respondent that the acceptance of the patta amounts to the ratification of the original transaction of sale.
It is then urged that in Civil Suit No. 495 of 1916 filed in the City Civil Court at Madras by Apurupammal against tile respondent and another, the respondent filed the written statement in which he admitted the validity of the impugned transaction.
It appears that the plaintiff in that suit had based her claim on the said impugned transaction, and in respect of the said claim the respondent had alleged in paragraph 2 of his written statement that he admitted that in consequence of certain disputes which arose between the mother and the widow of the deceased Govinda Mudaliar a compromise settlement was arrived at in pursuance of which some transfers were effected.
This, it is said, amounts to an admission of the validity of the said transaction (exhibit D 15).
This argument, however, fails to take notice of the fact that while referring to the said compromise settlement the respondent had expressly added that the said compromise settlement was obviously to take effect only during the life tenancy of the widow of the deceased Govinda Mudaliar (exhibit P 3).
In other words, taking the statement as a whole, as we must, the respondent looked upon the said compromise settlement as an alienation made by the widow and as intended to take effect during her lifetime and no more.
In other words, far from supporting a plea of ratification against the respondent this statement strengthens his case that he took the benefit with the knowledge and under the belief that the arrangement under which the said benefit flowed was intended to be operative during the ,Lifetime of the widow, and as such he had no occasion to challenge its, validity whilst the widow was alive.
A somewhat similar argument is based on the conduct of the respondent in relation to Civil Suit No. 1117 of 1921 filed by Masilamani Mudaly, the sister 's son, and the deceased Govinda Mudaliar in the Madras High Court (exhibit P.16).
To this suit the 636 respondent was impleaded as defendant 7.
In this suit the said plaintiff had challenged the validity of the arrangement, and asked for appropriate injunctions against defendant 6 to the suit, Thuggi Kondiah Chetty, Trustee of Udayavar Koil, and other defendants from dealing with the property to the prejudice of the reversionary right of the plaintiff.
It is unnecessary to refer to the pleadings in the said suit or to specify in detail the reliefs claimed.
The only point which is relevant to consider is that the reversioner had challenged the arrangement in question.
The respondent by his written statement had purported to support the plea made by the plaintiff, and had added that he was not personally aware of any attempt on the part of defendants 2 to 4 to alienate the properties in respect of their possession and enjoyment.
This suit, however, did not proceed to a trial as it was dismissed for want of prosecution, and the argument is that since the respondent had supported the plaintiff in the said suit it was necessary that he should have got himself transposed as a plaintiff, when he found that the original plaintiff was allowing the suit to be dismissed for non prosecution.
In our opinion, this argument is far fetched and cannot possibly sustain the plea of ratification against the respondent.
If the respondent took possession of the property under the arrangement with the distinct understanding that the arrangement was to last only during the lifetime of the widow, we see no justification for the assumption that he should have carried on Civil Suit No. 11 17 of 1921 or should in fact have challenged the said arrangement at all.
The last argument urged in support of the plea of ratification is based on the oral evidence given by the respondent in the present case.
The respondent was asked about the quarrels between the mother and the widow of the deceased Mudaliar, and he said that they were living together and that there were quarrels between them.
Then he was asked as to whether he got the property under the impugned arrangement, and he said that his grandmother gave him the house with the Collector 's certificate and told him that she 637 was going to die soon and so he may take the house.
The respondent also admitted that since the house was thus delivered to him and to his sister they were in possession of it and in enjoyment of its income.
The respondent then stated that he was not aware of the document of 1895 until 1916, and that he came to know about the division between the two widows( only in 1910.
It is urged that this statement should not be believed, and that the reluctance of the respondent to disclose the truth should lead to the inference that he knew all about the impugned transaction and its effect, and that when he took possession of the property allotted to him under the said transaction he knew fully well about his rights and he accepted the benefits with the object of reifying the whole transaction.
In our opinion there is no ,substance in this argument.
In this connection it is relevant to remember that until Act II of 1929 was passed a sister 's son, like the respondent, would have had very few chances of becoming an actual reversioner; he would have come in the list of bandhus; and so it would be difficult to assume that at the time when the respondent accepted the gift of the house he knew about his rights as a possible reversioner.
Besides, the benefit which he obtained under the impugned transaction could also in substance have been claimed by him under an earlier arrangement entered into between Govinda Mudaliar and Madhava Ramanuja Mudaliar on February 7, 1887 (exhibit D 1).
Having regard to the arrangement disclosed by the said document the benefit given to the respondent and the other children of the sisters of the deceased Mudaliar may as well have been based on the said arrangement, and all that the transactions of 1893 and 1895 did was to give effect to it (Exs.
D 2 and D 5).
Besides, as we have already pointed out, in 1893 the respondent was a minor, and when subsequent to 1895 he took possession of the property it does not appear on evidence that he knew that the intention of the widows was to treat the property as absolute owners and to convey absolute titles to the respective donees and transferee under 638 the said transaction.
He also could not have known about his rights as a possible reversioner.
Therefore, in our opinion, the High Court was right in holding that the appellant had failed to establish his plea of ,ratification against the respondent.
Indeed, to hold otherwise would be in the words of the Privy Council a quite unwarrantable proposition " (1) (p. 87).
That leaves the question of legal necessity to be considered.
The High Court has held that the impugned transfer cannot be said to have been justified by legal necessity; and, in our opinion, the finding of the High Court on this point is obviously right.
In dealing with this question it may be relevant to recall that the widow of the deceased Mudaliar had obtained letters of administration to the estate of the deceased on April 26, 1893, and, as usual, in issuing the letters limitation had been imposed upon the widow that she could not deal with or transfer the property in question without the requisite sanction.
There is some force in the argument urged before us by Mr. Sastri on behalf of the respondent that it was with a view to avoid the necessity to obtain the requisite sanction that the widow of the deceased Mudaliar was persuaded by her mother in law to enter into the impugned transaction under the guise of a family arrangement.
The document itself (exhibit D 5) does not purport to be justified by legal necessity.
In terms it purports to give effect to the original arrangement of 1893 (exhibit D 2); and if the said arrangement is not valid as a family arrangement the subsequent transfer would also be invalid.
Besides, out of a total consideration of about Rs. 10,000/ the amount of Rs. 776/ can be taken to represent the debts due by the deceased Mudaliar; the rest of the items of consideration cannot be treated as constituting a legal necessity at all.
The amount of Rs. 558/ was the expense incurred for executing the document; similarly the amount of Rs. 409/representing the funeral expense of the deceased Mudaliar, had apparently been spent by the widow who wanted to reimburse herself and that cannot be a legal necessity.
The other items of consideration do (1) (1918) L.R. 46 I.A. 72.
639 not even purport to be for legal necessity.
Therefore, in our opinion, the conclusion is inescapable that the impugned transfer is not justified by legal necessity.
The result is the appeal fails and is dismissed with costs.
Appeal dismissed. | M, a Hindu, died leaving his mother, widow, sisters and sisters ' son and daughters.
There were disputes between the mother and the widow which were settled at the instance of certain arbitrators.
Under this settlement a portion of one of the houses was given to a sister of M, another portion to R son of another sister and his sister and a third portion to the daughter of the third sister.
Certain properties , which had been agreed to be sold under the settlement were sold to the appellant by the mother and the widow.
After the death of the mother and the widow R filed a suit as the next reversioner of M for recovery of the properties sold on the ground that the alienation was without necessity and was not binding on him.
The appellant contended (i) that R was precluded from disputing the settlement between the mother and the widow as he had received a benefit under it and had ratified it by his conduct and (ii) that the transfer was for legal necessity.
Held, that the transfer was not binding on R and he was entitled to avoid it.
The settlement between the mother and the widow was also not binding on R.
If a person having full knowledge of his rights as a possible reversioner enters into a transaction which settles his claim as well as the claim of the opponents at the relevant time, he cannot be permitted to go back on that arrangement when reversion actually falls open.
But the mere fact that the reversioner has received some benefit under the transaction or has not challenged its validity when it took place cannot bar his rights as a reversioner.
It will always be a question of fact as to whether the conduct of the reversioner on which the plea of ratification is based does in law amount to ratification properly so called.
In the present case the settlement was not in the nature of a family arrangement; at that time R was a minor and was not a party to any of the said transactions.
There was no conduct of R which could amount to ratification of the settlement or of the alienation.
At the time when he accepted the gift he could not know about his rights as a possible reversioner.
Further, there was no legal necessity for the transfer.
Sahu Madho Das vs Pandit Mukand Ram ; , Dhiyan Singh vs Jugal Kishore, [1952] S.C.R. 478, Kanhai Lal vs Brij Lal (1918) L.R. 45 I.A. 118.
Rangasami Gounden vs Nachiappa Gounden (1918) L.R. 46 I.A. 72 and Ramgouda Annagouda vs Bhausakeb (1927) L.R. 54 I.A. 396, referred to 625 |
Appeal No. 587 of 1962.
Appeal by special leave from the judgment and order dated April 12, 1961, of the Bombay High Court in Civil Revision Application No. 441 of 1961.
232 S.V. Gupte, Additional Solicitor General of India and R.H. Dhebar, for the appellant.
S.G. Patwardhan and A.G. Ratnaparkhi, for respondent No. 1.
The Judgment of the Court was delivered by RAGHUBAR DAYAL J.
This appeal, by special leave, raises the question whether the amount of interest decreed for the period subsequent to the institution of a suit comes within the expression 'amount or value of the subject matter in dispute ' in article 1 of Schedule 1 of the Bombay Court fees Act, 1959, hereinafter called the Act, for purposes of court fee payable on the memorandum of appeal.
The plaintiff respondent No. 1 instituted Special Suit No. 5 of 1957 in the Court of the Civil Judge (Senior Division) at Ahmedabad to recover Rs.13,205 on account of the principal lent to defendant No. 7 and interest up to the date of the suit at the rate of 9 % per annum.
On July 18, 1960, his claim was decreed in a sum of Rs. 13,033 6 6 with future interest from the date of suit till realization at 40% per annum on a sum of Rs. 10, 120.
Defendant No. 7 appealed to the High Court against the decree.
In the memorandum of appeal, defendant No. 7 valued the claim for purposes of jurisdiction and court fee at Rs. 13,033 6 6 and his grounds Nos. 1 and 48 of appeal were as follows: 1.
That the lower Court erred in decreeing the plaintiff 's suit.
That the decree is otherwise erroneous, unjust and illegal and therefore deserves to be set aside.
" The remaining 46 grounds related to the merits of the plaintiff 's claim and did not deal with the correctness of the trial Court awarding future pendente site interest on the rate at which it was to be calculated.
The Taxing Officer was of opinion that the appeal was against the whole decree and that the amount of value of the subject matter in dispute for purposes 233 of court fee was Rs. 14,036.
80nP. as the amount of interest from the date of the suit till the date of the decree on Rs. 10,120 came to Rs. 1,033.40 nP. and it bad been conceded by the counsel for the defendant appellant that the subject matter of the appeal was the decree passed by the trial Court.
He therefore directed the defendant appellant to pay the deficit court fee of Rs. 70 on the memorandum of appeal and to amend the claim accordingly.
The defendant appellant then filed a revision to the High Court under section 5(2) of the Act.
His objection was upheld by the learned Judge who expressed the view: "The subject matter in appeal is the real matter in dispute between the parties and not something which must stand or fall with the decision oil it.
In other words, it must mean the right which is in dispute between the parties.
" He accordingly set aside the order of the Taxing Officer and held that the amount of court fee paid on the memorandum of appeal was the proper court fee.
The State of Maharashtra has filed this appeal by special leave against this order.
Mr. Gupta, for the appellant State, contends that the view expressed by the learned Judge is not correct and mainly relies on the construction put by Courts on the expression ' value or subject matter in dispute ' in the relevant provisions relating to the High Court 's giving leave to appeal to the Privy Council.
In Gooroo persad Khoond vs Juggutchunder (1) the Judicial Committee said, in connection with the requirements of the directions in the Order in Council of April 10, 1938, with respect to the conditions for granting leave to appeal to the Privy Council, that leave to appeal was to be given in cases where the value of the matter in dispute in the appeal amounted to the specified sum of Rs. 10,000 and that in (1) 8 M.I.A. 166. 234 determining such value, the amount of interest decreed up to the date of the decree be included to the amount of the principal.
Doorga Doss Chowdry vs Ramanauth Chowdry (1) is an authority for the proposition that the costs of a suit are no part of the subject matter in dispute.
Their Lordships of the Privy Council said: sum claimed, it would be in the power of every litigant, by swelling the costs, to bring any suit up to the appealable value.
" It may also be said that a litigant 's conduct may lead to a protracted trial and consequently to the increase in the amount of pendente lite interest which may raise the value of the subject matter in dispute in appeal to the appealable value.
We do not consider it correct that the expression in the Act be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High Courts to give leave for appeal to the Privy Council.
The Act is a taxing statute and its provisions therefore have to be construed strictly, in favour of the subject litigant.
The other provisions are for the purpose of allowing the party feeling aggrieved against the decision of the High Court to take up his case to the next higher Court.
the Privy Council and therefore the relevant provisions in that regard had to be given a liberal construction.
In the present case we have to construe the expression 'value of the subject matter in dispute in appeal ' for the purposes of determining the amount of Court fee due on a memorandum of appeal and not for determining such valuation for preferring an appeal to this Court.
The relevant provision governing the question of court fee to be paid on the memorandum of appeal filed in a Civil Court is contained in article 1 of Sche (1)8 M.I.A. 262.
235 dule 1 of the Act.
it is to be paid ad valorem according to the amount or value of the subject matter in dispute.
The rates applicable with respect to the various amounts are mentioned in the article.
The maximum amount of court fee, however, is Rs. 15,000.
The amount of court fee payable, therefore, depends on the amount or value of the subject matter in dispute in appeal.
The defendant appellant valued his claim at Rs. 13,033 6 6 and paid the requisite court fee on that amount.
It is obvious therefore that he disputes in appeal that part of the decree which awarded Rs. 13,033 6 6 against him on account of principal and interest due up to the date of the institution of the suit.
He did not dispute, according to the value of his claim, the amount of interest which could be found on calculation for the period between the date of the suit and the date of the decree at 4% per annum on a sum of Rs. 10,120 as had been awarded under the decree.
Whether his appeal is competent or not without his including this amount in his claim in appeal, is a question different from that relating to the value of the subject matter in dispute in appeal.
He does not dispute the decree for that amount and therefore the Court has not to decide about it and so this amount cannot be included in the amount of the subject matter in dispute in appeal covered by the relevant expression.
None of his grounds of appeal refers specifically to this amount of interest between the date of the suit and the date of the decree.
This makes it further plain that he does not question the propriety of awarding of future interest or the rate at which it was awarded or even the amount on which it could be awarded.
It is not possible to say, in these circumstances, that the value of the subject matter in dispute in the appeal must include this amount of interest between the date of the suit and the date of the decree.
Mr. Gupta has rightly conceded that it is well settled that the plaintiff has to value his appeal against the dismissal of his suit on the amount of the claim he had made in the plaint and has not to include 236 the interest due on the amount claimed up to the date of instituting the appeal, that the defendant has not to include that amount of future interest subsequent to the date of the decree till the institution of the appeal in the valuation of the appeal for the purposes of court fee and that no court fee is to be paid on the amount of costs decreed in the suit when the party aggrieved appeals against the decree.
On what principle are these amounts not treated as forming part of the value of the subject matter in dispute in appeal? Such value is to be determined on the substantial allegation in the plaint or from the pleas in the memorandum of appeal with respect to the points in dispute between the parties and sought to be determined by the Court.
Such are necessarily the points affecting the rights of the parties sought to be adjudicated by the Court.
Claims not based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the Court do not come within the purview of the expression 'subject matter in dispute in plaint or memo of appeal '.
There appears no good reason to make a distinction between the decreed amount of costs and that of pendente lite interest for the purpose of determining the amount of the subject matter in dispute in appeal.
It is true that costs of suit arise independently of the claim and are really those which are incurred by the plaintiff while the decree for the amount of pendente lite interest is directly related to the plaintiff 's claim though its award is within the discretion of the Court, but this will not justify the distinction.
The costs too, and particularly the costs on account of court fee and counsel 's fee, arise directly on account of the claim put forward in Court.
The reason really is that it is the value of the right claimed in the suit or appeal which is covered by the expression 'amount or value of subject matter in dispute in article 1, Schedule 1, of the Act and that the plaintiff ' has no right to get any of these amounts from the defendant though the Court may, in its discretion, allow future interest 237 and costs according to the circumstances of the suit in view of sections 34 and 35 C.P.C.
This principle equally applies to the non inclusion of the decreed amount ' of pendente lite interest in evaluating the subjectmatter in dispute in appeal as that too is awarded in the exercise of its discretion by the Court an the plaintiff has no right or claim for that amount against ' the defendant.
It is obvious that if the defendant appellant succeeds in establishing to the satisfaction of the appellate Court that the decree for the principal and interest up to the date of the suit is bad in whole or in part, that will itself lead the appellate Court to exercise its discretion with respect to the amount of costs and future interest in such a way that if the plaintiff 's claim is dismissed in too, he will not be awarded any future interest or any costs of the suit or appeal and that in case his claim succeeds in part, the amount of future interest and costs decreed in his favour would be appropriately modified by the appellate Court.
The defendant appellant has therefore no reason to appeal against the decree for costs or the decree for future interest unless he disputes those amounts wholly or partially for certain reasons.
If he disputes expressly the propriety or correctness of the decree with respect to the costs or pendente lite interest independently of the claim to the subject matter in the Trial Court he will have to pay court fee on the amounts challenged as in that case he does dispute those amounts in appeal and therefore those amounts do come within the expression 'value of the subjectmatter in dispute in appeal '.
This has been the basis of the various decisions of the Courts in which court fee has been demanded on the amount of costs or future interest.
In Mitthu Lal vs Chameli (1) it was held that no courtfee was to be paid on interest pendente lite granted by the lower Court unless the awarding of it was specifically challenged in appeal.
It was said at p. 76: 57 All.
238 "Interest pendente lite is awarded under section 34 of the Civil Procedure Code.
The Court may award it whether the plaintiff claims it or not.
In this respect the court 's power stands on the same footing as its power to award costs to a successful party.
It is well settled rule that no court fee is payable on the amount of costs awarded by a decree appealed from, if no ground is specifically directed against the award of costs. . . . .
The same principle is applicable to interest pendente lite which the Court may award in the exercise of its power under section 34.
On a proper reading of the appellant 's grounds of appeal in the lower appellate court we are satisfied that the subjectmatter of his appeal to that court was the principal amount and interest up to the date of the suit." In Keolapati, Mst. vs B.N. Varma "I it was held that unless the appellant expressly challenges the award of future interest, no court fee is to be paid on the amount of interest accruing from the date of the suit till the date of the filing of the appeal.
In Ashutosh vs Satindra Kumar (2) it was said at at p. 382: "Costs are not regarded as being any part of a subject matter in dispute either in the suit or in the appeal.
In the appeal, the appellant does not in such an event really dispute the order as to costs for it is the natural order that is ordinarily made following the decision as to the main subject matter in dispute and if he himself succeeds in the appeal in regard to the main subject matter, automatically he will expect to succeed with regard to the costs.
" We therefore hold that the amount of pendente lite interest decreed is not to be included in the 'amount or value of the subject matter in dispute in appeal ' for the purposes of article 1 of Schedule 1 of the Act unless the appellant specifically challenges the cor (1) I.L.R. 12 Luck.
(2) 239 rectness of the decree for the amount of interest pendente lite independently of the claim to set aside that decree.
The appellant here has not specifically challenged the decree in that respect and therefore the High Court is right in holding the memorandum of appeal to be, sufficiently stamped.
The appeal T. is therefore dismissed with costs.
Appeal dismissed. | The plaintiff respondent No. 1 instituted a suit for recovery of the amount lent to the defendant with interest upto the date of the suit.
His claim was decreed in a sum of Rs. 13,033 6 6 with future interest from the date of suit till realisation at 4 % per annum on a sum of Rs.10,120.
Against this decree the defendant appealed to the High Court and valued the appeal at Rs. 13,033 6 6 and paid the requisite court fee on that amount.
All his grounds of appeal related to the merits of the plaintiff 's claims and did not deal with the correctness of the trial court awarding future pendente lite interest on the rate at which it was to be calculated.
The Taxing Officer directed the defendant to pay the deficit court fee of Rs. 70 on the memorandum of appeal as he was of the opinion that the appeal was against the whole decree and that the amount of value of the subject matter in dispute for purpose of court fee was Rs. 14,036.80nP. as the amount of interest from the date of the suit till the date of the decree on Rs. 10,120 came to Rs. 1,033.40nP. 231 The defendant challenged this order in revision before the High Court under section 5(2) of the Bombay Court fees Act, 1959.
The High Court set aside the order of the Taxing Officer and the learned Judge expressed the view: "The subjectmatter in appeal is the real matter in dispute between the parties and not something which must stand or fall with the decision on it.
In other words, it must mean the right which is in dispute between the parties".
In this Court the appellant State challenged the correctness of the said view of the High Court and relied mainly on the construction put by courts on expression " value or subject matter in dispute," in the relevant provisions relating to the High Court 's giving leave to appeal to the Privy Council.
Held:(i) That the expression 'amount or value of the subjectmatter in dispute ' in article 1 of Schedule 1 of the Bombay Court fees Act, cannot be construed in the light of the construction placed on a similar expression for the purposes of considering whether the case had come within the rule allowing the High Courts to give leave for appeal to the Privy Council.
The Act is a taxing statute and its provisions have to be construed strictly, in favour of the subject litigant.
Gooroopersad Khoond vs Juggutchunder, 8 M.I.A. 166 and Doorga Doss Chowdry vs Ramanauth Chowdry, 8 M.I.A. 262, held in applicable.
(ii)Claims not based on any asserted right but dependent on the decision of the disputed right and reliefs in regard to which are in the discretion of the court do not come within the purview of the expression 'subject matter in dispute in plaint or memo of appeal '.
(iii)The amount of pendente lite interest decreed is not to be included in the 'amount or value of the subject matter in dispute in appeal ' for the purposes of article 1 of Sch. 1 of the Act unless the appellant specifically challenges the correctness of the decree for the amount of interest pendente lite independently of the claim to set aside that decree.
In the present case, the decree in that respect was not specifically challenged and therefore the view of the High Court must be held to be correct.
Mitthu Lal vs Chameli, 57 All.
7 1, Keolapati Mst.
vs B.N. Varma, I.L.R. 12 Luck.
466 and Ashutosh vs Satindra Kumar, 54 C.W.N.380, referred to. |
Civil Appeal Nos. 12224 of 1975.
From the Judgment and Orders dated 9.4.1974 of the Punjab & Haryana High Court in L.P.A. Nos.
213,214 and 215 of 1973.
S.K. Mehta, Dhruv Mehta and Aman Vachher, for the Appellants.
K.C. Dua for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The appellants are mortgagees.
The respondents are the heirs of Kala Singh, the mortgagor.
Kala Singh executed three mortgages in favour of the appellants Resham Singh, Jaswant Singh and Harbans Singh on September 17, 1962, June 17, 1961 and May 31, 1962 respectively hypothecating the agricultural lands of 16 kanals 16 marlas in each of the first two mortgages and 16 kanals in the third mortgage.
The mortgagor filed an application under Sec. 4 of the Redemption of Mortgages (Punjab) Act, 2 of 1913, for short 'the Act '.
He deposited a sum of Rs.10 in each mortgage and sought redemption of the mortgages.
Ultimately the parties compromised and the mortgagor agreed to pay the balance of Rs.340 to each mortgagee within a month from May 1, 1964.
The Collector passed the order on compromise under s.11 thereof on February 3, 1964.
He committed default in the payment thereof.
The petitions were dismis 617 sed.
He filed separate suits against each mortgagee for redemption within one year under Sec. 12 of the Act on June 12, 1964.
Pending suits he died.
Thereafter the suits were dismissed.
After obtaining mutation of their names in the revenue records the respondents filed separate suits for redemption of the mortgages, but beyond one year as contemplated under Sec.
12 read with article 14 of the Limitation Act, 1903.
The suits were dismissed by the Trial Court and were confirmed by the First Appellate Court and by the High Court in Second Appeals.
But the Division Bench under Clause (10) of the Letter of Patent allowed the appeals and set aside the Judgments and Decrees of the courts below and granted decree of redemption in terms of the prayer by Judgment dated April 9, 1974.
Assailing the legality thereof the appeals have been filed after obtaining leave under the article 136 of the Constitution.
Since common questions of facts and law arise for decision in these appeals, they are disposed of by a common judgment.
The only question that was argued before the High Court and reiterated in this Court is whether the suits are barred by limitation.
The contention of Shri Mehta, the learned counsel for the appellants is that the order passed by the Collector under Sec.
12 of the Act is conclusive between the parties unless the suits are laid under article 14 of the Limitation Act within one year from the date of the Order.
Admittedly, the present suits have been filed beyond such limitation of one year.
The High Court committed a grave error of law in applying the provisions of Sec.
60 of the Transfer of property Act and the ratio of the Privy council in Raghunath Singh & Ors.
vs MT.
Hansraj Kanwar & Ors., A.I.R. 1934 P.C. 205.
He contends that the Act provides a right and remedy to the mortgagor and mortgagees.
Section 12 of the Act makes the order conclusive and binding and Sec.
13 bars second application in that regard unless the suit is filed within one year from the date of the order.
It is not open to the Civil Court to go behind the order of the Collector and enlarge the limitation provided under article 14 of the Limitation Act.
All the provisions of Transfer of Property Act were not applicable to State of Punjab.
Certain Provisions relating to Sale deeds and gifts were made applicable to the State of Punjab with effect from April 1, 1955 and to the area comprised in the erstwhile Pepsu State, w.e.f.
May 15, 1957.
As on the date when the suits were laid, section 60 of Transfer of Property Act did not apply to Punjab and so the ratio in Raghunath Singh 's case (supra) is inapplicable.
The High Court committed manifest error in applying s.60.
He cited decisions of Lahore High Court in support of the contention that the suit shall be laid within one year which we would advert to at a later stage.
Shri Dua, learned counsel for the respondents contended that the High 618 Court is justified in holding that the suit is not barred by limitation and the ratio of the decision cited by the appellants cannot be applied.
The Act is a beneficial legislation giving right to the mortgagors to seek redemption and restoration of possession of the hypotheca in summary proceedings before the revenue courts.
The Act applied only to mortgage of land where the principal money secured under the mortgage does not exceed Rs. 5,000 and the hypotheca does not exceed 50 acres of land.
Section 4 gives right to the mortgagor and other persons entitled to sue for redemption at any time after the principal money becomes payable and before the suit for redemption is barred, by presenting a petition to the collector for a direction i.e. mortgage be redeemed and erstwhile morgages shall put the mortgagor in possession of the hypotheca, after following the procedure in that behalf.
5 to 11 deal with the procedure.
Under section 11 if the Collector, on an enquiry, forms an opinion that the sum is rightly due under the mortgage, he shall, unless he dismisses the petition under Sec. 10, make an order under Sec.6.
If the sum is found larger than the sum deposited, the mortgagor shall deposit the amount with any further sum that may be due on account of interest upto date of the deposit; on making deposit within the period or extended period not exceeding 30 days, thereafter, the Collector shall make an order under Sec.6 thereto.
On committing default by the Mortgagor, the Collector shall dismiss the petition.
Section 6 provides the relief of redemption; of restoration of possession to the martgagor; delivery of the mortgage, deed and payment of the mortgage money to the mortgagee.
Section 12, which is material for the purpose of this case, reads thus: (1) "Saving of suits to establish rights Any party aggrieved by an order made under Section 6, 7, 8, 9, 10 or 11 of this Act may institute a suit to establish his right in respect of the mortgage, but subject to the result of such suit, if any, the order shall be conclusive.
(2) Setting aside ex parte orders or orders of dismissal Notwithstanding anything in this section a mortgagee against whom an ex parte order under section 7 has been made or a petitioner, whose petition has been dismissed in default under section 6 may apply to the Collector to have such order of dismissal set aside, and Collector may in his discretion set aside such order of dismissal, on such terms as to costs or otherwise as he may deem fit; provided that the order of dismissal shall not be set aside unless notice of 619 the application has been served on the opposite party.
" Section 13 creates a bar to make any further petition under the Act by the mortgagor or his successor in interest.
A reading of Sec.
12 clearly postulates that the aggrieved party, be it mortgagor or mortgagee, against an order made under sections 6 to 11 is empowered to institute a suit to establish his right in respect of the mortgage, subject to the result of the suit the order passed by the Collector shall be conclusive.
Article 14 of the Limitation Act, 1908 which is equivalent to article 100 of the , prescribes limitation of one year from the date of the decision or the order of the officer of the Government in his official capacity.
Article 61 of the present provides 30 years for redemption and recovery of the possession of the hypotheca.
The limitation of 30 years runs from the date when the right to redemption or possession accrues.
Articles 105, 134, and 145 of the Old would apply to the present litigation and the limitation is 60 years.
In Tulsi Dass @ Nirmal Das & Ors.
vs Diala Ram, (2) AIR 1943 Lah.
176 a Full Bench for which Tek Chand.
J. wrote the leading judgment held at page 189 thus: "The order of the Collector does not affect the rights of the parties in any way; it is conclusive to this extent only that the petition for summary redemption has been dismissed and no other petition under the Act would lie.
No suit under section 12 being necessary or comptetent, there was no bar to the mortgagor suing for redemption in the civil Courts within the period allowed by law in ordinary course.
It must, therefore, be held that the mortgagor 's suit in A.I.R. 1929 Lah.
513 was rightly decreed and that the contrary conclusion reached by the Single Bench in A.I.R. 1927 Lah.
461 and re affirmed by the Division Bench in A.I.R. that it is the form of the order of the Collector which has to be seen and not the substance of it, is erroneous.
This view was approved by this Court in Sheo Lal & Ors.
vs Sultan & Ors.
, ; by a Bench of three Judges.
The facts were that the Collector did not decide the dispute on merits, but rejected the application filed under Sec. 4 of the Act holding that the application raised complicated question of facts and law and thereby he declined to exercise summary jurisdiction under the Act.
On institution of the suit the plea of limitation under article 14 of Old was raised which was upheld by the Trial Court, but on 620 appeal the decree of redemption was granted and was confirmed by the High Court in Second Appeal.
The same contention was reiterated before this Court.
In that context Shah, J. as he then was, speaking for the court, held that it is not the form of the order of dismissal but its substance will determine the application of the period of limitation prescribed by article 14 of the .
An order relegating the mortgagor to a civil suit for obtaining an order of redemption, event if becomes final, does not bar a suit for redemption for it raises no cloud on the title of the mortgagor arising out of the mortgage.
Such an order is not one which is required to be set aside.
An order required to be set aside is one which the officer making it has jurisdiction to make it and has the effect of barring the claim for relief unless it is set aside.
It is clear that an order passed by the Collector under sections 6 to 11 is only conclusive for what was decided therein and if the adjudication made by the Collector in summary proceedings are sought to be reopened, certainly, unless the order is got over, either by the martgagor or by the mortgagee, or any person claiming right, title or interest through them being an aggrieved person within the meaning of Sec. 12, the order of the Collector binds the parties or the persons claiming right, title or interest from the parties.
Take for instance, there is a dispute as in the present case about the mortgage money before the Collector.
Kala Singh disputed the money secured of hypothecation but had compromised and agreed to pay the amount mentioned in the mortgages bond, namely, Rs.850 Rs.
10 in each of the mortages disputed but in the suit filed within one year he reiterated his original stand.
Had the same stand been taken by the respsondents disputing the mortgage money, certainly it would not be open to the respondents as successor in interest of the mortgagor to contend that the money advanced under the mortgage was not Rs. 850, but something less.
That is not the case in the present suit.
They agreed to pay Rs. 850 as decided by the Collector and sought redemption in the civil suit.
Thereby they are not seeking to set aside the order of the Collector, but they are seeking redemption of the mortage.
Take another instance where the mortgagor disputed the execution or validity of the mortgage, bond itself and the finding was recorded against the mortgagee, i.e. the mortgage bond was not either executed or is void for being vitiated by fraud, coercion or undue influence, etc.
The mortgagor successfully avoided the mortgage by a specific order passed by the Collector under the relevant provisions of the Act.
If no suit was filed within a period of one year, the findings of the Collector become conclusive between the mortgagee and the mortgagor and it is not open to assail the order of the Collector after one year in a suit of 621 foreclosure or sale by the mortgagee.
Therefore, what was prohibited by Sec.
12 is only the substance of the order and not the form.
Once a mortgage always a mortgage and gets extinguished by payment of mortgage money by the mortgagor or decree of redemption is passed and satisfied.
The creation of mortgage is an act intervivos and not a statutory or common law right.
The Act accords summary remedy and the default of compliance entails with dismissal of the application and section 13 prohibits second applications for the self same relief.
The remedy of civil suit for redemption available at common law, subject to limitation, is not taken away.
Civil suit is not a declaratory suit, but one to redeem the mortgage and to recover possession of mortgaged property.
The question then is whether the respondents are entitled to redemption of the mortgage.
Section 60 of the gives right to redemption of the mortgage by instituting a suit for redemption of the mortgage property.
But as seen, at the relevant time section 6D was not made applicable to Punjab.
In Mussammat Bhagwan Devi vs Mussammat Bunyadi Khanum, the Division Bench held that although the and the Indian Easement Act are not in force in Punjab, the Punjab Courts when deciding cases in which principles of law dealt with by the provisions of those Acts are involved, may adopt those provisions as embodying law applicable to the case especially when the law enunciated therein coincides with the principles of equity, good conscience and justice for which there is no statutory law applicable to the Punjab.
In that it was held that the mortgagor in possession had no authority, without the consent of the mortgagee, to do an act which was likely to prove destructive or permanently injurious to the property mortgaged.
In Safdar Ali.
vs Ghulam Mohi ud din & Ors., the Full Bench was to consider whether Doctrine of Clogging would apply when the was not made applicable to Punjab.
The Full Bench held that though the Doctrine of Clogging, in terms does not apply in Punjab, when there is no statutory prohibition, governing the matter be restricted to case where something unconscionable or oppressive in the bargain calls for redress.
In terms the Full Bench applied the Principles in the provisions of the consistent with the Doctrine of Justice, Equity and Good Conscience.
In Mian Nizam & Din Mohammad vs Lala Ram Sukh Das, the right of prior mortgagee purchasing property mortgaged to him be deemed to keep alive for his benefit as against subsequent mort 622 gagee.
It was held that the principles contained in section 101 of would be applicable and applied.
In Milkha Singh vs Mst.
Shankari & Ors., AIR (34) Lahore 1 a Full Bench of five Judges applied the Doctrine of Part Performance under section 53A of the as a defence.
It was further held that section 53A is based on equitable principles which were previously applicable to whole of India, though the per se was not applied to Punjab.
In M/s Ram Gopal Dula Singh vs Sardar Gurbux singh Jiwan Singh & Ors., Kapur, J., as he then was speaking for the Division Bench, held that though section 6 of the is not applicable to Punjab, the right to expectancy may not be transferred.
It was further held that in Punjab and Lahore there is no disagreement as to Principles of being applicable to Punjab because they are based on Justice, Equity and Good conscience.
This view was again reiterated in Atma Singh & Gian Singh vs Mangal Singh & Ors., I.L.R.1957 Jan. June (Vol.10) 79 and applied sections 58, 92 and 100, Doctrine of Subrogation, but excluded the applicability of the technical rules.
This Court in Ganeshi Lal vs Jyoti Pershad, held that though the does not apply to Punjab, the priciple of equity, justice and good conscience would apply to Punjab.
If one of the several mortgagor redeems the entire mortage by paying a sum less than the full amount due under the mortgage, he is entitled to receive from his co mortgagors only their proportionate shares on the amount actually paid by him.
He is not entitled to claim their proportionate shares on the amount which was due to the mortages under terms of the mortgage on the date of redemption.
The same principle laid down in Suryanarayan vs Sriramulu, [1913] 25 M.L.J. p. 16 was referred to with approval in Ganeshi Lal 's case.
Though in Ganeshi Lal 's case the entire claim under the suit for contribution was not decreed, the provision of were applied, on the Principles of equity, justice and good conscience and granted degree pro rata.
We hold that applying the principle of Justice, Equity and Good Conscience though section 60 of the per se did not apply, the principles in section 60 would apply.
Though the application for redemption was dismissed under s.11 of the Act and became conclusive under section 12 the mortgagor 's right to redemption is not barred.
A suit for redemption under section 60 of will be maintainable and civil court has jurisdiction to grant the decree of redemption.
In Gangu & Ors., vs Maharaj Das & Ors., I.L.R. 15 Lahore 380 a 623 Full Bench following Kaura vs Ram Chand Lah.
206 held that unless the order of the Collector be challenged within one year the civil court has no jurisdiction to entertain the suit.
In this case the right to redemption of mortgage itself was barred by limitation.
Therefore, the ratio does not apply.
Though the ratio in Bhagat Ram & Ors.
vs Jamna Ram & Ors. is in favour of the appellants, in our view the ratio therein is not good law.
Thus we hold that the suits for redemption are admittedly within limitation either under the Old Limitation or under the new .
The bar of Sec.
12 of the Act does not oust the jurisdiction of the civil Court to entertain and grant decree of redemption.
The appeals are accordingly dismissed, but in the circumstances parties are directed to bear their own costs throughout.
Y.L. Appeal dismissed. | Kala Singh predecessor of the respondents executed three mortgages hypothecating agricultural lands in favour of the appellants.
The mortgagor filed an application under Section 4 of the Redemption of Mortgages (Punjab) Act 2 of 1913 and sought redemption of the mortgages, by paying Rs.10 in respect of each of the mortgage.
The parties compromised regarding the amount payable and the Collector passed the order on compromise under Section 11 of the Act on Feb. 3, 1964.
The mortgagor having committed default in making the payment within the time allowed for the purpose, the petitions were dismissed by the Collector.
Thereupon the mortgagor filed three separate suits against each mortgagee for redemption within one year under Section 12 of the Act on June 12, 1964 and during the pendency of the suits, he having died the suits were dismissed.
The respondents after obtaining mutation of their names in the revenue records, filed separate suits for redemption of the mortgages but beyond one year as contemplated under section 12 read with Art.14 of the Limitation Act 1908.
The suits were dismissed by the trial court; which order was later affirmed both by the first appellate Court as also by the High Court.
On a further appeal under the Letter Patent Act, the Division Bench of the High Court allowed the appeals and set aside the judgments and Decrees of the courts below and granted decree of redemption holding that the suits were not barred by limitation.
The appellants have thus filed these appeals after obtaining special leave.
The appellants have reiterated their contention amongst others that the suits were barred by limitation and further the High Court was not right in applying the provisions of Section 60 of the Transfer of Property Act.
Dismissing the appeals this Court, 615 HELD: Section 13 creates a bar to make any further petition under the Act by the mortgagor or his successor in interest.
A reading of Section 12 clearly postulates that the aggrieved party, be it mortgagor or mortgagee, against an order made under sections 6 to 11 is empowered to institute a suit to establish his right in respect of the mortgage.
Subject to the result of the suit, the order passed by the Collector shall be conclusive.
Article 14 of the Limitation Act, 1908 which is equivalent to Article 100 of the , prescribes limitation of one year from the date of the decision or the order of the officer of the Government in his official capacity.
Article 61 of the present provides 30 years for redemption and recovery of the possession of the hypotheca.
The limitation of 30 years runs from the date when the right to redemption or posession accrues.
Articles 105, 134 and 145 of the old would apply to the present litigation and the limitation is 60 years.(619A C) The creation of mortgage is an act intervivos and not a statutory or common law right.
The Act accords summary remedy and the default of compliance entails with dismissal of the application and section 13 prohibits second application for the self same relief.
The remedy of civil suit for redemption available at common law, subject to limitation, is not taken away.
Civil suit is not a declaratory suit, but one to redeem the mortgage and to recover possession of mortgage property.
[621B C] In the instant case, applying the principle of Justice, Equity and Good conscience though section 60 of the Transfer of Property Act, per se, did not apply, the principles in section 60 would apply.
[622G] Though the application for redemption was dismissed under section 11 of the Act and and became conclusive under section 12, the mortgagor 's right to redemption is not barred.
A suit for redemption under section 60 of the Transfer of Property Act will be maintainable and civil court has jurisdiction to grant the decree of redemption.
[622G] The suits for redemption are admittedly within limitation either under the old Limitation or under the new .
The bar of section 12 of the Act does not oust the jurisdiction of the civil court to entertain and grant decree of redemption.
[623B] Raghunath Singh & Ors.
vs Mt. Hansraj Kanwar and Ors.
A.I.R. 1934 P.C. 205; Tulsi Dass @ Nirmal Das Ors., vs diala Ram AIR 1943. ; Sheo Lal & Ors.
vs Sultan and Ors.
; ; Mussammat Bhagwan Devi vs Mussammat Bunyadi Khanum ; Safdar Ali vs Ghulam Mohi ud din Ors., ; Mian Nizam & Din Mohammed vs Lala Ramsukh Das, ; Milkha Singh vs Mst.
Shankari & Ors., AIR (34) Lahore 1;Ms.
Ram Gopal Dula Singh vs Sardar Gurbux Singh Jiwan Singh and Ors., ; Atma Singh & Gian Singh vs Mangal Singh and Ors., ILR 1957 Jan. June (Vol. 10) 79; Ganesh Lal vs Jyoti Pershad, , Suryanarayan vs Sri ramulu, [1913] (25) M L.J.P.16; Referred to.
Gangu & Ors., vs Maharaj Das & Ors., ILR 15 Lahore 380; Kaura vs Ram Chand, , Lah.206 Distinguished.
Bhagat Ram & Ors.
vs Jamna Ram and Ors., [1928] 114 I.C. 447 Not approved. |
Civil Appeal No. 570 of 1976.
Appeal by Certificate from the Judgment and Order dated 9.2.1976 of the Madras High Court in Tax Case No. 104 of 1969.
T.A. Ramachandran, P.N. Ramaligam and A.T.M. Sampath for the Appellant.
628 V.Gauri Shanker, Manoj Arora, section Rajappa and Ms.
A.Subhashini for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
This is the assessee 's appeal form a judgment of the Madras High Court dated 10.1.1975 answering three questions referred to it by the Income tax Appellate Tribunal in favour of the Revenue and against the assessee.
The reference related to the assessment year 1961 62, the previous year in respect of which commenced on 13.4.1960.
The judgment of the High Court is reported as (1976) 102 I.T.R.622.
The appellant assessee is a partnership firm.
Since 1949, it was carrying on, in Malaya, a money lending business and, as part of and incidental to the said business, a business in the purchase and sale of house properties, gardens and estates.
It had been reconstituted under a deed dated 26.3.1960.
The firm 's accounts for the year 1960 61, which commenced on 13.4.60, would normally have come to a close on or about the 13th April, 1961.
However, the firm closed its accounts as on 13.3.1961 with effect from which date it was dissolved.
Along with its income tax return for the assessment year 1961 62 filed on 10th April 1962, the assessee filed a profit and loss account and certain other statements.
In the profit and loss account, a sum of $ 1,01,248 was shown as "difference on revaluation of estates, gardens and house properties" on the dissolution of the firm on 13.3.61, such difference being $ 70,500 in respect of "house properties" and $ 30,748 in respect of estates and gardens.
In the memo of adjustment for income tax purposes, however, the above sum was deducted on the ground that it was not assessable either as revenue or capital.
A statement was also made before the officer that partner Ramanathan Chettiar, forming one group and the other partners forming another group, were carrying on business separately with the assets and liabilities that fell to their shares on the dissolution of the firm.
The Income tax Officer (I.T.O.) issued a notice under section 23(2) on the same day (10.4.1962) posting the hearing for the same day and completed the assessment also on the same day, after making a petty addition of Rs. 2083 paid as property tax in Malaya, and recording the following note: "Audit assessment Lakshmanan appears return filed I.T. 86 acknowledged in list of books scrutinised order dictated".
629 For the subsequent assessment year 1962 63, the assessee filed a return showing nil income along with a letter pointing out that the firm had been dissolved on 13.3.1961.
Thereafter, on 3.9.63, the I.T.O. wrote a letter to the assessee to the effect that the revaluation difference of $ 1,01,248 should have been brought to tax in the assessment year 1961 62 in view of the decision of the Madras High Court in Ramachari & Co. vs C.I.T., He called for the basis for the valuation and also for the assessee 's objections.
The assessee sent a reply stating that no profit or loss could be assessed on a revaluation of assets.
Relying on a circular of the Central Board of Revenue dated 21.6.1956, it was urged that the assessee was gradually winding up its business in Malaya and that therefore, the surplus would only be capital gains.
It was urged that the revaluation had been at a market price prevalent since 1.1.1954 and that, therefore, no capital gains were chargeable to tax.
The I.T.O. followed up his letter by a notice under section 148 read with section 147(b).
The assessee objected to the reassessment on two grounds: (1) that the circumstances did not justify the initiation of proceedings under section 147(b); and (2) that no assessable profits arose to the firm on the revaluation of assets on the eve of the dissolution of the firm.
Overruling these objections, the I.T.O. completed a reassessment on the firm after adding back the sum of Rs.1,58,057 (the equivalent of $ 1,01,248) to the previously assessed income.
The assessee 's successive appeals to the Appellate Assistant Commissioner and the Appellate Tribunal and reference, at its instance, to the High Court having failed,the assessee is before us.
Three questions of law were referred to the High Court by the Tribunal.
These were: "1.
Whether, on the facts and circumstances of the case, the reassessment made on the assessee firm for the assessment year 1961 62 under section 147 of the Income tax Act is valid in Law? 2.
Whether, on the facts and circumstances of the case, assessment of the sum of $ 1,01,248 as revenue profit of the assessee firm chargeable to tax for the assessment year 1961 62 is justified in law? 3.
Whether, on the facts, and circumstances of the case, the Appellate Tribunal is right in law in sustaining the assessment of the sum of $ 1,01,348 after having found that the Department Officers are bound by the Circular of the Central Board of Revenue?" 630 We may deal at the outset with the third question.
Though the High Court has dealt with this question at some length, we do not think any answer to this question can or need be furnished by us for the following reasons.
First, the assessee has not been able to place before us the circular of the Board on which reliance is placed.
It is not clear whether it is a circular or a communication of some other nature.
Second, the circular, to judge from its purport set out in the High Court 's judgment, seems to have been to the effect that the surplus arising from the sale of properties acquired by a money lender in the course of his business would be in the nature of capital gains and not of income.
Obviously such a proposition could not have been intended as a broad or general proposition of law, for the nature of the surplus on sale of assets would depend on the nature of the asset sold and this, in turn, would depend on the facts and circumstances of each case.
In this case, no material was placed at any stage to show that the assets in question constituted the capital assets of the firm and not its stock in trade.
Third, the plea of the assessee which was in issue all through was that there was no sale of assets by the firm when its assets are distributed among its partners and that no profits whether capital or revenue could be said to arise to the firm merely because, at the time of the dissolution, the firm revalued its assets on the basis of market value or any other basis, for adjusting the mutual rights and liabilities of the partners on the dissolution of the firm.
The terms of the circular, as set out in the order of the High Court, cannot therefore be of any assistance to the assessee in answering the issues in this case.
We, therefore, do not answer the third question posed by the Tribunal.
Turning now to the first question, the relevant facts have already been noticed.
The following relevant and material facts viz. (i) the dissolution of the firm, (ii) the revaluation of its assets, (iii) the distribution thereof among two groups of its partners, and (iv) the division and crediting of the surplus on revaluation to the partner 's accounts were not only reflected in the balance sheet, the profit and loss account and the profit and loss adjustment account but were also mentioned in the statement filed before the I.T.O. along with the return.
Clearly, action u/s 148 read with clause (a) of s.147 could not be initiated in these circumstances but is action under clause (b) of that section also impermissible? That is the question.
We may now set out the provisions of clause (b) of section 147 for purposes of easy reference.
This clause which corresponds to section 34(1)(b) of the Indian Income tax Act, 1922 (`the 1922 Act ') permits initiation of reassessment of proceedings, "notwithstanding 631 that there has been no omission or failure as mentioned in clause (a) on the part of the assessee" provided "the Income tax Officer has, in consequence of information in his possession, reason to believe that income chargeable to tax has escaped assessment".
In the present case, on the information already on record and in view of the decision in Ramachari & Co. vs C.I.T., , there can be no doubt that the I.T.O. could reasonably come to the conclusion that income, profits and gains assessable for the assessment year 1961 62 had escaped assessment.
But is that belief reached "in consequence of information in his posession"? The assessee 's counsel says "no", for, says he, it is settled law that the "information" referred to in clause (b) above, should be "information" received by the I.T.O. after he had completed the original assessment.
Here it is pointed out that all the relevant facts as well as the decision in Ramachari (supra) had been available when the original assessment was completed on 10.4.1962.
Action cannot be taken under this clause merely because the I.T.O., who originally considered the surplus to be not assessable, has on the same facts and the same case law which had been available to him when he completed the assessment originally, changed his opinion and now thinks that the surplus should have been charged to tax.
The validity of the assessee 's argument has to be tested in the light of the decisions of this Court which have interpreted section 147(b) of the 1961 Act or its predecessor section 34(1)(b) of the 1922 Act and expounded its parameters.
We may start with the decision in Maharaj Kumar Kamal Singh vs I.T.O., S.C.
In this case it was held that the word "information" would include information as to the true and correct state of the law and would also cover information as to relevant judicial decisions.
In that case the I.T.O. had re opened the assessment on the basis of a subsequent decision of the Privy Council and this was upheld.
Referring to the use of the word "escape" in the section, the Court observed.
"In our opinion, even in a case where a return has been submitted, if the income tax Officer erroneously fails to tax a part of asessable income, it is a case where the said part of the income has escaped assessment.
The appellant 's attempt to put a very narrow and artificial limitation on the meaning of the word "escape" in section 34(1)(b) cannot, therefore, succeed." (underlining ours) 632 The meaning of the word "information" was again explained thus in C.I.T. vs A. Raman & Co., [1968] 67 I.T.R. 11 SC: "The expression `information ' in the context in which it occurs must, in our judgment, mean instruction or knowledge derived from an external source concerning facts or particulars, or as to law relating to a matter bearing on the assessment. .
Jurisdiction of the Income tax Officer to reassess income arises if he has in consequence of information in his possession reason to believe that income chargeable to tax has escaped assessment.
That information, must, it is true, have come into the possession of the Income tax Officer after the previous assessment, but even if the information be such that it could have been obtained during the previous assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law, but was not in fact obtained, the jurisdiction of the Income tax Officer is not affected." (underlining ours) We may next refer to Kalyanji Mavji & Co. vs C.I.T., [1976 102] I.T.R. 287.
It is unnecessary to set out the facts of this case.
It is sufficient to refer to the enunciation of the law regarding the scope of section 34(1)(b) as culled out from the earlier decisions of this Court on the subject.
At page 296 the Court observed: "On a combined review of the decisions of this Court the following tests and principles would apply to determine the applicability of section 34(1)(b) to the following categories of cases: (1) where the information is as to the true and correct state of the law derived from relevant judicial decisions; (2) where in the original assessment the income liable to tax has escaped assessment due to oversight, inadvertence or a mistake committed by the Income tax Officer.
This is obviously based on the principle that the taxpayer would not be allowed to take advantage of an oversight or mistake committed by the taxing authority; 633 (3) where the information is derived from an external source of any kind.
Such external source would include discovery of new and important matters or knowledge of fresh facts which were not present at the time of the original assessment; (4) where the information may be obtained even from the record of the original assessment from an investigation of the materials on the record, or the facts disclosed thereby or from other enquiry or research into facts or law." Before applying the above principles to the facts of the present case, we may refer to two earlier decisions of the Madras High Court which have been followed in the judgment under appeal.
In Salem Provident Fund Society Ltd. vs C.I.T., , the Income tax officer, in calculating the annual profits of an insurance company, had, under the statute to work out the difference between the deficiencies as shown in the actuarial valuation of the company in respect of two successive valuation periods.
At the time of original assessment, the Income tax Officer, by mistake, added the two deficiencies instead of subtracting one from the another.
This mistake he committed not in one assessment year but in two assessment years.
Subsequently, he discovered his mistake and initiated proceedings under section 34(1)(b).
The contention urged on behalf of the assessee was that all the statements, on the basis of which the re assessment proceedings were taken, were already on record and that, in such a case, there was no `information ' which would justify the reassessment.
An argument was also raised that the rectification, if any, could have been carried out only under section 35 and not under section 34.
These contentions were repelled.
In regard to the former objection, the High Court pointed out: "We are unable to accept the extreme proposition that nothing that can be found in the record of the assessment, which itself would show escape of assessment or under assessment, can be viewed as information which led to the belief that there has been escape from assessment or under assessment.
Suppose a mistake in the original order of assessment is not discovered by the Income tax Officer himself on further scrutiny but it is brought to this notice by another assessee or even by a subordinate or a superior officer, that would appear to be information disclosed to the Income tax Officer.
if the mistake itself is not extraneous 634 to the record and the informant gathered the information from the record, the immediate source of information to the Income tax Officer in such circumstances is in one sense extraneous to the record.
It is difficult to accept the position that while what is seen by another in the record is `information ' what is seen by the Income tax Officer himself is not information to him.
In the latter case he just informs himself.
It will be information in his possession within the meaning of section 34.
In such cases of obvious mistakes apparent on the face of the record of assessment that record itself can be a source of information, if that information leads to a discovery or belief that there has been an escape of assessment or under assessment.
A similar question arose in CIT vs Rathinasabapathy Mudaliar, In that case the assessee, who was a partner in a firm, did not include in his return the income of his minor son admitted to the benefits of the partnership as required by section 16(3) of the 1922 Act.
The minor son submitted a separate return and was assessed on this income.
Subsequently, the Income tax Officer "discovered" his error in not assessing the father thereon and started re assessment proceedings.
The re assessment was upheld by the Madras High Court on the same logic as had been applied in Salem Provident Fund Society Ltd. case (supra).
The above line of thinking has not only held the field for about thirty years now but has also received approval in Anandji Haridas and Co. (P) Ltd. vs S.P. Kushare, Sales Tax Officer, [1968] 21 S.T.C. 326.
This issue has further been considered in the decision of this Court in the case of Indian and Eastern Newspaper Society vs C.I.T. (the IENS case, for short) [1979] I.T.R. 996.
In this case the income of the assessee derived by letting out certain portions of the building owned by it to its members as well as to outsiders was being assessed as business income.
In the course of audit, an internal audit party expressed the view that the money realised by the assessee on account of the occupation of its conference hall and rooms should have been assessed under the head "income from property" and not as business income.
The Income tax Officer thereupon initiated re assessment proceedings and this was upheld by the Tribunal.
On a direct reference under s.257 of the Act, this Court held that the opinion of the audit party on a point of law could not be regarded as "information" and that the initiation of the reassessment proceedings was not justified.
It was contended for the Revenue, that the reassessment proceedings would 635 be valid even on this premise.
Dealing with this argument, the Court observed: "Now, in the case before us, the ITO had, when he made the original assessment, considered the provisions of sections 9 and 10.
Any different view taken by him afterwards on the application of those provisions would amount to a change of opinion on material already considered by him.
The revenue contends that it is open to him to do so, and on that basis to reopen the assessment under section 147(b).
Reliance is placed on Kalyanji Mavji & Co. vs CIT, , where a Bench of two learned, Judges of this Court observed that a case where income had escaped assessment due to the "oversight, inadvertence or mistake" of the ITO must fall within section 34(1)(b) of the Indian Income Tax Act, 1922.
It appears to us, with respect, that the proposition is stated too widely and travels farther than the statute warrants in so far as it can be said to lay down that if, on re appraising the material considered by him during the original assessment, the ITO discovers that he has committed an error inconsequence of which income has escaped assessment, it is open to him to reopen the assessment.
In our opinion, an error discovere on a reconsideration of the same material (and no more) does not give him that power.
That was the view taken by this Court in Maharaj Kumar Kamal Singh vs CIT, [1959] 35 I.T.R. 1; CIT vs A. Raman & Co., and Bankipur Club Ltd. vs CIT and we do not believe that the law has since taken a different course.
Any observation in Kalyanji Mavji & Co. vs CIT, suggesting the contrary do not, we say with respect, lay down the correct law." (underlining ours) The Court proceeded further to observe: "A further submission raised by the revenue on section 147(b) of the Act may be considered at this stage.
It is urged that the expression "information" in section 147(b) refers to the realisation by the ITO that he has committed an error when making the original assessment.
It is said that, when upon receipt of the audit note the ITO discovers or realizes that a mistake has been committed in the original 636 assessment, the discovery of the mistake would be "information" within the meaning of section 147(b).
The submission appears to us inconsistent with the terms of section 147(b) Plainly, the statutory provision envisages that the ITO must first have information in his possession, and then in consequence of such information he must have reason to believe that income has escaped assessment.
The realisation that income has escaped assessment is covered by the words "reason to believe", and it follows from the "information" received by the ITO.
The information is not the realisation, the information gives birth to the realisation.
" Sri Ramachandran submits that these decisions support his contention that reassessment proceeding can be validly initiated only if there is some information received by the I.T.O. from an external source after the completion of the original assessment but not in a case like the present where there is nothing more before the I.T.O. than what was available to him when the original assessment was completed.
He also submits that the observations in the IENS case have cast doubts on the propositions enunciated in Kalyanji Mavji 's case (supra) and reiterates the proposition that reassessment proceedings cannot be availed of to revise, on the same material, the opinion formed or conclusion arrived at earlier in favour of the assessee.
On the other hand, Dr. Gaurisankar, appearing for the Revenue, mentioned that the decision in the IENS case holding that the opinion of an audit party would not constitute `information ' and qualifying the principles enunciated in Kalyanji Mavji is pending consideration by a larger Bench of this Court.
He, however, submitted that the reassessment in this case would be valid even on the strength of the observations in the IENS case.
We shall proceed to consider the correctness of this submission.
We have pointed out earlier that Kalyanji Mavji (supra) outlines four situations in which action under S.34(1)(b) can be validly initiated.
The IENS case has only indicated that proposition (2) outlined in this case and extracted earlier may have been somewhat widely stated; it has not cast any doubt on the other three propositions set out in Kalyanji Mavji 's case.
The facts of the present case squarely fall within the scope of propositions 2 and 4 enunciated in Kalyanji Mavji 's case.
Proposition (2) may be briefly summarised as permitting action even on a "mere change of opinion".
This is what has been doubted in the IENS case (supra) and we shall discuss its application to this case a 637 little later.
But, even leaving this out of consideration, there can be no doubt that the present case is squarely covered by proposition (4) set out in Kalyanji Mavji & Co. (supra).
This proposition clearly envisages a formation of opinion by the Income tax Officer on the basis of material already on record provided the formation of such opinion is consequent on "information" in the shape of some light thrown on aspects of facts or law which the I.T.O. had not earlier been conscious of.
To give a couple of illustrations, suppose an I.T.O., in the original assessment, which is a voluminous one involving several contentions, accepts a plea of the assessee in regard to one of the items that the profits realised on the sale of a house is a capital realisation not chargeable to tax.
Subsequently he finds, in the forest of papers filed in connection with the assessment, several instances of earlier sales of house property by the assessee.
That would be a case where the I.T.O. derives information from the record on an investigation or enquiry into facts not originally undertaken.
Again, suppose if I.T.O. accepts the plea of an assessee that a particular receipt is not income liable to tax.
But, on further research into law he finds that there was a direct decision holding that category of receipt to be an income receipt.
He would be entitled to reopen the assessment under s.147(b) by virtue of proposition (4) of Kalyanji Mavji.
The fact that the details of sales of house properties were already in the file or that the decision subsequently come across by him was already there would not affect the position because the information that such facts or decision existed comes to him only much later.
What then, is the difference between the situations envisaged in propositions (2) and (4) of Kalyanji Mavji (supra)? The difference, if one keeps in mind the trend of the judicial decisions, is this.
Proposition (4) refers to a case where the I.T.O. initiates reassessment proceedings in the light of "information" obtained by him by an investigation into material already on record or by research into the law applicable thereto which has brought out an angle or aspect that had been missed earlier, for e.g., as in the two Madras decisions referred to earlier.
Proposition (2) no doubt covers this situation also but it is so widely expressed as to include also cases in which the I.T.O., having considered all the facts and law, arrives at a particular conclusion, but reinitiates proceedings because, on a reappraisal of the same material which had been considered earlier and in the light of the same legal aspects to which his attention had been drawn earlier, he comes to a conclusion that an item of income which he had earlier consciously left out from the earlier assessment should have been brought to tax.
In other words, as pointed out in IENS case, it also 638 ropes in cases of a "bare or mere change of opinion" where the I.T.O. (very often a successor officer) attempts to reopen the assessment because the opinion formed earlier by himself (or, more often, by a predecessor I.T.O.) was, in his opinion, incorrect.
Judicial decisions had consistently held that this could not be done and the IENS case (supra) has warned that this line of cases cannot be taken to have been overruled by Kalyanji Mavji (supra).
The second paragraph from the judgment in the IENS case earlier extracted has also reference only to this situation and insists upon the necessity of some information which make the ITO realise that he has committed an error in the earlier assessment.
This paragraph does not in any way affect the principle enumerated in the two Madras cases cited with approval in Anandji Haridas, [1986] 21 S.T.C. 326.
Even making allowances for this limitation placed on the observations in Kalyanji Mavji, the position as summarised by the High Court in the following words represents, in our view, the correct position in law: "The result of these decisions is that the statute does not require that the information must be extraneous to the record.
It is enough if the material, on the basis of which the reassessment proceedings are sought to be initiated, came to the notice of the Income tax Officer subsequent to the original assessment.
If the Income tax Officer had considered and formed an opinion on the said material in the original assessment itself, then he would be powerless to start the proceedings for the reassessment.
Where, however, the Income tax Officer had not considered the material and subsequently come by the material from the record itself, then such a case would fall within the scope of section 147(b) of the Act.
" Let us now examine the position in the present case keeping in mind the narrow but real distinction pointed out above.
On behalf of the assessee, it is emphasised (a) that the amount of surplus is a very substantial amount,(b) that full details of the manner in which it had resulted had been disclosed, (c) that the profit and loss account, the profit and loss adjustment account and statement made before the I.T.O. had brought into focus the question of taxability of the surplus and (d) that decision in Ramachari 's case had been reported by 10.4.1962.
No Income tax Officer can be presumed to have completed the assessment without looking at all this material and the said decision.
No doubt, some doubt had been thrown as to whether a statement had been given at the time of original assessment that the amount 639 of surplus was not taxable as an income or a capital gain but the case has proceeded on the footing that such a statement was there before the officer.
This, therefore, is nothing but a case of "change of opinion".
On the other hand, the authorities and the Tribunal have drawn attention to the fact that the return, the section 143(2) notice and assessment were all on the same day and counsel for the Revenue urged that obviously, in his haste, the I.T.O. had not looked into the facts at all.
It is urged that no Income tax Officer who had looked into the facts and the law could have failed to bring the surplus to tax in view of then recent pronouncement in Ramachari 's case.
Dr. Gaurishankar submitted that the Tribunal has found that the I.T.O. "had acted mechanically in accepting the return without bringing his mind to play upon the entry in the statement with reference to the distribution of the assets".
He pointed out that there is no evidence of any enquiry with reference to this aspect and that, the amount involved being sufficiently large, the I.T.O., if he had been aware of the existence of the entry would certainly have discussed it.
He urged that the question whether the I.T.O. had considered this matter at the time of the original assessment or not is purely a question of fact and the Tribunal 's conclusion thereon having been endorsed by the High Court, there is no justification to interfere with it at this stage.
We think there is force in the argument on behalf of the assessee that, in the face of all the details and statement placed before the I.T.O. at the time of the original assessment, it is difficult to take the view that the Income tax Officer had not at all applied his mind to the question whether the surplus is taxable or not.
It is true that the return was filed and the assessment was completed on the same date.
Nevertheless, it is opposed to normal human conduct that an officer would complete the assessment without looking at the material placed before him.
It is not as if the assessment record contained a large number of documents or the case raised complicated issues rendering it probable that the I.T.O. had missed these facts.
It is a case where there is only one contention raised before the I.T.O. and it is, we think, impossible to hold that the Income tax Officer did not at all look at the return filed by the assessee or the statements accompanying it.
The more reasonable view to take would, in our opinion, be that the Income tax Officer looked at the facts and accepted the assessee 's contention that the surplus was not taxable.
But, in doing so, he obviously missed to take note of the law laid down in Ramachari which there is nothing to show, had been brought to his notice.
When he subsequently became aware of the decision, he initiated proceedings under section 147(b).
The material which constituted information and on 640 the basis of which the assessment was reopened was the decision in Ramachari.
This material was not considered at the time of the original assessment.
Though it was a decision of 1961 and the I.T.O. could have known of it had he been diligent, the obvious fact is that he was not aware of the existence of the decision then and, when he came to know about it, he rightly initiated proceedings for assessment.
We may point out that the position here is more favorable to the Revenue than that which prevailed in the Madras cases referred to earlier.
There, what the I.T.O. had missed earlier was the true purport of the relevant statutory provisions.
It seems somewhat difficult to believe that the I.T.O. could have failed to read properly the statutory provisions applicable directly to facts before him (though that is what seems to have happened).
Perhaps an equally plausible view, on the facts, could have been taken that he had considered them and decided, in one case, not to apply them and, in the other, on a wrong construction thereof.
In the present case, on the other hand, the material on which the I.T.O. has taken action is a judicial decision.
This had been pronounced just a few months earlier to the original assessment and it is not difficult to see that the I.T.O. must have missed it or else he could not have completed the assessment as he did.
Indeed it has not been suggested that he was aware of it and yet chose not to apply it.
It is therefore much easier to see that the initiation of reassessment proceedings here is based on definite material not considered at the time of the original assessment.
In the above view of the matter, we uphold the High Court 's view on the first question.
The second question raises a more difficult problem.
There can be no doubt that the decision of the Madras High Court in Ramachari squarely covers the situation.
Ramachari holds that the principle of valuing the closing stock of a business at cost or market at the option of the assessee is a principle that would hold good only so long as there is a continuing business and that where a business is discontinued, whether on account of dissolution or closure or otherwise, by the assessee, then the profits cannot be ascertained except by taking the closing stock at market value.
Ramachari has subsequently been followed by the Kerala High Court in Popular Workshops vs Commissioner of Income Tax, and in Popular Automobiles vs Commissioner of Income Tax, Shri Ramachandran contends that the decision in Ramachari 641 does not lay down the correct law.
He submits than, while it is no doubt true that the closing stock has to be valued, the well settled principle is that it should be valued, at cost or market whichever is lower and there is no justification for laying down a different principle for valuation of the closing stock at the point of discontinuance of business unless the goods are actually sold by the assessee at the time of discontinuance.
Further, it has been held by a series of decisions of this Court that when a firm is dissolved and the assets are distributed among the partners, there is no sale or transfer of the assets of the firm to the various partners: vide, Addanki Narayanppa vs Bhaskara Krishnappa, ; ; CIT vs Dewas Cine Corporation, ; CIT vs 2Bankey Lal Vaidya, ; Malabar Fisheries Co. vs C.I.T., and in Sunil Siddharthbhai vs C.I.T., He submits that, in logical sequence, dissolution comes first and distribution of assets comes later.
Therefore, revaluation of the assets of a firm, which is only for the division of the assets among the partners on a real and not a notional basis, is part of the division of the assets and therefore logically, in point of time, subsequent to the dissolution of the firm.
Since the revaluation takes place after the dissolution no profits can be said to have accrued to the firm by the process of revaluation.
The revaluation of the assets is not in the course of business and is not an activity which can partake of the nature of trade.
Assuming but not conceding that it is possible to have a revaluation of the assets, for example, stock in trade before dissolution, any excess which arises on the revaluation is only an imaginary or notional profit and cannot be brought to tax for the following reasons: (i) As a result of such revaluation, there can be no profit, because the firm cannot make a profit out of itself: Vide Kikabhai Premchand vs C.I.T., (ii) The process of revaluation of stock by itself cannot bring in any real profits: vide C.I.T. vs K.A.R.K. Firm, [1934]2 I.T.R. 183; Chainrup Sampatram vs C.I.T., [1953) and C.I.T. V. Hind Construction ltd., [1972] 83 I.T.R. 211; and (iii) It is well settled that what is taxable under the income tax law is only real income vide C.I.T. vs M/s Shoorji Vallabhdas and Co., [1962] 46 I.T.R. 144 and C.I.T. vs Birla Gwalior (P) Ltd., There is, therefor, no principle by which the stock in trade can be valued at market price so as to bring to tax the notional profits which might in future be realised as a result of the sale of the stock in trade.
642 The question posed before us is a difficult one.
We think, however, that the High Court was right in pointing out that the several decisions relied upon for the assessee as to the nature of the transaction by which a firm, on dissolution, distributes its assets among its partners, have no relevance in the present case.
As the High Court rightly observed, those cases relate to what happens after or in consequence of the dissolution of a firm whereas we are here concerned with a question that arises before or at the time of dissolution.
What we have to decide is the basis on which, in making up the accounts of a firm upto the date of dissolution, the closing stock with the firm as at a point of time immediately prior to the dissolution is to be valued.
It is this principle that has been decided in Ramachari and the High Court decisions following it (including the one under appeal) and the question is whether they lay down the correct law.
In the first place, it is settled law that the true trading results of a business for an accounting period cannot be ascertained without taking into account the value of the stock in trade remaining at the end of the period.
Though, as pointed out by this Court in Chainrup Sempatram vs C.I.T., it is a misconception to think that any profit arises out of the valuation of closing stock, it is equally true that such valuation is a necessary element in the process of determining the trading results of the period.
This is true in respect of any method of accounting and in C.I.T. vs Krishnaswamy Mudaliar, this Court pointed out that, even where the assessee is following the cash system of accounting, the valuation of closing stock cannot be dispensed with.
In this decision, this Court quoted with approval the following observations in C.I.R. vs Cock, Russel & Co. Ltd. "There is no word in the statutes or rules which deals with this question of valuing stock in trade.
There is nothing in the relevant legislation which indicates that in computing the profits and gains of a commercial concern the stock in trade at the start of the accounting period should be taken in and that the amount of the stock in trade at the end of the period should also be taken in.
It would be fantastic not to do it: it would be utterly impossible accurately to assess profits and gains merely on a statement of receipts and payments or on the basis of turnover.
It has long been recognised that the right method of assessing profits and gains is to take into account the value of the stock in trade at the beginning and the value of the stock in trade at the 643 end as two of the items in the computation.
I need not cite authority for the general proposition, which is admitted at the Bar, that for the purposes of ascertaining profits and gains the ordinary principles of commercial accounting should be applied, so long as they do not conflict with any express provision of the relevant statutes.
" Next the principles as to the method of valuation of the closing stock are equally well settled.
Lord President Clyde set these out in Whimster & Co. vs C.I.R., in the following words: "In computing the balance of profits and gains for the purposes of income tax,. two general and fundamental commonplaces have always to be kept in mind.
In the first place, the profits of any particular year or accounting period must be taken to consist of the difference between the receipts from the trade or business during such year or accounting period and the expenditure laid out to earn those receipts.
In the second place, the account of profit and loss to be made up for the purpose of ascertaining that difference must be framed consistently with the ordinary principles of commercial accounting, so far as applicable, and in conformity with the rules of the Income tax Act, or of that Act as modified by the provisions and schedules of the Acts regulating excess profits duty, as the case may be.
For example, the ordinary principles of commercial accounting require that in the profit and loss account of a merchant 's manufacturer 's business the values of the stock in trade at the beginning and at the end of the period covered by the account should be entered at cost or market price, whichever is the lower; although there is nothing about this in the taxing statutes.
" The principle behind permitting the assessee to value the stock at cost is very simple.
In the words of Bose, J. In Kikabhai Premchand vs C.I.T., [1953] 24 I.T.R. 506 S.C. it is this: "The appellant 's method of book keeping reflects the true position.
As he makes his purchases he enters his stock at the cost price on one side of the accounts.
At the close of the year he enters the value of any unsold stock at cost on the other side of the accounts thus cancelling out the entries relating to the sum unsold stock earlier in the 644 accounts; and then that is carried forward as the opening balance in the next year 's account.
This cancelling out of the unsold stock from both sides of the accounts leaves only the transactions on which there have been actual sales and gives the true and actual profit or loss on his year 's dealings.
" As against this, the valuation of the closing stock at market value invariably will create a problem.
For if the market value is higher than cost, the accounts will reflect notional profits not actually realised.
On the other hand, if the market value is less, the assessee will get the benefit of a notional loss he has not incurred.
Nevertheless, as mentioned earlier, the ordinary principles of commercial accounting permit valuation "at cost or market, whichever is the lower".
The rationale behind this has been explained by Patanjali Sastri, C.J. in Chainrup Sampatram vs C.I.T., , S.C. where an attempt was made to value the closing stock at a market value higher than cost.
The learned Chief Justice observed: "It is wrong to assume that the valuation of the closing stock at market rate has, for its object, the bringing into charge any appreciation in the value of such stock.
The true purpose of crediting the value of unsold stock is to balance the cost of those goods entered on the other side of the account at the time of their purchase, so that the cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions on which there have been actual sales in the course of the year showing the profit or loss actually realised on the year 's trading.
As pointed out in paragraph 8 of the Report of the Committee on Financial Risks attaching to the holding of Trading Stocks, 1919, "As the entry for stock which appears in a trading account is merely intended to cancel the charge for the goods purchased which have not been sold, it should necessarily represent the cost of the goods.
If it is more or less than the cost, then the effect is to state the profit on the goods which actually have been sold at the incorrect figure. .
From this rigid doctrine one exception is very generally recognised on prudential grounds and is now fully sanctioned by custom, viz., the adoption of market value at the date of making up accounts, if that value is less, than cost.
It is of course an anticipation of the loss that may be made on those goods in 645 the following year, and may even have the effect, if prices rise again, of attributing to the following year 's results a greater amount of profit than the difference between the actual sale price and the actual cost price of the goods in question" (extracted in paragraph 281 of the Report of the Committee on the Taxation of Trading Profits presented to British Parliament in April 1951).
While anticipated loss is thus taken into account, anticipated profit in the shape of appreciated value of the closing stock is not brought into the account, as no prudent trader would care to show increased profit before its actual realisation.
This is the theory underlying the rule that the closing stock is to be valued at cost or market price whichever is the lower, and it is now generally accepted as an established rule of commercial practice and accountancy.
" From the above passage, it will be seen that the proper practice is to value the closing stock at cost.
That will eliminate entries relating to the same stock from both sides of the account.
To this rule custom recognises only one exception and that is to value the stock at market value if that is lower.
But on no principle can one justify the valuation of the closing stock at a market value higher than cost as that will result in the taxation of notional profits the assessee has not realised.
The High Court in Ramachari has, however, outlined another exception and seems to have rested this on two considerations.
The first is the observation of Lord Buckmaster in C.I.T. vs Ahmedabad New Cotton Mills Co. Ltd., [1930] L.R. 57 I.A. 21 to the following effect: "The method of introducing stock into each side of a profit and loss account for the purpose of determining the annual profits is a method well understood in commercial circles and does not necessarily depend upon exact trade valuations being given to each article of stock that is so introduced.
The one thing that is essential is that there should be a definite method of valuation adopted which should be carried through from year to year, so that in case of any division from strict market values in the entry of the stock at the close of one year it will be rectified by the accounts in the next year.
" From these observations, the High Court inferred: "It is obvious from the above that the privilege of valuing 646 the opening and closing stock in a consistent manner is available only to continuing business and that it cannot be adopted where the business comes to an end and the stock in trade has to be the disposed of in order to determine the exact position of the business on the date of closure. " The second consideration which prevailed with the High Court is reflected in the following passage from the judgment: "It seems to us that none of these cases has any application to the facts of the present case .
There is no authority directly in point dealing with this question, where a partnership concern dissolves its business in the course of the accounting year, what is the basis on which the stock in trade has to be valued as on the date of dissolution.
We have accordingly to deal with the matter on first principles.
The case of a firm which goes into liquidation forms a close parallel to the present case.
In such a case all the stock in trade and other assets of the business will have to be sold and their value realised.
It cannot be controverted that it is only by doing so that the true state of the profits or losses of the business can be arrived at.
The position is not very different when the partnership ceases to exist in the course of the accounting year.
The fact that Ramachari, one of the ex partners, took over the entire stock and continued to run the business on his own, is not relevant at all, when we consider the profits or losses of the partnership ' which has come to an end.
It should, therefore, follow that in order to arrive at the correct picture of the trading results of the partnership on the date when it ceases to function, the valuation of the stock in hand should be made on the basis of the prevailing market price.
" We are not quite sure that the first of the considerations that prevailed with the High Court is relevant in the present case.
Even in a continuing business, the valuation at market value is permissible only when it is less than cost; it is not quite certain whether the rules permit an assessee if he so desires to value closing stock at market value where it is higher than cost.
But, in either event, it is allowed to be done because its effect can be offset over a period of time.
But here, where the business comes to a close, no future adjustment of an over 647 or under valuation is possible, In this context, it is difficult to see how valuation, at other than cost, can be justified on the principle of Ahmedabad Advance Mills case (supra).
We, however, find substance in the second consideration that prevailed with the High Court.
The decision in Muhammad Hussain Sahib vs Abdul Gaffor Sahib, [1950] 1 M.L.J.81 correctly sets out the mode of taking accounts regarding the assets of a firm.
While the valuation of assets during the subsistence of the partnership would be immaterial and could even be notional, the position at the point of dissolution is totally different: "But the situation is totally different when the firm is dissolved or when a partner retires.
The settlement of his account must be not on a notional basis but on a real basis, that is every asset of the partnership should be converted into money and the account of each partner settled on that basis. .
The assets have to be valued, of course, on the basis of the market value on the date of the dissolution . " This applies equally well to assets which constitute stock in trade.
There can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial man, would value the assets only on a real basis and not at cost or at their other value appearing in the books.
A short passage from Pickles on Accountancy (Third Edn), p. 650 will make this clear: "In the event of the accounts being drawn up to the date of death or retirement, no departure from the normal procedure arises, but it will be necessary to see that every revaluation required by the terms of the partnership agreement is made.
It has been laid down judicially that, in the absence of contrary agreement, all assets and liabilities must be taken at a "fair value," not merely a "book value" basis, thus involving recording entries for both appreciation and depreciation of assets and liabilities.
This rule is applicable, notwithstanding the omission of a particular item from the books, e.g. investments, goodwill (Cruikshank vs Sutherland).
Obviously, the net effect of the revaluation will be a profit or loss divisible in the agreed profit or loss sharing ratios.
" 648 The real rights of the partners cannot be mutually adjusted on any other basis.
This is what happened in Ramachari.
Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for them to contend that the valuation should be on some other basis.
Once this principle is applied and the stock in trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm and has to be charged to tax.
The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view were possible.
For these reasons, we agree with the answer given by the High Court to the second question as well.
The appeal fails and is dismissed.
But we would make no order regarding costs.
R.N.J. Appeal dismissed. | The Appellant Assessee, a partnership firm was engaged mainly, in Malaya, in money lending business since 1949 and incidental to this business was also doing the business of sale and purchase of house properties, gardens and estates.
It was reconstituted under a deed dated 26.3.1960.
The firm was dissolved on 13.3.1961 and closed its accounts with effect from that date.
In its income tax return filed on 10.4.1962 for the assessment year 1961 62 it had filed a profit and loss account wherein amount of $.1,01,248 equivalent of Rs.1,58,057 was shown as "difference on revaluation of the estates, gardens and house properties" on the dissolution of the firm.
In the memo of adjustment for income tax purposes this amount was deducted as being not assessable either as revenue or capital.
The Income Tax Officer issued notice under section 23(2) of the Act on that very day and completed the assessment also on the same day after making a petty addition of Rs.2088 paid as property tax in Malaya.
When for the subsequent year 1962 63, the assessee filed its return showing nil income stating in the forwarding letter that the Firm had been dissolved on 13.3.1961, the I.T.O. wrote to the assessee that the revaluation difference of Rs.1,58,057 should have been brought to tax in the previous year.
The assessee replied that no profit or loss could be assessed on a revaluation of assets, that the assessee was gradually winding up its business in Malaya, the surplus would be only capital 625 gains and that revalutation had been at the market price prevalent since 1954 and thus no capital gains were chargeable to tax.
Not satisfied, the I.T.O. issued a notice under section 148 read with Section 147(b) of the Income Tax Act, 1961.
The assessee filed objections.
Overruling all the objections, the Income Tax Officer completed reassessment of the assessee Firm adding back the sum of Rs. 1,58,057 to the previously assessed income.
Having failed right upto the High Court, the assessee came in appeal before this Court.
Dismissing the appeal, affirming the decision of the High Court, this Court.
HELD: (1) The proceedings u/s 147(b) were validly initiated.
The facts of this case squarely fall within the scope of propositions (2) and (4) enunciated in Kalyanji Mavji 's case.
Proposition (2) may be briefly summarised as permitting action even on a "mere change of opinion".
This is what has been doubted in the IENS case.
But, even leaving this out of consideration, there can be no doubt that the present case is squarely covered by proposition (4) set out in Kalyanji 's case.
This proposition clearly envisages a formation of opinion by the Income Tax Officer on the basis of material already on record provided the formation of such opinion is consequent on "information" in the shape of some light thrown on aspects of facts or law which the Income Tax Officer had not earlier been conscious of.
[636G 637B] The difference between the situations envisaged in propositions (2) and (4) of Kalyanji Mavji is this, that proposition (4) refers to a case where the Income Tax Officer initiates reassessment proceedings in the light of "information" obtained by him by an investigation into material already on record or by research into the law applicable thereto which has brought out an angle or aspect that had been missed earlier.
Proposition (2) no doubt covers this situation also but it is so widely expressed as to include also cases in which the Income Tax Officer, having considered all the facts and law, arrives at a particular conclusion, but reinitiates proceedings because, on a reappraisal of the same material which had been considered earlier and in the light of the same legal aspects to which his attention had been drawn earlier, he comes to a conclusion that an item of income which he had earlier consciously left out from the earlier assessment should have been brought to tax.
[637F H] It is true that the return was filed and the assessment was completed on the same date.
Nevertheless, it is opposed to normal human 626 conduct than an officer would complete the assessment without looking at the material placed before him.
It is not as if the assessment record contained a large number of documents or the case raised complicated issues rendering it probable that the Income Tax Officer had missed these facts.
It is a case where there is only one contention raised before the Income Tax Officer and it is, we think, impossible to hold that the Income Tax Officer did not at all look at the return filed by the assessee or the statements accompanying it.
The more reasonable view to take would, in our opinion, be that the Income Tax Officer looked at the facts and accepted the assessee 's contention that the surplus was not taxable.
But, in doing so, he obviously missed to take note of the law laid down in Ramachari which there is nothing to show, had been brought to his notice.
when he subsequently became aware of the decision, he initiated proceedings under section 147(b).
The material which constituted information and on the basis of which the assessment was reopened was the decision in Ramachari.
this material was not considered at the time of the original assessment.
Though it was a decision of 1961 and the Income Tax Officer could have known of it had he been diligent, the obvious fact is that he was not aware of the existence of that decision then and, when he came to know about it, he rightly initiated proceedings for reassessment.
[639E 640B] The material on which the Income Tax Officer has taken action is a judicial decision.
This had been pronounced just a few months earlier to the original assessment and it is not difficult see that the Income Tax Officer must have missed it or else he could not have completed the assessment as he did.
Indeed it has not been suggested that he was aware of it and yet chose not to apply it.
It is therefore, much easier to see that the initiation of reassement proceedings here is based on definite material not considered at the time of the original assessment.
[640D E] (2) The stock in trade of a firm at the time of its disolution, has to be assessed at a fair value.
there can be no manner of doubt that, in taking accounts for purposes of dissolution, the firm and the partners, being commercial men, would value the assets only on a real basis and not at cost or at their other value appearing in the books.
The real rights of the partners cannot be mutually adjusted on any other basis.
This is what happened in Ramachari.
Indeed, this is exactly what the partners in this case have done and, having done so, it is untenable for them to contend that the valuation should be on some other basis.
Once this principle is applied and the stock in trade is valued at market price, the surplus, if any, has to get reflected as the profits of the firm 627 and has to be charged to tax.
The view taken by the High Court has held the field for about thirty years now and we see no reason to disagree even if a different view was possible.
[642B D, 647E,648A C] Popular Automobiles vs Commissioner of Income Tax, ; Sunil Siddharthbhai vs Commissioner of Income Tax, ; Pupular Workshops vs Commissioner of Income Tax ; Malabar Fisheries Co. vs Commissioner of Income Tax, ; Indian & Eastern Newspaper Society vs Commissioner of Income Tax, ; Kalyanji Mavji & Co. vs Commissioner of Income Tax, [1976] 102 I.T.R. 287; M/s A.L.A. Firm vs The Commissioner of Income Tax, Madras ; Commissioner of Income Tax vs Hind Construction Ltd., ; Commissioner of Income Tax vs Birla Gwalior (P) Ltd., ; Anandji Haridas & Co. (P) Ltd. vs S.P. Kushare, Sales Tax Officer, [1968] 21 S.T.C. 326; Commissioner of Income Tax vs Dewas Cine Corporation, ; Ramachari & Co. vs Commissioner of Income Tax, ; Maharaj Kumar Kamal Singh vs Income Tax Officer, S.C.; Commissioner of Income Tax vs A Raman & Co., S.C.; Salem Provident Fund Society Ltd. vs Commissioner of Income Tax, ; Commissioner of Income Tax vs Rathinasabapathy Mudaliar, ; Addanki Narayanappa vs Bhaskara Krishnappa, ; ; Commissioner of Income Tax vs Bankey Lal Vaidya ; Kikabhai Premchand vs Commissioner of Income Tax, [1953] 24 I.T.R. 506 (S.C.); Commissioner of Income tax vs K.A.R.K. Firm, ; Chainrup Sampathram vs Commissioner of Income Tax, ; Commissioner of Income Tax vs M/s. Shoorji Vallabhadas & Co., , Commissioner of Income Tax vs Krishnaswamy Muldaliar, ; Commissioner of Income Tax vs Ahmedabad New Cotton Mills Co. Ltd., [1930] L.R. 57 I.A. 21; Muhammad Hussain Sahib vs Abdul Gaffor Sahib, reffered to. |
Civil Appeal No. 848 of 1991 etc etc.
From the Judgment and Order dated 14.12.1990 of Madhya Pradesh High Court in M.A. No. 227 of 1990.
Kapil Sibal, H.N. Salve, J.B. Dadachanji, Mrs A.K. Verma and section K. Mehta for the Appellants.
K.K. Venugopal, P. Chidambaram, S.S. Ray and P.P. Tripathi for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, CJ.
The Olympic games are ancient in origin.
According to the Encyclopaedia Britannica they commenced some 3,500 years ago and the name came from its association with the place known as Olympia in Greece.
These games were played once in every four years and were abolished in 393 AD by the Roman Emperor Theodosius I.
In recent times, they were revived in 1896 and have until now been held at the turn of every four years excepting during the first and the second world wars.
The Olympic games are one of the biggest international events and provide great opportunities to amateur sportsmen in the different classifications.
Indian participation in the Olympic games dates back to 1900 when a single representative had joined the Olympics at Paris.
Gradually, such participation became more systematic and broad based.
While the Ministry of Youth Affairs and Sports of the Union Government looks after development of sports within the country, the management of the Olympic participation has been entrusted to a society registered under the Societies Registration Act (21 of 1860) known by the name 'Indian Olympic Association ' (for short IOA ') The Memorandum of Association of this society indicates that the principal objects of the society, inter alia, are: (i) to develop and promote the Olympic movement and amateur sport, (2) to promote and encourage the physical, moral and cultural education of the youth of the nation for the development of character, good heath and good 662 citizenship, (3) to enforce all rules and regulations of the International Olympic Committee (hereinafter referred to as 'IOC ') and the IOA; (4) to be the official organisation in complete and sole charge of all Olympic matters in the country, (5) to educate the public of the country as to the value of amateurism in sports; (6) to maintain the highest ideals of amateurism and to promote interest therein, particularly in connection with the Olympic games and other games under the patronage of the IOC as well as the IOA, (7) to have full and complete jurisdiction over all matters pertaining to the participation of India in the Olympic games and other games under the patronage of the IOC as well as the IOA, (8) to assist in cooperation with National Sports Federations/Associations the selection, training and coaching of the teams that will represent Indian in the Asian, Commonwealth, Olympic and other international competitions and tournaments, under the patronage of the teams in the said competitions and tournaments after selection, (9) to undertake with the assistance of National Sports Federations/Associations the financing, management, transportation, maintenance and welfare of teams from India taking part in the Olympic games and other games under the patronage of the IOC as well as the IOA; and (10) to timulate the interest of the people of the country in the promotion of sports and games in the Olympic programme, and to that end the formation of State Olympic Association for the development of sports and games within a State and National Sports Federations for games and sports in the Olympic programme.
We have quoted most of the important objectives to bring it to the forefront that the I.O.A. has been brought into existence to sponsor, supervise, finance, regulate and control all aspects of sports activity in relation to the Asian, Commonwealth, Olympic and international competitions and tournaments under the patronage of the IOC.
While its funding is partially out of membership fee, bulk of it comes from Government contribution.
The society has a set of rules and regulations.
There are five categories of members as described in rule 3.
The management of the affairs of the Association is entrusted to an Executive Council defined in rule 1(v).
Rule 8 provides that the Executive Council shall have (i) a President (ii) 9 Vice Presidents (iii) a Secretary General (iv) 6 Joint Secretaries (v) a Treasurer (vi) 7 Members elected from among representatives of State Olympic Associations and (vii) 12 members elected from among the representatives of National Sports Federation/Association/ SSCB.
Rule 8 provides the manner of elections to be held 663 for the Executive Council.
The term of the Executive Council is 4 years.
Rule 11 provides the voting procedure.
Clause (b) of that rule requires that voting if necessary in the IOA Executive Council, IOA Emergency Executive Council and/or at the annual general or special general meetings of the IOA shall be by show of hand.
However, if in a particular case the procedure has to be changed, the same will be done by a resolution of the concerned body passed by majority vote.
The very rule provides as to the voting power of the different units composing the IOA.
Rule 12 deals with the office bearers like the President, the Vice President, the Secretary General, the Joint Secretaries, the Treasurer etc.
For the resolution of the dispute before us perhaps reference to the other rules is not necessary.
The IOA was reconstituted with effect from 28th of October, 1984, with appellant Shri V.C. Shukla as the President.
K. Murugan, appellant in C.A. No. 848 of 1991 (arising out of SLP 1064/91) was one of the 6 Joint Secretaries.
In November, 1988, Shri B.S. Adityan, one of the vice President of the 1984 Executive Council was elected as President for a term of four years.
On 16th of May, 1990, there was a requisition of 17 Members for a special general meeting for considering the move of a no confidence motion against Shri Adityan and his Executive Council.
With this started a period of confrontation between the two groups in the Association.
In May, 1990, the Executive Council overruled the requisition as invalid and President Adityan called a meeting of the General assembly at Madras for 15th of June, 1990.
For the same day the other group summoned a meeting of the general assembly at New Delhi.
This led to Court proceeding and the Delhi High Court restrained the requisitionists from holding their meeting at New Delhi and appointed a retired Judge of the Delhi High Court as an observer for the meeting to be held at Madras.
In the convened meeting of 15th of June, minutes of the proceedings whereof have been seriously disputed Shri Shukla claimed to have been elected.
A little before the meeting of the 15th of June at Madras, further proceedings were taken in Court which have been labelled as collusive and manipulations for obtaining an order for the manner of voting.
The warring factions lost sight of the laudable goals of the IOA and the purpose for which the Association had been set up and put their entire attention on winning control over the affairs of the IOA in their grip through litigation.
664 A Single Judge of the Madras High Court having decided in favour of Shri Adityan, the matter ultimately came before a Full Bench which by its order dated 3rd of January, 1991, remitted the matter to the learned Single Judge and appointed Justice Natarajan, a retired Judge of this Court, to discharge the functions of the President of the IOA as an interim measure.
This order is challenged in the appeal by Shri Murguan and Shri V.C. Shukla by two different appeals being Civil Appeals Nos. 852.853 of 1991 (arising SLPs 1599 and 1787/91).
Not content with the litigation in the Delhi and Madras High Courts, the Fencing Association of India filed a civil suit at Jabalpur asking for declaration that Shri Shukla had been duly elected as President.
An application for injunction in support of Shri Shukla having been rejected by the trial Judge an appeal had been taken before the High Court where a learned Single Judge made a status quo order.
The other two appeals arise out of proceedings including contempt taken therein.
Long arguments have been advanced before us by Mr. Venugopal for Shri Adityan and by Mr. Sibal for Shri Shukla.
The main contention of Mr. Venugopal is that under the rules the terms of the President and the Executive Council is four years and in the absence of a clear provision for a vote of No. confidence, which would curtail the period, there could be no reduction of the period of office.
It has also been contended that the entire Executive Council could not be voted out of office by a motion of no confidence and, therefore, Shri Adityan had rightly overruled the requisition.
Serious challenge has been advanced by Mr. Sibal against the proceedings taken before the Madras High Court and particularly, the learned Judge making an order changing the manner of voting from show of hands to one by ballot in what is stated to be a collusive proceeding.
This does not appear to us to be a matter where individual rights in terms of the rules and regulations of the Society should engage our attention.
Sports in modern times has been considered to be a matter of great importance to the community.
International sports has assumed greater importance and has been in the focus for over a few decades.
In some of the recent Olympic games the performance of small States has indeed been excellent and laudable while the performance of a great country like India with world 's second highest populations has been miserable.
It is unfortunate that the highest body in charge of monitoring all aspects of such sports has got involved in group fight leading to litigation and the objectives of the Society have been lost sight of.
The representation of India in the IOA has been in jeopardy.
665 The grooming of amateurs has been thrown to the winds and the responsibility placed on the Society has not been responded.
This, therefore, does not appear to us to be a situation where rights to office will have to be worked out by referring to the provisions of the law relating to meetings, injunction and rights appurtenant to elective office.
What seems to be of paramount importance is the healthy conditions must be restored as early as possible into the working of the Society and a fresh election has to be held as that seems to be the only way to get out of the malady.
The entire nation is looking up to the results of the competitions at the international games when they are held.
As we have already pointed out, IOA has great responsibities to discharge in organising and streamlining the national sport activities intended for international events.
The monitoring has to be a continuous one and unless the scheme is ongoing and is made result oriented, the international performance cannot be up to any appreciable level.
The question for consideration, therefore, is not as to which of the two factions should succeed.
On the other hand, it is appropriate that all the litigations now pending should abate.
In the interest of the appropriate functioning of the Society the litigation outside the headquarters of the Society should not be permitted.
We accordingly direct that any litigation, if at all, should only be within the jurisdiction of the Delhi High Court and no Court in India would entertain litigations relating to the functioning of IOA in any aspect.
A fresh Executive Council should be set up and for that purpose elections should be held within two months hence.
The general assembly should be convened to meet at Calcutta on 28th of April, 1991.
We appoint Mr. Justice A.D. Koshal, a retired Judge of this Court to conduct the elections keeping the provisions of the rules and regulations of the IOA in view.
Voting shall be by secret ballot.
The list of voters should be finally settled within four weeks from now and if it is necessary to have any hearing in the matter we authorise such hearing to be undertaken by Mr. Justice Koshal.
Until then, Mr. Justice Natarajan will continue to exercise his powers as conferred by the order of the Madras High Court.
Once the results of the elections are announced, Mr. Justice Natarajan would cease to be in office and the Association would take over.
To enable Mr. Justice Koshal to discharge the obligations cast upon him by this decision, the Ministry of Youth Affairs and Sports is directed to place at his disposal a sum of Rs.25,000 (Twenty five thousand) within two weeks and a small group of assistants as he may need.
Payment of remuneration for the work done shall be fixed by the Court later.
666 All the proceedings in the different High Courts abate; the suit in the Jabalpur High Court shall stand dismissed.
The contempt proceedings now pending shall not be proceeded with.
In the course of arguments some criticism was advanced against the order of the High Court providing monthly remuneration to Mr. Justice Natarajan.
We leave this aspect to be considered by Mr. Justice Natarajan himself and do not propose to deal with it in our order.
Before we leave this matter we would like to point that the Union of India should take greater interest in organising sports both for national and international purposes.
Sports have a role to play in building up good citizens.
That aspect should be kept in view.
We have a feeling that while a lot of money is allotted for the purpose of improvement of sports, the result has been considerably poor and deceptive.
We hope and trust that this aspect of the criticism heard from everywhere in this country shall also be given due consideration.
V.P.R. Appeals disposed of. | The Indian Olympic Association was a society registered under the Societies Registration Act, with the principal object to sponsor, supervise, finance, regulate and control all aspects of sports activity in relation to the Asian, Commonwealth, Olympic and International competitions.
The Society had a set of rules and regulations.
There are five categories of members described in Rule 3.
The management of the affairs of the Association is entrusted to an Executive Council defined in Rule 1(v).
Rule 8 provided that the Executive Council shall have (i) a President, (ii) 9 Vice Presidents, (iii) a Secretary General, (iv) 6 Joint Secretaries, (v) a Treasurer and (vi) 19 Members.
The terms of the Executive Council was to be 4 years, while Rule 11 provides the voting procedure.
The Indian Olympic Association was reconstituted with effect from 28 of October, 1984, with the appellant in C.A. No. 852 of 1991, Shri V. C. Shukla as the President, K. Murugan, the appellant in C.A. No. 848 of 1991 as one of the 6 Joint Secretaries.
In November, 1988, one of the Vice President of the 1984 Executive Council, Shri B.S. Adityan, the appellant in C.A. No. 849/91 was elected as President for a term of four years.
On 16th of May, 1990, there was a requisition of 17 Members for a special general meeting for considering the move of a no confidence 659 motion against the aforesaid Shri B.S. Adityan and his Executive Council.
This initiated a period of confrontation between the two groups in the Association.
In May 1990, the Executive Council overruled the aforesaid requisition as invalid and President Adityan called a metting of the General Assembly at Madras for 15th of June, 1990.
For the same day the other group summoned a meeting at New Delhi.
This aforesaid situation led to Court proceedings, and the Delhi High Court restrained the requisitionists from holding their meeting at New Delhi and appointed a retired Judge of the Delhi High Court as an observer for the meeting to be held at Madras.
At this meeting Shri V.C. Shukla, the appellant in C.A. No. 852/91 claimed to have been elected.
The matter was taken to Court and a Single Judge decided in favour of Shri B.S. Adityan, the appellant C.A.No. 8549/91, but when the matter came up before the Full Bench of the High Court, it remitted the matter to a Single Judge who appointed a retired Judge of this Court to discharge the function of the President of the Association as an interim measure.
This Order has been challenged by the appellants in Civil Appeals Nos.
852 853/91.
The Fencing Association of India filed a civil suit at Jabalpur for the declaration that Shri V. C. Shukla had been duly elected.
The application for injunction from having been rejected by the Trial Judge, an appeal had been taken to the High Court where the Single Judge ordered status quo.
Two Civil Appeals were also filed against this order.
It was contended on behalf of the appellants that under the rules the term of the President and the Executive Council was four years and in the absence of a clear provision for a vote of no confidence which would curtail the period, there could be no reduction of the period of office, and that the entire Executive Council could not be voted out of office by a motion of no confidence.
Disposing of the appeals, this Court, HELD: 1. Sports in modern times has been considered to be a matter of great importance to the community.
International sports has assumed greater importance and has been in the focus for over a few decades.
[664D E] 660 2.
It is unfortunate that the highest body incharge of monitoring all aspects of such sports has got involved in group fight leading to litigation and the objectives of the I.O.A. have been lost sight of.
The representation of India in the I.O.A. has been in jeopardy.
[664E F] 3.
The grooming of amateurs has been thrown to the winds and the responsibility placed on the Society has not been responded.
This, therefore, does not appear to be a situation where rights to office will have to be worked out by referring to the provisions of the law relating to meetings, injunction and rights appurtenant to elective offices.
[664F G] 4.
What seems to be of paramount importance is that healthy conditions must be restored as early as possible into the working of the Society and a fresh election has to be held as that seems to be the only way to get out of the malady.
[644G H] 5.
The entire nation is looking up to the results of the competitions at the international games when they are held.
I.O.A. has great responsibilities to discharge in organising and streamlining the national sport activities intended for international events.
The monitoring has to be a continuous one and unless the scheme is ongoing and is made result oriented, the international performance cannot be up to any appreciable level.
[664G 665B] 6.
This does not appear to be a matter where individual rights in terms of the rules and regulations of the Society should engage attention.
[664D E] 7.
It is appropriate that all the litigations now pending should abate, and for appropriate functioning of the Society the litigation outside the headquarters of the Society should not be permitted.
[665B C] 8.
A fresh Executive Council should be set up and for that purpose, elections should be held within two months hence; a retired Judge of this Court is appointed to conduct the elections keeping the provisions of the rules and regulations of the I.O.A. in view.
All the proceedings in the different High Courts abate.
[665C D, G] 9.
It is directed that the Union of India should take greater interest in organising sports both for national and international purposes.
Sports have a role to play in building up good citizens.
That 661 aspect should be kept in view, while a lot of money is allotted for the purpose of improvement of sports, the result has been considerably poor and deceptive.
This aspect of the criticism hear from everywhere in this country shall also be given due consideration.
[666A B] |
Appeal Nos.
491 544 of 1991.
From the Judgement and Order dated 12.12.1990 of the Bombay High Court in W.P. Nos.
2646, 2659, 2651, 2649, 2657, 2664, 2648, 2647, 2666, 2658, 2662, 2663, 2667, 2665, 2691, 2693, 2694, 4091, 4098, 4155, 2743, 2789, 2791, 2790, 2740, 4290, 2824, 2858, 2848, 3052, 2863, 2848, 2844, 2843, 2832, 2852, 4846, 4844, 3312, 5101, 5102, 3313, 3207, 3064, 3005, 3335, 3188, 5123, 3514 and 4844 of 1990.
T.R. Andhyarujana, S.N. Wakharia, P.H. Parekh, D.Y. Chandrachud and Ms. Shalini Soni for the Appellant.
P. Chidambaram, Arun Jaitley, I.R. Joshi, M.N. Shroof, Ms. Indu Malhotra, Ms. Alka Mukhija, Harish N. Salve, Ms. Shireen Jain, J.P. Cama, Mukul Mudgal, Mrs. Urmila Sirur, Dileep Pillai, P. Kesava Pillai, Kailash Vasdev and Vimal Dave for the Respondents.
The Judgement of the Court was delivered by K. RAMASWAMY, J. We have heard the learned counsel on either side and grant special leave to appeal in all the cases.
The quest for just result to save the precious academic years to the students while maintaining the unsullied examination process is the core problem which the facts have presented for solution.
The appeals arise from the common judgement of a Division Bench of the Bombay High Court in Writ Petition No. 2646 of 1990 and batch.
The appellant for short 'the Board ' conducted secondary examinations in the month of March 1990, whereat the marks awarded, after the formalities of valuation by the examiners of the answer sheets in each subject; the random counter check by the moderators and further recounting at the Board, Moderators ' mark sheets sent to Pune for feeding the computer to declare the results were found tampered with the appellant.
Thereon, admittedly, it was found that moderators ' mark sheets relating to 283 examinees which include 53 respondents in these appeals were tampered, in many a case in more than 2 to 8 subjects, and in few cases in one subject.
As a result, 214 examinees have improved their ranking, which would be in some cases exceptionally good.
The declaration of their results were 780 withheld pending further enquiry and the rest declared on June 30, 1990.
Several writ petitions were filed in the High Court against non declaration of the results and the High Court directed to take expeditious action to declare the results of the examination within the specified time.
The Board appointed seven enquiry officers to conduct the enquiry.
Show cause notices were issued to the students on July 30, 1990 informing them of the nature of tampering, the subjects in which the marks were found tampered with, the marks initially obtained and the marks increased due to tampering, and also indicated the proposed punishment, if in the enquiry it would be found that marks were tampered with the knowledge or connivance or at the instance of the candidates or parents or guardians.
They were also informed that they would be at liberty to inspect the documents at the Divisional Board at Bombay.
They were entitled to adduce documentary and oral evidence at the hearing.
They will also be permitted to cross examine the witnesses of the Board, if any.
They would not be entitled to appear through an Advocate, but the parents or guardians would be permitted to accompany the students at the time of enquiry, but they are not entitled to take part in the enquiry.
The candidates submitted their explanations denying the tampering and appeared before the Enquiry Officers on August 8, 9, 10, 20, 21 and 22, 1990.
At the enquiry, each student inspected the record.
A questionnaire was given to be filled in writing.
Every candidate was shown his answer book, marks awarded in the subject/subjects and the tampered marks in the moderators ' mark sheets.
All the candidates admitted that the marks initially awarded by the examiner were tampered in the moderators mark sheets; due to tampering the marks were increased and the increase was to their advantage.
However, they denied that either they or their parents or guardians were privy to the tampering.
The Enquiry Officers submitted their reports holding that the moderators mark sheets have been fabricated and submitted the reports to the Board.
The Standing Committee constituted in this regard considered the records and the reports on August 29, 1990, discussed pros and cons and expressed certain doubts about the possibility of the candidates/parents/guardians committing fabrication.
They sought for and obtained legal opinion in that regard.
On August 30, 1990 the standing committe resolved to with hold, as a measure of punishment, the declaration of the results of their examinations and to debar the 283 students to appear in the supplementary examination to be held in October, 1990 and March, 1991.
The notification was published on August 31, 1990 and submitted the report to the High Court.
There after the High Court considered the cases on merits.
The learned Judges by separate but concurrent judgements allowed the writ petitions.
781 Sugla, J. held that the Standing Committee of the Divisional Board under the Maharashtra Secondary and Higher Secondary Education Board Act of 1965 for short 'the Act ' was devoid of power.
It did not obtain the approval of the Divisional Board, and therefore, the impugned notification was without authority of law.
On merits also it was held that the Standing Committee did not apply its mind in the proper perspective to the material facts.
Therefore, the finding that tampering was done at the instance of the examinees/parents/guardians is perverse.
Bharucha, J. without going into the jurisdictional issue agreed with Sugla, J. and held that the preponderance of the probabilities would show that the examinees were not guilty of the malpractices.
The guilt has not been established.
The examinees might well be innocent.
Accordingly, the impugned notification dated August 31, 1990 was quashed.
Mandatory injunction was issued to Board to declare the results of 253 examinees within two weeks from the date of the judgement and marks were directed to be communicated to the examinees within a period of two weeks thereafter.
The admitted facts are that the mark sheets of the examiners were not tampered.
Only the moderators ' mark sheets were tampered.
As per the procedure, after the marks were scrutinized at the State Board and found the marks tallied and to be correct, the moderators ' mark sheets were sent to the computer at Pune, obviously in sealed packets, for feeding the results.
After the date of recounting the marks in the office of the State Board at Bombay and before the d ate of taking them to feed the computer, moderators ' mark sheets, were tampered.
The individual students were put on notice of the marks they originally obtained and the tampered marks in the subject/subjects concerned.
They were also given the opportunity to lead evidence on their behalf and if the witnesses were examined on behalf of the Board they would be permitted to cross examine them.
They inspected the records.
The questionnaire given to all the examinees at the enquiry were before us at the hearing including the 53 respondents in the appeals.
We have persued the questionnaire.
It is clear from the answers given to the questionnaire that all the examinees admitted the marks they originally got and the tampered marks on the moderators ' mark sheets.
They also admitted that the tampering was to their advantage.
Everyone denied the complicity of either of the candidates or the parents or the guardians.
Thus it is clear that at the enquiry there is no dispute that the moderators ' mark sheets were tampered, though the candidates, obviously and quite expectedly, denied their complicity in that regard.
Due to tampering 214 would have been passed and 69 accelerated their ranking and percentage to seek admis 782 sion into prestigious institutions.
The racket of large scale tampering wading through 80,000 moderators ' mark sheets obviously was done by concerted action.
It is clear that from large body of moderators ' mark sheets, it is not possible to pick the marks sheets of the concerned examinee alone unless there is concerted and deliberate efforts, in conspiracy with some members of the staff entrusted with the duties in this regard, for illegal gratification.
It is also not an innocent act of mere corrections as is sought to be made out by Sri Chidambaram, the learned counsel for the respondents.
We have no manner of doubt that unfair means were used at the final Secondary Examination held in March 1990, by fabricating the Moderators ' mark sheets of 283 examinees, in a concerned manner, admittedly, to benefit the students concerned.
The first question, therefore, is whether the Standing Committee of the concerned Divisional Board has power under the Act and Regulations to enquire into the use of unfair means committed at the final examination conducted under the Act.
Section 4 of the Act declares that the State Board of Secondary and Higher Secondary Education is a body corporate.
Section 18 enumerates the powers and duties of the State Board.
Clause (t) of Sec.
18 empowers the Board to make regulations for the purpose of carrying into effect the provisions of the Act.
Clause (g) empowers the Board to give to the candidates certificates after passing final examination.
Clause (m) empowers to recommend measures and to prescribe conditions of discipline.
Clause (w) gives residuary power to do all such acts and things as many be necessary to carry out the purposes of the Act.
Section 19 gives powers and entrust duties to the Divisional Board of each division.
Clause (f) postulates, "to conduct in the area of its jurisdiction the final examination on behalf of the State Board.
" Clause (1) provides, "to deal with cases of use of unfair means according to the procedure laid down by the State Board.
" Section 23 provides that power of appointments of the Committees by the State Board.
Sub Section (2) thereof provides that: "The State Board may appoint such other Committees as it thinks necessary for the efficient performance of its functions." Equally sub section (3) of Sec.
23 empower thus: "Each Divisional Board shall appoint Committees designated as follows: (d) Examination Committee.
783 Sub Section (5) states thus: "The constitution of every committee appointed by the State Board or a Divisional Board, the term of office of its members and the duties and functions to be discharged by it shall be such as may be prescribed.
" Section 36 empowers the State Board to make regulations for the purpose of carrying into effect the provisions of the Act.
Sub section (2) thereof states that: "In particular and without prejudice to the generally of the foregoing power, such regulations may provide for all or any of the following matters, namely: (a) the constitution, powers and duties of the Committees.
appointed under section 23; . . (f) the arrangement for the conduct of final examinations by the Divisional Board and publication of results; . . (n) any other matter which is to be or may be prescribed under this Act.
" Sub section (3) provides: "No regulation made under this section shall have effect until the same has been sanctioned by the State Government" Thus it is clear that the State Board is empowered to constitute the Divisional Boards and the Standing Committees.
The State Board is also empowered to make regulations to conduct examinations and also to deal with the use of unfair means at the final examination conducted by the Board.
The Divisional Board is empowered to conduct within its area the final examinations on behalf of the State Board.
The Divisional Board is also empowered to deal with the cases of unfair means according to the procedure laid down by the State Board.
The State Board made regulations named as Maharashtra Secondary and Higher Secondary Education Board Regulations 1977 which came into force with effect from July 11, 1977.
Regulation 9(2) (xviii) read thus: 784 "to lay down the procedure and specify the penalties to be followed by the Divisional Boards, in dealing with cases of use of unfair means by persons seeking admission to or appearing at the examinations conducted under the authority of the State Board.
" Under Regulations 14 the Standing Committee of the Divisional Board was to be constituted under sub regulation (1) thereto.
Sub regulation (2) provides: "Subject to the provisions of the Act and the Regulations, the Standing Committee shall have the following duties and functions, namely . . (x) to deal with cases of use of unfair means by persons seeking admission to or appearing at the final examinations, according to the procedure laid down by the State Board.
" By a resolution passed at the meeting of the State Board held on October 26, 1985, Exhibit 'z ' provides the procedure for enquiry.
Clause 3(f) defines 'misconduct ' as follows: "Misconduct" shall mean any illegal or wrongful act or conduct which is alleged to have been resorted to by any candidate and/or any member of staff, at, for or in respect of the final examination and, without prejudice to the generality of the foregoing, shall include. . tampering with the documents issued by the Board or otherwise howsoever changing a candidate 's results in any manner whatsoever and generally acting in such a manner so as to affect or impede the conduct of the final examinations and fair declaration of results thereof.
" Clause (4) empowers to conduct an enquiry either suo moto or on a complaint about any misconduct and the procedure in that regard so that the Chairman of the Divisional Board may entrust the enquiry into the alleged misconduct to any member or members of the Divisional Board other than the members of the Standing Committee.
Clause (5) empowers to entrust the enquiry.
The Enquiry Officer shall give a notice in writing to the candidate . setting forth the nature of the misconduct alleged against the candidate and call upon the candi 785 date to show cause within the time specified therein.
It also empowers to set out the punishment proposed to be imposed on a candidate.
Clause 5(b) gives an opportunity to the candidates to inspect the relevant documents proposed to be relied upon at the enquiry.
Clause 6 gives opportunity to the delinquent to submit an explanation; to produce his witnesses as well as documentary evidence and to be heard in person, if he/she so desires, but shall not be entitled to be represented by an Advocate or any other persons.
The delinquent shall be bound to answer truthfully to all questions relevant to the subject of enquiry that may be put to him/her by the Enquiry Officer .
Clause (10) provides that the concerned Enquiry Officer shall submit the report in writing including the findings and the proposed punishment.
Clause 11 provides thus: "The Standing Committee shall consider the report and decide the case as it may deem fit.
The Standing Committee will take the decision in the same meeting.
" Clause (12) states thus: "The Standing Committee shall not be bound to give detailed reasons in support of its order or decision but shall record its reasons if it disagrees with the findings of recommendations of the inquiry officer and under such circumstances the Standing Committee need not give hearing to the delinquent concerned." Other clauses are not relevant for the purpose of this case.
Hence omitted.
The Board also in its meeting held on October 26, 1985 framed rules in Appendix 'A ' providing under different heads the nature of the offence and the quantum of punishment, the relevant item 16 reads thus: "Tampering with the Secondary/Higher Secondary School Certificate and/or statement of marks or their copies and any other documents issued by the Board.
" Cancellation of performance of the Examination and debarring the candidate for five more examinations and/or to lodge complaint by the concerned institution/Authority to Police Department.
Thus a conspectus of these relevant provisions of the Act, regulations 786 and resolutions clearly cover the entire field of operation regarding the use of unfair means at the final examinations specified the competent authorities and the procedure to deal with the same.
The Divisional Board undoubtedly has been empowered under Sec.
19 of the Act to deal with the use of unfair means at the final examination.
It may be made clear at this juncture that the Standing Committee consists of six members of the Divisional Board and none of them associated with the enquiry.
Enquiry Officers are also the members of the Divisional Board.
The regulations provide the procedure in this regard.
It is undoubtedly true as contended by Shri Chidambaram, that the Act empowers the Divisional Board to deal with the use of unfair means at the final examination.
But to give acceptance to the contention that the Standing Committee is an alien body to the Divisional Board is to do violence to the scheme of the Act and Regulations.
It is seen that under the scheme of the Act and Regulations the State Board is empowered to constitute the Standing Committee.
Equally the Divisional Board is empowered to constitute the committees which include the Examination Committee.
The members thereof are only members of the Divisional Board.
Equally the Inquiry Officers are also the members of the Divisional Board other than the members of the Education Standing Committee.
The Standing Committee is an executive arm of the Divisional Board for the efficient and expeditious functioning of the Board as adumbrated under the Act itself.
It is not a foreign body.
Therefore, when the Divisional Board is acting in conducting the examinations and dealing with the use of unfair means at the final Examination, it is acting on behalf of the State Board as its agent.
When the enquiry was conducted by some members and the Standing Committee was taking the decision thereon, it is acting on behalf of the Divisional Board.
There is no dichotomy but distribution of the functions.
Therefore, when the Standing Education Committee takes the decision its decision is on behalf of the Divisional Board to which they are members and the decision of the Divisional Board to which they are members and the decision of the Divisional Board in turn is on behalf of the State Board.
This is the integral scheme woven by the Act and Regulations.
Thus under the scheme of the Act, for the efficient and expeditious function of the concerned Boards; implementation of the provisions of the Act, and to prevent use of unfair means at the final examination including tampering the result of the examination, the Standing committee is clearly within its power to take final decision.
On a fair and harmonious reading of the relevant provisions and given their due scope and operational efficiency, we are of the considered view that the Examination Standing Committee of the Divisional Board itself a statutory body acted on behalf of the Divisional Board and is not a delegate of the Divisional Board.
787 In State of U.P. vs (Batuk Deo Pati Tripathi & Anr.,) the respondent was appointed as a Munsif in the State Judicial Service and was later promoted as a District Judge.
The Administrative Committee of the High Court reviewed the service and the Committee recommended to the State Government and communicated to all the Judges of the recommendation to compulsarily retire the respondent from service.
The Govt.
accordingly retired the respondent compulsarily which was challenged in a writ petition.
A Full Bench of the Allahabad High Court held that the District Judge cannot be retired from service on the opinion formed by the Administrative Committee and all the Judges should have considered and made recommendation.
Accordingly, the order was set aside.
On appeal, the Constitution Bench of this Court held that article 235 of the Constitution provides control over the District Judges and the Court subordinate thereto shall be vested in the High Court.
It is open to the High Court to make rules to exercise the power of control feasible, convenient and effective.
Accordingly the High Court regulated the manner of appointment of a Committee to screen the service record.
Thus, the rules framed prescribed the manner in which the power has to be exercised.
Truely, it is regulatory in character and the powers were exercised by the Committee and recommended to the State Govt.
to compulsarily retire the respondent and it amounts to taking a decision on behalf of the High Court.
In (Khargram Panchayat Samiti vs State of West Bengal & Ors.,) [1987] 3 SCC 82 at p. 84 the facts were that the cattle fairs run by the two rival organisations would be held on specified different dates which were impugned in the jurisdiction to pass such a resolution.
The High Court held that the Samiti was vested with power to grant licence to hold the fair under Sec. 117 of West Bengal Panchayat Act, 1973.
In the absence of any rules framed in that regard it had no power to specify dates on which such Hat or fair shall be held.
While reversing the High Court 's judgement, this Court held that the general administration of the local area vested in the Samiti which had power to grant licences to held fair or hat under Sec. 117 of the Act.
Necessarily it carries with it the power to supervise, control and manage such a hat or fair within its territorial jurisdiction.
The conferment of the power to grant a licence for holding of a hat or a fair includes the power to make incidental or consequential order for specification of a date on which such a Hat or fair shall be held.
Accordingly, the resolution of the Samiti was upheld.
In (Baradakanta Misra,) vs (High Court of Orissa & Anr.,) [1976]B Suppl.
SCR 561 relied on by Sri Chidambaram, the facts were that then appel 788 lant while acting as a District Judge, an enquiry into certain charges was held against him, and was reduced to Addl.
District Magistrate (Judicial).
He refused to join the duty.
Fresh proceedings were initiated against him and after enquiry the High Court dismissed him on the ground that he was convicted on a charge of a criminal attempt.
An appeal was filed to the Governor and a Writ petition followed thereafter filed in the High Court were dismissed, while allowing the appeal filed under Article 136.
The scope of the words "control" and "deal" used in Article 235 were interpreted at page 576 P&G and held that the word 'control ' includes something in addition to the disciplinary jurisdiction.
The control is with regard to conduct and discipline of the District Judges and Subordinate Courts and includes right to appeal against the order of the High Court in accordance with the condition or service includes an order passed thereon.
The word 'deal ' also includes the control over disciplinary and not mere administrative jurisdiction.
The control which is vested in the High Court is complete control subject only to the power of the Governor in the matter of appointment including initial posting and promotion of the District Judge and dismissal, removal and reduction in rank of the District Judges within the exercise of the control vested in the High Court.
The High Court can hold enquiries, impose punishments other than dismissal or removal subject, however, to the conditions of service to a right of appeal, if granted by the conditions of service, and to the giving of an opportunity of showing cause as required by Clause (2) of article 311 unless such an opportunity is dispensed with by the Governor acting under the provisos (b) and (c) to that clause.
The High Court alone could make enquiries into disciplinary conduct.
It was held that the High Court had no jurisdiction to dismiss the District Judge.
Accordingly it was quashed.
That ratio has no application to the facts in this case since the Act, Regulations and the Resolutions empowered the Divisional Board and its Standing Committee to deal with use of unfair means at final examinations including fabrication of documents issued by the Board as an integral part of the power of the Divisional Board.
Similarly, the ratio in (Taj Pal Singh (dead) through Lrs) vs State of U.P. & Anr., also is inapplicable to the facts of this case.
In that case, the facts were that while the appellant was working as the District and Sessions Judge, the Stage Govt.
moved the High Court to his premature retirement.
The Administrative Judge agreed with Government 's proposal to retire the appellant after giving him three months ' notice, the Governor passed the impugned order compulsorily retiring the appellant.
Three days thereafter the Administrative Committee had approved the opinion of the Administrative Judge which was transmitted to the Government.
789 Assailing the action of the Government the writ petition was filed which was dismissed by the High Court, but on appeal this Court held that the Administrative Judge was not competent to recommend to the Governor or compulsorily retire the District and Sessions Judge and the order of the Government made pursuant thereto was declared illegal.
This Court reiterated that the High Court has power under article 235 to make rules for its administrative convenience, but since the impugned action was not in pursuance of that rule, the action was not upheld.
That ratio also renders little assistance to the respondents for the reasons that the Standing Committee, as stated earlier is an integral part of while exercising the powers, under article 226 or article 136 of the Constitution, by the High Court or of this Court, are not sitting Committees (domestic enquiry body), nor have power to evaluate the evidence as an appellate Court and to come to its own conclusions.
If the conclusions reached by the Board can be fairly supported by the evidence on record then the High Court or this Court has to uphold the decision, though as appellate Court of facts, may be inclined to take different view.
The contention of M/s. Chidambaram, Jaitley, Salve and Cama, the learned counsel for the students, is that the students were minors; neither the parents nor anybody like an Advocate was permitted to assist the students.
Answers to the questionnaire were extracted from the students to confess their guilt.
No adequate opportunity was given to the students at the enquiry.
No one on behalf of the Board acquainted with the Divisional Board.
Accordingly the Board must be deemed to have passed the impugned notification as per the scheme of the provisions of the Act and the Regulations.
Therefore, the finding of the learned Judge Sugla, J. that the Standing Committee had no power to take the impugned decision, etc.
without approval of the Divisional Board is clearly illegal and cannot be sustained.
The question then is whether the candidates or their parents or guardians are privy to the fraudulent fabrication.
Since we are informed that investigation in this regard by the Police is in progress, we refrain to express any final opinion in this regard.
Suffice to state that the records clearly establish that there was a fraudulent fabrication of the moderators ' marks sheets of 283 candidates including the respondents herein.
The question, therefore, emerges whether the conclusion reached by the Standing Committee that the fabrication was done at the behest of either the candidate or the parents or the guardians to 790 their advantage is based on records.
We remind ourselves that the facts was examined to explain as to how the moderators ' sheets were dealt with after the board screened the marks, but before taking to Pune to feed the computer, nor an opportunity was given to cross examine them.
The evidence without subjecting it to cross examination is of no value.
Enquiry report is not a report in the eye of law.
It does not contain any statement of facts, nor reasons recorded.
It merely records conclusions.
When seven members were appointed it is not expected that all of them would submit uniform stereo typed reports to the Standing Committee.
The Standing Committee did not apply its mind to the facts, nor recorded reasons in support of its conclusions that the examinees/parents/guardians were parties to the fabrication and the fabrication was done at their behest.
Sri Chidambaram further contended that the Board should establish the guilt of the examinees beyond all reasonable doubts.
Shri Jaitley, Sri Cama and Sri Salve though did not support Sri Chidambaram that the standard of proof must be beyond all reasonable doubt, they argued that Standard of proof must be a high degree akin to trial in a criminal case.
The Board did not discharge its duty, on the other hand the Board had presumed that fabrication was done for the benefit of the examinees.
The test of benefit to an examinee is preposterous.
There is no presumption that the fabrication was done at the behest of either the examinees/parents/guardians.
It must be established by the Board as of fact that the examinees/parents/guardians were responsible for fabricating the Moderators ' mark sheets.
Thus no evidence was placed on record, nor wait proved; that, therefore, the findings of the Standing Committee are clearly based on no evidence.
The learned Judges of the High Court were justified in reaching the conclusion that the Board had not established that the fabrication was done at the behest of the examinees/parents/guardians.
This was resisted by Sri T.R. Andhyarujana, learned counsel appearing for the Board.
It was his contention that all the examinees admitted in answers to the questionnaire that tampering was done and it was to their advantage.
In view of the admission, the need to examine any person from the concerned section was obviated.
Fabrication cannot be done except to benefit the examinees.
The fabricator had done it for reward in concert with outside agencies.
Therefore, the inference from these facts drawn by the Standing Committee that the examinees/parents/guardians were responsible to fabricate the moderators ' marks sheets is based on evidence.
Proper enquiry was conducted giving reasonable opportunity to the candidates.
Show cause notices set out the material facts on which the Board intends to place reliance.
The examinees submitted their explanations and also answered the questionnaire.
On consideration 791 thereof the Standing Committee had reached the conclusions of the guilt of the examinees/parents/guardians.
This is based on record.
It is not open to High Court to evaluate the evidence to come to its own conclusions.
Thereby the High Court has committed manifest error of law warranting interference by this Court.
article 51A of the Constitution enjoins every citizen, as a fundamental duty, to promote harmony and spirit of common brotherhood among the people, to develop the scientific temper, humanism and the spirit of inquiry and reform; to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.
article 29(2) declares education as fundamental right.
The native endowments of men are by no means equal.
Education means a process which provides for intellectual, moral and physical development of a child for good character formation; mobility to social status; an opportunity to scale equality and a powerful instrument to bring about social change including necessary awakening among the people.
According to Bharat Ratna Dr. Ambedkar education is the means to promote intellectual, moral and social democracy.
In D.M.K. Public School vs (Regional Joint Director of Hyderabad,) AIR 1936 (A.P.) 204 one of us (K. Ramaswamy, J.) held that education lays foundation of good citizenship and a principal instrument to awaken the child to intellectual and cultural pursuits and values in preparing the child for latter professional training and help him to adjust to the environment.
In nation building activities, education is a powerful level to uplift the poor.
Education should, therefore, be co related to the social, political or economic needs of our developing nation fostering secular values breaking the barriers of casteism, linguism, religious bigotry and it should act as an instrument of social change.
Education system should be so devised as to meet these realities of life.
Education nourishes intellectual advancement to develop dignity of person without which there is neither intellectual excellence nor pursuit of happiness.
Education thus kindles its flames for pursuit of excellence, enables and ennobles the young mind to sharpen his/her intellect more with reasoning than blind faith to reach intellectual heights and inculcate in him or her to strive for social equality and dignity of person.
Teacher occupies pride of place next below the parents as he/she imparts education and disciple the students.
On receiving salary from public exchequer he/she owes social responsibility and accountability 792 to disciple the students by total dedication and sincere teaching.
It would appear that their fallen standards and rectitude is also a contributory factor to the indiscipline among the students.
The students, too, instead of devoting his or her precious time to character building and to pursue courses of study studiously and diligently in the pursuit of knowledge and excellence, dissipate their precious time and many indulge in mass copying at the final examinations or use unfair means.
Some even do not hesitate to threaten the dutiful invigilators with dir consequences.
In G.B.S. Omkar vs Shri Venkateswara University, AIR 1981 A.P. 163 P.A. Choudhary, J., in the context of finding the student guilty of mal practices held, that "I regretfully note that standards of discipline and education presently detaining in many Universities in our country leave a good lot to be desired.
They are low and falling lower every day.
the fall out of these low standards of university education on liberal profession is proving to be nearly catastrophic . .
It is no wonder that some of our Universities have ceased to be centres of learning and have grown into battle fields for warring Caste groups.
" It was held that what the Writ Court under article 226 need to consider is whether fair opportunity had been given to a petitioner and he had been treated squarely and whether the student had a fair deal with the University.
Once the procedural formalities are complied with, in the absence of any allegation of mala fide, it must be presumed that the University had acted bona fide and honestly so long as there is the evidence justifying the inference arrived at without there being a serious procedural irregularity.
The Writ Court would not interfere with an order of educational institution.
Therefore, what the writ court needs to do is to find whether fair and reasonable opportunity has been given to the students in the given facts.
From this background the question emerges whether the impugned notification is vitiated by any procedural irregularity under the provisions of the Act, regulations and the Resolutions referred hereinbefore or violative of the principles of natural justice.
The students involved at the examination of secondary education are by and large minors but that by itself would not be a factor to hold that the students were unfairly treated at an inquiry conducted during the domestic inquiry.
Assistance of an Advocate to the delinquent at a domestic enquiry is not a part of the principles of natural justice.
It depends on the nature of the inquiry and the peculiar circumstances and facts of a particular case.
The regulations and the rules of enquiry 793 specifically excluded the assistance of an Advocate at the inquiry.
Therefore, the omission to provide the assistance of a counsel at the inquiry is not violative of the principles of natural justice.
The show cause notice furnished wealth of material particulars on which the tampering was alleged to be founded and given the opportunity to each student to submit the explanation and also to adduce evidence, oral or documentary at the inquiry.
Each student submitted the explanation denying the allegation.
At the inquiry the questionnaire in the proforma was given to each student.
It is undoubted that the allegation of fabrication was stated to have been done at the behest of either the student/parents or guardians and the parents or guardians were not permitted to participate in the inquiry.
Inspection of documents was given.
Their answer sheets and marks secured were perused by the students and were asked to testify whether the answer books belongs to him or her and to identify the marks awarded by the examiner to each answer to the question and the total marks awarded.
It was also asked to verify and state whether the moderator 's mark sheets were tampered in the concerned subject or subjects as the case may be.
The student could easily identify and in fact identified his or her answer books and verified the marks awarded and answered positively that the marks were fabricated in the moderators ' mark sheets.
The questionnaire was also given to indicate their educational background in the previous school years and also the marks they expected at the final examinations.
The need of the assistance of the parents/guardians was thus absolutely nil.
Further question in the proforma was to ascertain from the students, due to tampering, whether or not the marks were increased to his or her advantage.
It could be answered by a mere look at the marks.
No outside assistance is needed.
All the students have admitted that the answer books belong to them.
They also admitted the marks initially awarded by the examiner or added or subtracted, if any, by the moderators.
They also admitted that the fabrication in the moderators ' mark sheets in the subject or subjects and the marks were increased to their advantage.
They also denied the complicity of him or her or of parents or guardians.
It is not the case of the respondents that they were coerced to answer the questions in a particular manner.
It is obvious from the record that they had prior consultations with the counsel.
Thus it could be seen that the procedure adopted at the inquiry is fair and just and it is not vitiated by any procedural irregularity nor is violative of the principles of natural justice.
The absence of opportunity to the parents or guardians, in this background does not vitiate the legality or validity of the inquiry conducted or decision of the Committee.
794 It is true, as contended by Sri Chidambaram and reiterated by other counsel, that the Inquiry Report does contain only conclusions bereft of the statement of facts and reasons in support thereof.
As pointed out by Sri Cama that in some of the reports, the body was written in the hand writing of one or other person and it was signed by the Inquiry Officer concerned.
But when an inquiry against 283 students was conducted, it is not expected that each Inquiry Officer alone should write the report under his/her hand.
In the circumstances the Inquiry Officer obviously had the assistance of the staff in the office to write the body or the conclusions to his/her dictation and he/she signed the report.
The reports cannot be jettisoned on the ground that the Inquiry Officer mechanically drew the conclusions in the reports without applying his/her mind to the facts.
The Enquiry Reports are not, therefore, bad in law.
In (Union of India) vs (Mohan Lal Capoor & Ors.,) this court speaking through M.M. Beg, J., for a Bench of two Judges held in paragraph 28 at page 854 that the reasons are the links between the materials on which certain conclusions are based to the actual conclusions.
They disclose how mind is applied to the subject matter for a decision, whether it is purely administrative or quasi judicial.
They would reveal nexus between the facts considered and the conclusions reached.
This view was reiterated in (Gurdial Singh Fijji) vs (State of Punjab & Ors.,) ; Those two cases relied on by Sri Chidambaram, the rules/regulations required recording of reasons in support of the conclusion as mandatory.
Unless the rule expressly or by necessary implications, excludes recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure.
In an administrative decision, its order/decision itself may not contain reasons.
It may not be the requirement of the rules, but at the least, the record should disclose reasons.
It may not be like a judgement.
But the reasons may be precise.
In S.N. Mukherjee vs Union of India, J.T. the Constitution Bench of this Court surveyed the entire case law in this regard, and we need not burden the Judgement to reiterate them once over and at page 643 in paragraph 40 it held that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi judicial functions is required to record the reasons for its decision.
In para 36 it was further held that recording of reasons excludes changes of arbitrariness and ensure a degree of fairness in the process of decision making.
The said principle would apply 795 equally to all decisions and its applications cannot be confined to decisions which are subject to appeal, revision or judicial review.
"It is not required that the reasons should be as elaborate as in the decision of a Court of law.
" The extent and nature of the reasons would depend on particular facts and circumstances.
What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given the consideration to the points in controversy.
The need for recording reasons is greater in a case where the order is passed at the original stage.
The appellate or revisional authority, if it affirms such an order, need not give separate reasons.
If the appellate or revisional authority disagrees, the reasons must be contained in the order under challenge.
Thus it is settled law that the reasons are harbinger between the mind of the maker of the order to the controversy in question and the decision or conclusion arrived at.
It also exclude the chances to reach arbitrary, whimsical or capricious decision or conclusion.
The reasons assure an inbuilt support to the conclusion/decision reached.
The order when it effects the right of a citizen or a person, irrespective of the fact, whether it is quasi judicial or administrative fair play requires recording of germane and relevant precise reasons.
The recording of reasons is also an assurance that the authority concerned consciously applied its mind to the facts on record.
It also aids the appellate or revisional authority or the supervisory jurisdiction of the High Court under article 226 or the Appellate jurisdiction of this Court under article 136 to see whether the authority concerned acted fairly and justly to meet out justice to the aggrieved person.
From this perspective, the question is whether omission to record reasons vitiates the impugned order or is in violation of the principles of natural justice.
The omnipresence and omniscience of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play.
But the applicability of the principles of natural justice is not a rule of thumb or a straight jacket formula as an abstract proposition of law.
It depends on the facts of the case nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances.
It is seen from the record and is not disputed, that all the students admitted, the factum of fabrication and it was to his or her advantage and that the subject/subjects in which fabrication was committed belong to him or her.
In view of these admissions the Inquiry Officer, obviously did not find it expedient to reterate all the admissions made.
If the facts are disputed, necessarily the authority or the Inquiry Officer, on consideration of the material on record, should record reasons in support of the conclusion reached.
Since the facts are admitted, the need to their 796 reiteration was obviated and so only conclusions have been stated in the reports.
The omission to record reasons in the present case is neither illegal, nor is violative of the principles of natural justice.
Whether the conclusions are proved or not is yet another question and would need detailed consideration.
In Khardah Co. Ltd. vs Their Workmen, ; at p. 514 the ratio that the Enquiry Report must contain reasons in support of the findings drawn neatly and briefly is of no assistance for the aforestated facts of this case.
The ratio in A.K. Roy, etc.
vs Union of India & Ors.
, ; that the aid of friend could be taken to assist the detenu and in Pett vs Grehound Racing Association Ltd., [1968] 2 All Eng.
Reports 545 the right to appoint an Agent to represent the case of the petitioner are also of no assistance since the rule expressly excluded such a representation.
The ratio in Union of India vs H.C. Goel, ; also does not help the respondents for the reason that it is not a case of no evidence and the conclusions were reached on the basis of the admission made by the respondents.
The ration in M/s. Bareilly Electricity Supply Co. Ltd. vs The Workmen & Ors., ; also does not apply to the facts of this case for the reasons that the need to examine the witnesses on behalf of the Board was obviated by the admissions made by the examinees.
The ratio in Shanti Prasad Jain vs The Director of Enforcement, is equally of no assistance to the respondents since the contention that the circumstances under which the fabrication of the moderators ' mark sheets came to be made is not a relevant fact.
Therefore, there is no need to examine the concerned officials in the State Board to explain as to how and who dealt with the papers from the time recounting was done in the office till the moderators ' mark sheets were sent to Pune to feed the computer.
The ratio in Merla Ramanne vs Nallaparaju & Ors, and Kashinath Dikshita vs Union of India & Ors., also do not assist the respondents for the reason that the answer books of the concerned students, the marks awarded by the examiners or addition or alteration, if any, made by the moderators and fabrication of the moderators ' mark sheets were admittedly given for personal inspection to the concerned students and given them an opportunity to inspect the record and thereafter they made admission.
The further contention of Sri Cama that the Standing Committee did not deal individually the answers given by each student and the decision was not based on evidence is without force as the conclusions are based on the admissions.
Equally the need to consider each case on merits is obviated by the admission made by every student.
The ratio in (Government medi 797 cal Store Depot, Karnal) vs (State of Haryana & Anr.,) ; at p. 454 that the charges are vague is also of no assistance to the facts of this case.
The ratio in (M/s. Kesoram Cotton Mills Ltd.,) vs (Gangadhar & Ors.,) ; at p. 825 that the documents must be supplied at least 48 hours in advance is also of no help to the respondents in view of the admissions made by the respondents.
The ratio in Tej pal Singh 's case (supra) that mere inspection of the documents will not cure the defect of procedure or violation of principles of natural justice also does not apply to the facts of his case.
The ratio in (State of Punjab) vs (Bhagat Ram) ; that the supply of synopsis of the material is not sufficient compliance with the principle of natural justice, also does not render any assistance to the respondents.
The ratio in (Gujarat Steel Tubes Ltd.,) vs (Gujarat steel Tubes Mazdoor Sabha,) ; at p. 202 that the conclusion and the findings are in different hand writings, which would show the non application of the mind to the facts and it violates the principle of natural justice also does not apply to the facts of this case.
The ratio in (Union of India & Ors.) vs (Mohd. Ramzan Khan,) JT also does not apply to the facts in this case as the report is solely based on the admission made by the examinees and no new material has been relied upon by the Enquiry Officers.
Undoubtedly, it is settled law that the right to life includes right to reputation and livelihood and that the individual as an entity is entitled to the protection of article 21, but in view of the facts of this case the ratio in (Vishwa Nath) vs (State of Jammu & Kashmir,) and (Ogla tellis & Ors.,) etc.
vs (Bombay Municipal Corporation & Ors., etc.,) ; also do not help the respondents.
The further contention of Sri Salve that the order must be a speaking order preceded by a fair enquiry and the report must be based on cogent evidence, and in this case all the requirements are lacking is also an argument of despair.
Therefore, for the reasons given earlier, the argument stands rejected.
The next contention that the notification is vitiated for the reasons that the Standing Committee itself did not record any reason in support of its conclusion that the examinees or the parents or the guardians are parties to the fabrication cannot be sustained for the reason that the regulation itself postulates that if the Committee disagrees with the Inquiry Officer then only it is obligatory to record reasons.
Since the Committee agreed with the report, there is no need, on their part, to record the reasons.
The impugned notification, therefore, is not vitiated by violation of rules of natural justice.
The crucial question, therefore, is whether the conclusions 798 reached by the authorities that the examinees, their parents or guardians were parties to the fabrication and whether their complicity was established from record and whether the evidence was sufficient to support such conclusion reached by the Standing Committee or the Enquiry Officer.
Counsel on either side generated considerable debate on "the standard of proof" in a domestic enquiry.
Mr. Jaitely placed reliance on paragraph 18 of Vol.
17 of Halsbury 's Law of England, Fourth Edition, at page 16, which reads thus "To succeed on any issue the party bearing the legal burden of proof must (1) satisfy a judge or jury of the likelihood of the truth of his case by adducing a greater weight of evidence than his opponent, and (2) adduce evidence sufficient to satisfy them to the required standard or degree of proof.
The standard differs in criminal and civil cases.
In civil cases the standard of proof is satisfied on a balance of probabilities.
However, even within this formula variations in subject matter or in allegations will affect the standard required; the more serious the allegation, for example fraud, crime or professional misconduct, the higher will be the required degree of proof, although it will not reach the criminal standard.
In criminal cases, the standard required of the prosecution is proof beyond reasonable doubt.
This standard is also requisite in case of committal for contempt, and in pension claims cases.
In matrimonial cases it seems that proof on balance of probabilities is sufficient.
Once a matter is established beyond reasonable doubt it must be taken for all purposes of law to be a fact, as there is no room for a distinction between what is found by inference from the evidence and what is found as a positive face." and contended that the standard of proof of fabrication of record in a domestic inquiry does not differ from criminal charge and it must be of a higher degree.
In the Board of High School and Intermediate Education U.P. vs Bagleshar Persad & Ors., relied on by Sri Andhyarjuna the facts were that the appellant Board accepting the findings of the committee that the respondents used unfair means in answering the subjects, cancelled the declaration of the results of the respondent in the High School Certificate Examination held in 1960.
The charges were based on the facts that in the Hindi paper the 799 respondent gave wrong answers to a particular question in the same way in which the answers have been given by another candidate who was having consecutive number.
The High Court held that the findings of the Committee were based on no evidence and quashed the cancellation of the results.
On appeal, this Court held that the respondent admitted that the mistakes in answers in the two papers were identical and he pleaded that he could not say anything as to why this happened.
The proof of charges was inferred that as either the respondent copied from the answer book of the candidate or that both of them had copied from any other source.
It was accordingly held that is would amount to the adoption of unfair means.
The High Court, therefore, committed error in assuming that there is no evidence in proof of it.
At page 774 this Court further held that in dealing with question as to whether the Committee was justified in arriving at its conclusion against the respondent it would not be reasonable to exclude from the consideration of the circumstances on which the whole enquiry came to be held and the general background of the atmosphere in the examination hall.
It was also further held at page 775 that educational institutions like the universities set up enquiry committees to deal with the problem of adoption of unfair means by candidate and normally it is within the jurisdiction of such domestic tribunals to decide all relevant questions in the light of the evidence adduced before them.
In the matter of the adoption of unfair means direct evidence may sometime be available but cases may arise where direct evidence is not available and the question will have to be considered in the light of the probabilities and circumstantial evidence.
This is the problem with the educational institution.
How to face it, is a serious problem and unless there is justification to do so, court should be slow to interfere with the decisions of domestic tribunal appointed by the education body like universities.
In dealing with the validity of the impugned order passed by the universities under article 226 the High Court is not sitting in an appeal over the decision on this question.
Its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence, the High Court may be justified to quash the order.
But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether the probabilities and circumstantial evidence do not justify the said conclusion.
The enquiry held by domestic tribunals in such cases must, no doubt be fair and the students must be given adequate opportunity to defend themselves and holding such enquiries, the tribunal must follow the rules of natural justice.
Accordingly, it was held that the appeal was allowed and the order of the High Court was set aside and 800 that of the domestic tribunal was confirmed.
In (Bihar School Examination Board) vs (Subhash Chandra Sinha & Ors.,) ; this Court emphasised that the essence of an examination is that the worth of every person is appraised without any assistance from an outside source.
The academic standards require that the authority 's appreciation of the problem must be respected.
A full fledged judicial inquiry was not required.
It is not necessary to conduct an inquiry in each individual case to satisfy itself who are the candidates that have adopted unfair means when the examination as whole had to go.
It was further held at p. 968 E to H that "while we do not wish to whittle down the requirement of natural justice and fair play in case where such requirement may be said to arise, we do not want that this court should be understood as having stated that an enquiry with a right to representation must always precede in every case, however, different.
The universities are responsible for their standard and conduct of the examination.
The universities are responsible for their standard and conduct of the examination.
The essence of the examination is that the worth of every person is appraised without any assistance from an outside source.
It cannot be held that a detailed quasi judicial enquiry with right to its alumini to plead and lead evidence, etc. is preceded before the result are withheld or examinations cancelled.
If there is sufficient material on which it could be demonstrated that the Authority was right in its conclusion that the examination ought to be cancelled then academic standards require that the Authority 's appreciation of the problem must be respected.
It would not be for the courts to say that we should have examined all the candidates or even their representatives with a view to ascertaining whether they had received assistance or not.
To do this, would encourage indiscipline, if not also prejury.
It is true as stated by Sri Chidambaram that the above ratio was laid in the context of the cancellation of examination of the entire centre.
But the general principles must be kept in view while dealing with the problem faced by the academic institutions.
In (Seth Gulabchand) vs (Seth Kudilal and Ors.,) ; this Court held that there is no difference between cases in which charges of a fraudulent or criminal character are made and cases in which such charges are not made.
While striking the balance of probability, the court would keep in mind the presumption of honesty and innocence or the nature of the crime or fraud charged.
The rules applicable to circumstantial evidence in criminal cases would not apply to civil cases.
The ordinary rules governing civil cases of balance of probabilities will continue to apply.
801 In (Ghazanfar Rashid) vs (Board, H.S. & I. Edn. U.P. & Ors.,) AIR 1970 Allahabad 209 a full Bench, speaking through ours learned brother K.N. Singh, J. (as he then was) dealing with the standard or proof of the charge of use of unfair means at the examination, it was held that it was the duty of the Examination Committee, etc., to maintain purity of examination and if examinee is found to have used unfair means at the examination, it is the duty of the Examination Committee to take action against the erring examinees to maintain the educational standard.
Direct evidence is available in some cases but in a large number of cases, direct evidence is not available.
In that situation the Examination Committee as of necessity to rely on circumstantial evidence which may include the answer given by the examinee, the report of the Superintendent of the centre, the invigilator and the report of the experts and other attending circumstances.
The Examination Committee, if relies upon such evidence to come to the conclusion that the examinee has used unfair means in answering questions then it is not open to the High Court to interfere with that decision, merely because the High Court may take a different view on re assessment of those circumstances.
While it is open to the High Court to interfere with the order of the quasi judicial authority, if it is not supported by any evidence or if the order as passed in contravention of the statutory provisions of the law or in violation of the principles of natural justice, the court has no jurisdiction to quash the order merely on the ground that different view could possibly be taken on the evidence available on the record.
The Examination Committee has jurisdiction to take decision in the matter of use of unfair means not only on direct evidence but also on probabilities and circumstantial evidence.
There is no scope for importing the principles of criminal trial while considering the probative value of probabilities and circumstantial evidence.
the Examination Committee is not bound by technical rules of evidence and procedure as are applicable to Courts.
We respectfully agree with the ratio.
In Miller vs Minister of Pensions, [1947] All Eng.
Law Reports 372 at p. 374 Denning J., as he then was, reiterated that the evidence against the petitioner must have the same degree of cogency as is required to discharge a burden in a civil case.
It must carry a reasonable degree of probability, but not so high as is required in a criminal case.
If the evidence is such that the tribunal can say: "We think it more probable than not the burden is discharge but, if the probabilities are equal, it is not discharged." 802 In State of Uttar Pradesh vs Chet Ram & Ors., relied on by Sri Chidambaram, this Court dealt with the proof of guilt of the accused at a criminal trial.
This Court held that when two views are plausible, the view being taken must have some content of plausibility in it and without the same, the other view cannot be countenance in law as a plausible alternative.
It must be remembered that at a criminal trial the burden of proof is always on the prosecution.
It must establish the guilt of the accused beyond all reasonable doubts.
If there exist a plausible alternative view, its benefit must be extended only to the accused and not to the prosecution.
Therefore, the ratio therein is inapplicable to a proceeding either in the civil case or in an enquiry before a domestic tribunal.
State of U.P. vs Krishna Gopal & Anr., ; at p. 314 also relates to criminal trial.
In paragraph 26 in assessing the evidence adduced by the prosecution, this Court laid that the concept of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt.
There is an unmistakable subjective element in the evaluation of the degree of probability and the quantum of proof.
Forensic probability must, in the last analysis, rest on the robust common sense and, ultimately, on the trained institutions of the Judge.
In evaluating the circumstantial evidence in Hanumant vs The State of Madhya Pradesh, [1952] SCR 1091 at p. 1097 the Court approved the statement of Baron Alderman in Reg vs Hodge, that: "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts, of one connected whole; and the more ingenious the mind of the individual the more likely was it, considering such matters, to over reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
" It was held that in evaluating the evidence of circumstantial nature it is the duty of the prosecution that all the circumstances must be fully established circumstances should be consistent only with the hypothesis of the guilt of the accused.
This standards of proof also is not relevant not to be extended to consider the evidence in an inquiry by the domestic tribunal.
The ratio in (Bank of India vs J.A.H. Chinoy,) AIR 1950 PC 90 that the appellate court would be reluctant to differ from conclusion of the trial Judge if his conclusion is based on 803 the impression made by a person in the witness box is also not germane for the purpose of this case.
It was laid therein that inferences and assumptions founded on a variety of facts and circumstances which, in themselves, offer no direct or positive support for the conclusion reached, the right of the appellate court to review this inferential process cannot be denied.
While dealing with proof of fraud it was held that speculation is not enough to bring home a charge of fraudulent conspiracy.
In Khwaja vs Secretary of State, [1983] 1 All Eng.
Law Reports 785 (H.L.) dealing with the functions of the Immigration Authorities and of the Courts, Lord Wilberforce at p. 7877, laid the law that the allegation that permission to enter into the country by an immigrant was obtained by fraud or deceit being of a serious character and involving issues of personal liberty requires a corresponding degree of satisfactory evidence.
If the Court is not satisfied with any part of the evidence, it may remit the matter for reconsideration or itself receive further evidence.
It should quash the detention order where the evidence was not such as the authority should have relied on or where the evidence received does not justify the decision reached or, of course, for any serious procedural irregularity.
At p.784 Lord Scarman held that it is not necessary to import in the civil proceedings of judicial review the formula devised by Judges for the guidance of juries in criminal cases.
The reviewing court will, therefore, require to be satisfied that the facts which are required for the justification of the restraint put on liberty do exist.
The flexibility of the civil standard of proof suffices to ensure that the court will require the high degree of probability which is appropriate to what is at stake.
The nature and gravity of an issue necessarily determines the manner of attaining reasonable satisfaction of the truth of the issue.
Therefore, the civil standard of flexibility be applied to deal with immigration cases.
In Sodhi Transport Co. & Anr., etc.
vs State of U.P. & Anr., etc.
, [1986] 1 SCR 939 at p. 954 this Court dealing with rebutable presumption held that: "A presumption is not in itself evidence but only makes a prima facies case for party in whose favour it exists.
It is a rule concerning evidence.
It indicates the person on whom the burden of proof lies.
When presumption is conclusive, it obviates the production of any other evidence to dislodge the conclusion to be drawn on proof of certain facts.
But when it is rebuttable it only points out the party on whom 804 lies the duty of going forward with evidence on the facts presumed, and when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of presumption is over.
Then the evidence will determine the true nature of the fact to be established, the rules of presumption are reduced from enlightened human knowledge and experience and are drawn from the connection, relation and coincidence of facts and circumstances.
" Bhandari vs Advocates Committee, [1956] All Eng.
Law Reports 742 (PC) is also a case concerning the professional misconduct.
In proof of the charge it was held that it is the duty of the professional domestic tribunal investigating the allegation to apply a high standard of proof and not to condemn on a mere balance of probabilities.
In Glynn) vs (Keele University & Anr., [1971] 2 All Eng.
Law Reports, 89 (Chancery Division) relied on by Sri Salve, the question arose whether failure to give an opportunity to the students before the suspension is violative of the principles of natural justice.
It was held that the student did not deny commission of the offence, therefore, it was held that the student suffered no injustice by reason of the breach of the rules.
Further while dealing with the scope of the inquiry by the domestic tribunal, it was held that the society is charged with the supervision and upbringing of the pupil under tution, be the society, a university or college or a school.
Where this relationship exists it is quite plain that on the one hand in certain circumstances the body or individual acting on behalf of the society must be regarded as acting in a quasi judicial capacity expulsion from the society is the obvious example.
On the other hand, there exists a wide range of circumstances in which the body or individual is concerned to impose penalties by a way of domestic discipline.
In those circumstances the body or individual is not acting in a quasi judicial capacity at all but in a ministerial capacity, i.e. in the performance of the rights and duties vested in the society as to the upbringing and supervision of the members of the society.
No doubt there is a moral obligation to act fairly, but this moral obligation does not, lie within the purview of the court in its control over quasi judicial acts.
The ratio relied on by Shri Salve, far from helping the respondents, is consistent withour view.
The ration in In Re: An Advocate ; also concerned with professional misconduct of an Advocate and higher standard of proof of the charge of misconduct was insisted upon.
Equally so in Shri Krishan vs The Kurukshetra University, Kurukshetra.
; , These decisions relied on by Sri Jaitley also do not assist us.
805 The contention of Sri Cama placing any reliance on Shivajirao Nilangekar Patil vs Dr. Mahesh Madhav Gosavi & Ors. and vice versa, that the Vice chancellor would not have done what he did except with the instructions of the Chief Minister who was to be benefitted by getting his daughter passed in M.D. was not accepted by this Court and that it was further contended that the benefit test is preposterous one and the preponderence of probabilities is not possible to be deduced from the test, does not appear to be sound.
This Court noted that the Chief Minister was not prepared, as suggested by the Division Bench, to face an inquiry and that, therefore, substituted to the findings of the Division Bench, in the penultimate paragraph of the judgment that the court would be cognizant of the steep decline of public standards, public moral and public morale which have been contaminating the social environment and emphasised that "where such situation cry out the Court should not and cannot remain mute and dumb" and it is necessary to cleanse public life.
It is thus well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings or domestic tribunal.
It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act.
The material must be germane and relevant to the facts in issue.
In grave cases like forgery, fraud, conspiracy, misappropriation, etc.
seldom direct evidence would be available.
Only the circumstantial evidence would furnish the proof.
In our considered view inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation.
The mind is prone to take pleasure to adapt circumstances to one another and even in straining them a little to force them to form parts of one connected whole.
There must be evidence direct or circumstances to deduce necessary inference in proof of the facts in issue.
There can be no inferences unless there are objective facts, direct or circumstantial from which to infer the other fact which it is sought to establish.
In some cases the other facts can be inferred with as much practical as if they had been actually observed.
In other cases the inferences do not go beyond reasonable probability.
If thee are no positive proved facts, oral, documentary or circumstantial from which the inferences can be made the method of inference fails and what is left is mere speculation on conjecture.
Therefore, when an inference of proof that a fact in dispute has been held established there must be some material facts or circumstances on record from which such an inference could be drawn.
The standard of proof is not proof beyond reasonable doubt 806 "but" the preponderance of probabilities tending to draw an inference that the fact must be more probable.
Standard of proof cannot be put in a straight Jacket formula.
No mathematical formula could be laid on degree of proof.
The probative value could be gauged from facts and circumstances in a given case.
The standard of proof is the same both in civil cases and domestic enquiries.
From this legal setting we have to consider whether the inference deduced by the Education Standing Committee that the fabrication of moderators ' mark sheets was done at the behest of either the examinee or the parent or guardian is based on the evidence on record.
It is already found that the examinees admitted the forgery of their concerned moderators ' mark sheets resulting the increase of marks to their advantage.
The fabrication of the moderators 'mark sheets was done after the scrutiny by the concerned officials in the office of the State Board at Bombay and before the moderators ' mark sheets were taken out to Pune to feed the computer.
Why one is expected or interested to wade through eighty thousand moderators ' marks sheets to locate only the 283 examinees mark sheets and add marks by fabrication? Unless either the examinee or parent or guardian approached the fabricator; given the number and instructed him/them to fabricate the marks, it would not be possible to know their number to fabricate.
The act of fabrication is an offence.
Merely it was done in one subject or more than one makes little difference.
Its gravity is not mitigated if it is committed in one subject alone.
This is not an innocent act or a casual mistake during the course of performance of the official duty as is sought to be made out.
It was obviously done as a concerted action.
In view of the admitted facts and above circumstances the necessary conclusion that could unerringly be drawn would be that either the examinee o r the parent or guardian obviously was a privy to the fabrication and that the forgery was committed at his or her or parent 's or guardian 's behest.
It is, therefore clear that the conclusion reached by the Education Standing Committee that the fabrication was done at the instance of either the examinees or their parents or guardians is amply borne out from the record.
The High Court in our view over stepped is supervisory jurisdiction and trenched into the arena of appreciation of evidence to arrive its own conclusions on the specious plea of satisfying 'conscience of the court '.
The question then is whether the rules relating to mode of punishment indicated inthe Appendix 'A ' to the resolution are invalid.
We have given our anxious thought to the contention and to the view of the High Court.
In our view the punishments indicated in 807 the last column is only the maximum from which it cannot be inferred that it left no discretion to the disciplinary authority.
No axiomatic rule can be laid that the rule making authority intended that under no circumtances, the examination Committee could award lesser penalty.
It depends on the nature and gravity of the misconduct to be dealt with by the disciplinary authority.
In a given case, depending on the nature and gravity of the misconduct lesser punishment may be meted out.
So by mere prescription of maximum penalty rules do not become invalid.
We have no hesitation to conclude that when the evidence justified the examination Standing Committee to record the finding that the examinees, parents or guardians are parties to the fabrication, it is not open to the High Court under article 225 to itself evaluate the evidence and to interfere with the finding and to quash the impugned notification.
This Court under article 136 has to correct the illegalities committed by the High Court when it exceeded its supervisory jurisdiction under article 226.
In view of the fair attitude adopted by the counsel for the Board, it is not necessary to go into the question of quantum of punishment.
In the light of the above finding, normally the appeals are to be allowed, the judgement of the High Court is set aside and the impugned notification dated August 31, 1990 upheld in toto.
But we modify the High Court 's order as per the directions given in our order dated January 30, 1991, wherein we accepted the signed statement by the counsel for the Board without prejudice to their contention and directed the Board (a) to allow all the candidates referred to in the Notification of August 31, 1990 to appear at the S.S.C. examination to be conducted in March, 1991 by the Board; and (b) to declare the untampered results of nine named candidates therein.
The failed candidates covered by the notification and willing to appear in ensuing examination of March 1991, there applications will be accepted if the same are submitted on or before 13th February, 1991 through Heads of their respective schools.
So far as the other candidates are concerned, their results shall not be declared, but they will be permitted to appear in the ensuing examination of the Board to be held in March, 1991 in case their applications are received before 13th February, 1991, through Heads of their respective schools.
In this regard the Board shall inform all the concerned schools and will also give due publicity in the two local newspapers within 3 days.
The Board was further directed to consider the cases of such candidates out of 283 who are similar to the nine named candidates other than respondent 808 No. 17, Deepa V. Agarwal and in their cases also the untampered result shall be declared on or before 6th February, 1991 and we are informed that results of 18 more candidates were declared.
The notification dated August 31, 1990 is upheld subject to above modification and shall be operative between the parties.
Before parting with the case we impress upon the appellant to have indepth investigation made expeditiously, if need be, with the assistance of C.B.C.I.D., of the racket of fabrication and bring the culprit to justice.
The appeals are allowed accordingly, but in the circumstances parties are directed to bear their own costs.
R.S.S. Appeals allowed. | The appellant Board conducted secondary examinations in the month of March 1990.
During recounting of the marks obtained by the candidates it was found that moderators mark sheets relating to 283 examinees, which included the 53 respondents, had been tampered with.
The declaration of their results was withheld pending enquiry.
Several writ petitions were filed against non declaration of the results and the High Court directed the appellant to the expeditious action to declare the results.
The Board appointed seven enquiry officers to conduct the enquiry.
Show cause notices were issued to the students informing them of the nature of tampering, the subjects in which the marks were found tampered with, the marks initially obtained and the marks increased due to tampering, and also indicated the proposed punishment, if in the enquiry it would be found that marks were tampered with the knowledge or connivance or at the instance of the candidates or parents or guardians.
They were also informed that they would be at liberty to inspect the documents at the Divisional Board at Bombay; they were entitled to adduce documentary and oral evidence at the hearing; they would also be permitted to cross examine the witnesses of the Board, if any; they would not be entitled to appear through an advocate, and the parents or guardians would be permitted to accompany the students at the time of enquiry, but they would not be entitled to take part in the enquiry.
All the candidates admitted that the marks initially awarded by 773 the examiners had been tampered with in the moderators mark sheets; and due to tampering the marks were increased and the increase was to their advantage.
However, they denied that either they or their parents or guardians were privy to the tampering.
The Enquiry Officers submitted their reports holding that the moderators mark sheets had been fabricated and submitted the reports to the Board.
The Standing Committee constituted in this regard considered the records and the reports and resolved to withhold, as a measure of punishment, the declaration of the results of their examinations and to debar the students to appear in the supplementary examination.
The notification to that effect was published on 31.8.1990 and the report submitted to the High Court.
The High Court allowed the writ petitions.
One Hon 'ble Judge held that the Standing Committee was devoid of power, and because it did not obtain the approval of the Divisional Board, the impugned notification was without authority of law.
On merits, the learned Judge held that the Standing Committee did not apply its mind in the proper perspective to the material facts, and therefore, the finding that tampering was done at the instance of the examinees/parents/guardians was perverse.
The other Hon 'ble Judge held that the examinees were not guilty of the mal practices and their guilt had not been established.
Before this Court, it was contended on behalf of the respondents that the Act empowered that Divisional Board to deal with the use of unfair means at the final examination, and the Standing Committee was an alien body to the divisional Board; the students were minors and neither the parents nor anybody like an advocate was permitted to assist the students; answers to the questionnaire were extracted from the students to confess their guilt: no adequate opportunity was given to the students at the enquiry; the evidence without subjecting it to cross examination was of no value; the Standing Committee did not apply its mind to the facts, nor recorded reasons in support of its conclusion that the examinee/parents/guardians were parties to the fabrication; the Board should establish the guilt of the examinees beyond all reasonable doubts; the standard of proof ought to be of a high degree akin to trial in a criminal case; the test of benefit to an examinee was preposterous; no evidence was placed on record, nor was it proved and hence the findings of the Standing Committee were clearly based on no evidence; the Enquiry Report contained only conclusions bereft of the statement of facts and reasons in support thereof; and the order ought to have been a speaking order preceded by a fair enquiry and the report must 774 be based on cogent evidence.
On behalf of the Board, it was inter alia contended that all the examinees admitted in answers to the questionnaire that tampering was done and it was to their advantage, and that in view of the admission, the need to examine any person from the concerned section was obviated.
Allowing the appeals, upholding the notification subject to modifications, this Court, HELD: (1) there is no manner of doubt that unfair means were used at the final Secondary Examination by fabricating the Moderators ' mark sheet of the examinees, in concerted manner, admittedly to benefit the students.
[782C] (2) The State Board is empowered to constitute the Divisional Boards and the Standing Committees.
The State Board is also empowered to make regulations to conduct examinations and also to deal with the use of unfair means at the final examination conducted by the Board.
The Divisional Board is empowered to conduct within its area the final examination on behalf of the State Board.
The Divisional Board is also empowered to deal with the cases of unfair means according to the procedure laid down by the State Board.
[783F G] (3) The Standing Committee is an executive arm of the Divisional Board for the efficient and expeditious functioning of the Board as adumberated under the Act itself.
It is not a foreign body.
When the Standing Education Committee takes the decision its decision is on behalf of the Divisional Board, and the decision of the Divisional Board in turn is on behalf of the State Board.
[786E F] (4) On a fair and harmonious reading of the relevant provisions of the Act and the Maharashtra Secondary and Higher Secondary Education Board, Regulation, 1977 the Examination Committee of the Divisional Board is itself a statutory body which acted on behalf of the Divisional Board and is not a delegate of the Divisional Board.
[786H] State of U.P. vs Batuk Deo Pati Tripathi & Anr., ; Kargram Panchayat Samiti & Anr.
vs State of West Bengal & Ors., [1987] 3 S.C.C. 82; Baradakanta Misra vs High Court of Orissa & Anr., and Tej Pal Singh (dead) through L.rs.
vs State of U.P. & Anr., , referred to.
775 (5) The Standing Committee is an integral part of the Divisional Board and its acts are for and no behalf of the Divisional Board.
Accordingly, the Board must be deemed to have passed the impugned notification as per the scheme of the provisions of the Act and the Regulations.
Therefore, the finding of the learned Judge that the Standing Committee had no power to take the impugned decision, etc.
without approval of the Divisional Board is clearly illegal and cannot be sustained.
[789B C,F] (6) While exercising the powers under Article 226 or Article 136 of the Constitution, the High Court or this Court, is not sitting as a Court of Appeal on the findings of facts recorded by the Standing Committee (Domestic Enquiry Board) nor have power to evaluate the evidence as an appellate Court and to come to its own conclusions.
If the conclusions reached by the Board can be fairly supported by the evidence on record then the High Court or this Court has to uphold the decision, though as appellate Court of facts, it may be inclined to take a different view.
[789C] (7) Fabrication cannot be done except to benefit the examinees.
The fabricator had done it for reward in concert with outside agencies.
Therefore, the inference from these facts drawn by the Standing Committee that the examinees/parents/guardians were responsible to fabricate the moderators ' mark sheets is based on evidence.
[790G] (8) It is not open to the High Court to evaluate the evidence to come to its own conclusions.
Thereby the High Court has committed manifest error of law warranting interference by this Court.
[791A] (9) The Writ Court would not interfere with an order of educational institution.
Therefore, what the writ Court needs to do is to find whether fair and reasonable opportunity has been given to the students in the given facts.
[792F] D.M.K. Public School vs Regional Joint Director of Hyderabad, A.I.R. 1986 A.P. 204; G.B.S. Omkar vs Shri Venkateswara University, A.I.R. 1981 A.P. 163.
(10) Assistance of an Advocate to the delinquent at a domestic enquiry is not a part of the principles of natural justice.
It depends on the nature of the inquiry and the peculiar circumstances and facts of a particular case.[792H] 776 (11) The regulations and the rules of enquiry specifically excluded the assistance of an advocate at the inquiry.
Therefore, the omission to provide the assistance of a counsel at the inquiry is not violative of the principles of natural justice.
[793A] (12) The procedure adopted at the inquiry was fair and just and it was not vitiated by any procedural irregularity nor was violative of the principles of natural justice.
The absence of opportunity to the parents or guardians, in this background, did not vitiate the legality or validity of the inquiry conducted or decision of the Committee.
[793G H] (13) Unless the rule expressly or by necessary implications, excluded recording of reasons, it is implicit that the principles of natural justice or fair play does require recording of reasons as a part of fair procedure.
In an administrative decision, its order/decision itself may not contain reasons.
It may not be the requirement of the rules, but at the least, the record should disclose reasons.
It may not be like a judgement.
But the reasons may be precise.
[794F] Union of India vs Mohan Lal Capoor & Ors. ; Gurdial Singh Fiji vs State of Punjab & Ors. ; and S.N. Mukherjee vs Union of India, J.T. , referred to.
(14) The omnipresence and omniscience of the principle of natural justice acts as deterrence to arrive at arbitrary decision in flagrant infraction of fair play.
But the applicability of the principles of natural justice is not a rule of thumb or a straight jacket formula as an abstract proposition of law.
It depends on the facts of the case, nature of the inquiry and the effect of the order decision on the rights of the person and attendant circumstances.
[795F] (15) In the instant case, since the facts are admitted, the need to their reiteration was obviated and so only conclusions have been stated in the reports.
The omission to record reasons is neither illegal, nor is violative of the principles of natural justice.
[795H 796A] Khardah Co. Ltd. vs Their Workmen, ; ; A.K. Roy etc.
vs Union of India & Ors.
[1982] 1 S.C.C. 271; Pett vs Grehound Racing Association Ltd., [1968] 2 ALL Eng.
Reports 545; Union of India vs H.C. Goel, ; ; M/s. Bareilly Electricity Supply Co. Ltd. vs The Workmen & Ors. ; ; Shanti Prasad Jain vs The Director of Enforcement, ; Merla Ramanna vs Nallaparaju & Ors., ; 777 Kashinath Dikshita vs Union of India & Ors., [1986] 3 S.C.C. 229; Government Medical Store Depot, Karnal vs State of Haryana & Anr.
, ; ; M/s. Kesoram Cotton Mills Ltd. vs Gangadhar & Ors., ; ; State of Punjab vs Bhagat Ram, ; Gujarat Steel Tubesl Ltd. vs Gujarat Steel Tubes Mazdoor Sabha,, ; ; Union of India & Ors.
vs Mohd. Ramzan Khan, J.T. ; Vishwa Nath vs State of Jammu & Kashmir, ; Olga Tellis & Ors.
vs Bombay Municipal Corporation, etc.; , , referred to.
(16) Court should be slow to interfere with the decisions of domestic tribunals appointed by the education bodies like universities.
[799F] (17) In dealing with the validity of the impugned order passed by a University under Article 226 the High Court is not sitting in an appeal over the decision on this question.
Its jurisdiction is limited and though it is true that if the impugned order is not supported by any evidence the High Court may be justified to quash the order but the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether the probabilities and circumstantial evidence do not justify the said conclusion.
The enquiry held by domestic tribunals in such cases must no doubt be fair and the students must be given adequate opportunity to defend themselves and holding such enquiries, the tribunal must follow the rules of natural justice.
[799F G] Board of High School and Intermediate Education U.P. vs Sagleshar Persad & Ors., and Bihar School Examination Board vs Subhas Chandra Sinha & Ors. ; referred to.
(18) The examination committee has jurisdiction to take decision in the matter of use of unfair means not only on direct evidence but also on probabilities and circumstantial evidence.
There is no scope for importing the principles of criminal trial while considering the probative value of probabilities and circumstantial evidence.
The Examination committed is not bound by technical rules of evidence and procedure as are applicable to Courts.
[801E F] Seth Gulabchand vs Seth Kudilal & Ors., [1966] 3 S.C.R. 623; Ghazanfer Rashid vs Board H.S. & I. Edn.
U.P., A.I.R. 1970 Allahabad 209; Miller vs Minister of Pensions, [1947] All.
E.L.R. 372; State of Uttar Pradesh vs Chet Ram & Ors., , referred to.
778 (19) There is an unmistakable subjective element in the evaluation of the degree of probability and the quantum of proof.
Forensic probability must, in the last analysis, rest on the robust common sense and, ultimately, on the trained institutions of the Judge.
[802D] (20) Strict rules of the Evidence Act, and the standard of proof envisaged therein do not apply to departmental proceedings of domestic tribunals.
It is open to the authorities to receive and place on record all the necessary, relevant, cogent and acceptable material facts though not proved strictly in conformity with the Evidence Act, the material must be germane and relevant to the facts in issue.
In grave cases like forgery, fraud, conspiracy, misappropriation, etc.
seldom direct evidence would be available.
Only the circumstantial evidence would furnish the proof.
Inference from the evidence and circumstances must be carefully distinguished from conjectures or speculation.
[805D E] State of U.P. vs Krishna Gopal & Anr.,, ; ; Hanumant vs The State of Madhya Pradesh, [1952] S.C.R. 1091; Reg.
vs Hodge, ; Bank of India vs J.A.H. Chinoy, A.I.R. 1950 P.C. 90; Khwaja vs Secretary of State, [1983] 1 All E.L.R. 765 (H.L.); Sodhi Transport Co. & Anr.
vs State of U.P. & Anr.
etc., [1986] 1 S.C.R. 939; Bhandari vs Advocates Committee, [1956] A.E.L.R. 742 (P.C.); Glynn vs Keale University & Anr.
; In Re: An Advocate; , ; Shri Krishan vs The Kurukshetra University, Kurukshetra, A.I.R. and Shivajirao Nilangekar Patil vs Dr. Mahesh Madhav Gosavi & Ors. & Vice Versa, ; , referred to.
(21) The standard of proof is not beyond reasonable doubt "but" the preponderance of probabilities tending to draw and inference that the fact must be more probably.
Standard of proof cannot be put in a straight jacket formula.
No mathematical formula could be laid on degree of proof.
The probative value could be gauged on facts and circumstances in a given case.
The Standard of proof is the same both in civil cases and domestic enquiries.
[805H 806B] (22) The conclusion reached by the Education Standing Committee that the fabrication was done at the instance of either the examinees or their parents or guardians is amply borne out from the record.
The High Court over stepped its supervisory jurisdiction and trenched into the arena of appreciation of evidence to arrive its own conclusion on the specious plea of satisfying 'conscience of the Court '.
[806G] |
N: Criminal appeal No. 512 of 1979.
From the Judgement and Order Dated 18.7.1979 of the Allahabad High Court Crl.
A No. 564 of 1974.
U.R. Lalit, Sobhag Mal Jain, Sudhanshu Atreya, Ms. P. Jain and S.K. Jain for the Appellants.
Vijay Bahuguna, Prashant Chaudhary and D. Bhandari (NP) for the Respondent.
The Judgement of the Court was delivered by V.RAMASWAMI, J.
The four appellants along with 15 others were charged for offences punishable under Section 302 read with section 149 and also section 201 read with section 149 and section 147 and 148 of the Indian Penal Code.
The charges were that they were members of an unlawful assembly, in prosecution of the common object of namely to deter Ram Sewak (PW2), from filing the nomination paper for the post of Pradhan Gaon Sabha Tikhra and to commit the murder of his associates including one Gajendra Singh Yadav (deceased), a resident of village Bibiapur and in furtherance of that common object did commit the murder of the said Gajendra Singh Yadav and live cartrides belonging to the deceased.
They were also charged that in furtherance of the said common objects and knowing that the murder of the said Gajendra Singh was punishable with death or imprisonment for life and caused the evidence of the said offence to disappear by scraping the blood stained earth at the scene of occurrence and burning it and taking away the dead body of Gajendra Singh and thereafter burning it with the intention of screening of evidence.
The first Additional District and Sessions Judge, Kheri in Sessions Trial No. 264 of 1973 acquitted all the accused persons of all the charges on the ground that there are many infirmities rendering the prosecution evidence unworthy of belief.
The State of Uttar Pradesh preferred Criminal Appeal No. 654 of 1974 before the Lucknow 859 Bench of the Allahabad High Court.
The High Court set aside the acquittal of the first appellant Bhupendra Singh (1) and convicted him for offence under section 302 of the Indian Penal Code and sentenced him to a term of life imprisonment.
The High Court also set aside the acquittal of the second, third and fourth appellants (A4, 7 and 8) in part, convicted them under section 201, IPC and sentenced them to a term of seven years rigorous imprisonment under that section.
The acquittal of the appellants under the remaining charges were confirmed.
The High court also acquitted the other 15 appellants of all the charges.
The prosecution case was that the deceased and Ram Sewak (PW2) who are residents of village Bibiapur alongwith Tarun Kumar (PW1) son of the deceased, Ram Avtar Yadav (PW3) and their party people came to the village Padarial Tula in a bullock cart on 25.4.1972 for the purpose of filing the nomination papers of Ram Sewak (PW2) for the election of Pradhan of Gaon Sabha.
they reached around 10.30 A.M. the Mela Maidan near the compound of school cum temple in village Padaria Tula.
They left the bullock cart and the bullocks in a nearby place to the west of the eastern pathway about 50 paces away from the school where the nomination papers had to be filed.
Bhupendra Singh, the first accused was also a candidate for the office of Pradhan of Gaon Sabha.
He had also come for filing the nomination along with the other accused who were his supporters.
On seeing the party of the deceased arrive Bhupendra Singh enquired Ram Sewak (PW2), whether he had come to file nomination paper against him.
At that time Gajenddra Singh, deceased intervened and challengingly told the first accused that he should ask him.
This resulted in verbal altercation between the first accused and the deceased.
The first accused then fired a shot with his rifle at the deceased and on receiving the bullet injury the deceased fell on the ground.
The prosecution case further was the six other accused had also guns and they also fired at the deceased.
The other accused who were armed with lathis and ballams, physically assaulted the deceased.
Thereafter the accused dragged the deceased to a small mound on the west of the scene of occurence and then loaded the dead body on the trolley of a tractor belonging to the first accused, which had been used by the accused to reach at the scene and which driven by the first accused and the deceased was taken away.
All the accused got into the trolley and shouting loudly that they are going to burn the body and throw its remains in the water drove the tractor towards the north.
PWs 1 to 6 are stated to be eye witnesses to this part of the occurrence.
PWs 7,8,9 and 10 are stated to have seen the first accused driving the tractor to 860 which the trolley was attached and the three other appellants and 15 or 16 more people sitting on the tractor and going towards a revolt shouting that they are taking the body of Gajendra Singh and that the will be burnt and thrown into the river.
PW 10 Lalji also claimed that he saw the burning of the dead body near the river and the ashes thrown in river suita.
Tarun Kumar PW1 son of the deceased went to his village Bibiapur, wrote the report exhibit Ka. 1 and gave the first information report before the Station House Officer Thana Mira which is about 12 miles from the scene of occurrence at 3.30 PM on that day.
Rama Nand Tewari (PW17) took up the investigation reached the scene of occurrence at 5.30 P.M. and seized some blood stained earth at a point market `A ' in the plan and also some ashes, besides 55 pellets wads, teeth and some buttons on the spot under Mahazars which were attested by Rajendra Prasad (PW4) and Durga Prasad (PW5) and another.
On the 27th of the April, 1972 he interrogated Asharfi (PW7), Chhotanney (PW8), Reoti Prasad (PW9) and Lalji (PW10) and accompanied by them he reached the jungle at the outskirts of village Daulatpur where he found burnt leaves near a Shisham tree.
He seized burnt earth, ashes and burnt pieces of bones under recovery memo in the presence of Rajendra Prasad (PW4) and Durga Prasad (PW5).
On the 14th of May, 1972 in Village Mudia he interrogated Ram Autar (PW3), Ram Sewak (PW2), Gaua Din (PW6) and others submitted the charge sheet on 4th December, 1972.
As already stated the charge against the first appellant was one under section 302 read with section 149, IPC and the Trial Court had acquitted him of that offence.
The High Court on appeal by the State while setting aside the acquittal of the first appellant convicted him for the substantive offence under section 302, IPC on the ground that the he was the principal offender; that his shot resulted in death of Gajendra Singh and the other accused persons to whom no specific part has been brought home were entitled to benefit of doubt.
The High Court also believed the prosecution case relating to the disposal of body by taking it away from the scene of occurrence and burning it and throwing the ashes in the river but held that PWs 7,8,9 and 10 speak of the appellants alone by name as among the persons in the tractor and trolley and the names of others were not mentioned by them and therefore set aside the acquittal in respect of the offence under section 201 of IPC in so far as the appellants are concerned and convicted them and sentenced them a term of seven years of rigorous imprisonment.
The four appellants have filed the above criminal appeal against this conviction and sentence of the High Court.
861 There could be no doubt that an occurrence of type spoken to by the prosecution witnesses had taken place at the Mela Maidan, Padaria Tula, 25.4.1972 was the date fixed for filing nomination papers for the election of Pradhan of the Gaon Sabha comprising Padaria Tula.
The place where the nomination papers had to be filed is the school premises at the place.
Ramesh Chander Mishra (PW15) the Sub Deputy Inspector of Schools had been authorised to receive the nomination papers.
He was assisted by the Gram Sewak Verma (CW1) and Rajendra Prakash (PW14) among others.
They had stated in their evidence that they were inside the school premises and that around 10.30 A. M. they heard gun shots near the school.
PW2 Ram Sewak as also the first appellant Bhupendra Singh had come there to file their nomination papers along with other party people.
The investigating officer had made certain recoveries from the scene of occurrence along with bullock cart and the two bullocks in which the deceased and his party had come to the sense.
The evidence of PWs 1 to 6 are also uniform that the occurrence had taken place at that place.
We can therefore, safely assume that the incident took place at the Mela Maidan near the compound of School cum temple in Village Padaria Tula as stated by the prosecution.
It is true that the pieces of burnt bones recovered from the place where the body was stated to have been burnt were set to the Serologist but he was unable to tender any opinion regarding origin, sex and age.
Though, it was contended by the learned counsel for the appellants that the prosecution had not established that any such occurrence had taken place that morning and that Gajendra Singh had fallen the victim in such occurence we are unable to agree with the learned counsel that the occurrence had not taken place at all that Gajendra Singh had not been proved to have been killed.
There could be no doubt that corpus delieti could be established by the prosecution through direct evidence and that is what the prosecution had done in this case in the circumstances we are of the view that the prosecution had established that there was an occurence at 10.30 A.M. on 25.4.1972 at the place mentioned by the prosecution in which Gajendra Singh had fallen a victim and died.
Mr. Lalit, learned counsel for the appellants took us through the entire evidence and contended that the prosecution had not established the complicity of the first appellant for murder and the appellants for the offence of screening the evidence punishable under section 201, IPC.
In the FIR, Tarun Kumar (PW1) had mentioned the names of the four appellants and the presence of PWs 2 to 6 at the scene of 862 occurence.
All these eye witnesses had uniformly stated that they saw only Bhupendra Singh firing at the deceased which brought him down to the ground and stated further that immediately on hearing the first shot they ran and hid themselves behind the dilapidated wall of the temple and they had heard only 6 and 7 shots thereafter.
They have not attributed over acts to any of the accused other than Bhupendra Singh, the first appellant.
It is in those circumstances, the High Court confirmed the acquittal of all the accused other then Bhupendra Singh of the offence under section 302 read with section 149, IPC.
PWs 3 to 6 have stated in their evidence that during the course of verbal altercation between the first accused and the deceased, the first accused shot Gajendra Singh with rifle on the fore head.
On the basis of that shooting with the rifle on the fore head the first appellant was convicted for the substantial offence of murder under section 392 IPC and sentenced to life imprisonment.
In the FIR though Tarun Kumar, PW1 has stated that the first appellant fired at his father first, he had not stated that the bullet hit fore head bringing down its father to the ground.
It is stated in the FIR: "Bhupender then, first of all, fired on my father; along with, all other started firing.
My father then fell down as a result of attack by fire arms; then others with lathis and ballams started assaulting.
From there, I noticed that Bhupender Singh and his companions carried the dead body of my father, along with his gun, in his tractor trolley towards Karmapura." Thus though an overt act had been assigned to the first appellant in the FIR it had not been stated where the bullet shot hit the deceased.
It is true that in their oral evidence PWs 3 to 6 have assigned the first shooting to the first appellant but their evidence relating to the shot hitting at the fore head could not be accepted for more than one reason.
As already stated, PW1, first went to his village Bibiapur from the scene of occurrence at Padaria Tula, prepared the FIR in his house and then delivered the same at 3.30 P.M. at the Police Station.
In spite of time gap and his being with deceased at the time of the occurrence he had not specifically stated that the first aim of the first appellant hit the fore head of the deceased.
the names of PWs 2 to 6 are given in the FIR itself.
However, PWs 3 and 6 were examined by the Investigating Officer only on 14th of May and no explanation was forthcoming 863 as to why they were not examined earlier.
PWs1 and 2 did not say in their oral evidence that the shot aimed by the first appellant hit the fore head of the deceased.
PWs 3,4,5 and 6 gave the evidence to the effect that the first rifle shot of the appellant hit the deceased on his fore head.
But this part of the statement we are unable to believe because PW1, Tarun Kumar had not confirmed this either in the FIR or in his evidence as PW1.
This was also not stated by PW2 in his evidence or during investigation as seen from the evidence of PW17 the investigation officer.
PWs 3 and 6 were examined by PW17 only after 20 days i.e. on the 14th of May, 1972 though their names were mentioned in the FIR.
In the circumstances the contention of the learned counsel for the appellants that the possibility of an improvement in the case to implicate A 1 for a substantive offence cannot be ruled out.
While we could accept the case of the prosecution trying to establish corpus delicti through the evidence of PWs 1 to 6 we could not accept the evidence in so far as it not known where the bullet hit and whether that injury caused by the same and that injury is sufficient to cause death, the offence under section 302 IPC could not be said to have been made out.
In the circumstances, therefore, we are unable to agree with the High Court that the first appellant is guilty of offence under section 302 IPC of causing the death of Gajendra Singh.
However, we are of the view that while the first appellant shot at the deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death.
All the witnesses also say that the shot by A 1 brought down the deceased to the ground.
There could, therefore, be no doubt that the shot had caused some hurt or injury could have caused the death.
In the circumstances we consider that the offence would come under the second limb or second part of section 307, IPC.
Though imprisonment for life also could be awarded as sentence for such an offence on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment.
Accordingly we alter the conviction under section 302, IPC as one under section 307 IPC and sentence him to term of 10 years rigorous imprisonment.
So far as the offence under section 201 IPC is concerned the 864 prosecution relied upon the evidence of PWs 7,8,9 and 10.
The evidence of PWs 7,8 and 9 only go to show that they had seen 15 to 20 people sitting in the trolley of the tractor driven by the first accused.
They have referred to the names of the appellants among the 20 people who were in the trolley.
However, none of them had stated that they had seen the body of Gajendra Singh alive or dead in the trolley.
The prosecution tried to establish that the accused were carrying body of Gajendra Singh in the trolley from the statement of PW7 who said the Chet Ram one of the persons who was travelling in the trolley along with other and who is now dead was saying or shouting that: "Gajender Singh had been killed and he would roasted and eaten and thrown in the river." And the statement of PW3 that: "The people sitting the trolley were talking amongst themselves and uttering the words `today we have killed and brought a lion '" But PWs 7 and 8 had not given any such version to PW17 in their statements during investigation.
PW 9 turned hostile and his evidence is also worth nothing.
PW 10 had stated that Chet Ram said: "We have killed Gajendra Singh and brought him on his tractor why you have come here".
and then he ran about 250 steps towards the east and stood there but the version given in the statement before PW 17 was different.
This evidence can be relied on only for the purpose of showing that about 15 or 20 people were travelling in the trolley of a tractor driven by the first accursed which was going towards the river.
This evidence does not bring home the offence of screening the evidence.
Of course PW 10 said that the body was burnt with wooden pieces and grass after it was all burnt Chet Ram, who is now dead, collected the whole residual ashes and threw them in the Sutia rivulet.
he mentioned the name of Chet Ram and no other name.
Further though he sated to be neighbour of Ram Sewak PW 2 and Ram Sewak and himself used to meet everyday he did not tell PW 2 about the burning of the body of the appellants.
This witness also belongs to the Ahir community which is the community of the deceased Gajendra Singh also.
It appears that only the bones stated to have been recovered were sent for chemical analysis and the report of the serologist was that it was not possible to 865 give any opinion regarding the origin, sex and age.
The report had not even stated that they were human bones.
Though PW 10 had stated that there were with him two others at the time and PW 17 had taken PW 10 and the said two others also to the place where the body was stated to have been burnt, they had not been examined.
We have read the evidence carefully and the evidence also does not impress us that he is telling the truth.
In the result we set aside the conviction of the appellants under section 201, IPC.
The conviction of the first appellant is modified into one under section 307, IPC and we sentence him to 10 years rigorous imprisonment.
The bail bonds of appellants 2,3 and 4 are cancelled.
The first appellant is directed to surrender.
R.N.J. Appeal partly allowed. | Nineteen persons were tried by the Additional District and Session Judge, Khetri in S.T. No. 264 of 1973 for offences under section 302/149, 201/149, 379/149, 147 and 148 for the incident that took place on 25.4.1972 in village Padaria Tula (UP) on the day of filing of the nomination papers for election for the post of Pradhan Gaon Sabha, Tikhra in which fire arms were used by the party led by Bhupendra Singh accused no.l, who was also a candidate for the office of Pradhan of Gaon Sabha resulting in the death on the spot of Gajendra Singh, one of the supporters of the rival candidate Ram Sewak, P.W. 2.
The prosecution case is that both the rival candidates with their supporters had come to village Padaria Tula on the morning of 25.4.1972 where nomination papers had to be filed.
On seeing the party of the deceased arriving, Bhupendra Singh enquired from Ram Sewak (P.W.2) if he had come to file his nomination papers against him.
Gajendra Singh (deceased) intervened and challengingly told the accused No. 1 that he should ask him.
Following the altercation that ensued, it is alleged that Bhupendra Singh fired the first shot on the deceased followed by shooting by his other associates and the deceased fell dead.
The party of Ram Sewak fled from the scene to escape the 857 attack.
It is further alleged that the body of the deceased was dragged by Gajendra Singh and his companions and carried by them on a tractor trolly belonging to A1 on which they had come, burnt it and ashes thrown in the river causing disappearance of the entire evidence.
The first Additional Judge acquitted all the charges on the ground that there are many infirmities in the prosecution case rendering its evidence unworthy of belief.
The state of Uttar Pradesh preferred appeal before the Lucknow Bench of the Allahabad High Court.
The High Court set aside the acquittal of Bhupendra Singh (A1) and convicted him for offence under section 302 I.P.C and awarded sentence of Rigorous Imprisonment for life , set aside the acquittal of A 4, 7, 8 in part, convicted them under section 201 of I.P.C. and sentenced each of them to seven years Rigorous Imprisonment thereunder.
Their acquittal under other charges was confirmed.
Appeal as against rest of the accused was dismissed altogether.
A1, 4, 7 and 8 have thus come in appeal against the judgement of the High Court.
In party allowing the appeal setting aside the conviction of appellants 2 to 4 (A1, 7, 8) under section 201 I.P. C. , and altering the conviction of appellant No. 1 (A1) from one under section 302 I.P. C. to one under section 307 I.P.C. and sentencing him to a term of 10 years rigorous imprisonment thereunder, this Court.
HELD: The evidence only established that the first appellant shot at the deceased but it is not known where the bullet hit and whether that injury caused by the said bullet shot caused the death.
Even in the case of shooting by a rifle unless the evidence shows the particular injury caused by the same and that injury is sufficient to cause death, the offence under section 302 I.P.C. could not be said to have been made out.
In the circumstances, therefore, we are unable to agree with the High Court that the first appellant is guilty of offence under section 302 IPC of causing the death of Gajendra Singh.
However we are of the view that while the first appellant shot at the deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death.
[863D E] We consider that the offence would come under the second limb or second part of section 307, IPC.
Though imprisonment for life also could be awarded as sentence for such an offence, on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment.
We alter the conviction under section 302, IPC to one under section 307 IPC and sentence him to a term of 10 years rigorous imprisonment.
[863G].
858 So far as the offence under section 201 IPC is concerned we have read the entire evidence carefully and the same does not impress as to bring home the offence of screening the evidence.
[863H,865H] |
ivil Appeal Nos.
1249/75 & 2075/79.
From the Judgment and Order dated ' 26.9.1974 and 16.10.1978 of Gujarat High Court in I.T.R. Nos. 19 of 1973 and 318 of 1977.
Harish N. Salve, P.H. Parekh and Sunil Degra for the Appellant.
915 V. Gauri Shanker, Sr.
and section Rajappa for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
These appeals raise a question of some complexity on the interpretation of the provisions of the Income Tax Act, 1961, (The 1961 Act '), in regard to which there is a difference of opinion among various High Courts.
In the judgment under appeal, reported in , the Gujarat High Court has answered the question raised in favour of the Revenue and against the assessees.
Hence these appeals by the assessee, M/s. Garden Silk Weaving Factory, Surat.
The two appeals relate to the assessment years 1967 68 and 1968 69 for which the relevant previous years were the Saka years 2022 and 2023 respectively.
The question arises in similar circumstances for both the years.
We shall set out the facts relevant for the assessment year 1968 69 as the appeals and reference in respect of that year were disposed of earlier than those pertaining to the assessment year 1967 68.
The assessee, M/s. Garden Silk Weaving Factory, is a registered firm.
For the assessment year in question, it returned a total income of Rs.3,96,483 and a provisional assessment, under section 141 of the Act, was made accepting the income returned.
Subsequently, the Income Tax Officer found that, for the assessment year in question, the assessee had made an income of Rs. 11,82,056 but deducted there three figures aggregating to Rs.7,87,573 to arrive at the net income of Rs.3,94,483 which had been returned and accepted.
These three figures were figures carried over from the previous year for the assessment year 1967 68.
They comprised of: (i) Unabsorbed Rs. 1,59,181 Depreciation (ii) Unabsorbed Rs. 2,79,150 Development Rebate (iii) Unabsorbed Rs. 3,49,242 Business loss Total : Rs. 7,87,573 The Income Tax Officer (I.T.O.) agreed that, out of the above three months, the unabsorbed development rebate pertaining to the assessment year 1967 68 had been rightly carried forward and set off in computing the total income for the assessment year 1968 69.
However, 916 for reasons which will become clear later, the Income Tax Officer was of the opinion that the sum of Rs. 1,59,181 (which represented the amount of unabsorbed depreciation relating to the assessment year 1967 68) and the amount of Rs.3,49,242 (which represented the unabsorbed loss pertaining to the assessment year 1967 68) could not be carried forward, as done by the assessee, to the assessment year 1968 69.
He, therefore, added back the sum of Rs.5,08,423 (the aggregate of the above two amounts) to the returned income for determining the total income for assessment year 1968 69.
This action of the Income Tax Officer was confirmed by the Appellate Assistant Commissioner (A.A.C.).
However, on further appeal, the Income tax Appellate Tribunal (A.T.) took a different view.
It upheld the Income tax Officer 's stand that the firm could not be allowed to carry forward and set off the business loss carried from the earlier year.
But, so far as the unabsorbed depreciation was concerned, it upheld the assesses contention.
A reference to the High, Court followed.
The following two questions were referred to the High Court of Gujarat for its decision: 1.
Whether on the facts and in the circumstances of the case, the Tribunal was right in law in holding that the assessee registered firm is entitled to carry forward unabsorbed depreciation from earlier years and that it will be deemed to be an allowance in the nature of depreciation in the previous year, relevant to assessment year 1968 69? 2.
Whether the claim of the assessee to carry forward and set off loss of Rs.3,49,242 against its total income for the assessment year 1968 69 has been rightly rejected?" The High Court, in a very detailed judgment, discussed the issues threadbare and answered both the questions against the assessee and in favour of the Revenue.
Hence the assesse 's appeal for the assessment year 1968 69 under a certificate of fitness granted by the High Court.
For the assessment year 1967 68, a full paper book containing all the orders and statement of facts has not been placed before us.
However, the petition of appeal gives a few facts which may be sufficient to dispose of the appeal.
The relevant facts are these.
For this assessment year, the assessee filed a return on 30/6/67 showing a loss of Rs.7,87,515 but filed a revised return on 22/3/72 showing a loss of Rs.5,46,351.
On 14 3 73 the I.T.O. completed the assessment determining a loss of Rs.4,85,250.
(It will be noticed that the assessment order for 1968 69 gives a different figure and also shows its composition as partly loss, partly unabsorbed depreciation and partly unab 917 sorbed development rebate but this is not very material for deciding the principle in issue before us).
The assessee 's request that this loss should be carried forward to the subsequent assessment year was rejected by the I.T.O. This was confirmed by the A.A.C. on further appeal, the A.T. confirmed the order of the A.A.C., following the High Court 's decision for assessment year 1968 69 which had by then been announced.
Thereupon the following question of law was referred to the High Court for its opinion: "Whether, on the facts and circumstances of the case, the Tribunal was justified in rejecting the claim for carry forward of business loss in the hands of the firm in view of the decision reported in " The High Court answered the question in the affirmative following its earlier decision but granted a certificate of fitness for appeal to this Court.
This is how the second appeal is before us.
It will be seen from the above that, though there are two appeals before us, the question involved in both the appeals is the same.
Before discussing the question at issue, it may be useful to briefly summarise the procedure under the statute for determining the total income of an assessee in respect of a previous year.
All income accruing or arising to the assessee and includible in his total income, is, to begin with, classified (see section 14) under six different heads: A. Salaries.
B. Interest on Securities: (recently omitted) C. Income from Property.
D. Profits and gains of business, profession or vocation.
(briefly, "business income") E. Capital gains F. Income from other sources.
In computing the income of the assessee according to this classification, two aspects have to be borne in mind.
One is that, even under the same head, an assessee may have different sources.
If so, the 918 income has first to be arrived at in respect of each such source.
Thus, if an assessee carries on several businesses, the income of each and every such, business has to be separately computed by allowing against the gross profits and gains of that business only the deductions relevant and appropriate to that business.
The second is that, for arriving at the figure of income assessable under a particular head, the individual figures in respect of all the sources have to be aggregated.
Thus, to take up the head, "profits and gains of business, profession or vocation", the statute contemplates the computation of the profits and gains of each business, profession or vocation carried on by the assessee separately.
The result of such computation may be either a profit or a loss.
If all the businesses end in profits, the profits are aggregated to arrive at a resultant figure of profits from "business".
On the other hand, if some of the businesses make profit and some of them result in a loss, the profits and the losses have to be added together in order to arrive at the consolidated income under the head "profits and gains of business.
" If the total amount of profits exceeds the total amount of losses, there will be a positive income under this head, assessable for that particular assessment year.
If on the other hand the losses exceed the profits, they will be "adjusted" against the profits, so as to reduce the assessable income under the head to nil; in addition, the losses of one or more businesses will remain "unabsorbed".
There will thus be one resultant figure of profit or loss under each head.
This is one aspect of the matter.
This is the first stage of computation which we may call "intra head adjustments".
This was not specifically provided for in the Indian Income tax Act, 1922 (the 1922 Act) but now finds specific mention in section 70 of the 1961 Act.
section 24(1) of the 1922 Act and section 71 of the 1961 Act next contemplate a mutual set off of the losses under one head against the income under some other head subject to some exceptions (like speculation loss, capital loss etc.
which, to avoid unnecessary complications and confusion, we shall leave out of account).
Thus if, in any particular assessment year, an assessee has incurred a loss under the head "business", this loss can be set off against the income earned by the assessee during that previous year under other heads.
Thus, for example, if an assessee has got income by way of salary of Rs.20,000 and income from house property of Rs.25,000 but has sustained a loss of Rs.40,000 in business, the Act envisages the set off of the loss of Rs.40,000 against the income of Rs.45,000 resulting in a total income of Rs.5,000 only.
This is the second stage in the process of assessment which we may describe as "inter head adjustment" or "set off".
919 The Acts [section 24(2) of 1922 Act and section 72 of the 1961 Act] next envisage a third stage in the process of assessment which can ' be described as the process of "carry forward and set off".
By this process, the assessee is permitted to carry forward a loss he had not been able to adjust or set off in the first and second stages of assessment.
This benefit is not available to all kinds of losses but, subject to certain conditions and restrictions on which we need not dilate, it is available to business losses.
A business loss of one assessment year which remains "unabsorbed" by the processes of intra and inter head ;adjustments can be carried forward to the succeeding assessment years ,and can be set off against any other business income in those years.
A modification to the above scheme had to be enacted in respect of partnership.
Partnership firms are treated as separate assesses for the purposes of the Income Tax Acts.
Under the Acts, firms are classified into two registered firms and unregistered firms.
Unregistered firms are distinct assesses which are liable to pay tax on their total income.
The Acts provided that any unabsorbed loss in the case of such a firm could be carried forward only by the firm and not by it 's partners.
However, under the 1922 Act, as it stood between 1939 and 1956, registered firms were treated as assesses only to this extent that the total income (or loss) of the firm in any previous year was computed.
However, the firm itself was not liable to any income tax.
The income of the firm was apportioned among its partners and each partner was assessed on his share of income from the firm.
In this scheme, it was obvious that, as soon as the income or loss of a firm was computed, there was nothing further to be done in the case of the firm; the income or loss became that of the partner for all practical purposes.
A partner 's share of a business loss of the firm which remained unabsorbed became business loss in the hands of the partner liable to intera head adjustments, inter head adjustments and carry forward as if the loss had been incurred by the partner himself.
The Act, therefore, provided that in the case of registered firms the loss which could not be absorbed in the same assessment year by the other income of the firm could be carried forward to the subsequent year not by the firm itself but only by the partners.
In other words, each partner carried forward to subsequent years his share of the business loss of the firm and set it off against his business income, whether from the firm or otherwise.
There is a third category of unregistered firms assessed as registered the provisions regarding which are not relevant for our present purposes.
Leaving them out of account, the Acts outlined a very simple scheme stemmed from the basic fact that a registered firm was not liable to pay tax whereas an unregistered firm had to pay 920 tax.
Under this scheme the full advantage of carry forward of the loss incurred by the firm was enjoyed by the partners in the case of a registered firm and in the case of an unregistered firm by the firm itself.
The simplicity of the above scheme of assessment of registered and unregistered firms, however, was not allowed to last.
In 1956, the legislature decided that registered firms should also be made to pay a tax.
This tax, called "firm 's tax" was at rates lower than those applicable to unregistered firms and other assesses.
Under the new scheme, which became effective from 1.4.1956, the total income of a registered firm is determined and it is liable to income tax thereon.
The income of the firm (less the firm 's tax) is then apportioned among the partners (subject to certain adjustment as before).
The share income of each partner is aggregated with the rest of his income to arrive at his total income on which he also pays tax.
In this new scheme the question arises: "when the net result of a business carried on by a registered firm in a particular year is a loss, who is to carry forward such loss? Is it the firm (as in the case of unregistered firms) or is it is the partners (as, earlier, in the case of registered firms) or both?" The answer to this question is furnished by the statute which, while broadly continuing the scheme of assessment of registered firms with the modification indicated above, makes a specific provision in regard to carry forward of losses.
The provisions of Ss. 75 and 77 in their present form can be usefully extracted here (though they contain references to certain amended provisions which we need not touch upon): 75.
Losses of registered firms: (1) Where the assessee is a registered firm, any loss which cannot be set off against any other income of the firm shall be apportioned between the partners of the firm, and they alone shall be entitled to have the amount of the loss set off and carried forward for set off under sections 70, 71, 72, 73, 74 and 74A. (2) Nothing contained in sub section (1) of section 72, sub section (2) of section 73, sub section (1) or sub section (3) of section 74 or sub section (3) of section 74A shall entitle any assessee, being a registered firm, to have its loss carried forward and set off under the provisions of the aforesaid section.
921 76.
Losses of unregistered firms assessed as registered firms: In the case of an unregistered firm assessed under the provisions of clause (b) of section 183 in respect of any assessment year, its losses for that assessment year shall be dealt with as if it were a registered firm.
Losses of unregistered firms or their partners: 1) Where the assessee is an unregistered firm which has not been assessed as a registered firm under the provisions of clause (b) of section 183, any loss of the firm shall be set off or carried forward and set off only against the income of the firm.
(2) Where the assessee is a partner of an unregistered firm which has not been assessed as a registered firm under the provisions of clause (b) of section 183 and his share in the income of the firm is a loss, then, whether the firm has already been assessed or not (a) such loss shall not be set off under the provisions of section 70, section 71, sub section (1) of section 73 or section 74A; (b) nothing contained in sub section (1) of section 72 or sub section (2) of section 73 or sub section (1) or sub section (3) of section 74 or sub section (3) of section 74A shall entitle the assessee to have such loss carried forward and set off against his own income.
In view of this specific provision the High Court, following an earlier decision of the same High Court in C. I. T. vs Dhanji Shamji Mana vdar,[ 1974 ] I.T.R. 173 (Guj.) answered the second question referred to it in the reference relating to assessment year 1968 69 and the only referred in regard to the assessment year 1967 68 in favour of the Revenue and against the assessee.
The correctness of this answer has not been challenged before us.
The first question referred to the High Court in respect of assessment year 1968 69, however, arises in a slightly different way.
It arises the context of "depreciation" which is one of the notional 922 allowances by which expression we mean a deduction in respect of an outgoing which is not an item of actual expenditure or is one, which cannot be treated as an outgoing of a revenue nature permitted by the statute to be deducted in the computation of the profits and gains, of a business.
In a sense, where the depreciation allowance exceeds the profits, otherwise arrived at, in respect of the business, there will be a resultant "loss" in the business; and, indeed, the Department 's contention is that there is no difference between an unabsorbed loss and unabsorbed depreciation.
It would, however, be useful to refer to the treatment meted out by the statute in respect of three items of deductions allowed in the computation of the profits of a business, which may be larger than the profits of the business otherwise computed.
One is the development rebate regarding which the statute provides that it has to be set off against the total income of the assessee so as to reduce it to nil and that the balance is, to be carried forward to succeeding assessment years to be accorded a similar treatment.
[See Ss.
10(2)(vib) of the 1922 Act and 33(2) of the 1961 Act].
This is an allowance which cannot be a constituent element of a figure of loss to be carried forward to later years and stands on a totally different footing.
The second is the allowance for depreciation under S10(2)(vi) of the 1922 Act.
In respect of this allowance, section 10(12)(vi) provided that if full effect to the allowance could not be given in the assessment of an assessee for any assessment year, the unabsorbed allowance could be carried forward and set off against business profits in succeeding assessment years indefinitely.
This provision, namely clause (b) of the proviso to section 10(2)(vi) of the 1922 Act after an addition in 1953 of the words underlined in the extract below reads thus,: " 10(2)(vi) . .
Provided that . . (a) . . . (b) where, in the assessment of the assessee or, if the assessee is a registered firm, in the assessment of its partners, full effect cannot be given to any such allowance in any year not being a year which ended prior to the I April, 1939, owing to there being no profits or gains chargeable for that year, or owing to the profits, or gains chargeable, being less than the allowance, then, subject to the provisions of clause (b) of the proviso to sub section (2) of section 24, the allowance or part of the allowance to which effect has not been given, as the case may be, shall be added to the. amount of the allowance for depreciation for the following year and 923 deemed to be the allowance for that year, and so on for succeeding years.
" This provision has, in substance, there are certain verbal differences which are not material for our purposes been re enacted as section 32(2) of the 1961 Act, which now reads thus: B "32(2) Where, in the assessment of the assessee (or, if the assessee is a registered firm or an unregistered firm assessed as a registered firm, in the assessment of its partners) full effect cannot be given to any allowance under clause (ii) of sub section ( 1) in any previous year, owing to there being no profits or gains chargeable for that previous year, or owing to the profits or gains chargeable being less than the allowance, then, subject to the provisions of sub section (2) of section 72 and sub section (3) of section 73, the allowance or part of the allowance to which effect has not been given, as the case may be, shall be added to the amount of the allowance for depreciation for the following previous .year and deemed to be part of that allowance, or if there is no such allowance for that previous year, be deemed to be the allowance for that previous year, and so on for the succeeding previous years.
" The third type of allowance of this nature, a carry forward of which is contemplated, is an allowance in respect of expenditure on capital assets related to a business.
This, by virtue of clause (f) of the proviso to section 10(2)(xiv) of the 1922 Act, re enacted in section 35(4) of the 1961 Act, is treated on the same lines as the depreciation allowance dealt with in section 10(2)(vi) and section 32(2).
We shall, however, leave this out of account in our future discussion as it is not material for the purposes of the present case and as, in any event, whatever is decided in regard to unabsorbed depreciation would apply equally in respect of such allowance as well.
From the above discussion, it will be seen that unabsorbed losses and unabsorbed depreciation are to be carried forward to future years to be set off against future income.
There is, however, one important difference.
Unabsorbed losses can be carried forward only for a period of eight years whereas unabsorbed depreciation can be carried forward indefinitely.
A rule of priority of set off as between these two therefore becomes necessary and this is provided by section 72(2) of the 1961 Act which deals with carry forward of losses the counterpart of 924 the proviso to section 24(2) of the 1922 Act which reads thus: "Where any allowance or part thereof is, under sub section (2) of section 32 or sub section (4) of section 35, to be carried forward, effect shall first be given to the provisions of this section.
" This is the historical context and statutory language on the basis of which the issue before us has to be resolved.
The issue is: when there is an unabsorbed depreciation computed in the assessment of a registered firm for any year, how is it to be treated for purposes of carry forward? Three alternatives are possible: (i) It should be retained (without apportionment) and carried forward by the firm only.
(ii) It should be apportioned among the partners.
Thereafter, it can be dealt with even for carry forward purposes only in the assessments of each of the partners in respect of his aliquot share thereof.
(iii) It should be apportioned among the partners each of whom may set off his share thereof against his other income.
If, after this, any amount remains unabsorbed, it will revert to the firm.
The firm will carry it forward.
set it off against its other income in the succeeding year.
This operation will be repeated every year indefinitely until the unabsorbed depreciation gets absorbed.
The three alternatives will yield widely different results and hence the present controversy.
On the above issue there has been a strong cleavage of opinion between the various High Courts.
The view that unabsorbed depreciation once allocated to the partners cannot be taken back to the firm 's assessment for being carried forward by the firm and that the partners alone are entitled to carry forward the unabsorbed depreciation for being set off against their income, has been taken in the following cases: (a) K. T. Wire Products vs Union of India, (b) Garden Silk Weaving Factory, and Garden Silk Weaving Factory, (c) CIT vs Ram Swarup Gupta, and Raj Narayan Aggarwala vs CIT, ; (d) Shankaranarayana Construction Co. vs CIT, The view that the unabsorbed depreciation, after being carried forward by the partners and set off against their income, reverts back to the registered firm for being carried forward and set off against its income and that any depreciation still remaining unabsorbed will again go to the partners and that if it still remained unabsorbed would revert back to the firm and so on, has been accepted in: (a) Ballarpur Collieries Co. vs CIT, 219 and CIT vs Nagpur Gas & Domestic Appliances, ; (b) CIT vs Nagapattinam Import and Export Corp., ; CIT vs Madras Wire Products, and CIT vs Madras Wire Products, ; (c) CIT vs Singh Transport Co., ; (d) CIT vs J. Patel & Co., ; (e) CIT vs Shrinivasa Sugar (Co., (f) Pearl Woollen Mills vs CIT, and CIT vs Mahavir Steel Rolling Mills,5, & H); and (g) CIT vs R. J. Trivedi & Sons, Shri Harish Salve, learned counsel for the assessee, canvassed the latter of the above views but with a slight modification.
He submitted that, in the present case, the firm as well as the partners had been returning losses all along with the result that no part of the unabsorbed depreciation of the firm had been set off in the partners ' hands.
He, therefore, submitted that it was sufficient for him to urge the first of the three alternatives set out earlier and that he need not, for the purposes of this case, seek to support the third alternative, upheld in some of the decisions, which may create an impression in the mind that the assessee was deriving a double benefit by having the unabsorbed depreciation set off in the hands of both the firm and the partners.
On the other hand, Dr. Gaurishankar, for the Revenue, strongly advocated the second alternative.
According to him, once the assessment is completed, and the total income or loss of the firm ascertained, it has to be apportioned amongst the partners.
Thereafter, there remained nothing in the assessment of the firm to be carried forward.
Only each of the partners can carry forward his share of the unabsorbed loss (and this, according to him, will include also the unabsorbed depreciation) for set off in his future assessments.
The answer to the problem before us has to be discovered in the language of section 32(2) supplemented by that of other sections which deal with the mode of assessment of a firm and its partners.
Before turning to these provisions, it will be necessary to clear up one aspect of section 32(2) to which Sri Salve drew attention in the course of his reply.
He pointed out that section 32(2) permits the carry forward of the depreciation allowance "where full effect cannot be given to it" owing to there being no profits or gains chargeable for that previous year, or owing to the profits or gains chargeable being less than the allowance.
Laying emphasis on the words "profits or gains", he contended that the carry forward of depreciation allowance is at a stage much anterior to that of the determination of the total income of the assessee.
On this construction, if an assessee A carries on two businesses, in one of which there is 926 an unabsorbed depreciation of Rs. 15,000 and the profits and gains of the other business is only Rs. 10,000, the net unabsorbed depreciation of Rs.5,000 has to be carried forward irrespective of the other income of the assessee in that year, to the succeeding year.
This contention, however, cannot be accepted.
Though the section, somewhat infelicitiously, uses the expression "profits and gains" as it occurs in the statute in the fasciculus of sections dealing with the computation of business income, the question of the carry forward of unabsorbed depreciation has always been understood and interpreted as arising only after the intra head and intra head adjustments, referred to earlier, have been carried out.
Thus, in the illustration given above, if A has a property income of Rs.6,000 the unabsorbed depreciation of Rs.5,000 will be set off against the property income and there will be no unabsorbed depreciation left for being carried forward to the subsequent assessment year.
This is because, where the depreciation allowance attributable to a particular business exceeds the profits otherwise computed for that business, the deduction of the depreciation allowance from such profits can only result in a "loss" from that business this, however, is subject to a limitation that will be discussed later and a business loss has to be set off against income from any other business, by way of intera head adjustment, under section 70 and the income under any other head, by way of inter head adjustment, under section 71.
This principle indeed emerges even from the language of section 32(2) in so far as it implicitly recognises that the excessive depreciation of one business can be "given effect to" against the profits and gains of another business in the same year.
This, indeed, is a well settled proposition, and it should be sufficient to cite two decisions of this Court which make this clear, In C.I.T. vs Jaipuria China Clay Mines (P) Ltd., [1966]591,T.R.555 this Court observed: "Mr. Shastri, learned counsel for the revenue, urges that depreciation, although a permissible allowance under section 10(2) of the Act, serves to compensate an assessee for the capital loss suffered by him by way of depreciation of his assets.
He says that if it had not been expressly allowed as allowance, it would have been treated as capital expenditure and would have been excluded.
He further says that depreciation is a charge on the profits of a business.
Bearing these two factors in mind, he urges that the expression "loss of profits and gains" in section 24(1 does not include any deficiency resulting from depreciation and, therefore, an assessee is not entitled to ask the department to include the depreciation in the amount which can be set 927 off against income, profits and gains under Other heads such as income from property or dividends.
Mr. Rajagopala Shastri for the assessee relies on the history of the legislation and a number of authorities to support the judgment of the High Court.
Apart from authority, looking at the Act as it stood on April 1, 1952, it is clear that the underlying idea of the Act is to assess the total income of an assessee.
Prima facie, it would be unfair to compute the total income of an assessee carrying on business without pooling the income from business with the income or loss under other heads.
The second consideration which is relevant is that the Act draws no express distinction between the various allowances mentioned in section 10(2).
They all have to be deducted from the gross profits and gains of a business.
According to commercial principles, depreciation would be shown in the accounts and the Profit and Loss account would reflect the depreciation accounted for in the accounts.
If the profits are not large enough to wipe off depreciation, the profits and loss account would show a loss.
Therefore, apart from proviso (b) to section 10(2)(vi), neither the Act nor commercial principles draw any distinction between the various allowances mentioned in section 10(2); the only distinction is that while the other allowances may be outgoings, depreciation is not an actual outgoing." and expressly disproved the observations of the Madras High Court in C.I.T. vs Nagi Reddy, [19641 that the deduction for depreciation should be limited to the amount of the profits and cannot result in working out a loss.
The following observations in the more recent decision in Rajapalayam Mills Ltd. vs C.I.T., , S.C. place the position beyond doubt: It is clear on a plain reading of the language of provision (b) to cl.
(vi) that it comes into operation only where full effect cannot be given to the depreciation allowance for the assessment year in question owing to there being no profits or gains chargeable for that year or profits or gains chargeable being less than the depreciation allowance.
Now, it is well settled, as a result of the decision of this court in CIT vs Jaipuria China Clay Mines (P) Ltd., , that the words "no profits or gains chargeable for that year" are not confined to profits and gains derived 928 from the business whose income is being computed under section 10, but they refer to the totality of the profits or gains computed under the various heads and chargeable to tax.
It is, therefore, clear that effect must be given to depreciation allowance first against the profits or gains of the particular business whose income is being computed under section 10 and if the profits of that business are not sufficient to absorb the depreciation allowance, the allowance to the extent to which it is not absorbed would be set off against the profits of any other business and if a part of the depreciation allowance still remains unabsorbed, it would be liable to be set off against the profits or gains chargeable under any other head and it is only if some part of the depreciation allowance still remains unabsorbed that it can be carried forward to the next assessment year.
Obviously, therefore, there would be no scope for the applicability of provision (b) to cl.
(vi), if the total income of the assessee chargeable to tax is sufficient to absorb the depreciation allowance, for then there would not be any unabsorbed depreciation allowance to be carried forward to the following assessment year.
But where any part of the depreciation allowance remains unabsorbed after being set off against the total income chargeable to tax, it can be carried forward under provision (b) to cl.
(vi) to the following year and set off against that year 's income and so on for succeeding years.
" The resultant position, therefore, is that initially, the depreciation allowance has to be deducted from the profits and gains of the business to which the assets earning the depreciation relate but, if it remains unabsorbed by such profits, the allowance has to be set off against the other business income of the assessee and, where that is also insufficient, against the other taxable income of the assessee.
The carry forward of any depreciation as unabsorbed cannot arise until the stage of final assessment is reached and the total income of the assessee otherwise computed is insufficient to absorb the year 's depreciation allowance.
Sri Salve 's argument that the stage of carry forward of depreciation arises at a stage anterior to the completion of the assessment and determination of the total income cannot, therefore, be accepted.
Shri Salve, then, contended that there is no statutory provision which enables the apportionment of the firm 's unabsorbed depreciation among the partners and that, therefore, the unabsorbed deprecia 929 tion has to be carried forward by the firm itself and none else.
In our opinion, this contention also is not well founded.
section 182, to the extent relevant for our present purposes, reads "section 182.
(]) Assessment of registered firms Not withstanding anything contained in section 143 and 144 and subject to the provisions of sub section (3), in the case of a registered firm, after assessing the total income of the firm, (i) the income tax payable by the firm shall be determined, and (ii) the share of each partner in the income of the firm shall be included in his total income and assessed to tax accordingly.
(2) If such share of any partner is a loss it shall be set off against his other income or carried forward and set off in accordance with the provisions of sections 70 to 75.
(3) When any of the partners of a registered firm is a non resident, the tax on his share in the income of the firm shall be assessed on the firm at the rate or rates which would be applicable if it were assessed on him personally, and the tax so assessed shall be paid by the firm.
(4) A registered firm may retain out of share of each partner in the income of the firm a sum not exceeding thirty percent thereof until such time as the tax which may be levied on the partner in respect of that share is paid by him; and where the tax so levied cannot be recovered from the partner, whether wholly or in part, the firm shall be liable to pay the tax, to the extent of the amount retained or could have been so retained.
" How this share is to be computed is set out in section 67 which may be set out here: section 67(1) Method of computing a partner 's share in the income of the firm In computing the total income of an assessee who is a partner of a firm, whether the net result of the computation of total income of the firm is a profit or a 930 loss, his share (whether a net profit or a net loss) shall be computed as follows: (a) any interest, salary, commission or other remuneration paid to any partner in respect of the previous year, and, where the firm is a registered firm or an unregistered firm assessed as a registered firm under clause (b) of section [183], the income tax, if any, payable by it in respect of the total income of the previous year, shall be deducted from the total income of the firm and the balance ascertained and apportioned among the partners; (b) where the amount apportioned to the partner under, clause (a) is a profit, any salary, interest, commission or other remuneration paid to the partner by the firm in respect of the previous year shall be added to that amount, and the result shall be treated as the partner 's share in the income of the firm; (c) where the amount apportioned to the partner under clause (a) is a loss, any salary, interest, commission or other remuneration paid to the partner by the firm in respect of the previous year shall be adjusted against that amount, and the result shall be treated as the partner 's share in the income of the firm.
(2) The share of a partner in the income or loss of the firm, as computed under sub section (1) shall, for the purposes of assessment, be apportioned under the various heads of income in the same manner in which the income or loss of the firm has been determined under each head of income.
(3) Any interest paid by a partner on capital borrowed by him for the purposes of investment in the firm shall, in computing his income chargeable under the head "Profits and gains of business or profession" in respect of his share in the income of the firm, be deducted from the share.
(4) If the share of a partner in the income of a registered firm or [an unregistered firm assessed as a registered firm under clause (b) of section 183, as computed under this section, is a loss, such loss may be set off, or carried forward and set off, in accordance with the provisions of this Chapter.
931 Explanation: In this section, "paid" has the same meaning as is assigned to it in clause (2) of section 23. 1.
"Sri Salve contends that these provisions talk only of "loss" and that to take this expression as including "unabsorbed depreciation" as well will obliterate the distinction in the treatment meted out to these as separate items by section 32(2) and section 72(2) and (3).
We think this argument is misconceived.
An unabsorbed depreciation is indeed a part of the "loss".
This is so because, in the first place, "depreciation" is a normal outgoing though in a sense notional, which has to be debited in the computation of the profits of a business on commercial principles (quite apart from statute) and it is difficult to see why, when such deduction yields a negative figure of profits, it cannot be a "loss" as generally understood.
Jaipuria definitely says so as pointed out earlier.
Again, as pointed out earlier, if it is treated as a genus totally different from a "loss", there is"no statutory provision that will permit its adjustment against other business income implicit in section 32( '2) itself and against all other income of the assessee as held by the above decisions.
We therefore do not see why "loss" and "unabsorbed depreciation should be treated as antithetical to, or mutually exclusive of, each other.
Nor are we persuaded that any mix up or anomaly will result as, suggested by counsel if we treat the expressions as synonymous except to the extent specifically treated differently by the statute.
In our view, there is nothing anomalous or absurd in the statute providing for a dissection of the amount of loss for purposes of carry forward and providing for a special or different treatment to unabsorbed depreciation in this regard although it is a component element of the genus described as "loss".
To illustrate, suppose an assessee,has a "profit" of Rs.5,000 in one business before deduction of depreciation of, say, Rs. 10,000 and a loss of Rs. 15,000 in another business, it will be quite correct to say that he has a business loss of Rs.20,000 in that assessment year.
But for purposes of carry forward this has to be considered under to headings: (a) an unabsorbed depreciation of Rs.5,000 and (b) a business loss of Rs. 15,000.
The amount of Rs.20,000 will be carried forward to the subsequent year but the carry forward of Rs.5,000 will be according to the provisions of section 32(2) and the carry forward under section 72 will have, perforce, to be restricted to the other amount of Rs, 15,000.
The language of section 72(2) itself contains an indication that, where unabsorbed depreciation is a component of the figure of loss carried forward, the amount of loss proper should be set off first and the unabsorbed depreciation later.
But for the special treatment ac 932 corded by section 32(2) and section 72 for purposes of carry forward, there is no difference between an item of "unabsorbed depreciation" and an item of "loss".
We are, therefore, of opinion that the unabsorbed depreciation will be allocated among the partners and, like any other loss, will be available to the partner for set off against his business income or other income in the same assessment year.
In fact section 32(2), in so far as it talks of depreciation being given effect to in the partners ' assessments recognises that such unabsorbed depreciation should be allocated among the partners.
So the first of the three alternatives referred to by us earlier is, in our opinion, out.
We now come to the crucial question as to what is to be done when the amount of unabsorbed depreciation does not get absorbed by the other income of the firm and, further, the aliquot shares of the partners therein do not also get absorbed in the partners ' assessments against their other income.
There can be two answers to this: (1) that the partners in whose hands the unabsorbed depreciation has been allocated should carry forward the depreciation to succeeding years; or (2) that the amount of depreciation so remaining unabsorbed should be carried forward by the firm for set off in future assessments.
We have given our most careful consideration to this matter, particularly in view of the controversy of judicial decisions prevailing thereon, and we have come to the conclusion that the second of these alternatives is what is truly envisaged by the statute.
The most formidable obstacle put forward to this course is that, once the unabsorbed depreciation gets divided and allocated to the partners, there is no statutory provision for recalling, to the firm 's "file", the amount remaining unabsorbed.
We think this, criticism really proceeds on an unduly narrow construction placed on the provisions of section 32(2).
In our opinion, section 32(2) itself contains an inbuilt mechanism for doing this.
It is plain, on the language of this sub section, that the benefit of the carry forward is to be given to the assessee.
Where the assessee is other than a registered firm or an unregistered firm assessed as a registered firm, this is indeed very plain.
In the case of this category of assessee, the difficulty arises because of the words in parenthesis.
But a moment 's thought will make it clear that the word "or" in the sub section is really used as a conjunctive.
It cannot be an alternative, for there can be no doubt that even in the case of such an assessee the 933 unabsorbed depreciation, for reasons already set out, has to be adjusted against its other income.
The assessment of the firm cannot be complete without such a set off.
Thus, where a firm assessed as a registered firm, has only unabsorbed depreciation of say, Rs.8,000, in the business carried on by it but a property income of Rs.12,000 its total income for the year has to be Rs.4,000; it cannot be assessed on an income of Rs. 12,000 with the depreciation of Rs.8,000 apportioned to its partners.
We have already pointed out that the partner 's share in the unabsorbed depreciation is part of his share in the loss of the firm and, by virtue of section 67(3), will be treated as business loss which is capable of adjustment against his business and other income.
This is the position envisaged by section 32(2) when it talks of effect being given to the unabsorbed depreciation in the assessment of the partners.
This can refer only to cases where the depreciation cannot be given effect to in the firm 's assessment.
It is, therefore, clear that section 32(2) contemplates the situation where the unabsorbed depreciation in the hands of the firm is too large to get absorbed, first, in the hands of the firm and then, after apportionment, in the hands of the partners.
What remains thereafter has obviously to be carried forward by the firm which is the assessee referred to in the sub section.
Perhaps the meaning of the provision will become clearer if its relevant words are rearranged as follows: "Where full effect cannot be given to any (depreciation) in any previous year in the assessment of the assessee (whatever category it belongs to) and, if the assessee is a registered firm or an unregistered firm assessed as a registered firm, in the assessment of its partners .
. . the allowance shall be added . . ".
As in the case of all other assesses, the carry forward will be available to the registered firm which is the assessee that is referred to in the sub section.
This construction is also strengthened by the last part of the sub section.
When it talks of the depreciation allowance carried forward being added to the allowance for depreciation for the following previous year it obviously refers to the depreciation allowance due to the assessee (that is, the firm) in the subsequent previous year.
In the normal run of cases, it will thus either get added to the subsequent year 's depreciation in respect of the same assets and get set off against the income from the same business or some other business of the same assessee or, failing that, against other income of such assessee.
What 934 the sub section clearly provides for is that the aggregate of the depreciation available to an assessee over the years will be taken into consideration for set off against its income over a period of years.
No doubt, the latter portion of section 32(2) does not envisage that the business carried on by the assessee in the subsequent years should be the same or that the assets to the depreciation in respect of which the unabsorbed depreciation is to be added should be the same or, indeed, that any depreciation at all should be allowable to the assessee in the subsequent year.
It is no doubt true that the words of the sub section are so widely couched that they can, with a certain amount of difficulty, be rendered capable of application to the situation of each partner carrying forward his share of the unabsorbed depreciation for set off, even where he has no business or business income, against his other income.
But we think that it is too strained a construction of the sub section.
When, as pointed out by Sri Salve, there is nothing in the sub section or the Act specifically providing even for an apportionment of the depreciation among the partners, it is too contrived a construction to read into the sub section several words intended to provide for a number of partners, each carrying forward his share of the unabsorbed depreciation to successive assessment years.
It seems natural and reasonable to construe the section as envisaging the following steps where the assessee is a registered firm: (i) Excessive depreciation should be adjusted in the assessment of the assessee against other business income and against other heads of income; (ii) Depreciation, which remains unabsorbed under (i), will be apportioned to the partners and the share of each will be adjusted against the business and other income of each of the partners pro tanto; (iii) If full effect cannot be given to the depreciation allowance of the assessee by the above processes and some depreciation remains unadjusted, the assessee firm will carry it forward to the succeeding assessment year.
The objection to this course is based on a mental imagery of the firm and its partners as altogether different assesses and of the impermissibility of "bringing back" to the firm 's "file" what has gone away to the files of the partners.
We think this approach of viewing the two assessments in water tight compartments is not correct.
The Act itself contains several provisions [e.g. Ss. 67(2) & (3)] which indicate 935 that this is not so.
The observations of this Court in Sankappa vs I. T. O., at pp.
766 7 also bring out the regions of inter dependence of these two assessments.
In any event, any such theoretical dichotomy cannot prevail over the provisions of section 32(2).
There is also one further reason why this view should find acceptance.
As we have pointed out earlier, unabsorbed depreciation is only a species of business loss.
But for purposes of carry forward the statute has drawn a distinction between them.
In doing so, it specifically out lines the procedure for carry forward and set off of losses in the case of a registered firm but is silent in regard to unabsorbed depreciation.
There is no statutory prohibition against the carry forward of unabsorbed depreciation by the registered firm as there is against carry forward of loss.
The need felt to enact a specific prohibition in respect of losses and the absence of a like provision in respect of depreciation are significant pointers in support of the above construction.
An argument has been put forward by Dr. Gaurishankar on the basis of the amendment to the proviso to section 10(2)(vib) in 1953 to submit that it was intended to negative the claim of carry forward by the firm which was earlier being accepted on the strength of the earlier language resulting in a double advantage.
Attention has been drawn to the objects and reasons of the amendment, set out thus at p. 57 in (1952) 21 I.T.R. (Statutes): "The (amendment) is intended to make it clear that where unabsorbed depreciation has been effectively allowed in the assessment of a partner of a registered firm, it would not be carried forward in the case of the firm." (emphasis added) It is true that the clause, before its amendment, permitted all assesses and this included registered firms as well to carry forward their unabsorbed depreciation and that though the registered firm paid no tax, it could, on the language claim a carry forward of the depreciation which had been apportioned among the partners.
This resulted in such carry forward being claimed even where the whole or a part of the unabsorbed depreciation of the firm had been set off in the assessment of individual partners.
The amendment, vide the words emphasised in the extract above, only seeks to make it clear that such carry forward will not be permitted to the extent it has been given effect to in the partners ' assessments; by necessary implication the carry forward, to the extent it has not been effectively allowed to the partner, continues 936 to be available.
The amendment of 1953, therefore, not only does not help the case of the Revenue, it actually lands support to the construction we are inclined to place on the proviso.
It is possible that our conclusion may give scope for two grounds of criticism: (i) that the partners derive a double advantage of setting off the unabsorbed depreciation to reduce the taxable income of the firm as well as the partners; and (ii) that this will distort the relief available to various partners depending upon the variations in income as between the several partners as well as over a period of years.
We do not think that the first criticism is a valid one.
For it is now settled law, that though a firm and its partners are distinct assesses for purposes of income tax, the Act still recognises the principle that a firm is only a compendious name for its partners and that the business carried on by the firm is also a business carried on by each of the partners too vide section 67(2) and (4) and the loss of a registered firm is treated as the losses of its partners too.
The procedure envisaged by it will only enable a firm and the partners to set off the aggregate of the unabsorbed depreciation of the firm against the aggregate income of the firm and partners.
To the extent effect is given to such unabsorbed depreciation to one or more of the partners the firm cannot again get the benefit and vice versa.
There is, therefore, really no double advantage.
There is some point in the second criticism.
But, then, a certain amount of imbalance among the partners is inherent in the application of any one of the three possible alternatives.
If, as suggested by Sri Salve, only the firm and not the partners can carry forward the unabsorbed depreciation, there will be an injustice to the partners who may have other income against which it could be set off.
On the other hand, if the unabsorbed depreciation is allocated to the partners and they alone can carry forward and set it off, it will have this consequence that the partners who have other high income will derive the benefit of set off qua their shares but no benefit can be got by partners whose total income is not enough to offset their share of the depreciation and the unabsorbed depreciation will not get absorbed even though the firm may have sufficiently large income in subsequent years.
In other words, whichever procedure is adopted, the relief available to the partners will not be uniform.
This is a consequence flowing from the variations in the income sources of various partners and cannot be avoided under any scheme of carry forward and set off.
We, therefore, do not think that this consideration should weigh against our reaching the conclusion which naturally flows from the language of the sub section.
937 For the reasons discussed above, we are of the opinion that the assessee appellant firm is entitled to a carry forward of the unabsorbed depreciation computed for the assessment year 1967 68 and have it set off in its assessment for the assessment year 1968 69.
The unabsorbed loss computed for the assessment year 1967 68, however, cannot be carried forward by the firm to be set off in its assessment for the assessment year 1968 69.
So far as the assessment year 1967 68 is concerned, the High Court was right in holding that unabsorbed business loss of one year cannot be carried forward and set off by the firm in a subsequent year; but, if there was any unabsorbed depreciation computed for the assessment year 1966 67, it could have been allowed to be brought forward and set off in the assessment for the assessment year 1967 68 in the manner discussed in the judgment.
In the result, appeals for both the assessment years are allowed to the extent indicated and the assessments directed to be modified appropriately.
We, however, make no order regarding costs.
V. P. R. Appeals allowed. | For the assessment year of 1968 69, the assessee appellant, a registered firm, returned a total income of Rs.3,94,483 and a provisional assessment was made.
Subsequently, the Income Tax Officer found that for the said assessment year, the assessee had made an income of Rs. 11,82,056 and deducting therefrom three figures viz., (i) unabsorbed depreciation: Rs.1,59,181; (ii) unabsorbed development rebate: Rs.2,79,150; and (iii) unabsorbed business loss: Rs.3,49,242, aggregating to Rs.7,87,573 and arrived at the net income of Rs.3,94,483, which had been returned and accepted.
The three figures were the figures carried over from the previous year for the assessment year 1967 68.
The Income Tax Officer allowed the unabsorbed development 910 rebate pertaining to the assessment year of 1967 68 to be carried for ward and set off in computing the total income for the assessment year of 1968 69, but he did not allow the amounts of unabsorbed depreciation and unabsorbed business loss.
He, therefore, added back the sum of Rs.5,08,423 (the aggregate of the amounts of unabsorbed depreciation and unabsorbed business loss) to the returned income for determining the total income for the assessment year of 1968 69.
The action of the Income Tax Officer was confirmed by the Appellate Assistant Commissioners (A.A.C.).
However, on further appeal, the Income tax Appellate Tribunal (A.T.) upheld the income tax Officer 's stand that the firm could not be allowed to carry forward and set off the business loss carried from the earlier year but, so far as the unabsorbed depreciation was concerned, it upheld the assessee 's contention.
On these two issues a reference to the High Court was made and the High Court answered them against the assessee.
For the assessment year 1967 68, the assessee filed a return on 30.6.67 showing a loss of Rs.7,87,515 but filed a revised return on 22.3.1972 showing a loss of Rs.5,46,351.
On 14.3.73 the I.T.O. completed the assessment determining a loss of Rs.4,85,250.
The assessee 's request that this loss should be carried forward to the subsequent assessment year was rejected by the I.T.O. This was confirmed by the A.A.C. On further appeal, the A.T. confirmed the order of the A.A.C., following the High Court 's decision for the assessment year 1968 69 which had by then been announced.
The High Court answered the (question "Whether, on the facts and circumstances of the case, the Tribunal was justified in rejecting the claim for carry forward of business loss in the hands of the firm in view of the decision reported in 101I.T.R. 658? in the affirmative.
Hence the assessee 's the appeals one appeal for the assessment year of 1968 69 and the other for the assessment year of 1967 68 under certificates of fitness granted by the High Court.
On behalf of the assessee it was contended that the firm as well as the partners had been returning losses all along with the result that no part of the unabsorbed depreciation of the firm had been set off in the partner 's hands; that when there was an unabsorbed depreciation computed in the assessment of a registered firm for any year, for the 911 purpose of carry forward, it should be retained and carried forward by the firm only.
On the other hand, it was submitted for the Revenue that once the assessment was completed and the total income or loss of the firm ascertained, it had to be apportioned amongst the partners.
Thereafter there remained nothing in the assessment of the firm to be carried forward.
Only each of the partners can carry forward his share of the unabsorbed loss, which also included the unabsorbed depreciation, as there was no difference between unabsorbed loss and unabsorbed depreciation; and that the amendment to the proviso to section 10(2)(vib) in 1953 of depreciation was intended to negative the claim of carry forward, by the firm which was earlier being accepted on the strength of the earlier language resulting in a double advantage.
Allowing the appeals, this Court, HELD: 1.
"Depreciation" is one of the notional allowances which expression means a deduction in respect an outgoing which is not an item of actual expenditure or is one which cannot be treated as an outgoing of a revenue nature permitted by the statute to be deducted in the computation of the profits and gains of a business.
[921H 922B] 2.
Initially, the depreciation allowances has to be deducted from the profits and gains of the business to which the assets earning the depreciation relate but, if it remains unabsorbed by such profits, the allowance has to be set off against the other business income of the assessee and, where that is also insufficient, against the other taxable income of the assessee.
The carry forward of any depreciation as unabsorbed cannot arise until the stage of final assessment is reached and the total income of the assessee otherwise computed is insufficient to absorb the year 's depreciation allowance.
[928E G] 3.
An unabsorbed depreciation is a part of the "loss".
This is so because, in the first place, "depreciation" is a normal outgoing, though in a sense notional, which has to be debited in the computation of the profits of a business on commercial principles (quite apart from statute) and it is difficult to see why, when such deduction yields a negative figure of profits, it cannot be a "loss" as generally understood.
Where the depreciation allowance attributable to a particular business exceeds the profits otherwise computed for that business, the deduction of the depreciation allowance from such profits can only result in a "loss" from that business and a business loss has to be set off against income 912 from any other business, by way of intra head adjustment, under section 70 and the income under any other head, by way of intra head adjustment, under section 71.
This is implicit in the provision that the excessive depreciation of one business can be "given effect toll against the profits and gains of another business in the same year and has been recognised by decisions holding that it can be set off against income from other heads.
If unabsorbed depreciation is treated as a genus totally different from a "loss", there is no statutory provision that will permit its adjustment against other business income implicit in section 32(2) itself and against all other income of the assessee.
"Loss" and "unabsorbed depreciation" should not be treated as antithetical to, or mutually exclusive of, each other.
However, there is nothing anomalous or absurd in the statute providing for a dissection of the amount of loss for purposes of carry forward and providing for a special or different treatment to unabsorbed depreciation in this regard although it is a component element of the genus described as "loss" [931B C, 926C E, 93IC F] 4.
Unabsorbed losses and unabsorbed depreciation are to be carried forward to future years to be set off against future income.
There is, however, one important difference.
Unabsorbed losses can be carried forward only for a period of eight years whereas unabsorbed depreciation can be carried forward indefinitely.
[923G H] 5.
There is also difference between the two in the matter of their carry forward in the case of assessment of a registered firm.
In this case, the unabsorbed loss cannot be carried forward by the firm at all.
The statute clearly so provides.
So far as unabsorbed depreciation is concerned, three alternatives are possible to be urged: (i) It should be retained (without apportionment) and carried forward by the firm only.
(ii) It should be apportioned among the partners.
Thereafter, it can be dealt with even for carry forward purpose only in the assessment of each of the partners in respect of his aliquot share thereof.
(iii) It should be apportioned among the partners each of whom may set off his share thereof against his other income.
If, after this, any amount remains unabsorbed, it will revert to the firm.
The firm will carry it forward, set it off against its other income in the succeeding year.
This operation will be repeated every year indefinitely until the unabsorbed depreciation gets absorbed.
[924B E] 6.
The third alternative is the correct one: (a) The unabsorbed depreciation should be allocated among the partners and, like any other loss, will be available to the partners to the extent of his share therein for set off against his business income or other income in the same 913 assessment year.
In fact section 32(2), in so far as it talks of depreciation being given effect to in the partners ' assessments recognises that such unabsorbed depreciation should be allocated among the partners.
The question is what is to be done thereafter.
[932A B] (b) When there is nothing in the sub section or the Act specifically providing even for an apportionment of the depreciation among the partners, it is too contrived a construction to read into the sub section several words intended to provide for a number of partners, each carrying forward his share of the unabsorbed depreciation to successive assessment years.
It seems natural and reasonable to construe the section as envisaging the following steps where the assessee is a registered firm: (i) Excessive depreciation should be adjusted in the assessment of the assessee against other business income and against other heads of income; (ii) Depreciation, which remains unabsorbed under (i), will be apportioned to the partners and the share of each will be adjusted against the business and other income of each of the partners pro tanto; (iii) If full effect cannot be given to the depreciation allowance of the assessee by the above processes and some depreciation remains unadjusted, the assessee firm will carry it forward to the succeeding assessment year.
[934C G] (c) The sub section, before its 1953 amendment, permitted all assesses and this included registered firms as well to carry forward their unabsorbed depreciation so that though the registered firm paid no tax, it could, on the language claim a carry forward of the depreciation which had been apportioned among the partners.
This resulted in such carry forward being claimed even where the whole or a part of the unabsorbed depreciation of the firm had been set off in the assessment of individual partners.
The amendment only seeks to make it clear that such carry forward will not be permitted to the extent it has been given effect to in the partners ' assessments; by necessary implication, the carry forward, to the extent it has not been effectively allowed to the partner, continues to be available.
The amendment of 1953, therefore, does not help the case of the Revenue.
[935F 936A] (d) The objection to the above course is also based on a mental imagery of the firm and its partners as altogether different assesses 914 and of the impermissibility of "bringing back" to the firm 's "file" what has gone away to the* files of the partners.
This approach of viewing the two assessments in water tight compartments for all purposes is not correct.
In any event, any such theoretical dichotomy cannot prevail over the provisions of section 32(2).
[934G 935A] (e) The construction suggested does not result in any double advantage to the partners.
[936D] (f) It is true that the construction may result in a certain amount of imbalance in the quantum of relief available as among different partners.
But similar imbalance is inherent in the application of any of the three possible alternatives.
[936E F] 7.
The assessee appellant firm is entitled to carry forward the unabsorbed depreciation computed for the assessment year 1967 68 and have it set off in its assessment for the assessment year 1968 69.
The unabsorbed loss for the assessment year, 1967 68, however, cannot be carried forward by the firm to be set off in its assessment for the assessment year 1968 69.
[937A B] K. T. Wire Products vs Union of India, ; Garden Silk Weaving Factory, ; Garden Silk Weaving Factory, C. I. T. vs Ram Swarup Gupta, ; Raj Narayan Aggarwala vs C.I.T., [1979] 75 ITR I (Del.); Shankaranarayana Construction Co. vs C. I. T., ; Ballarpur Collieries Co. vs C.I.T., ; C. 1.
T. vs Nagpur Gas & Domestic Appliances, ; CIT vs Nagapattinam Import and Export Corp., ; CIT vs Madras Wire Products, ; CIT vs Madras Wire Products, ; CIT vs J. Patel & Co., ; CIT vs Shrinivas Sugar Co., ; CIT vs Singh Transport Co., ; Pearl Wollen Mills vs CIT, ; CIT vs Mahavir Steel Rolling Mills, & H) and CIT vs R. J. Trivedi & Sons, , referred to.
IT vs Jaipuria China Clay Mines (P.) Ltd., and Rajapalayam Mills Ltd. vs C. I. T., , followed. |
Civil Appeal Nos.
3446 & 3447 of 1987.
From the Judgment and Order dated 11.3.87 of the High Court of Allahabad in Civil Misc.
Writ Petition No. 6789 of 1982.
Satish Chandra, Ms. Purnima Bhat and E.C. Agarwala for the Appellants.
P.P. Rao, B.D. Agarwal, P.K. Chakraverty, Ms. Sandhya Goswami and R.C. Verma for the Respondents.
The Judgment of the Court was delivered by OJHA, J.
These two appeals have been preferred against the judgment dated 11th March, 1987 of the Allahabad High Court in Writ 186 Petition No. 6789 of 1982.
In the said writ petition a Notification dated 20th May, 1982 issued under Section 4(1) read with Section 17(4) of the Land Acquisition Act, 1894 (hereinafter referred to as the Act) and also the consequential Notification dated 21st May, 1982 under Section 6 of the Act with regard to Plot No. 289 with an area of 3 bighas 14 biswa situate in village Kukra, District Muzaffarnagar in the State of Uttar Pradesh were challenged by Ratan Prakash Mangal and Kuldeep Singh who are Respondents 1 and 2 in Civil Appeal No. 3446 of 1987 and the appellants in Civil Appeal No. 3447 of 1987.
For the sake of convenience these two persons shall hereinafter be referred to as Respondents 1 and 2.
The Notification under Section 4(1) of the Act was quashed in part in so far as it invoked Section 17(4) of the Act and thereby dispensed with inquiry under Section 5A of the Act whereas the Notification under Section 6 was quashed as a whole with regard to the aforesaid Plot No. 289.
Civil Appeal No. 3446 of 1987 has been preferred by the Krishi Utpadan Mandi Samiti, Muzaffarnagar for whom the aforesaid plot had been acquired with a prayer that the judgment of the High Court may be set aside.
Civil Appeal No. 3447 of 1987 on the other hand has been preferred by Respondents 1 and 2 asserting that even the Notification under Section 4(1) of the Act should have been quashed by the High Court in its entirety and not only in so far as it invoked Section 17(4) of the Act.
Before dealing with the respective submissions made by learned counsel for the parties it is necessary to give some more facts.
Initially a Notification dated 20th March, 1975 was issued under Section 4(1) of the Act for acquiring nearly 80 acres of land for the public purpose of construction of a market yard for the appellant, Krishi Utpadan Mandi Samiti, Muzaffarnagar.
About 5 months thereafter, however, this Notification was superseded and another Notification was issued under Section 4(1) with regard to only 60 acres of land.
The Notification issued on 20th March, 1975 included Plot No. 289 aforesaid whereas the subsequent Notification which is dated 30th August, 1975 did not include the said plot along with several other plots.
Subsequently, however, another Notification was issued on 26th October, 1978 under Section 4(1) read with Section 17(4) of the Act with regard to 19.47 acres of land including Plot No. 289.
This Notification really seems to be with regard to that portion of land which even though included in the earlier Notification dated 20th March, 1975 had been excluded in the subsequent Notification dated 30th August, 1975.
The Notification dated 26th October, 1978 was followed by a Notification under Section 6 dated 27th October, 1978.
About four months prior to the issue of these Notifications Respondents 1 and 2 had purchased 187 Plot No. 289 aforesaid on 7th June, 1978, The purpose for which Respondents 1 and 2 purchased Plot No. 289 was shown by them in their writ petition filed before the High Court as construction of a residential colony.
According to them in furtherance of that purpose they executed three sale deeds one each on 10th November, 1978, 16th November, 1978 and 7th December, 1978.
The first of these three sale deeds had been executed in favour of one Smt.
Dhanwanti Agarwal, the second one in favour of Smt.
Santosh Kumari and the third one in favour of Shri Janardhan Das and Ram Kumar.
The writ petition filed by Respondents 1 and 2 in the High Court indicates that Smt.
Dhanwanti Agarwal and Smt.
Santosh Kumari were wives of two gazetted officers and the third purchaser Ram Kumar too was a Government servant.
The Respondents 1 and 2 challenged the Notification dated 26th October, 1978 and 27th October, 1978 referred to above before the High Court in Writ Petition No. 163 of 1979.
The plea raised by them was that there was no urgency and consequently the inquiry contemplated by Section 5 A of the Act could not be dispensed with by invoking Section 17(4) thereof.
This plea found favour with the High Court and the two Notifications mentioned above were quashed on 6th June, 1979 in so far as Plot No. 289 was concerned.
This judgment of the High Court was challenged by the Krishi Utpadan Mandi Samiti, Muzaffarnagar before this Court in Civil Appeal No. 2970 of 1979.
This Court agreed with the High Court in so far as it had held that the urgency clause had been wrongly applied.
But it was held that on that ground even though quashing of the Notification under Section 6 of the Act was justified the High Court was not right in quashing the Notification under Section 4(1) in its entirety.
On this view the appeal was allowed in part and the judgment of the High Court was set aside in so far as it quashed the Notification under Section 4(1) of the Act in its entirety.
The rest of the judgment was, however, maintained with a direction "that copies of the Notifications be served personally on Respondents Nos. 1 and 2 and their transferees so that Respondents Nos. 1 and 2 and their transferees may have an opportunity to file their objections to the proposed acquisition within three weeks from the date of service of the copy of the notification upon each of them.
The appropriate authority will then hold an inquiry into the objections under Section 5A and proceed with the matter in accordance with law.
Since the appellant has obtained possession of the land from Respondent Nos. 1 and 2 and their transferees by invoking the urgency clause which has been set aside, the appellant will restore possession of the same to Respondents Nos. 1 and 2 and their transferees within a week from today.
" 188 In pursuance of the aforesaid direction inquiry under Section 5A of the Act was made and the Land Acquisition Officer after giving the parties an opportunity to file their objections and produce evidence and hearing the arguments of their learned counsel, submitted a report on 20th January, 1981, that is, after about 15 months of the direction referred to above issued by this Court in Civil Appeal No. 2970 of 1979.
The report submitted by the Land Acquisition Officer was to the effect that Plot No. 289 may be exempted from acquisition.
In submitting the said report, a copy of which has been placed on record, it appears that the Land Acquisition Officer was impressed mainly by two circumstances: (1) That Smt.
Dhanwanti Agarwal and Smt.
Santosh Kumari who had purchased portions of Plot No. 289 had made a declaration saying that there was no house in their names in Muzaffarnagar and (2) that even though Mandi Samiti had constructed a building it was lying idle inasmuch as no trader was prepared to shift to these premises.
The Government, as is apparent from the counter affidavit filed on its behalf in this Court as also from the original record which was produced before us, did not seem to agree with the report of the Land Acquisition Officer and issued the Notifications which are the subject matter of the present appeals.
We shall deal with the details in this behalf as also with regard to the delay between 20th January, 1981, the date of the report and 20th May, 1982, the date of the issue of Notification under Section 4(1) of the Act while considering the submissions made by learned counsel for the parties on this point.
It was urged by learned counsel for the appellant that even Plot No. 289 was urgently needed by the appellant and the High Court has erred in taking a contrary view and holding that dispensing with inquiry under Section 5A was not bona fide or rational.
For the Respondents 1 and 2 on the other hand it was urged by their learned counsel that consequent upon the report of the Land Acquisition Officer dated 20th January, 1981 in proceedings under Section 5A of the Act to the effect that Plot No. 289 may be exempted from the acquisition, it was incumbent upon the Government to give a decision in this behalf as contemplated by the said Section 5A and until a decision was given, the direction of this Court referred to above given in Civil Appeal No. 2970 of 1979 remained unimplemented and the issue of fresh Notifications under Sections 4(1) and 6 was in colourable exercise of power.
In this connection it was pointed out that the only course open to the Government was to give a decision that notwithstanding the report of the Land Acquisition Officer dated 20th January, 1981 it was necessary to acquire Plot No. 289 and to issue a 189 Notification under Section 6 of the Act on the basis of such decision in continuation of the earlier Notification dated 26th October, 1978 under Section 4(1) of the Act.
According to him since the Notification dated 26th October, 1978 had initially been quashed by the High Court in its entirety on 6th September, 1979 in so far as Plot No. 289 is concerned and was partly maintained by this Court vide its judgment in Civil Appeal No. 2970 of 1979 with a direction to make inquiry under Section 5A of the Act and to proceed thereafter in accordance with law, the second proviso to Section 6(1) of the Act as inserted by the State of Uttar Pradesh by the Land Acquisition (U.P. Amendment) Act 28 of 1972 was clearly attracted.
It was urged that since the said proviso contemplated that in computing the period of three years for issuing a Notification under Section 6 prescribed by the first proviso to sub section (1) thereof the time during which the State Government was prevented by or in consequence of any order of any court from making such declaration shall be excluded, it was open to the State Government to issue a Notification under Section 6 even on 20th May, 1982 when the fresh Notification under Section 4(1) was issued and the issue of the fresh Notification under Section 4(1) invoking Section 17(4) of the Act was not bona fide and was apparently a case of colourable exercise of power.
It was also pointed out by learned counsel for the Respondents 1 and 2 that undue delay had been caused in issuing the fresh Notification under Section 4(1) of the Act on 20th May, 1982 after the report of the Land Acquisition Officer dated 20th January, 1981 which itself indicated that there was no occasion for invoking Section 17(4) of the Act.
In this connection it was further submitted by learned counsel for the Respondents 1 and 2 that no material change in the factual position had taken place between 20th January, 1981 and 20th May, 1982 and for this reason also Section 17(4) of the Act could not have been invoked.
According to learned counsel there was in any case no justification for the Government to include even that portion of the land other than Plot No. 289 which was the subject matter of Notifications dated 26th October, 1978 and 27th October, 1978 and with regard to which the said Notifications had not been quashed.
According to him the Government by including that portion of the land also in these Notifications dated 20th and 21st May, 1982 really took steps to acquire its own land which indicated lack of application of mind at the time of issuing these Notifications.
On the basis of these submissions it was urged by learned counsel for the Respondents 1 and 2 that not only the judgment of the High Court under appeal deserved to be confirmed, Civil Appeal No. 3447 of 1987 filed by Respondents 1 and 2 deserves to be allowed and the Notification dated 20th May, 1982 under Section 4(1) of the Act deserves to be quashed in its 190 entirety in substitution of the judgment of the High Court quashing the same only in so far as it invoked Section 17(4) of the Act.
Having heard learned counsel for the parties we are of the opinion that Civil Appeal No. 3446 of 1987 filed by the Krishi Utpadan Mandi Samiti, Muzaffarnagar deserves to be allowed and as a consequence thereof Civil Appeal No. 3447 of 1987 filed by the Respondents 1 and 2 deserves to be dismissed.
At this place another intervening circumstance may be noticed.
A Notification dated 20th November, 1981 was issued by the State Government under clause (b) of subsection (2) of Section 7 of the Uttar Pradesh Krishi Utpadan Mandi Adhyniyam, 1964 (hereinafter referred to as U.P. Act No. 25 of 1964) declaring that with effect from the date of publication of the Notification in the Gazette the wholesale transactions of agricultural produce in respect of Muzaffarnagar market area specified in Schedule A shall be conducted only on the place within the Muzaffarnagar Principal Market Yard.
A copy of this Notification forms part of the record of Civil Appeal No. 3446 of 1987 and it indicates that Schedule A thereto contains 54 commodities of agricultural produce.
The effect of the issue of the said Notification was that dealers of the said 54 commodities had to shift their existing place of business to the Principal Market Yard.
An association of traders in gur, khandsari and foodgrains, namely, the Gur, Khandsari and Grain Merchants Association (Regd.), Muzaffarnagar filed Writ Petition (Civil) No. 1318 of 1982 in this Court challenging the aforesaid Notification.
The grievance of the petitioners was that once the impugned Notification became operative no one could carry on wholesale business in the specified agricultural produce except at a place declared as a Market yard and any business being carried on at any other place would be contrary to law rendering persons carrying on such business liable to prosecution.
According to the petitioners in this view of the matter and in view of the circumstance that in the new Market Yard mentioned in the Notification shops were not available, the whole business of the petitioners would be ruined if the said Notification was implemented.
Notices were issued to the respondents and statements were made by learned counsel appearing for the concerned respondents that the Mandi Samiti had undertaken planned programme of constructing shops and that 120 more shops can be constructed within two months apart from the shops which had been constructed and allotted to the intending traders and dealers.
On the basis of the aforesaid statements this Court ordered on 2nd March, 1982: 191 "We, therefore, record the statements of Mr. Rana and Mr. Garg that within a period of six months from today the Samiti will construct required number of shops.
If some vacant shops are available proceedings for allotment must be taken forthwith.
Those of the traders/dealers who are allotted shops must shift to the notified market yard within a week from the date of the receipt of the allotment order.
Till any trader/dealer is not allotted a shop he can carry on his business in the old market yard and is not to be prosecuted, on the ground that he is doing business in the old market yard which is denotified.
" A further direction was given that the shops to be constructed must be in accordance with the plan according to which the existing shops had been constructed.
The impugned Notification dated 20th May, 1982 under Section 4(1) of the Act contained inter alia the following recital as is apparent from a copy thereof placed on the record of Civil Appeal No. 3446 of 1987: "Being of the opinion that the provisions of sub section (1) and (1A) of section 17 of the Act are applicable to the said land inasmuch as the said land which is arable and banjar Atirikt is urgently required for the construction of market yard of Krishi Utpadan Mandi Samiti, Muzaffarnagar under a planned development scheme and that in view of the directions of the Supreme Court additional shops are to be constructed most urgently.
It is as well necessary to eliminate the delay likely to be caused by an enquiry under Section 5A of the said Act.
" In the counter affidavit filed on behalf of the State of U.P. which forms part of Civil Appeal No. 3447 of 1987 it has been stated that after the receipt of the report of the Land Acquisition Officer dated 20th January, 1981 the State Government called for comments from the Director, Mandi Parishad, Uttar Pradesh, who vide his letter dated 27th June, 1981 informed the State Government that Plot No. 289 deserved to be acquired and there was no justification to release it from acquisition.
After the said letter had been received Smt.
Dhanwanti Agarwal, one of the vendees from Respondents 1 and 2 referred to above requested the State Government vide her letter dated 2nd September, 1981 to reconsider the matter.
On the receipt of 192 the said letter a meeting was convened at Government level on 16th November, 1981 attended by the District Magistrate, Muzaffarnagar, Agriculture Secretary and Director, Mandi Parishad.
In pursuance of the deliberations of that meeting the District Magistrate was requested to look into the matter and send his comments vide letter dated 21st November, 1981 and in response to that letter the District Magistrate vide his letter dated 3rd December, 1981 informed the State Government that for reasons stated therein it was not advisable to exempt or exclude Plot No. 289 from the acquisition proceedings.
Copies of these letters have been annexed to the counter affidavit.
In his letter dated 3rd December, 1981 the District Magistrate inter alia pointed out that the land of Plot No. 289 was situated in the middle of the land acquired under the Notifications in question and that it was necessary to acquire the land of the said plot also for a smooth construction of the market yard.
The District Magistrate by his letter made a request that Notification under Section 6(1) of the Act may be issued immediately.
The counter affidavit further indicates that while the matter was under consideration Smt.
Santosh Kumari the other vendee from Respondents 1 and 2 referred to above made an application before the State Government stating that Plot No. 289 should not be acquired in view of the report of the Land Acquisition Officer and further that since the Notification dated 26th October, 1978 under Section 4(1) had been published on 25th November, 1978 and a period of three years had elapsed any acquisition would be invalid.
We have already indicated above that the original record was produced before us by learned counsel appearing for the State Government and from its perusal it appeared that after Smt.
Santosh Kumari had made the said application the question as to whether a Notification under Section 6(1) of the Act could be issued in continuation of the Notificition dated 26th October, 1978 under Section 4(1) of the Act came up for consideration before the State Government.
The matter was ultimately referred to the Law Department.
The record further indicated that there appeared to be a divergence of opinion in regard to the applicability of the second proviso to Section 6(1) of the Act inserted by the State of U.P. and the ultimate view which prevailed was that it was expedient to issue a fresh Notification under Section 4(1) also and it was thus that in place of issuing a Notification under Section 6(1) in continuation of the Notification dated 26th October, 1978 under Section 4(1), fresh Notifications both under Sections 4(1) and 6 of the Act were issued on 20th May, 1982 and 21st May, 1982 respectively.
The original record also indicated that after the receipt of the report of the Land Acquisition Officer the file was 193 moving above for sometime to ensure as to whether possession over Plot No. 289 had been restored back or not in pursuance of the direction of the Supreme Court in Civil Appeal No. 2970 of 1979 and to take steps to ensure compliance of the said direction.
As seen above it was the own case of Respondents 1 and 2 in their writ petition before the High Court that Smt.
Dhanwanti Agarwal and Smt.
Santosh Kumari were wives of two gazetted officers.
In the counter affidavit which was filed on behalf of the Krishi Utpadan Mandi Samity, Muzaffarnagar in the said writ petition it was stated in paragraph 20 with regard to the report of the Land Acquisition Officer dated 20th January, 1981 that some of the land being of gazetted officers, they succeeded in exerting pressure on the Land Acquisition Officer to submit a wrong report.
As already pointed out in the counter affidavit filed on behalf of the State Government in this Court reference has been made to the two letters given by Smt.
Dhanwanti Agarwal and Smt.
Santosh Kumari on the basis of which further inquiry had to be made by the State Government and ultimately a decision had to be taken that in place of issuing a Notification under Section 6(1) of the Act in continuation of the Notification dated 26th October, 1978 under Section 4(1) fresh Notifications under Sections 4(1) and 6 may be issued.
The original record which was produced before us also indicated that at no stage after the receipt of the report of the Land Acquisition Officer dated 20th January, 1981 had the Government taken a decision that it was not necessary to acquire the plot.
Indeed, as seen above, the Government was not inclined to agree with the report of the Land Acquisition Officer because had it been so there would have been no occasion either for calling for a report from the Director Mandi Parishad or convening a meeting to consider the matter or to require the District Magistrate to submit his own report.
After making necessary inquiries the Government ultimately decided not to release Plot No. 289 from acquisition proceedings.
However, before a Notification could be issued under Section 6(1) of the Act in continuation of the Notification dated 26th October, 1978 under Section 4(1) a question was raised by Smt.
Santosh Kumari that three years having expired from the date of the publication of the Notification under Section 4(1) Plot No. 289 could not be acquired in pursuance of the said Notification.
The Government thereafter referred the matter to the Law Department and it was ultimately decided to issue fresh Notifications under Sections 4(1) and 6 of the Act.
There seems to be no doubt with regard to the legal position that 194 the report dated 20th January, 1981 submitted by the Land Acquisition Officer was not binding on the State Government and it was still open to it to continue the proceedings for acquisition of Plot No. 289 notwithstanding the said report.
The reason why in place of issuing a Notification under Section 6(1) of the Act in continuation of the Notification dated 26th October, 1978 under Section 4(1) fresh Notifications under Sections 4 and 6 had to be issued as also the reason for the delay in issuing the fresh Notifications have already been indicated above.
As regards the submission that Section 17(4) of the Act has been erroneously invoked in the fresh Notification under Section 4(1) dated 20th May, 1982 also and that inquiry under Section 5A had again to be made before issuing this Notification, suffice it to point out that once an inquiry under the said Section had already been made and the parties had been given full opportunity to substantiate their case in the said inquiry and the State Government was not inclined to agree with the report of the Land Acquisition Officer submitted in pursuance of that inquiry it would have been a futile exercise to repeat the whole performance again.
After the issue of the earlier Notification dated 26th October, 1978 a period of nearly 3 1/2 years had expired when the fresh Notification dated 20th May, 1982 under Section 4(1) was issued and apparently the necessity to acquire Plot No. 289 during this period became more acute due to this delay.
Further, as stated in the Notification dated 20th May, 1982 itself the urgency had become more imminent on account of the direction issued by this Court on 2nd March, 1982 in Writ Petition No. 1318 of 1982 filed by the traders challenging the Notification under Section 7(2)(b) of U.P. Act No. 25 of 1964.
Consequently, we find it difficult to hold that the opinion of the State Government that it was a fit case to invoke Section 17(4) of the Act was invalid on the ground that there was no basis or material in support of that opinion.
We are further of the view that on the facts indicated above it is also not possible to hold that the Notification dated 20th May, 1982 had been issued by the State Government in colourable exercise of its power.
At this place it would be relevant to notice that the Notifications dated 20th May, 1982 and 21st May, 1982 had not been challenged by Respondents 1 and 2 on the basis of mala fides of any particular officer of the State Government.
What was urged was that it was a case of legal mala fides inasmuch as in issuing the fresh Notification dated 20th May, 1982 under Section 4(1) of the Act, an attempt was made by the State Government to circumvent the direction issued by this Court in Civil Appeal No. 2970 of 1979 to make inquiry under Section 5A of the Act and to proceed thereafter in accordance with law.
Suffice it to say, 195 so far as this submission is concerned that the State Government in pursuance of the aforesaid direction given by this Court did make an inquiry under Section 5A of the Act and in the said inquiry full opportunity was given to the concerned parties to substantiate their case.
It is, therefore, difficult to agree with the submission of learned counsel for Respondents 1 and 2 that an attempt was made by the State Government to circumvent the direction of this Court.
As seen above, the State Government was not bound to agree with the report of the Land Acquisition Officer and it has not been disputed even by learned counsel for the respondents that it was open to the State Government to take a contrary decision and to issue a Notification under Section 6(1) of the Act on the receipt of the report dated 20th January, 1981 of the Land Acquisition Officer.
That the State Government in the instant case was not inclined to agree with the report of the Land Acquisition Officer has already been indicated above.
The reasons for the delay in taking further steps as also for issuing fresh Notifications under Sections 4(1) and 6 have also been indicated.
On these facts we are of the opinion that a case of even legal mala fides is not made out.
The decision of this Court in the case of State of Punjab vs Gurdial Singh & Ors., [1980] 1 S.C.R. page 1071 on which reliance has been placed by learned counsel for Respondents 1 and 2 is of no assistance inasmuch as the plea of mala fides in that case was based on personal malice.
So also is the position with regard to the decision of this Court in The Collector (Distt.
Magistrate) Allahabad and Anr.
vs Raja Ram Jaiswal etc., [1985] 3 S.C.R. Page 995.
That was a case where land had been acquired for a cinema theatre in the vicinity of the building housing the Hindi Sahitya Sammelan.
It was pointed out that the power to acquire land is to be exercised for carrying out the public purpose.
If the authorities of the Sammelan cannot tolerate the existence of a cinema theatre in its vicinity it could not be said that such a purpose would be a public purpose.
May be, the authority of the Sammelan may honestly believe that the existence of a cinema theatre may have the pernicious tendency to vitiate the educational and cultural environment of the institution and therefore, it will like to wish away a cinema theatre in its vicinity.
But that hardly constitutes public purpose.
Such is not the situation in the instant case.
The learned counsel for Respondents 1 and 2 in support of his submission that since this Court by its order dated 22nd October, 1979 in Civil Appeal No. 2970 of 1979 had issued a direction to hold an inquiry under Section 5A of the Act and to proceed with the matter in accordance with law it was incumbent on the Government to take a decision that notwithstanding the report of the Land Acquisition 196 Officer dated 20th January, 1981 it was necessary to acquire Plot No. 289, placed reliance on the decision of this Court in P.L. Lakhanpal vs Union of India & Ors., [1967] 1 S.C.R. page 433 where while dealing with Rule 30A of the Defence of India Rules, 1962 it was held that according to dictionary "decision" means "settlement, (of question etc.), conclusion, formal judgment, making up one 's mind, resolve, resoluteness, decided character." and on Siemens Engineering & Manufacturing Co. of India Limited vs Union of India & Anr., [1976] (Supplementary) S.C.R. page 489 where while dealing with the provisions of the Indian Customs Tariff it was held that if courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative Law, they may have to be replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them.
Reliance was placed on some other cases also but we do not find it necessary to deal with them in detail inasmuch as to us it appears firstly, that the Government in the instant case was all through of the opinion that Plot No. 289 did not deserve to be released from acquisition as already indicated above.
Secondly, this plea loses its significance and becomes almost of academic value inasmuch as the State Government in the instant case has not issued a Notification under Section 6(1) of the Act in continuation of the Notification dated 26th October, 1978 under Section 4(1).
After the issue of the fresh Notifications under Sections 4(1) and 6, what is really to be seen is whether there was justification for invoking Section 17(4) of the Act or not.
We have already indicated above that there was such justification.
In support of the submission that there was no material change in the factual position between 20th January, 1981 and 20th May, 1982, learned counsel for the Respondents 1 and 2 has urged that the direction contained in the judgment of this Court dated 2nd March, 1982 in Writ Petition No. 1318 of 1982 filed by the traders was confined to the question of allotment of 200 shops only.
And since the land which had already been acquired was sufficient for constructing as many shops it was not necessary to acquire Plot No. 289.
As seen above, the Notification under Section 7(2)(b) of the U.P. Act No. 25 of 1964 which had been challenged before this Court in Writ Petition No. 1318 of 1982 was in regard to 54 commodities.
The writ petition aforesaid had been filed by an association of traders dealing in gur, khandsari and foodgrains only.
Even though technically it may be said that the direction issued by this Court was relevant with regard to about 200 shops only, 197 in substance, however, that does not appear to be the correct position.
The effect of the direction issued by this Court was that no trader could be compelled to come to the market yard unless shops were provided.
The Krishi Utpadan Mandi Samiti, Muzaffarnagar could not afford to act contrary to this direction with regard to any of the traders who were dealing in any of the aforesaid 54 commodities.
As seen above, one of the two main circumstances relied upon by the Land Acquisition Officer in giving his report dated 20th January, 1981 was that no trader was willing to come to the premises which had already been constructed and were lying idle.
This circumstance had ceased to exist with the issue of the Notification under Section 7(2) of the U.P. Act No. 25 of 1964 as a consequence whereof on shops being made available in the market yard all the traders doing wholesale business in the 54 commodities mentioned in the Notification were bound to shift to the shops in the market yard.
For this provision had to be made by the Krishi Utpadan Mandi Samiti, Muzaffarnagar.
In paragraph 15 of the counter affidavit filed on behalf of the Krishi Utpadan Mandi Samiti, Muzaffarnagar in the writ petition in the High Court it was stated that the Mandi Samiti had completed construction of 120 shops and there was further scope for constructing only 90 more shops in the 60 acres of land originally acquired whereas Mandi Samiti had to construct 540 shops.
In this Court a supplementary affidavit has been filed on behalf of the said Mandi Samiti in which it has been stated that so far 348 shops had been constructed and 4 shops are incomplete on account of the impugned judgment of the High Court relating to Plot No. 289.
A site plan has been attached as Annexure D indicating that land on three sides of Plot No. 289 has already been acquired and on the fourth side lies a road.
Annexure E to the said supplementary affidavit is a sketch map indicating the various requirements of the Mandi Samiti in connection with the construction of the market yard.
The said sketch plan indicates that apart from construction of shops provision has been made for roads and parking grounds, godowns, auction platforms, open space in front of the shops, staff quarters, rest house, police chowki, check post, a building for bank as well as a post office, toilets, canteens and so on.
The affect of the Notification under Section 7(2) of U.P. Act No. 25 of 1964 is that wholesale business in 54 commodities mentioned therein can be carried out only in the principal market yard.
It is common knowledge that trucks, tractors with trollies and even bullock carts are used for transporting the various commodities to the principal market yard.
To accommodate them provision has necessarily to be made for roads and parking grounds etc.
Likewise, arrangement has also to be made for storage of the various commodities and for their auction as well as for lodging 198 such of the cultivators, drivers, cleaners etc.
who may have to stay on due to the exigencies of the situation.
Some if not all employees attached with the principal market yard have to be provided with accommodation.
Section 19 of U.P. Act No. 25 of 1964 deals with Market Committee funds and its utilisation.
Sub section (3)(vii) authorises the Market Committee to utilise its funds for payment of "cost of construction and repairs of buildings necessary for the market yards and for the health, convenience and safety for the persons using them".
It gives clue to the nature of some of buildings which are to be constructed by a Market Committee and for which land has to be provided for.
The requirement of the Mandi Samiti, therefore, has to be construed in this background and not in isolation with regard to its requirement for land to be covered by shops alone.
Apparently, therefore, there has been a material change in the circumstances after the report of the Land Acquisition Officer dated 20th January, 1981 so as to justify Section 17(4) of the Act being invoked.
In this connection reliance was placed by learned counsel for the Respondents 1 and 2 on the decision of this Court in Narayan Govind Gavate etc.
vs State of Maharashtra, [1977] 1 S.C.R. page 763 where dealing with Section 17(4) of the Act it was pointed out that the purpose of the said section was obviously not merely to confine action under it to waste and arable land but also to situations in which an inquiry under Section 5A will serve no useful purpose or for some overruling reason which should be dispensed with.
The mind of the officer or authority concerned has to be applied to the question whether there is an urgency of such a nature that even the summary inquiry under Section 5A of the Act should be eliminated.
It is not just the existence of an urgency but the need to dispense with an inquiry under Section 5A which is to be considered.
It was also held in that case that the development of an area for industrial and residential purposes in itself, on the face of it does not call for any such action barring exceptional circumstances, as to make immediate possession without holding even a summary inquiry under Section 5A of the Act, imperative.
On the other hand such schemes generally take sufficient period of time to enable summary inquiry under Section 5A of the Act to be completed without any impediment whatsoever to the execution of the scheme.
The aforesaid decision was considered in a subsequent decision of this Court in State of U.P. vs Pista Devi, ; and it was distinguished.
It was held: "Now it is difficult to hold that in the case of proceedings relating to acquisition of land for providing house sites it is unnecessary to invoke Section 17(1) of the Act and to dispense with the compliance with Section 5A of the Act.
199 Perhaps, at the time to which the decision in Narayan Govind Gavate vs State of Maharashtra, ; related the situation might have been that the schemes relating to development of residential areas in the urban centres were not so urgent and it was not necessary to eliminate the inquiry under Section 5A of the Act.
The acquisition proceedings which had been challenged in that case related to the year 1963.
During this period of nearly 23 years since then the population of India has gone up by hundreds of millions and it is no longer possible for the Court to take the view that the schemes of development of residential areas do not `appear to demand such emergent action as to eliminate summary inquiries under Section 5A of the Act '.
In Kasireddy Papaiah (died) vs Government of A.P., AIR 1975 AP 269: Chinnappa Reddy, J. speaking for the High Court of Andhra Pradesh dealing with the problem of providing housing accommodation to Harijans has observed thus: That the housing conditions of Harijans all over the country continue to be miserable even today is a fact of which courts are bound to take judicial notice.
History has made it urgent that, among other problems, the problem of housing Harijans should be solved expeditiously.
The greater the delay the more urgent becomes the problem.
Therefore, one can never venture to say that the invocation of the emergency provisions of the Land Acquisition Act for providing house sites for Harijans is bad merely because the officials entrusted with the task of taking further action in the matter are negligent or tardy in the discharge of their duties, unless, of course, it can be established that the acquisition itself is made with an oblique motive.
The urgent pressures of history are not to be undone by the inaction of the bureaucracy.
I am not trying to make any pontific pronouncements.
But I am at great pains to point out that provision for house sites for Harijans is an urgent and pressing necessity and that the invocation of the emergency provisions of the Land Acquisition Act cannot be said to be improper, in the absence of mala fides, merely because of the delay on the part of some government officials.
(italicising by us) 200 What was said by the learned Judge in the context of provision of housing accommodation to Harijans is equally true about the problem of providing housing accommodation to all persons in the country today having regard to the enormous growth of population in the country.
The observation made in the above decision of the High Court of Andhra Pradesh is quoted with approval by this Court in Deepak Pahwa vs Lt. Governor of Delhi, ; even though in the above decision the Court found that it was not necessary to say anything about the post notification delay.
We are of the view that in the facts and circumstances of this case the post notification delay of nearly one year is not by itself sufficient to hold that the decision taken by the State Government under Section 17(1) and (4) of the Act at the time of the issue of the notification under Section 4(1) of the Act was either improper or illegal." Apart from what has been pointed out above we have already held that on the facts of the instant case there was sufficient justification for invoking the provisions of Section 17(4) of the Act and dispensing with a further inquiry under Section 5A of the Act.
With regard to the submission made by learned counsel for Respondents 1 and 2 that since land other than land of Plot No. 289 which already stood acquired had also been included in the fresh Notification dated 20th may, 1982 under Section 4(1) of the Act it indicated lack of application of mind suffice it to say that the original record produced before us by learned counsel for the State Government indicates that the deliberations which took place after the direction of this Court dated 22nd October, 1979 in Civil Appeal No. 2970 of 1979 were with regard to Plot No. 289 and the inclusion of the other land in the Notification seems to be not the result of lack of application of mind on the part of the officers concerned but dute to inadvertent copying out of the entire plots included in the Notification under Section 4(1) dated 26th October, 1978 at some clerical level and it does not in any way have the effect of invalidating the fresh Notifications with regard to Plot No. 289.
The submission about the lack of application of mind before issuing the said Notification has also, therefore, no substance.
The effect of issuing a fresh Notification under Section 4(1) and the delay in issuing it has really benefited Respondents 1 and 2 inasmuch as now they will be entitled to compensation not on the basis of the market value of Plot No. 289 as on 26.10.1978 when the earlier 201 Notification under Section 4(1) was issued but as on 20th May, 1982 when the fresh Notification under the said Section was issued.
In the result, Civil Appeal No. 3446 of 1987 is allowed, the judgment dated 11th March, 1987 of the High Court in Writ Petition No. 6789 of 1982 is set aside and the said writ petition is dismissed.
As a consequence Civil Appeal No. 3447 of 1987 is dismissed.
In the circumstances of the case there shall be no order as to costs.
S.L. C.A. No. 3446/87 is allowed and C.A. No. 3447/87 is dismissed. | These two appeals Civil Appeal No. 3446 of 1987 and Civil Appeal No. 3447 of 1987 were filed in this Court against the judgment of the High Court in the Writ Petition No. 6789 of 1982.
Ratan Prakash Mangal and Kuldip Singh, respondents Nos. 1 and 2 in the Civil Appeal No. 3446 of 1987 and the appellants in Civil Appeal No. 3447 of 1987, had filed the said writ petition challenging a notification dated 20th May, 1982, issued under section 4(1) read with section 17(4) of the Land Acquisition Act, 1894 (the Act) and also the consequential notification dated 21st May, 1982, issued under section 6 of the Act with regard to a plot No. 289.
The notification under section 4(1) of the Act was quashed in part in so far as it invoked Section 17(4) of the Act, and the notification under section 6 was quashed as a whole with regard to the said plotNo.
The Civil Appeal No. 3446 of 1987 was preferred by Krishi Utpadan Mandi Samiti, Muzaffar Nagar for which the said plot had been acquired, for setting aside the judgment of the High Court.
Civil Appeal No. 3447 of 1987 was preferred by Ratan Prakash Mangal and Kuldip Singh afore mentioned hereinafter referred to as respondents Nos. 1 & 2 asserting that the notification under section 4(1) should have been quashed by the High Court in its entirety and not only in so far it invoked section 17(4) of the Act.
Initially, a Notification dated 20th March, 1975 was issued under section 4(1) of the Act for acquiring land, including the plot No. 289, for construction of a market yard for the appellant Krishi Utpadan Mandi Samiti.
Later, this Notification was superseded by another Notification dated 30th August, 1975 issued under section 4(1) with regard to land which did not include the said plot.
Subsequently, another Notification dated 26th October, 1978, was issued under section 4(1) read with Section 17(4) of the Act with regard to land, including the plot abovementioned.
The Notification dated 26th October, 1978 was followed by 183 a Notification dated 27th October, under section 6.
Prior to the issue of these Notifications, respondents Nos. 1 and 2 had purchased the said plot No. 289.
The said respondents Nos. 1 and 2 had challenged the Notifications dated 26th October, 1978 and 27th October, 1978 by a writ petition in the High Court.
The High Court had quashed the two Notifications in so far as Plot No. 289 was concerned.
This Judgment of the High Court had been challenged by Krishi Utpadan Mandi Samiti before this Court in Civil Appeal No. 2970 of 1979.
This Court had held that even though the quashing of the Notification under Section 6 had been justified, the High Court had not been right in quashing the Notification under section 4(1) in its entirety, and had set aside the Judgment of the High Court in so far as it had quashed the Notification under section 4(1) in its entirety, while maintaining the rest of the Judgment with a direction regarding inquiry under Section 5A into the objections of the respondents Nos. 1 and 2 to the proposed acquisition etc.
In pursuance of the said direction, inquiry under section 5A had been made and the Land Acquisition Officer had submitted a report on 20th January, 1981, after about 15 months of the direction above said of this Court, to the effect that the Plot No. 289 might be exempted from acquisition.
The Government did not agree with the said report and issued the Notifications impugned in present appeals.
Allowing Civil Appeal No. 3446 of 1987, and dismissing Civil Appeal No. 3447 of 1987, the Court, ^ HELD: There was no doubt with regard to the legal position that the Report dated 20th January, 1981 of the Land Acquisition Officer was not binding on the State Government and it was still open to it to continue the proceedings for the acquisition of the Plot No. 289 notwithstanding the said report.
The Government had its reason why in place of issuing a Notification under section 6(1) of the Act in continuation of the Notification dated 26th October, 1978 under section 4(1), fresh notifications under section 4 and 6 had to be issued as also the reason for the delay in issuing the fresh Notifications, as was apparent from the record.
As regards the submission that section 17(4) of the Act had been erroneously invoked in fresh Notification under section 4(1) dated 20th May, 1982 also and that inquiry under Section 5A had again to be made before issuing this Notification, it was enough to point out that once an inquiry under the said section had already been made and the parties had been given full opportunity to substantiate their case in the enquiry and the State Government had not been inclined to agree with the 184 report of the Land Acquisition Officer submitted in pursuance of that inquiry, it would have been a futile exercise to repeat the whole performance again.
After the issue of the earlier Notification dated 26th October, 1978, a period of nearly 3 1/2 years had expired when the fresh Notification dated 20th May, 1982 above said was issued and apparently the necessity to acquire the plot No. 289 during this period became more acute due to this delay.
Further, as stated in the said Notification itself, the urgency had become more imminent on account of the direction issued by this Court on 2nd March, 1982 in Writ Petition No. 1318 of 1982 filed by the traders in gur, khandseri and foodgrains, Muzaffar Nagar, challenging the Notification under Section 7(2)(b) of the U.P. Act No. 25 of 1964.
Consequently, it was diffcult to hold that the opinion of the State Government that it was a fit case to invoke section 17(4) of the Act was invalid on the ground that there was no basis or material in support of the opinion.
On the facts of the case, it was not possible to hold that the Notification dated 20th May, 1982 had been issued by the State Government in colourable exercise of its power.
[194A F] The Notification dated 20th May, 1982 and 21st May, 1982 had not been challenged by respondents Nos. 1 and 2 on the basis of mala fides of any particular officer of the State Government.
What was urged was that it was a case of legal mala fides inasmuch as in issuing the said fresh Notification dated 20th May, 1982, an attempt had been made by the State Government to circumvent the direction of this Court issued in the Civil Appeal No. 2970 of 1979 to make inquiry under Section 5A of the Act and to proceed thereafter in accordance with law, the State Government did make an inquiry under Section 5A of the Act in pursuance of the direction of this Court after giving full opportunity to the concerned parties to substantiate their case.
It was difficult to agree with the submission of respondents 1 and 2 that the government attempted to circumvent the direction of this Court.
A case of legal mala fide was not made out.
[194G H; 195B] The Government all through was of the opinion that Plot No. 289 did not deserve to be released from acquisition.
Also, this plea lost significance and became almost of academic value inasmuch as the State Government had not issued a notification under section 6(1) of the Act in continuation of the Notification dated 26th October, 1978 under Section 4(1).
After the issue of the fresh Notification what was really to be seen was whether there was justification for invoking section 17(4) of Act or not.
There was such a justification.
There had been a material change in the circumstances after the report of the Land Acquisition 185 Officer dated 20th January, 1981, to justify Section 17(4) of the Act being invoked and to dispense with a further inquiry under section 5A of the Act.
[196D E; 198C] The submission of the respondents 1 and 2 about the lack of application of mind before issuing the Notification dated 20th May, 1982 with regard to plot No. 289 had no substance, as indicated by the original record produced by counsel for the State Government.
The effect of issuing a fresh Notification under Section 4(1) and the delay in issuing it had benefited the respondents 1 and 2 inasmuch as now they would be entitled to compensation not on the basis of market value of plot No. 289 as on 26.10.78 when the earlier Notification under Section 4(1) was issued but as on 20th May, 1982 when the fresh Notification under the said section was issued.
[200G H; 201A] Civil Appeal No. 3446 of 1987 was allowed and the judgment of the High Court in the Writ Petition No. 6789 of 1982 was set aside, and as a consequence, Civil Appeal No. 3447 of 1987 was dismissed.
[201B] State of Punjab vs Gurdial Singh & Ors., ; ; The Collector (District Magistrate) Allahabad and Anr.
vs Raja Ram Jaiswal, etc.
; , ; P.L. Lakhanpal vs Union of India & Ors., ; Siemens Engineering & Manufacturing Co. of India Limited vs Union of India & Anr., ; Narayan Govind Gavate vs State of Maharashtra, ; and State of U.P. vs Pista Devi, ; , referred to. |
: Criminal Appeal No.490 of 1985.
From the Judgment dated 29.5.1985 of the Judge, Special Court, Ferozepur in Case No.62/84, Trial No.23/85 and FIR No.154 of 1984.
U.R.Lalit and Prem Malhotra for the Appellants.
261 N.S.Das Behl and R.S.Suri (NP) for the Respondent.
The Judgement of the Court was delivered by K.RAMASWAMY,J.
This appeal under s.14(1) of the , 61 of 1984 for short `the Act ' the reference under s.15(3) thereof and s.366 of the Code of Criminal Procedure, 1973 for short `the Code ' for confirmation of the death sentence of Malkiat Singh, accused No. 1 in Sessions case No.62 of 1984, Trial No.23 of 1985 on the file of the Special Court, Ferozepur.
The first accused was convicted under s.302 read with s.34, I.P.C. for causing the deaths of Ram Babu, D 1, Sunder Lal, D 2, Ram Nath, D 3 and Ram Chand, D 4 of each death and sentenced to death subject to confirmation by this court.
He was also further convicted under s.307 read with s.34, I.P.C. and sentence to undergo rigorous imprisonment for 5 years for attempt to murder Ashok Kumar, PW 4.
Sukhdev Singh A 2 and Sohna Singh, A 3 were convicted under s.302 read with s.34, I.P.C. for causing deaths of D 1, to D 4 and sentenced to undergo imprisonment for life.
A 2 and A 3 were convicted under s.307 read with S.341 I.P.C. for attempt to murder of PW 4 and were sentenced to undergo rigorous imprisonment for 5 years, all the sentences to run concurrently.
Ram Avtar, PW 3 and D 3 Ram Nath, first cousin, had liquor contract in the village Kotli Ablu from 1983 and 1984.
D 2 and PW 4 were working in the liquor shop.
The wives of D 2 and D 4 are sisters.
D 4 came to see D 2.
D 1 was working in the liquor shop at Ablowbad.
Since the liquor therein had exhausted he came to Kotli Ablu to sell the liquor in the shop of D 3.
A 1 and A 2 are brothers and are residents of Kotli Ablu and Sohna Singh, A 3 is their maternal uncle (mother 's brother) and a resident of Rameana situated at a distance of 8 km.
to Kotli Ablu.
These are the admitted facts.
It is the case of the prosecution that at about 9.00 p.m. On June 4, 1984, A 1 and A 3 came to the liquor shop of D 3 wherein PW 3, D 1, D 2 and PW 4 were also present and were vending the liquor.
They sold one bottle of liquor to A 1 and A 3 on credit.
After its consumption A 1 and A 3 demanded another bottle to which D 3 refused to sell on credit.
Thereon A 1 and A 3 abused them and a quarrel ensued.
Both left the shop in anger.
D 1 and D 2 slept on a cot in front of the liquor shop.
D 3 and D 4 slept wooden takthposh in front of the liquor shop.
PW 3 and PW 4 climbed the roof of the shop and slept there.
During past midnight of June 4 5, 1984 at about 12.30 a.m. PW 3 and PW 4 heard gun shot fire and got up and saw with visibility of electric light emanating 262 from the house of one Gurbax Singh whose son was examined on DW 2 that A 1 was firing with rifle at D 1 to D 4 and A 2 and A 3 hitting them with Gandasas (sharp edged weapons).
Seeing PW 3 and PW 4 on the terrace A 1 fired at them but they escaped uninjured and they jumped down.
PW 3 jumped towards back side of the shop and ran towards the village and hid in the school.
PW 4 jumped to the front side and ran towards the village.
A 1 fired at PW 4 and A 2 hit him.
He received seven bullet injuries fired by A 1 on the backside, of right, leg, thigh and left side of the abdomen while he was running.
A 2 hit him on the right shoulder and had incised injury.
He ran to the house of Gurmail Singh, PW 3 with bleeding injuries, knocked the door and fell down unconscious.
On June 5, 1984 at about 9.00 a.m. Jit Singh, the Chowkidar of the village reached Kotli Police Station and reported to PW 5, S.H.O. who reduced Ex.P 24 into writing.
In the F.I.R. he stated that he had heard gun shot firing from the side of the liquor shop.
Due to fear and the prevailing tense situation he did not come out.
Next day morning he saw several people collected at the liquor shop and saw the dead bodies of D 1 to D 4 and PW 4 was lying unconscious in the house of DW 3 and he was asked to report the matter accordingly.
PW 5 after issuing F.I.R. to all the concerned, went alongwith police party to the spot at noon and saw the dead bodies.
He went to the house of DW 3 and found PW 4 under shock and unconscious.
He sent him for medical examination by PW 2, the Doctor as his condition was serious.
PW 3 on coming to know the arrival of the police and the military people at noon mustered courage and came out from the school and went to the shop.
He was examined at the inquest and he also attested the statement recorded by the police at the inquest.
PW 5 enclosed the copies of his statement to the inquest report Ex.P 4, P 6, P 8 and P 10 and sent the dead bodies with the reports for post mortem by PW 2 Doctor.
He also prepared rough sketch of the scene under Ex P1/A.
He recovered the blood stained earth and cots etc under exhibit
He recovered 7 empty and two live cartridges exhibit M 0/1 to M 0/9 under panchnama Ex.p 18.
He remained on the spot till 10.30 p.m. and saw the light emanating from the house of Gurbax Singh and falling at the scene of occurrence.
He sent requisition twice to the hospital to find whether PW 4 was in a fit condition for recording his statement.
On June 7, 1984 at about 7.00 a.m. he received an endorsement that PW 4 was in a fit condition to make the statement.
Accordingly he recorded the statement.
He sent M.O.S.1 to 9 cartridges and pellets recovered from body of D 4 under exhibitP 25 to ballistic expert for report.
on June 15, 1984 when he was picketing on the drain of village Chand Bhan at about 3.30 a.m. he arrested the appellants and recovered from the person of A 1.
exhibit 263 M 0/11 rifle, 351 bore (semi automatic) of U.S.A. make loaded with two cartridges M 0/12 and M 0/13 under panchnama in the presence of panch.
Pursuant to a statement made under s.27 Evidence Act by A 3 leading to discover Gandasa M 0/14 was recovered under ex.P 27 and sent them to the chemical examination and the ballistic reports.
Under exhibitP 28, the Ballistic expert found that the empties exhibit M 0/1 to M 0/9 had been fired from rifle exhibit M 0/11.
Gandasa was stained with human blood as per the report exhibit PW 2 who conducted the post mortem on D 1 and D 2 found on each of the dead bodies two gun shot entry and exit wounds.
D 3 and D 4 were found to have 4 gun shot lacerated and two incised injuries and 5 lacerated and two incised injuries respectively.
He removed M.O.S.16 and 17 pellet from the body of D 4.
He issued post mortem certificates Ex.P 3, P 5, P 7 and P 9 respectively.
He also examined PW 4.
He found as many as 7 lacerated gun shot injuries and one incised injury and issued medical certificate Ex.
Injuries and one incised injury and issued medical certificate exhibit Injuries 1 to 7 were caused by gun shot fire and injury 8 by a sharp weapon.
PW 5 sent two pellets recovered by him from the body of D 4 to the Ballistic and Chemical Examination.
The defence consented to mark F.I.R., the affidavits of panch witnesses and constables; the fire arms licence of A 1 under exhibit P 17 and also the reports of the ballistic expert and chemical examination reports without oral evidence.
PW 6, the Deputy Superintendent of Police supervised the investigation conducted by PW 5.
The prosecution examined 6 witnesses and defence examined 3 witnesses and marked the documents.
The accused were examined 3 witnesses and marked the documents.
The accused were examined under s.313 and denied their complicity and examined DW 1 to DW 3 to prove that the bulb of Gurbax Singh was not burning and PW 3 was residing at Medhak and he was brought to Kotli Ablu by the Police and PW 4 was conscious and did not disclose the names of the appellants at that time.
The lower court believed the direct evidence of PW 3 and PW 4 and the prosecution case that A 1 fired at the deceased with M 0/11 rifle, A 2 and A 3 also participated in the attack.
If also found that M 0/11, the rifle belongs to A 1 and he fired the deceased and PW 4.
Accordingly convicted them for an offences under sections 302/34 and 307/34 I.P.C. When they were asked under s.235(2), they declined to lead evidence and the Sessions Court awarded sentence to the accused as referred to earlier.
Shri Lalit, the learned senior counsel for the appellants contended that the evidence of PW 3 and PW 4 is highly artificial, unbelievable and untrustworthy; barring their evidence, there is no other evidence to connect the appellants with the commission of the crime.
The story that PW 3 and PW 4 climbed on the terrace and were sleeping is 264 false as they cannot climb to a height of 8/1/2 ft. PW 3 did not disclose his witnessing the occurrence to any one till noon.
DW 3 the Sarpanch of Madhok spoke that PW 3 alongwith the panch witnesses were brought from Madhok in a Jeep by the police, so he is a planted witness.
In support thereof he contends that the specific evidence of DW 3 in this regard was not challenged in cross examination.
PW 4 was not examined at the inquest though he was conscious.
The police requisitioned the dog squad to sniff the scene of offence to identify the unknown accused.
PW 5 and PW 2 the Doctor admitted that the omission of the names of the accused in the case diary and memos would belie the theory of witnesses.
The omission of the names of the accused in the cause title (Banam) would clearly show that PW 3 and PW 4 were not direct witnesses and PW 3 was introduced at a later stage and he was not examined at the inquest and that PW 4 did not identify the appellants.
This was also further corroborated from the fact that admittedly exhibit P 24, recited that three unknown assailants had killed the deceased.
Admittedly the dog squad was requisitioned.
The appellants were falsely implicated.
As regards PW 4, he further contended that as per the evidence of DW 2 son of Gurbux Singh and DW 3, Gurmail Singh, PW 4 was conscious at that time of his coming to the house of DW 3 and remained to be conscious.
The police did not examine him till June 7, 1984 as the assailants were not known.
There was no light in the house of DW 1 and PW 3 and PW 4 could not have identified the assailants.
The theory of liquor vending is doubtful for the reason that the entire State was under curfew on that day due to blue star operation on June 3, 1984 and no vending would take place when there is a curfew.
If really the appellants 1 and 3 had taken the liquor on credit, nothing prevented the prosecution to produce the chit admittedly taken by D 3.
The theory of burning the shop shows that it is an act of terrorists as was noted in the case diary by PW 6.
Thus the appellants were implicated by suspicion and the prosecution had not established the guilt of the appellant beyond reasonable doubt.
The conviction and sentence by the special court was on the same day, namely May 29, 1985 which contravenes the mandatory provision of s.235 of the Code.
In view of the decision of this court in Allauddin vs State of M.P., J.T.(1989) 2 SC 171 and Anguswamy vs State of Tamilnadu, J.T. the sentence of death awarded to A 1 is illegal.
A 2 had no axe to grind against the deceased.
He neither went for drinking at 9.00 p.m. on that day nor had a quarrel.
He bears no motive to kill the deceased or attack PW 4.
No recovery of Gandasa was made from him.
PW 3 and PW 4 have no prior acquaintance with him.
Therefore, it was highly doubtful whether A 2 had participated in the offence.
As regards to the third 265 appellant (A 3), it is his contention that he is a resident of Rameana.
PW 3 or PW 4 do not know A 6 at all.
Therefore, he may not be able to have participated in the crime.
It was resisted by Mr.Das Bahl, learned counsel for the State.
The acceptance of the prosecution case rests on the evidence of PW 3 and PW 4.
PW 3 and D 3 had the licence to vend liquor at Kotli Ablu.
PW 4 and D 2 were vending liquor under them.
D 4 came to see D 2 as they were married sisters.
D 1 came and was vending on the fateful day in the shop.
D 1 to D 4 were killed in the intervening night of June 4 5, 1984 is practically admitted from the evidence of DW 3.
During the course of the same transaction PW 4 sustained 7 lacerated gunshot injuries and one incised injury is also admitted through the evidence of DW 2 and DW 3, PW 2, the Doctor 's evidence conclusively established that D 1 and D 2 died due to gun shot injuries.
D 1 and D 2 each had two entry and exit wounds due to gun shots.
D 3 and D 4 also had gunshot lacerated as well as incised injuries.
They also died on the spot due to the injuries which are sufficient to cause death in the ordinary course of nature.
Seven empty and two live cartridge fired from M 0/11 rifle of 351 bore of U.S.A. make belonging to A 1 were recovered from the scene of occurrence.
Therefore, the deaths of D 1 and D 2 due to gunshot injuries and D 3 and D 4 due to gunshot and incised injuries are proved beyond doubt.
Equally PW 4 sustained injuries is also established.
The only question is whether the appellants are assailants.
The conviction of the appellants hinges upon the acceptability of the testimony of PW 3 and PW 4.
Let us first take the evidence of PW 4, the injured witness whose presence at the time of occurrence stands confirmed.
He is aged about 19 years.
He was working in the liquor shop of D 3 and PW 3 at Kotli Ablu.
He is residing in that village was not disputed.
As stated earlier he sustained 8 injuries (7 gunshot and one incised) during the course of the same transaction is also indisputable, and in fairness, was not disputed by Shri Lalit.
His serious attack is that PW 4 did not disclose the names of the assailants for two days which would show that he did not either see the assailants or the assailants were not known him.
We find it difficult to accept.
His case that he jumped from the terrace in front of the shop and he was attacked by the assailants was not disputed in the cross examination.
The suggestion that he was sleeping alongwith D 4 would show that he could see A 1 who fired at him while he was running away and it receives corroboration from medical evidence of PW 2 that the injuries are on the backside while he was chased by the accused.
So he 266 could clearly identify his own assailants as the occurrence did not take place at a fleet or glimpse.
In the F.I.R. at the earliest, it was specifically stated that PW 4 was not in a condition to speak.
It would mean that he was either under shock or unconscious.
The First Information Report given by the Chowkidar was admitted in evidence with the consent of the defence.
It is settled law that the First Information Report is not substantive evidence.
It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after thought.
Since the examination of first information was dispensed with by consent Ex P 24, F.I.R. became part of the prosecution evidence.
Under section 11 of the Evidence Act read with s.6 the facts stated therein namely, PW 4 was not in a speaking condition, could be used only as a relevant fact of prior existing state of facts in issue as resgestae of "the earliest information".
It is not used to corroborate the prosecution case, but can be looked into as an earliest information of the existing condition of PW 4 at 9.00 a.m. on June 5, 1984 i.e. when the report was given in exhibit p 24, PW 4 was still unconscious.
When PW 4 had stated that he became unconscious as soon as he came and tapped the door of DW 3, and fell down, by operation of section 11 of the Evidence Act it may be relevant fact of the previous existing condition that PW 4 contained to remain unconscious till the report was given.
Therefore, the F.I.R. could be used as relevant existing state of fact namely the continuous unconscious condition of PW 4 till PW 5 S.H.O.reached and saw him within the meaning of s.11 read with s.6 of the Evidence Act.
When PW 4 received 7 gun shot injuries and one incised injury and ran for life to a distance with bleeding injuries, it would be quite likely that he would be under severe shock and his evidence that after reaching the home of DW 3 and knocked the door he fell down unconscious appears to be quite natural and probable.
The evidence of PW 5, that on seeing PW 4 in critical unconscious condition he sent him to the Doctor for medical examination and the doctor administering sadation appear to be human probabilities and there is nothing intrinsic to suspect their evidence.
Thus PW 4 was not in a fit condition to give statement till June 7, 1984 at 7.00 a.m. PW 4 's evidence that he was residing at Kotli Ablu and that he knew the accused was not disputed in the cross examination.
It is not uncommon in normal human probability that he was not expected to know the names of the relations of A 3.
When A 1 and A 3 came in that very night to the shop and quarreled for non supply of liquor on credit, it would be fresh in the memory of PW 4 and as he saw the assailants he could have easily recognized A 3. 267 Undoubtedly, ocular defence evidence, if it is not subjected to critical cross examination, is entitled to the same weight as prosecution evidence.
But merely because the prosecution, as usual, made insipid cross examination, the defence evidence is not to be believed automatically.
Witnesses may be prone to speak lies but circumstances will not.
So even though the burden of the defence is not as heavy as of the prosecution, the oral evidence tendered by the defence must also be subjected to critical scrutiny and be considered in the light of the given facts and attending circumstances of the case and human probabilities.
The evidence on record is clear that PW 4 was left attended, though was lying with injuries at the house of DW 3, till the investigating officer PW 5 came and saw him in critical condition.
The normal human conduct, which is common in the country side, is to give immediate first aid and then to make inquire of the cause for injuries and the persons who caused the same.
As DW 3 betrayed such conduct, make us to suspect the credibility and veracity of his evidence and of DW 2 that PW 4 was conscious all through and that he did not disclose the assailants ' names.
Therefore, the evidence of DW 2 and DW 3 that PW 4 was professed to have disclaimed the names of the assailants is unbelievable despite no specific cross examination was directed on that aspect.
That apart they did not tender themselves to be examined by PW 5, the investigating officer.
As regards the shedding of the light from the house of Gurbax Singh is concerned, there is uncontroverted evidence of PW 5, that he remained in the village till 9.30 p.m. on June 5, 1984 to see whether the light was emanating from the house of Gurbax Singh and found to be so and sufficient for PW 3 and PW 4 to identify the assailants.
No cross examination on this aspect was directed.
Gurbax Singh, the owner of the house was not examined by the defence.
Only his son DW 2, an youngster, came into the box and perjured the evidence.
Therefore, the claim that the light was not working for three months prior to the date of occurrence, cannot be believed.
Even assuming that there was no light, even then, PW 4 could identify his own assailants when he was attacked and chased in the course of the same transaction.
Nothing worthwhile was brought out in the cross examination to disbelieve his testimony.
He had no axe to grind against any of the accused.
To motive to make false implication of the accused was even suggested.
He cannot be expected to allow his own assailants to go unpunished and would implicate innocent persons.
Moreover the medical evidence of PW 2 fully corroborated the evidence of PW 4.
It is settled law that corroboration is not a rule of law, but one of caution as an assurance.
The conviction could be made on the basis of 268 the testimony of a solitary witness.
The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim, his pre disposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness.
It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance.
Considered in this light, we have no hesitation to conclude that PW 4 is a witness of truth and inspires us to believe his evidence.
He would, even in the absence of any light have identified the accused, who had attacked him and committed the murders of sleeping, unarmed and innocent D 1 to D 4.
The evidence of PW 3, though was severely attacked by Shri Lalit, giving our anxious consideration and subjecting to careful analysis, we find that the Special Court committed no error in accepting his evidence.
It is common knowledge that the villagers during summer sleep outside the house, court yard of the house, if any, or on the terrace of the concrete houses.
No doubt there is no stairs to the terrace of the shop whose height is only 8 and 1/2 feet.
PW 4 and PW 3 being young men it is not difficult to climb up and sleep and now it was proved providential for them.
Therefore, the absence of producing, the quilts or lack of steps is not a serious infirmity to doubt the presence of PW 3 and PW 4 and that they slept on the terrace of the shop.
In view of curfew and tense condition in the State, it would be unlikely that PW 3 would have traveled in the night to Madhok at a distance of 23 km.
The evidence on record clearly shows that the defence has freely used the entries in the case diary as evidence and marked some portions of the diary for contradictions or omissions in the prosecution case.
This is clearly in negation of and in the teeth of s.172(3) of the Code.
Section 172 reads thus: "Diary of proceedings in investigation. (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forthwith the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
269 (2) Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.
(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the (1 of 1872) shall apply.
" It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation.
Under sub section(2) the Court is entitled at the trial or enquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial.
Neither the accused, nor his agent, by operation of sub section(3), shall be entitled to call the diary, nor shall he be entitled to use it as evidence merely because the Court referred to it.
Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of s.161 of the Code section 145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e. Investigation Officer or to explain it in re examination by the prosecution, with permission of the court.
It is, therefore, clear that unless the investigating officer or the Court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s.161 that too after drawing his attention thereto as is enjoined under s.145 of the Evidence Act.
The entries cannot be used by the accused as evidence.
Neither PW 5, nor PW 6, nor the court used the case diary.
Therefore, the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence.
Thereby the defence cannot place reliance thereon.
But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence.
As regards the omission of the names of the appellants in the memos sent to the Medical Officer PW 2 under exhibit D 13 and 15 it is also not evidence except as record of investigation.
It is not a rule of 270 law that the memo should bear names with cause title of accused.
It is enough if the name of the injured is mentioned in the memo.
Therefore, the omission to refer their names after the word Banam in the memos sent to the Doctor would not create any doubt that the appellants were later implicated.
Equally the prosecution cannot rely on the statement of PW 3 enclosed to the inquest reports as substantive evidence, as is done and argued with vehemence by Sri Das Bahl.
Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person, if known, that has committed the offence.
Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truely all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
The statement made by such person is a "previous statement" within the meaning of s.162 and it shall not be signed.
So the statement made by such a person to police officer is in the course of the investigation, and when reduced to writing, it shall be used only by the accused to contradict such witness in the manner provided by s.145 of the Evidence Act or with the permission of the court the prosecution could use it for re examination only to explain the matter referred to in his cross examination.
It is settled law that s.162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police office being used for any purpose whatsoever.
The obvious reason is that the previous statement under the circumstances was not made inspiring confidence.
It enables the accused to rely thereon only to contradict the witnesses in the manner provided by s.145 drawing attention of the witness of that part of the statement intended to be used for contradiction.
It cannot be used for corroboration of a prosecution or defence witness or even a court witness, nor can it be used contradicting a defence or a court witness.
The investigating officer is enjoined to forward the inquest report to the Magistrate alongwith the statement recorded at the inquest, so that the court would see the record, at the earliest of the circumstances leading to the cause of the death of the deceased and the witness examined during the inquest.
Therefore, the statement of PW 3 record during inquest is not evidence.
It is a previous statement reduced to writing under s.162 of the Code and enclosed to the inquest report and cannot be used by the prosecution for any purpose including to show the names of the accused except to contradict the maker thereof, or to explain the same by prosecution.
271 It is true that DW 1 had stated and was not effectively cross examined that PW 3 was brought by the police in a jeep alongwith the Panch.
But he was examined at the inquest is evident from the record.
PW 3 was present at 9.00 p.m. at the time of vending liquor on credit to A 1 and A 3 and the quarrel.
PW 4 stated that PW 3 and himself slept together on the terrace.
He was examined at the inquest is corroborated by doctor 's evidence that statement of PW 3 recorded under s.162 was enclosed to the inquest reports and sent to PW 2, the Doctor alongwith the dead bodies.
There is ring of truth in the evidence of PW 3.
During curfew, in the night he would not have under taken to go to Madhok at a distance of 23 km.
The attending circumstances for coming to the scene of offence appear to be natural and probable in the ordinary course of human conduct.
Having seen that four of his companions were done to death, the instinct of self preservation and the grip of fear would have made him not to stir out from the school and mustered courage only when the police and the military people arrived at the scene at noon.
Thus he came to be examined at the earliest at inquest whereat he disclosed the names and the participation of the appellants.
Thus the evidence of PW 3 would lend to corroborate PW 4 's evidence.
In addition there is a strong circumstantial evidence against A 1 and A 3.
On his arrest on June 15, 1984, M/0/11, rifle was recovered from A 1.
As per exhibit P 17 licence, it belongs to him, the ballistic report exhibit P 20 establishes that the empty cartridges exhibit M.1 to M.7 were discharged from the bore of M/0/11.
This evidence clearly established that M/0/11 was used by A 1 in the crime.
In his examination under s.313, no explanation was given as to how M/0/11 rifle could go out from his custody for being used, in committing the crime by third parties.
From its recovery from the person of A 1, it is clear that it continued to remain in his custody from the time of user in the crime till it was recovered from him.
These circumstances coupled with oral evidence of PW 4 and PW 3 clearly establish the complicity of A 1 in committing the offences of murder of D 1 to D 4.
As equally A 3 accompanied A 1 to the liquor shop and had quarrel.
When A 1 and A 3 left the shop in anger, it is clear that they left the shop in a huff smarting from humiliation at the hands of the contractor from out side the state and their staff.
To avenge the humiliation heaped upon them, they animated to finish the prosecution party.
Obviously they chose past mid night to be sure that all would be asleep and no evidence of their crime would be available.
Thus they have strong motive to kill the deceased and to make murderous attack on PW 4.
Moreover gandasa was recovered pursuant to A 3 's statement under s.27 of 272 Evidence Act leading to its discovery and it contained human blood though blood group could not be detected due to disintegration.
The two incised injuries each on the persons of D 3 and D 4 as corroborated by medical evidence clearly establishes the participation of A 3 in attacking the deceased.
He accompanied A 1 at dead of night to the liquor shop and killed D 1 to D 4 and attempted to kill PW 4.
Thus he shared with A 1 the common intention to kill the deceased D 1 to D 4 and attempt to kill PW 4.
The production of the credit chit kept on the table in the shop would have lent corroboration to the prosecution case of the sale of liquor to A 1 and A 3 on credit.
It is not the prosecution case that it was signed by either of the accused.
It is now in evidence that it was burnt out also with the shop, though no definite evidence for cause of burning is on record, except vague suggestions but denied by the prosecution witnesses that the terrosists committed the arson and killings.
From a totality of facts and circumstances it cannot be concluded that terrorists committed the offence.
As regards A 2 we have grave doubt of his participation in the crime.
Admittedly, he had no motive to kill any of the deceased or to attack PW 4.
He did not come at 9.00 p.m. on June 4, 1984 to the liquor shop for drinking.
There is no recovery of gandasa from him, though he was arrested alongwith A 1 and A 3.
The doubt whether A 2 was likely to be a participant in the commission of this grave crime of four deaths has not been removed from our minds.
It is undoubtedly true that PW 4 had stated that A 2 attacked him with the gandasa but when he was attacked while he was fleeing for life the possibility of mistaken identity of A 2 to A 3 cannot be ruled out.
We make it clear that we are not doubting the veracity of PW 4.
In these circumstances A 2 is entitled to the benefit.
Accordingly, we hold that A 1 and A 3 have shared common intention, they had motive to kill the deceased.
They came together, killed the sleeping innocent four persons D 1 to D 4 and also attempted to kill PW 4.
Accordingly, we hold that A 1 committed the offence of murder of D 1 and D 2 punishable under s.302; D 3 and D 4 's under s.302 read with s.34 I.P.C. and attempt of murder of PW 4 punishable under s.307 read with s.34, I.P.C. A 3 shared the common intention with A 1 and also committed the said offences under s.302 read with s.34; s.307 read with s.34 I.P.C. A 3 was given the minimum sentence of imprisonment of life.
The sentences were directed to run concurrently.
273 On finding that the accused committed the charged offences, s.235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him.
Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty.
Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence, to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.
No doubt the accused declined to adduce oral evidence.
But it does not prevent to show the grounds to impose lesser sentence on A 1.
This Court in the aforestated Alluddin and Anguswamy 's cases held that the sentence awarded on the same day of finding guilt is not in accordance with the law.
That would normally have the effect of remanding the case to the Special Court for reconsideration.
But in the view of the fact that A 1 was in incarceration for long term of six years from the date of conviction, in our considered view it needs no remand for further evidence.
It is sufficient that the sentence of death awarded to A 1 is converted into rigorous imprisonment for life.
The sentences of death is accordingly modified and A 1 is sentenced to undergo rigorous imprisonment for life for causing the deaths of all four deceased.
The conviction of A 1 for attempt to murder PW 4 and sentence of five years ' rigorous imprisonment is also upheld and all the sentences would run concurrently.
A 2 is acquitted of all charges.
The bail bonds are cancelled.
He shall be set at liberty unless he is required in any other case.
The appeal is allowed only to the above extent.
V.P.R. Appeal Partly allowed. | The case of the prosecution was that at about 9.00 p.m. on June 4,1984, A 1 and A 3 came to the liquor shop of D 3 wherein PW 3, D 1, D 2 and PW 4 were also present and were vending the liquor.
They sold one bottle ofliquor to A 1 and A 3 on credit.
After its consumption A 1 and A 3 demanded another bottle to which D 3 refused to sell on credit.
There on A 1 and A 3 abused them and a quarrel ensued.
Both left the shop in anger.
D 1 and D 2 slept on wooden takthposh in front of the liquor shop.
PW 3 and PW 4 climbed the roof of the shop and slept there.
During past mid night of June 4 5, 1984 at about 12.30 a.m., PW 3 and PW 4 heard gun shot fire and got up and saw with the visibility of electric light emanating from the house of one Gurbax Singh, the father of DW 2 that A 1 was firing with rifle at D 1 to D 4 and A 2 and A 3 hitting them with Gandasas (sharp edged weapons).
Seeing PW 3 and PW 4 on the terrace A 1 fired at them but they escaped uninjured and they jumped down.
PW 3 jumped towards back side of the shop and ran towards the village and hid in the school.
PW 4 jumped to the front side and ran towards .
the village A 1 fired at PW 4 257 and A 2 hit him.
He received seven bullet injuries fired by A 1 on the backside, of right leg, thigh and left side of the abdomen while he was running.
A 2 hit him on the right shoulder and had incised injury.
He ran to the house of PW 3 with bleeding injuries, knocked the door and fell down unconscious.
On June 5, 1984 at about 9.00 a.m. the Chowkidar of the village reached Kotli Police Station and reported to PW 5, H.O.who reduced F.I.R. into writing.
In the F.I.R. the chowkidar stated that he had heard gun shot firing from the side of the liquor shop.
Due to fear and the prevailing tense situation he did not come out.
Next day morning he saw several people collected at the liquor shop and saw the dead bodies of D 1 to D 4 and PW 4 was lying unconscious in the house of DW 3 and he was asked to report the matter accordingly.
The defence consented to mark F.I.R., the affidavits of the panch witnesses and constables, the fire arms licence of A 1 under Ex.p 17 and also the reports of the ballistic expert and chemical examination reports without oral evidence.
The lower court believed the direct evidence of PW 3 and PW 4 and the prosecution case that A 1 fired at the deceased with MO 11 rifle, A 2 and A 3 also participated in the attack.
The first accused was convicted under s.302 read with s.34, I.P.C. for causing the deaths of D 1, D 2, D 3 and D 4 and sentenced to death subject to confirmation by this Court.
He was also further convicted under s.307 read with s.34, I.P.C. and sentenced to undergo rigorous imprisonment for 5 years for attempt to murder PW 4.
A 2 and A 3 were convicted under s.302 read with s.34, I.P.C. for causing deaths of D 1 to D 4 and sentenced to undergo imprisonment for life.
A 2 and A 3 were convicted under s.307 read with s.34 I.P.C. for attempt to murder of PW 4 and were sentenced to undergo rigorous imprisonment for 5 years, all the sentences to run concurrently, against which the accused filed appeal u/s.14(1) of the Terrorist Affected Areas (Special Court) Act, 1984.
The appellants contended that the evidence of PW 4 was highly artificial, unbelievable and untrustworthy; that barring their evidence, there was no other evidence to connect the appellants with the commission of the crime; that the omission of the names of the accused in the case diary and memos would belie the theory of witnesses; that the appellants were implicated by suspicion and the prosecution had not 258 established the guilt of the appellant beyond reasonable doubt; that the conviction and sentence by the special court was on the same day, which contravened the mandatory provision of s.235 of the Code.
Partly allowing the appeal, this Court, HELD: 1.
The First Information Report is not substantive evidence.
It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after thought.
[266B C] 2.
Since the examination of first information was dispensed with by consent F.I.R. became part of the prosecution evidence.
[266B C] 3.
Ocular defence evidence, if it is not subjected to critical cross examination, is entitled to the same weight as prosecution evidence.
But merely because the prosecution, as usual, made insipid cross examination, the defence evidence is not to be believed automatically.
[267A B] 4.
Witnesses may be prone to speak lies but circumstances will not.
So even though the burden of the defence is not as heavy as of the prosecution, the oral evidence tendered by the defence must also be subjected to critical scrutiny and be considered in the light of the given facts and attending circumstances of the case and human probabilities.
[267A C] 5.
Corroboration is not a rule of law, but one of caution as an assurance.
The conviction could be made on the basis of the testimony of a solitary witness.
The occasion for the presence at the time of occurrence, opportunity to witness crime the normal conduct of the witness after the incident, the nearness of the witness to the victim, his pre disposition towards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness.
It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance.
[267H 268B] 6.
The case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation.
Under Section 172(2) the Court is entitled at the trial or inquiry to use the diary not as evidence in the case, but as aid to it in the inquiry or trial.
Neither the accused, nor his agent, by operation of sub section
(3), shall be entitled to call the diary, nor shall he be entitled to use it as evidence merely because the Court 259 referred to it.
Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness, by operation of s.161 of the Code and s.145 of the Evidence Act, it shall be used for the purpose of contradicting the witness, i.e., Investigation Officer or to explain it in re examination by the prosecution, with permission of the Court.
It is, therefore, clear that unless the investigating officer or the court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s.161 that too after drawing his attention thereto as is enjoined under s.145 of the Evidence Act.
The entries cannot be used by the accused as evidence.
[269C G] 7.
The memos sent to the Medical Officer are not evidence except as record of investigation.
It is not a rule of law that the memo should bear names with cause title of accused.
It is enough if the name of the injured is mentioned in the memo.
[269H 270A] 8.
Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person if known, that has committed the offence.
Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truely all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
The statement made by such a person is a "previous statement" within the meaning of section 162 and it shall not be signed.
So the statement made by such a person to police officer is in the course of the investigation, and when reduced to writing, it shall be used only by the accused to contradict such witness in the manner provided by section 145 of the Evidence Act or with the permission of the court the prosecution could use it for re examination only to explain the matter referred to in his cross examination.[270B E] 9.
S.162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police officer being used for any purpose whatsoever.
The obvious reason is that the previous statement under the circumstances was not made inspiring confidence.
It enables the accused to rely thereon only to contradict the witnesses in the manner provided by s.145 drawing attention of the witness of that part of the statement intended to be used for contradiction.
It cannot be used for corroboration of a prosecution or defence witness or even a court witness, nor can it be used contradicting a 260 defence or a court witness.
The investigating officer is enjoined to forward the inquest report to the Magistrate alongwith the statement recorded at the inquest, so that the court would see the record, at the earliest of the circumstances leading to the cause of the death of the deceased and the witness examined during the inquest.
[270E G] 10.
The statement of witness PW 3 recorded during inquest is not evidence.
It is a previous statement reduced to writing under s.162 of the Code and enclosed to the inquest report and cannot be used by the prosecution for any purpose including to show the names of the accused except to contradict the maker thereof, or to explain the same by prosecution.
[270G H] 11.
On finding that the accused committed the charged offence, s.235(2) of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him.
Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty.
Therefore, sufficient time must be given to the accused or the prosecution on the question of sentence to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded, as the case may be.
If the accused declines to adduce oral evidence, it does not prevent to show the grounds to impose lessor sentence on.
[273A D] 12.
The sentence awarded on the same day of finding guilt is not in accordance with the law.[273C D] Allauddin vs State of M.P., J.T.(1989) 2 SC 171 and Anguswamy vs State of Tamilnadu, J.T.(1989) 2 SC 184, referred to. |
minal Appeal No. 187 of 1956.
Appeal by special leave from the judgment and order dated December 7, 1955, of the Patna High Court in Criminal Revision No. 875 of 1954, arising out of the judgment and order dated May 31, 1954, of the Court of the Additional Sessions Judge at Arrah in Criminal Appeal No. 293 of 1953.
B. K. Saran and K. L. Mehta, for the appellants.
B. H. Dhebar and T. M. Sen, for the respondent.
November 14.
The Judgment of the Court was delivered by GAJENDERAGADKAR, J.
This criminal appeal raises a short question about the construction of the word " detains " occurring in a. 498 of the Indian Penal Code.
It arises in ' this way.
The two appellants were charged before the trial magistrate under section 498 of the Code in that on or about October 27, 1952, at the village Mohania they wrongfully detained Mst.
59 466 Rahmatia, the legally married wife of the complainant Saklu Mian, when they knew or had reason to believe that she was the wedded wife of the, complainant and was under his protection, with intent to have illicit intercourse with her.
The prosecution case was that Mst.
Rahmatia had disappeared from her husband 's house on October 21, 1952; the complainant made J. search for her for several days but was not able to trace her whereabouts.
Ultimately he filed a complaint at the police station after he was informed by Shakoor Mian (P. W. 4) that he had seen the complainant 's wife at the house of the two appellants.
The complainant then went to the house of the appellants along with Shakoor Mian (P. W. 4), Musa Mian (P. W. 2) and Suleman Mian (P. W. 3); they saw the woman in the house of the appellants whereupon the complainant asked appellant No. I Alamgir to let his wife go with him but appellant No. I told him that he had married her and appellant No. 2 warned him to get away and said that, if he persisted, he would be driven out.
This story is corroborated by the three companions of the complainant.
The appellants denied the charge.
They pleaded that the complainant had not validly married the woman and that she had not been detained by them.
According to them, the woman was tired of living with the complainant and that she had voluntarily and of her free will come to stay with the appellants.
The learned trial magistrate believed the prosecution evidence, rejected the pleas raised by the defence, con victed the appellants of the charge framed and sentenced them to undergo simple imprisonment for two months each.
This older of conviction and sentence was challenged by the appellants by their appeal before the court of sessions.
The appellate court confirmed the conviction of the appellants but reduced their sentence from simple imprisonment for two months to a fine of Rs. 50 or in default simple imprisonment for one month each.
The appellants then moved the High Court at Patna in its revisional jurisdiction.
When the revisional application came to be heard before Choudhary, J., the learned judge thought 467 that the appellate court should not have reduced the sentence imposed on the appellants by the trial magistrate and so he issued a notice against the appellants calling upon them to show cause why their sentence should not be enhanced.
This notice and the main revisional application were ultimately heard by Ramaswamy and Imam, JJ., who confirmed the order of conviction and enhanced the sentence against both the appellants by ordering that each of them should suffer six months ' rigorous imprisonment.
An application made by the appellants to the High Court for a certificate to appeal to this Court was rejected.
The appellants then applied for and obtained special leave to appeal to this Court.
That is how this appeal has come before us for final disposal.
On behalf of the appellants, Mr. B. K. Saran has urged that the evidence in the case clearly shows that the woman was dissatisfied with her husband and had left his house and protection voluntarily and of her free will.
If having thus left the house she came to stay with the appellants and they allowed her to stay with them, it cannot be said that they have detained her within the meaning of section 498.
According to him, the word " details " used in section 498 must necessarily imply that the woman detained is unwilling to stay with the accused and has been compelled so to stay with him against her will, and desire.
It is difficult to imagine that, if a woman is willing to stay with a person, it can be said that the person has detained her.
That is not the plain grammatical meaning of the word " detains ".
It is this argument which calls for our consideration in the present appeal.
At the outset it would be relevant to remember that section 498 'occurs in Ch.
XX of the Indian Penal Code which deals with offences.
relating to marriage.
The provisions of section 498, like those of section 497, are intended to protect the rights of the husband and not those of the wife.
The gist of the offence under section 498 appears to be the deprivation of the husband of his custody and his proper control over his wife with the object of having illicit intercourse with her.
In this connection it would be material to compare and contrast the 468 provisions of section 498 with those of section 366 of the Code.
Section 366 deals with cases where the woman kidnapped or abducted is an unwilling party and does not respond to the criminal intention of the accused.
In these cases the accused intends to compel the victim afterwards to marry any person against her will or to force or seduce her to illicit intercourse.
In other words section 366 is intended to protect women from such abduction or kidnapping.
If it is shown that the woman who is alleged to have been abducted or kidnapped is a major and gave her free consent to such abduction or kidnapping, it may prima facie be a good defence to a charge under section 366.
On the other hand section 498 is intended to protect not the rights of the wife but those of her husband; and so prima facie the consent of the wife to deprive her husband of his proper control over her would not be material.
It is the infringement of the rights of the husband coupled with the intention of illicit intercourse that is the essential ingredient of the offence under a. 498.
Incidentally it may be pointed out that the offence under section 498 is a minor offence as compared with the offence under section 366.
The policy underlying the provisions of section 498 may no doubt sound inconsistent with the modern notions of the status of women and of the mutual rights and obligations under marriage.
Indeed Mr. Saran vehemently argued before us that it was time that sections 497 and 498 were deleted from the Penal Code.
That, however, is a question of policy with which courts are not concerned.
It is no doubt true that if the words used in a criminal statute are reasonably capable of two constructions, the construction which is favourable to the accused should be preferred; but in construing the relevant words, it is obviously necessary to have due regard to the context in which they have been used; and, as we will presently point out, it is the context in which the word" detains " has been used in section 498 that is substantially against the construction for which the appellant contends.
Section 498 provides: 469 " Whoever takes or entices away any woman who is and whom he knows or has reason to believe to be the wife of any other man, from that man, or from any person having the care of her on behalf of that man, with intent that she may have illicit intercourse with any person, or conceals or detains with that intent any such woman, shall be punished with imprisonment, of either description for a term which may extend to ' two years, or with fine, or with both.
It would be noticed that there are three ingredients of the section.
The offender must take or entice away or conceal or detain the wife of another person from such person or from any other person having the care of her on behalf of the said person.
He must know or has reason to believe that the woman is the wife of another person; and the taking, enticing, concealing or detaining of the woman must be with intent that she may have illicit intercourse with any person.
It is clear that if the intention of illicit intercourse is not proved the presence of the first two ingredients would not be enough to sustain the charge tinder section 498.
It is only if the said intention is proved that it becomes necessary to consider whether the two other ingredients are proved or not.
It is plain that four different kinds of cases are con templated by the section.
A woman may be taken away or enticed away or concealed or detained.
There is no doubt that when the latter part of the section refers to any such woman, it does not mean any woman who is taken or enticed away as described in the first part, but it refers to any woman who is and whom the offender knows or has reason to believe to be the wife of any other man.
It is not seriously disputed that in the first three classes of cases the consent of the woman would not matter if it is shown that the said consent is induced or encouraged by the offender by words or acts or otherwise.
Whether or not any influence proceeding from the offender has operated on the mind of the woman or has co operated with or encouraged her inclimations would always be a question of fact.
If, on evidence, the court is satisfied that the act of the woman in 470 leaving her husband was caused either by the influence of allurement or blandishments proceeding from the offender, that may be enough to bring his case within either of the three classes of cases mentioned by section 498.
In this connection, when the consent or the free will of the woman is relied upon in defence, it is necessary to examine whether such alleged consent or free will was not due to allurement or blandishments or encouragement proceeding from the offender.
It is, however, urged that, when the latter part of the section speaks of detention, it must prima facie refer to the detention of a woman against her will.
It may be conceded that the word " detains" may denote detention of a person against his or her will ; but in the context of the section it is impossible to give this meaning to the said word.
If the object of the section had been to protect the wife such a construction would obviously have been appropriate; but, since the object of the section is to protect the rights of the husband, it cannot be any defence to the charge to say that, though the husband has been deprived of his rights, the wife is willing to injure the said rights and so the person who is responsible for her willingness has not detained her.
Detention in the context must mean keeping back a wife from her husband or any other person having the care of her on behalf of her husband with the requisite intention.
Such keeping back may be by force; but it need not be by force.
It can be the result of persuasion, allurement or blandishments which may either leave caused the willingness of the woman, or may have encouraged, or co operated with, her initial inclination, to leave her husband.
It seems to us that if the willingness of the wife is immaterial and it cannot be a defence in cases falling tinder the first three categories mentioned in section 498, it cannot be treated as material factor in dealing with the last category of case of detention mentioned in the said section.
Therefore, we are satisfied that the High Court was right in holding that the charge of detention has been proved against appellant No. I inasmuch as both the courts of facts have found that 471 he had offered to marry Mst.
Rahmatia and thereby either persuaded or encouraged her to leave her husband 's house.
It may be that Rahmatia was dissatisfied with her husband and wanted voluntarily to leave her husband; but, on the evidence, it has been held that she must have been encouraged or induced not to go back to her husband because she knew that she would find ready shelter and protection with appellant No. 1 and she must have looked forward to marry him.
In fact appellant No. 1 claims to have married her.
Thus there can be no doubt that he intended to have illicit sexual intercourse with her.
That is the effect of concurrent findings of fact recorded against appellant No. I ; and it would not be open to him to challenge their correctness or propriety in the present appeal.
This section has been the subject matter of several judicial decisions and it appears that, except for a few notes of dissent, there is a fair amount of unanimity of judicial opinion in favour of the construction which we feel inclined to place on the word " detains " in section 498.
It is, however, true that the relevant decisions, to some of which we would presently refer disclose a striking difference of approach in dealing with questions of fact.
It would appear that though the relevant portion of the section has received the same construction in dealing with same or similar facts, the learned judges have differed in their conclusion as to whether the accused person had been guilty of conduct which would bring his case within section 498.
This, however, is a difference in the method of approaching evidence and assessing its effects.
It would be futile and even improper to consider whether a particular conclusion drawn from the specific evidence adduced in the case was right or not.
What is important in such cases is to see how the section has been construed and, as we have just indicated, in the matter of construction there appears a fair amount of unanimity.
Let us now refer to some of the decisions cited before us.
In 1868, the Madras High Court held in Sundara Dass Tevan (1) that depriving the husband of his (1) (1868) IV Mad.
H.C.R. 20.
472 proper control of his wife for the purpose of illicit inter course is the gist of the offence just as it is the offence of taking away a wife under the same section; and a detention occasioning such deprivation may be brought about simply by the influence of allurement and blandishment.
On the facts of the case, however, the court was not satisfied that the accused bad offered any such allurement or blandishment and so the order of conviction passed against the appellant was quashed.
It appears that the construction put by the Madras High Court on section 498 in this case has been generally accepted in the said High Court (Vide: Ramaswamy Udayar vs Raju Udayar (1) ).
The Bombay High Court has taken the same view in Emperor vs Jan Mahomed (2).
It was held by the High Court that the offence contemplated by & 498 is complete if it appears that the accused went away with the woman in such a manner as to deprive her husband of the control of his wife; the fact that the woman accompanied the accused of her own free will does not diminish the criminality of the act.
Even in this case, the court was unable to discover any evidence, direct or indirect, about the intention of the accused or any allurement or blandishment offered by him and so the order of conviction passed against the accused was set aside.
This question came to be considered by the said High Court again in Emperor vs Mahiji Fula (3).
Mr. Justice Broomfield who delivered the main judgment of the Bench has expressed the view that " the word I detains ' means, by deprivation, and according to the ordinary use of the language I keeps back" '; and he adds that ,there may be various ways of keeping back.
It need not necessarily be by physical force.
It may be by persuasion or, as the Court " (Madras High Court) " has observed in this particular case" (Sundara Dass Thevan (4)) " by allurement or blandishment ".
On the facts, however, it appeared to the trial court that the conduct of the accused did not bring his case within the mischief of section 498.
The wife of the complainant had been taken (1) A.I.R. (1953) Mad. 333.
(3) Bom.
88, 92.
(2) (1902) IV Bom.
L. R. 435.
(4) (1868) IV Mad. H. C. R. 20.
473 away by her brother and she was subsequently married by natra marriage to the accused.
The complainant learnt about this incident and went to the accused to ask him to allow his wife to go back to him.
On seeing the complainant and his friends the accused came out with a dharia and threatened the complainant and his companions who then re turned to their village.
The conduct of the accused ' when the complainant approached him, it was said, cannot necessarily indicate that the accused had detained the woman.
This was the ' view taken by the trial court who acquitted the accused ; on appeal the High Court saw no reason to differ and so the order of acquittal was confirmed by it.
Divatia, J., who delivered the concurring judgment apparently differed from Broomfield, J., in regard to the construction of the word " detains ".
He agreed that the scheme of section 498 showed that though the woman may be perfectly willing to go with the man the offence of taking or enticing away would occur because it simply consists of taking or enticing away a woman without anything more; but according to him, in the latter part of the section, which speaks of concealing or detaining the woman, the woman would be detained only if she is prevented from going in any quarter where she wants to go.
In our opinion, this construction is not sound.
It is not easy to see how the act of concealing the woman would necessarily import any considerations of the consent of the woman ; besides, according to Divatia, J., himself, the woman 's Consent would be irrelevant in the cases of taking or enticing her away.
If that be so, it is difficult to make her consent relevant and decisive in dealing with the cases of detention.
Unfortunately the learned judge does not appear to have appreciated the fact that the primary and the sole object of section 498 is to protect the husband 's rights and not the rights of the wife.
If it is shown that the woman 's inclination to stay away from her husband was either instigated or encouraged by the offender, she can be said to have been detained or kept away from her husband within the meaning of the section 60 474 though at the time of the detention she may be willing to say with the offender.
The same view has been expressed by Broomfield and Sen, JJ., in Emperor vs
Ram Narayan Baburao Kapur (1) and by Beaumont C.J., and Sen, J., in Mahadeo Rama vs Emperor (2).
We may point out that in both these cases the court was have detained the woman.
The Calcutta High Court appears to have put a similar construction on the word "detention".
In Prithi Missir vs Harak Nath Singh (3) it has been held by the said High Court that " the word ' detention ' is ejusdem generis with enticement and concealment.
It does not imply that the woman is being kept against her will but there must be evidence to show that the accused did something which had the effect of preventing the woman from returning to her husband ".
On the merits, however, the court held that the learned trial magistrate had not come to any definite finding of fact.
In fact it did not appear that the accused was keeping the complainant 's wife as his mistress; and on the whole, the court was not satisfied that the accused was responsible for the conduct of the complainant 's wife for leaving her husband 's house and so detention was held not proved against the accused.
In Mabarak Sheikh vs Ahmed Newaz (4) the same High Court held that there can be no detention of a woman within the meaning of section 498, second part, if the woman is an absolutely free agent to go away from the person charged whenever she likes.
It appears that the learned judges were inclined to hold that there could be no detention if the woman was an absolutely free agent to go away from the person charged whenever she likes to do so; and in support of this view they have referred to some of the decisions which we have already considered.
With respect, it appears that the effect of the earlier decisions has not been properly considered and the findings of fact recorded in the said decisions are assumed to lend colour to, and modify, the construction of the section (1) (3) I.L.R. (2) A.I.R. (1943) Bom. 179.
(4) 475 adopted by them.
Besides, the relevant observations appear to be obiter because, on the facts, it was found in this case that the woman was not a free agent and so the charge against the accused under section 498 was held established.
In Bipad Bhanjan Sarkar vs Emperor (1), Henderson and Khundkar, JJ., have considered the word " detains " in the same manner as we have done.
However, as in many other cases, in this case also, the court found that there was absolutely nothing to show that the accused had done anything which could bring his case within the mischief of section 498.
The Patna High Court, in Banarsi Raut vs Emperor (2), has held that providing shelter to a married woman is such an inducement as to amount to detention within the meaning of section 498.
This case shows that where a married woman was found living in the house of the accused for some time and sexual intercourse between them had been established, the court was inclined to draw the inference that there was per suasion or inducement of the woman as would come within the meaning of the word " detention ".
This is a case on the other side of the line where on facts the inference was drawn against the accused.
The Lahore High Court has taken a similar view as early as 1913 in Bansi Lal vs The Crown (3 ).
The court has held that where the accused had provided a house for the woman where she stayed after deserting her husband under the protection of the accused as his mistress, it was active conduct on his part which was sufficient to bring him within the terms of section 498.
In 1939, however, a Division Bench of the Lahore High Court has taken a contrary view in Harnam Singh vs Emperor (4).
In this case the revisional application filed by Harnam Singh against his conviction under section 498 was first argued before Din Muhammad, J., who referred it to a Division Bench because he thought that the question of law raised was of some importance.
In his referring judgment the learned judge mentioned some of the relevant decisions to which his attention was drawn and indicated his own view that (1) I.L.R. (3) (1913) XlV Punjab L. R. 1066.
(2) A.I.R. (1938) Pat.
(4) A.I.R. (1939) Lah.
476 the word " detains " would naturally imply some overt act on the part of the person who detains in relation to the person detained.
He thought that mere blandishment would not constitute any relevant factor in the matter of detention.
The matter was then placed before a Division Bench consisting of Young, C. J., and Blacker, J. Unfortunately the judgment of the Division Bench does not discuss the question of the construction of section 498 ; it merely records the conclusion of the court in these words: " In our opinion, the word " detains " clearly implies some act on the part of the accused by which the woman 's movements are restrained and this again implies unwillingness on her part.
Detention cannot include persuasion by means of blandishments or similar inducements which would leave the woman free to go if she wished ".
The learned judges also added that they were of the opinion that the word " detains " cannot be reasonably construed as having reference to the husband.
In our opinion, these observations do not correctly represent the true purport and effect of the provisions of section 498.
The position, therefore, is that, on the findings of fact made by the lower courts against appellant No. I it must be held that he has been rightly convicted under section 498.
That takes us to the question of sentence imposed on him by the High Court in its revisional jurisdiction.
We are satisfied that the High Court was not justified in directing appellant No. I to suffer rigorous imprisonment for six months by way of enhancement of the sentence.
It is unnecessary to emphasise that the question of sentence is normally in the discretion of the trial judge.
It is for the trial judge to take into account all relevant circumstances and decide what sentence would meet the ends of justice in a given case.
The High Court undoubtedly has jurisdiction to enhance such sentence under section 439 of the Code of Criminal Procedure; but this jurisdiction can be properly exercised only if the High Court is satisfied that the sentence imposed by the trial judge is unduly lenient, or, that, in passing the order of sentence, the trial judge had manifestly failed to consider the 477 relevant facts.
It may be that the High Court thought that the appellate order passed by the Sessions Judge modifying the original sentence was wrong, and in that sense, the issue of notice under section 439 of the Code of Criminal Procedure against appellant No. 1 to show cause why his sentence should not be enhanced may have been justified; but, in enhancing the sentence, the High Court should, we think, have restored the sentence passed by the trial judge himself.
It is true that, in enhancing the sentence, the High Court has observed that " women in this country, whether chaste or unchaste, must be protected and that it is the duty of the court to see that they are given sufficient protection ".
We are inclined to think that the considera tion set out in this observation is really not, very helpful and not decisive because, as we have already observed, section 498 does not purport to protect the rights of women but it safeguards the rights of husbands.
Besides, in the present case, it is clear that Mst.
Rahmatia, who is a woman of loose moral character, was dissatisfied with the complainant, who is her second husband, and was willing to marry appellant No. 1.
In such a case, though appellant No. I is guilty under section 498, it is difficult to accept the view of the High Court that the sentence of two months ' simple imprisonment imposed on him, by the trial court was so unduly or manifestly lenient as not to meet the ends of justice.
It would not be right for the appellate court to interfere with the order of sentence passed by the trial court merely on the ground that if it had tried the case it would have imposed a slightly higher or heavier sentence.
We would accordingly modify the order of sentence passed against appellant No. 1 by reducing it to that of simple imprisonment for two months.
The case of appellant No. 2 is clearly different from that of appellant No. 1.
The findings of fact recorded by the courts below do not implicate appellant No. 2 in the act of persuasion or offering blandishments or inducements to Mst.
Rahmatia.
The only evidence against this appellant is that when the complainant went to take away his wife appellant No. 2 threatened 478 him.
The record shows that appellant No. 2 is the brother of appellant No. 1; and, if knowing that Rahmatia had married his brother, appellant No. 2 told the complainant to walk away, that cannot legally justify the inference that he must have offered any inducement, blandishment or allurement to Rahmatia for leaving the protection of her husband and refusing to return to him.
Indeed the courts below have not considered the case of this appellant separately on its own merits at all.
In our opinion, the conviction of appellant No. 2 is not supported by any evidence on the record.
The result is the appeal preferred by appellant No. 2 is allowed, the order of conviction and sentence passed against him is set aside and he is ordered to be acquitted and discharged.
Appeal of appellant No. 1 dismissed.
Appeal of appellant No. 2 allowed. | One R, the wife of S, disappeared from her husband 's house.
She was traced to the house of the appellants, A and his brother B.
When S went there and asked A to let his wife go with him A told him that he had married her and B threatened S and asked him to go away.
The appellants were charged under section 498 Indian Penal Code for detaining R when they knew or had reason to believe that she was the wedded wife of S, with intent to have illict intercourse with her.
The appellants pleaded that R was not validly married to S and that she had not been detained by them inasmuch as she was tired of living with S and had voluntarily and of her free will come to stay with them.
The Magistrate found the appellants guilty, convicted them and sentenced them to undergo simple imprisonment for two months each.
On appeal the Sessions Judge confirmed the conviction but reduced the sentence to a fine of Rs. 50/ each.
The appellants filed a revision before the High Court.
The High Court issued a notice of enhancement and after hearing the appellants dismissed the revision and enhanced the sentence to rigorous imprisonment for six months each.
Held, that detention in section 498 means keeping back a wife from her husband or any other person having the care of her on behalf of her husband.
Such keeping back may be by force; but it need not be by force.
It can be the result of persuasion, allurement or blandishments which may have either caused the willingness of the woman, or may have encouraged, or co operated with, her initial inclination to leave her husband.
The object of the section is to protect the rights of the husband and it cannot be any defence to the charge to say that, though the husband has been deprived of his rights, the wife is willing to injure the said rights and so the person who is responsible for the willingness has not detained her.
A was rightly convicted as the charge of detention was proved against him on the findings of the Courts below that he had offered to marry R and had thereby either persuaded or encouraged her to leave her husband 's house.
But the charge was not made out against B as it was not proved that he had offered any inducement, blandishment or allurement to R for leaving the protection of her husband and for refusing to return to him.
465 Sundara Dass Teva, (1868) IV Mad. H. C. R. 20; Ramaswamy Udayar vs Raju Udayar, A. 1.
R. ; Emperor vs Jan Mohomed, (1902) IV Bom.
L.R. 435; Broomfield, J., in Emperor vs
Mahiji Fula, Bom.
88, Emperor vs Ram Narayan Baburao Kapur, ; Mahadeo Rama vs Emperor, A.I.R. (1943) Bom.
179; Prithi Missir vs Harak Nath Singh, I.L.R. ; Bipad Bhanjan Sarkar vs Emperor, I.L.R. ; Banarsi Raut vs Emperor, A.I.R. (1938) Pat.
432 and Bansi Lal vs The Crown, (19I3) Punj.
L.R. 1066, approved.
Divatia, J., in Emperor vs Mahiji Fula, Bom.
88, Mabarak Sheikh vs Ahmed Newaz, and Harnam Singh vs Emperor, A.I.R. (1939) Lah.
295, disapproved.
Held further, that the High Court was not justified in en hancing the sentence to six months rigorous imprisonment, and it should have only restored the sentence passed by the trial Court.
The question of sentence is normally in the discretion of the trial Court and the High Court can enhance the sentence only if it is satisfied that the sentence imposed by the trial Court is unduly lenient, or, that in passing the order of sentence, the trial Court had manifestly failed to consider the relevant facts.
The sentence of two months simple imprisonment imposed by the trial Court was not so unduly or manifestly lenient as not to meet the ends of justice. |
ivil Appeal Nos.
232 233 of 1978.
From the Judgment and Order dated 19.7.1977 of the Patna High Court in C.W.J.C. No. 756 of 1977.
Ashok Sen, Shankar Ghosh, Tapas Ray, Ms. section Janani, Ms. Minakshi, Mrs. Urmila Kapoor, D. Goverdhan, Rakesh K. Khanna, Salman Khurshid, R.P. Singh, D.D. Mishra, Mrs. G.S. Mishra and D.P. Mukherjee for the appearing parties.
The Judgment of the Court was delievered by RAY, J.
These two appeals were filed against the common judgment and order dated 29th July, 1978 made by the Division Bench of the High Court at Patna in C.W.J.C. No. 756 of 1977 whereby the High Court quashed the orders of the government contained in Annexures 8, 9 and 10 to the writ petition.
The facts unfurled from the writ petition are as follows: The respondent Nos. 1 to 5 in these appeals (the petitioners in the writ petition) were directly appointed in the Bihar Engineering Service Class II as Assistant Engineers of the Irrrigation Department on the recommendation of Bihar Public Service Commission and were posted in River Valley Project in 1961.
The respondent Nos. 6 to 23 in C.A. No. 232 of 1978 (who are appellants in C.A. No. 233 of 1978 and respondent Nos. 5 to 22 in the writ petition) were working at that time as overseers in the Bihar Subordinate Engineering Service (Irrigation Department).
On 7th April, 1958 the the Governor took a decision under rule 2 of the Public Works Department Code that 25% of the posts in the Bihar Engineering Service, Class II shall be filled up by promotion, subject to availability of suitable hands.
Thus, out of the total vacancies in Bihar Engineering Service, Class II, 75% of the vacant posts as determined by the Government will be filled up by direct recruitment and 25% of the vacant posts will be filled up by promotion subject to availability of suitable candidates.
By notification dated 413 18th July, 1964/27th August, 1964, respondent Nos.
6 to 13 in C.A. No. 232 of 1978 (appellant Nos. 1 to 8 in C.A. No. 233 of 1978 and respondent Nos.
5 to 12 in the writ petition) who were members of the Bihar Subordinate Engineering Service (Overseers) were promoted to the post of Assistant Engineer in Class II and by another notification dated 21st July, 1969, respondent Nos.
14 to 23 in C.A. No. 232 of 1978 (appellant Nos. 9 to 18 in C.A. No. 233 of 1978 and respondent Nos. 13 to 22 in the writ petition) were also promoted to Bihar Engineering Service, Class II as Assistant Engineers.
On February 25, 1969, a seniority list of Assistant Engineers was published by the Department wherein the names of the respondent Nos. 1 to 5 (the petitioners) were mentioned at Sl.
Nos. 170, 199, 208, 211 and 226 and the names of the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in writ petition) were mentioned at Sl.
253, 254, 256 to 262, 687 to 695 and 701 respectively The respondent Nos.
6 to 23 were thus shown as juniors to the respondent Nos. 1 to 5 (the petitioners).
The respondent Nos. 6 to 23 feeling aggrieved by the said seniority list made representations claiming seniority over respondent Nos. 1 to 5.
On 3rd May, 1972 the State of Bihar constituted a Committee known as Ramanand Committee by a resolution to consider the inter se seniority of Civil Engineers including the Assistant Engineers.
On April 19, 1973 the Ramanand Committee submitted a report making certain recommendations.
It was alleged that a revised seniority list was prepared wherein the respondent Nos. 1 to 5 were shown juniors to the respondent Nos. 6 to 23.
This, of course, has been denied in affidavit in counter filed on behalf of the Government (appellants in C.A. No. 232 of 1978, respondent Nos.
6 to 9 in C.A. 233 OF 1978, and respondent Nos. 1 to 4 in the writ petition).
On 21st of July, 1975, an order was made whereby the date of promotion of respondent Nos.
6 to 13 was changed from 21st July, 1962 to 27th February, 1961 thereby making the respondent Nos. 1 to 5 juniors to respondent Nos. 6 to 13.
This order is contained in annexure 8 to the writ petition.
In other words, the respondent Nos. 6 to 13 were promoted retrospectively from the State against it but the State government instead of redressing their grievances made another order on January 20, 1976 (annexure 9 to the writ petition) re fixing the seniority of respondent Nos. 6 & 7 promoting them to the Bihar Engineering Service with effect from December 19, 1958.
Again, to the prejudice of the respondent Nos. 1 to 5, an order was passed by the State Government by which the date of promotion of respondent Nos.
14 to 23 was pushed back to February 27, 1961 making them also senior to the respondent Nos. 1 to 5.
This order is contained in annexure 10 to the writ petition.
414 The respondent Nos. 1 to 5, therefore, filed a writ petition in the High Court at Patna being Civil Writ Petition No. 756 of 1977 challenging the seniority conferred on the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the writ petition) by annexures 8, 9 and 10 on the ground that these orders were wholly arbitrary illegal, void and inoperative and ineffective and so prayed for appropriate writ for quashing those orders.
A counter affidavit was filed on behalf of the State Government.
In Para 3(iii) of the said affidavit, it has been averred that till 1957, 25% of the vacancies in Bihar Engineering Service, Class II, were being filled up by promotion from the Bihar Subordinate Engineering Service (commonly known as `Overseers ').
Subsequently, in the year 1958, it was decided that 25% of the cadre posts in the Bihar Engineering Service, Class II Both permanent and temporary, shall be reserved for being filled up through promotion from the members of the Bihar Subordinate Engineering Service.
It has been further averred in para 3(iv) that all the posts of temporary Assistant Engineers to which the Overseers were entitled to be promoted on the basis of 25% reservation in the cadre were not filled up by promotion of Overseers, only 3 overseers were given promotion with effect from 19.12.1958 vide order No. A/P1 409 64 1 14294 dated 18.7.64/27.8.64.
In the said affidavit it has also been stated that on a careful examination of the matter it was found that on the basis of total number of posts of Assistant Engineers in the Department, the Overseers were entitled to 60 posts on the basis of 25% reservation till 1958, out of which they were already given 33 posts and 27 more posts of Assistant Engineers were still due to them and accordingly by an order dated 20th January, 1976 the 21 Overseers who had earlier been given promotion as temporary Assistant Engineers from later dates in 1960, 1961 and 1962 by the order dated 18.7.64/27.8.64.
were given promotion, with effect from 19.12.1958.
Due to this correction, respondent Nos. 6 and 7 and one Shri Mithileshwari Sahay (since retired) were promoted as temporary Assistant Engineers with effect from 19.12.1958 in partial modification of the Government order dated 18.7.64/27.8.64 and another order dated July 12, 1975.
It has been further stated that as a result of this modification in the dates of promotion as Assistant Engineer who by the order dated 20th January, 1976 were allowed promotion as temporary Assistant Engineers with effect from 19.12.1958 as against promotions from later dated in 1960, 1961 and 1962 given to them by earlier Government Order dated 27.8.1964 and order dated 21.7.1969.
It has also been stated that the respondent Nos. 6 and 7 were entitled to promotion in 1958 and respondent Nos. 8 to 23 to promotions in 415 1960 and 1961, on the basis of the reservation of 25% of the cadre post in the Bihar engineering Service, Class II, for promotion of Overseers from the Bihar Subordinate Engineering Service.
It has been further averred that as against 21 consequential vacancies, the case of only 17 Overseers was modified accordingly in supersession of the earlier Government order dated 18.7.64/27.8.64 and respondent Nos. 8 to 13 were given promotion as temporary Assistant Engineer with effect from 27.2.1961, from which date the promotion was due to them on the basis of the quota by a Government Order No. 10501 (annexure 8 to the writ petition) dated July 12, 1975 and No. 17328 dated November 8, 1975 respectively.
It has also been stated that the seniority list that was prepared and published in 1969 was tentative.
The High Court, Patna held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely effect others.
The respondent Nos. 1 to 5 were recruited to the post of Assistant Engineer, Class II before the respondent Nos. 6 to 23 were promoted to the post of Assistant Engineer, Class II in the Bihar Engineering Service, Class II.
The High Court, therefore, held that the orders contained in Annexure 8, 9 and 10 promoting the respondent Nos. 6 to 23 (respondent Nos. 5 to 22 in the writ petition) with retrospective effect are bad and so quashed those Government orders referred to in the said annexures.
Against this judgment and order made by the High Court, the instant appeals on special leave were filed.
The sole question which falls for decision in these appeals is whether the inter se seniority between the petitioners respondent Nos. 1 to 5 who are direct recruits and the Overseers belonging to the Bihar Subordinate Engineering Service (Irrigation Department) who had been promoted retrospectively in their 25% quota for the year 1958 as revised by the Government orders mentioned in annexures 8, 9 and 10 to the writ petition, is arbitrary, illegal and inoperative as those orders purport to affect prejudicial the seniority of the petitioners respondent Nos. 1 to 5 in the service of Bihar Engineering Service, Class II.
It is not disputed that in 1958 under Rule 2 of the Public Works Department Code, the Government of Bihar took a decision to the effect that 25% of the posts in the Bihar Engineering Service, Class II shall be filled up by promotion, subject to availability of suitable hands.
It also appears from the counter affidavit filed on behalf of the Government that in 1958, the the total number of posts to be filled up by promotion from the Overseers in the Bihar Subordinate Engineering Service 416 (Irrigation Department) to the post of Assistant Engineer, in Bihar Engineering Service, Class II was 60 out of which only 33 posts were filled up by promotion, leaving 27 more posts of Assistant Engineers to be filled up by promotion from the Overseers in the Bihar Subordinate Engineering Service (Irrigation Department).
It is also clear from the averments made in the said counter affidavit that the petitioners respondent Nos. 1 to 5 were appointed in Bihar Engineering Service, Class II on the recommendation of the Bihar Public Service Commission in the year 1961 and the respondent Nos. 6 to 13 who had been working in the Bihar Subordinate Engineering Service (Irrigation Department) as Overseers and having independent charge of the sub division were promoted to the post of Assistant Engineer, Class II by notification dated 18.7.64/27.8.64.
The respondent Nos.
14 to 23 were also promoted by notification dated 21.7.1969.
On the basis of these appointments and promotions in the post of Assistant Engineer in the Bihar Engineering Service, Class II, a seniority list was prepared and published in february, 1969 tentatively wherein the petitioners respondent Nos. 1 to 5 were shown as senior to respondent Nos.
6 to 23.
However, the Government by its order dated 21st July, 1962 changed the date of promotion of respondent Nos. 6 to 13 from 21.7.1962 to 27.21961 (Annexure 8 to the writ petition) thereby making the petitioners respondent Nos. 1 to 5 junior to respondent Nos. 6 to 13.
On January 20, 1976, the Government passed another order re fixing the seniority of respondent Nos. 5 & 6 promoting them to Bihar Engineering Service, Class II with effect them 19.12.1958 (Annexure 9 to the writ petition).
Again an order contained in Annexure 10 to the writ petition was passed by which the date of promotion of respondent Nos.
14 to 23 was pushed back to February 27, 1961, thus making them senior to the petitioners respondent Nos. 1 to 5.
The petitioners respondent Nos. 1 to 5 challenged these three Government orders mainly on the ground that these orders giving promotion to the respondent Nos. 6 to 23 from a date earlier to their date of promotion to the post of Assistant Engineer in Bihar Engineering Service, Class II purport to affect prejudicially the rights of the petitioners respondent Nos. 1 to 5 in as much as they were appointed to the post of Assistant Engineer in the Bihar Engineering Service, Class II earlier to the promotion to the said post of the respondent Nos. 6 to 23.
It has also been submitted in this connection that he seniority has to be reckoned amongst the officials working as Assistant Engineers in the Bihar Engineering Service, Class II from the date of their appointment on promotion to the said Service.
The petitioners respondent Nos. 1 to 5 being appointed earlier directly in the quota of direct recruits than the promoted respondents who were promoted later cannot be given 417 seniority in service to the petitioners respondent Nos. 1 to 5 and it was contended that the impugned orders are wholly illegal and unwarranted and so the High Court has rightly quashed the said orders.
It has been further urged in this connection that the State can promote its employees with retrospective effect provided such retrospective promotion does not affect the right and seniority already earned by others.
The petitioners respondent Nos. 1 to 5 who were senior to the petitioners respondents Nos. 6 to 23 were made junior to them by the said Government orders as contained in Annexure 8, 9 and 10 to the writ petition.
It has, therefore, been contended that the promotion to the respondent Nos. 6 to 23 was illegal and arbitrary as the same had prejudicially affected the petitioners respondent Nos. 1 to 5 in regard to their seniority.
The High Court while rendering its judgment relied on the decision in the case of A.K. Subraman and Ors.
vs Union of India and Ors.
, specially on the observation made therein as under: "Once the Assistant Engineers are regularly appointed to officiate as Executive Engineers within their quota they will be entitled to consideration in their own rights as Class I Officers to further promotions.
Their "birth marks" in their earlier service will be of no relevance once they are regularly officiating in the grade of Executive Engineer within their quota.
" The High Court held that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others.
It is the admitted position that the respondent Nos. 6 to 23 were working as Overseers in the Bihar Subordinate Engineering Service and were promoted to the post of Assistant Engineer in Bihar Engineering Service, Class II much after the petitioners respondents Nos.
1 to 5 were directly recruited and appointed on the basis of the recommendation of the Bihar Service Commission, to the post of Assistant Engineers in 1961 and as such they have been working in the grade of Assistant Engineers much before the respondent Nos.
6 to 23.
Undoubtedly, on the basis of the order of the Governor in 1958, the posts of Assistant Engineers are to be filled up from two sources i.e. by direct recruitment as well as by promotion from Overseers working in the Bihar Subordinate Engineering Service and the ratio of the vacan 418 cies to be filled up has been fixed as 75% from the direct recruits and 25% from the promotees.
It has been urged on behalf of the respondent Nos. 6 to 23 that in view of the quota rule the respondent Nos. 6 to 23 who were promoted in the quota set out for promotees in respect of the vacancies of 1958 shall be taken to be promoted in 1958 notwithstanding that they have been actually promoted long after 1958 and after the direct recruits i.e. respondent Nos. 1 to 5 were recruited directly to the post of Assistant Engineers.
In other words even though the respondent Nos. 6 to 23 have been promoted after the date of recruitment of respondent Nos. 1 to 5 to the post of Assistant Engineer, still then the promote respondent Nos. 6 to 23 should be deemed to be senior to the direct recruit respondent Nos. 1 to 5 as they were promoted in the vacancies for 1958 quota set up for promotees.
In support of this submission the decision in V.B. Badami etc.
vs State of Mysore and Ors., [1976] 1 SCR 815 as well as Gonal Bihimappa vs State of Kanataka, [1987] Supp.
SCC 207 were cited at the bar.
In both these cases the promotees occupied the quota of direct recruits as direct recruits were not available to fill up the quota meant for them.
It was held that direct recruits who were appointed within their quota subsequently were entitled to the vacancies within their quota which had not been filled up and they would become senior to the promotees The promotees would be pushed down to later years when their appointment could be regularised as a result of absorption in their lawful quota of those years.
The promotees cannot claim any right to hold promotional posts unless the vacancies fall within their quota.
These cases have no application in the instant case in as much as the direct recruits i.e. respondent Nos. 1 to 5 were recruited in their quota i.e. the quota meant for them.
This being so, the decision in these two cases has no application to the instant case.
Moreover, there is nothing to show that the respondent Nos. 6 to 23 who were promoted in 1962 and thereafter i.e. subsequent to the direct recruits i.e. respondent Nos. 1 to 5 could be deemed to be recruited in 1958 quota as there was nothing to show that these vacancies were carried forward.
The Government 's orders as contained in annexures 8, 9 and 10 which purport to give promotion to the respondent Nos. 6 to 23 retrospectively are arbitrary, illegal and inoperative in as much as these seriously affect the respondent Nos. 1 to 5.
The respondent Nos. 6 to 23 were not in the cadre of Assistant Engineers even in officiating capacity at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer.
As such, the said promotee respondent Nos.
6 to 23 could not be under any circumstances, given seniority over the directly recruited respondent Nos. 1 to 5.
The 419 High Court has rightly quoted the observation made by this Court in the case of A.K. Subraman & Ors.
(supra) as mentioned in the preceding paragraphs.
It is pertinent to mention in this connection, the observation of this Court in the case of D.K. Mitra and Ors.
vs Union of India and Ors., [1985] Supp.
SCC 243.
In this case the petitioners were confirmed as Assistant Medical Officers in 1962 and 1963 and they were placed in the higher scale of Assistant Divisional Medical Officers to the Indian Railways with effect from January 1, 1973.
Thereafter they were appointed as officiating Divisional Medical Officers in 1972, 1973 and 1974 and they had been continuing there uninterrupted.
Respondent Nos. 4 to 64 were given substantive appointments as Divisional Medical Officers later on but they were confirmed earlier than the petitioners because of the zone wise confirmation given by the Railway Administration.
It was held that the petitioners should be considered at par for the purpose of fixing seniority, with those appointed to permanent posts in a substantive capacity.
For the purpose of determining seniority among promotees, the petitioners should be treated as having been appointed to permanent vacancies from the respective dates of their original appointment and the "entire period of officiating service performed by them should be taken into account as if that service was of the same character as that performed by the substantive holders of permanent posts.
" In the instant case, the promotee respondent Nos.
6 to 23 were not born in the cadre of Assistant Engineer in the Bihar Engineering Service, Class II at the time when the respondent Nos. 1 to 5 were directly recruited to the post of Assistant Engineer and as such they cannot be given seniority in the service of Assistant Engineers over the respondent Nos. 1 to 5.
It is well settled that no person can be promoted with retrospective effect from a date when he was not born in the cadre so as to adversely affect others.
It is well settled by several decisions of this Court that amongst members of the same grade seniority is reckoned from the date of their initial entry into the service.
In other words, seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II will be considered from the date of the length of service rendered as Assistant Engineers.
This being the position in law the respondent Nos. 6 to 23 can not be made senior to the respondent Nos. 1 to 5 by the impugned Government orders as they entered into the said Service by promotion after the respondent Nos. 1 to 5 were directly recruited in the quota of 420 direct recruits.
The judgment of the High Court quashing the impugned Government orders made in annexures, 8, 9 and 10 is unexceptionable.
In the premises aforesaid, we confirm the judgment and order rendered by the High Court.
The appeals are, therefore, dismissed.
In the facts and circumstances of the case, there will be no order as to costs.
R.P. Appeals dismissed. | Under Rule 2 of the Bihar Public Works Department Code, the Governor of Bihar took a decision on 7.4.1958 providing that 25% of the posts of Assistant Engineers in the Bihar Engineering Service, Class II (the Service) were to be filled by promotion, subject to availability of suitable hands, from Overseers in the Bihar Subordinate Engineering Service (Irrigation Department) and 75% of the posts were to be filled by direct recruitment to the Service.
Respondents No. 1 to 5 in both these appeals were appointed as Assistant Engineers in the Service on the recommendation of the Bihar Public Service Commission in the year 1961; and the appellants (in Civil Appeal No. 233 of 1978(respondents No. 6 to 23 in Civil Appeal No. 232 of 1978), who had been working as Overseers in the Bihar Subordinate Engineering Service (Irrigation Department) were promoted to the posts of Assistant Engineers in the Service in 1962 and thereafter.
However, by orders dated 12.7.1975, 20.1.1976 and 9.4.1977, the Government changed the date of promotion of the appellants to the dates prior to the appointment of respondents No. 1 to 5 in the Service, making the former Senior to the letter.
Respondents No. 1 to 5 filed writ petition before the High Court challenging the seniority conferred on the appellants from the retrospective date and contended that the orders giving promotions to the appellants from a date earlier to date of their promotion in the Service purported to affect prejudicially respondents No. 1 to 5 's right inasmuch as they were appointed to the Service earlier to the promotion of the appellants; and that the seniority had to be reckoned amongst the officials working as Assistant Engineers in the Service from the date of their appointment or promotion to the said Service.
The appellants contended that they were entitled to be promoted retrospectively on the 411 basis of reservation of 25% of the Cadre posts in the Service till 1958.
The High Court.
holding that the orders promoting the appellants with retrospective effect were bad, quashed the same and allowed the writ petition.
Hence the present appeals.
On consideration of the legality and validity of the orders of the Government giving promotions to the appellants from a date earlier to the date of their entry into the Service as Assistant Engineers, and its effect on the inter se seniority amongst the appellants and respondents No. 1 to 5, who were directly appointed as Assistant Enginers in the Service before the appellants entered in the said Service.
Dismissing the appeals, this Court, HELD: 1.
The Government Orders dated 12.7.1975, 20.1.1976 and 9.4.1977 which purported to give promotion to the appellants retrospectively were arbitrary, illegal and inoperative inasmuch as these seriously affected rspondents No. 1 to 5.
The appellants were not borne in the cadre of Assistant Engineers even in officiating capacity at time when rspondents No. 1 to 5 were directly recruited to the post of Assistant Egineer.
As such, the promotee appellants could not be under any circumstance given seniority over the directly recruited respondents No. 1 to 5.
The judgment of the High Court in quashing the impugned Government Orders was, therefore, unexceptionable.
[418F H; 420A] 2.1 No person can be promoted with retrospective effect from a date when he was not borne in the Cadre so as to adversely affect others; and amongst members of the same grade, seniority is reckoned from the date of their initial entry into the service.
[419F] 2.2 Seniority inter se amongst the Assistant Engineers in Bihar Engineering Service, Class II would be considered from the date of the length of service rendered as Assistant Engineers.
Therefore, the appellants could not be made senior to respondents No. 1 to 5 by the impugned Government Orders as they entered into the said Service in 1962 and thereafter by promotion subsequent to respondent No. 1 to 5 who were directly recruited in the quota meant for them.
There was nothing to show that the appellants could be deemed to be recruited in 1958 quota and that these vacancies were carried forward.
[419G; 418E F] A.K. Subraman and Ors.
vs Union of India and Ors., , relied on.
412 V.B. Badami vs State of Mysore and Ors., [1976] 1 SCR 815 and Gonal Bihimappa vs State of Karnataka, [1987] Supp.
SCC 207, held inapplicable.
D.K. Mitra and Ors.
vs Union of India and Ors., [1985] Supp.
SCC 243, referred to. |
ivil Appeal Nos.
931/77 & 200/78.
Appeals by Certificate from the Judgment and Decree dated 1.4.76 and from the Judgment and Decree dated 19.6.1975 of the Andhra Pradesh High Court in A.S. NO. 71/73 and Appeal No. 259 of 1972.
B. Kanta Rao for the Appellants.
C. Sitaramiah, and B. Parthasarthi for the Respondents.
The Judgment of the Court was delivered by: K.RAMASWAMY, J.
Civil Appeal Nos. 931 of 1977 and 200 of 1978 relate to the same dispute though arose from two suits and separate judgements.
The Bench that heard Civil appeal No. 931 of 1977 directed on January 24, 1991 to list Civil Appeal No. 200 of 1978 for common disposal.
Civil Appeal No. 200 of 1978 arose out of O.S. No 118 of 1968 on the file of the Court of Add.
Subordinate Judge.
Guntur and Appeal No. 259 at 1972 dated June 19, 1975 of the A.P. High Court.
The suit for possession and mesne profits was laid by the descendants of Nori Lakshmipathi Somayaajulu of Vatticherukuru, Guntur Taluq and District, for short `N.L.S. '.
The dispute relates to the tank known as `Nori Lakshmipathi Somayajulu 's Western Tank ' ``Vooracheruva ' ' (Village Tank).
It consists of 100 acres of which roughly 30 acres is covered by water spread area marked A ' Schedule `B ' Schedule consists of 70 acres (silted up area).
The tank was dug in Fasli 1190 (1700 A.D.) Zamindar, Raja Mainikya Rao made a grant of the land for digging the tank and its preservation, maintenance and repairs.
It is the descendants ' case that it is a private tank enjoyed by the `grantee ', N.L.S. as owner and thereafter the descendants and perfected the title by prescription.
It was found as a fact by the High Court and the descendants are unable to persuade us from the evidence to differ from the findings that the tank is a ``public tank ' ' dug by 541 the village.
The descendants ' plea and evidence adduced in support thereof that it is their private tank, was negated by both the courts.
The Trial Court found that the tank is a `public trust ', the appellants would be hereditary trustees and could be removed only by taking action under section 77 of the A.P. Hindu Charitable and Religious Institutions and Endowments Act, 1966 for short `the Endowments Act '.
It also held that the descendants acquired title by adverse possession.
Accordingly the suit for possession was decreed relegating to file a separate application for meesne profits.
On appeal the High Court reversed the decree and held that the tank is a public tank and the tank and the lands stood vested in the Gram Panchayat under A.P. Gram Panchayat Act 2 of 1964 for short `the Act '.
Since the Gram panchayat was in possession from July 7, 1965, though dispossessed the descendants forcibly and as the suit is not under section 6 of the but one based on title, it called for no interference.
It dismissed the suit.
This Court granted leave to appeal under Article 136.
Civil Appeal No. 931 of 1977 arose out of the suit for possession in O.S. No. 57 of 1966 on the file of the court of Subordinate Judge at Guntur filed by the Gram Panchayat against the descendants.
The suit was dismissed by the Trial Court and was confirmed by the High Court in A.S. No. 71 of 1973 and the High Court granted leave under article 133 on Dec. 10. 1976.
The pleadings are the same as in the other suit.
In addition the descendants further pleaded in the written statement that the Gram Panchayat unlawfully took possession of the tank on July 7, 1965.
They also acquired title by grant of ryotwari patta under section 3 of the A.P. Inams (Abolition and Conversion into Ryotwari) Act (Act XXXVII of 1956), for short `the Inams Act '.
The Gram Panchayat had no manner of right to interfere with their possession and enjoyment.
They also pleaded and adduced evidence that they were leasing out the fishery rights and grass and trees grown on the land.
The income was being utilized for the repairs of tank.
The Trial Court and the High Court found that the lands were endowed to N.L.S. for the maintenance of the tank and the descendants obtained ryotwari patta under Inams Act and are entitled to remain in possession and enjoyment as owners subject to maintain the tank.
Accordingly the suit was dismissed.
On appeal in A.S. No. 71 of 1973 by judgment dated April 1, 1976 the High Court confirmed the decree on further finding that by operation of section 14 of the Inams Act, Civil Suit was barred.
Thus both the appeals are before this Court.
542 In Civil Appeal No. 200 of 1978, Shri Seetharamaiah learned Senior Counsel for the descendants N.L.S. have no exclusive personal right title or interest in the tank and the appurtenant total land of 100 acres.
In view of the entries of the Inams Fair Register for short `I.F.R., ' it is a public trust and not a public tank.
Unless recourse is had to remove them from trusteeship under section 77 of the Endowments Act, the appellants cannot be dispossessed.
Since admittedly N.L.S. and the descendants were enjoying the property till date of dispossession, presumption of the continuance of the enjoyment anterior thereto as owners could be drawn.
The High Court thereby committed error of law in holding that the lands stood vested in the Gram Panchayat under the Act and that it is a public tank.
In Civil Appeal No. 931 of 1977, it was further contended that since the grant of Ryotwari patta under the Inams Act had became final section 14 thereof bars the jurisdiction of the Civil Court to entertain the suit.
Shri B.Kanta Rao, learned counsel for the Gram Panchayat contended that the finding of the High Court that the tank and the appurtenant land, namely, the plaint schedule property, as `public tank ', is based on evidence that the tank was dug by the villagers and that they have been using for their drinking purposes and the cattle is a finding of fact.
By operation of sections 85 and 64 of the Act, the land and the tank stood vested in the Gram Panchayat.
Entries in the I.F.R. establishes that the grant of the land was for preservation, maintenance and repairs of the tank.
Therefore, the grant should be in favour of the institution, namely, the tank.
The pattas obtained by the descendants should be for the benefit of the tank, though granted in individual names.
By operation of section 85 of the Act, the descendants acquired no personal title to the property.
Ryotwari patta is only for the purpose of land revenue.
The Gram Panchayat acquired absolute right title and interest in the land.
The Civil Suit is not a bar on the facts in this case.
Before appreciating the diverse contentions, the facts emerged from the findings in both the appeals could be gathered thus.
Admittedly the Zamindar.
Raja Manikya Rao granted 100 acres of land in Inam village to dig the tank and the grant was for its preservation and maintenance, the grant was in favour of N.L.S.
In 1700 A.P., i.e. 1190 Fasli, the tank was dug by the villagers and ever since the villagers have been using the fresh water tank for their drinking purposes and of the cattle and perfected their right by prescription.
In course of time the tank was silted up and in and around 30 acres the water spread area, fresh water is existing.
No. repairs were effected by the descendants.
The rest of the land was silted up.
Grass and trees have been 543 grown thereon and was being enjoyed.
On July 7, 1965, the Gram Panchayat took unilateral possession of the tank and ever since was exercising possession, supervision and control over it.
After expiry of three years from the date of dispossession, the descendants filed O.S. No.57 of 1966 for possession based on title.
Earlier thereto the Gram Panchayat field the suit for possession.
Under the Inams Act, Ryotwari patta under section 3 was granted to the descendants in individual capacity and on appeal the Revenue Divisional Officer, Guntur confirmed the same.
It became final as it was not challenged by filing any writ petition.
Both the suits now stood dismissed.
The counsel on other side have taken us through the evidence and we have carefully scanned the evidence.
From these facts the first question emerges is whether the tank and the appurtenant land stood vested in Gram panchayat.
Section 64 of the Act reads thus: ``Vesting of common property or income in Gram Panchayat Any property or income which by custom belongs to or has been administered for the benefit of the villagers is common, or the holders in common of village land generally or of land of a particular description or of lands under a particular source of irrigation, shall vest in the Gram Panchayat and be administered by it for the benefit of the villagers or holders aforesaid ' '.
Section 85 reads thus: ``Vesting of water works in Gram Panchayat (1) All public water courses, springs, reservoirs, tanks, cisterns, fountains, wells, ponds an other water works (including those used by the public to such an extent as to give a prescriptive right to their use) whether existing at the commencement of this Act or afterwards made, laid or erected and whether made, laid or erected at the cost of the Gram Panchayat or otherwise for the use or benefit of the public, and also any adjacent land, not being private property, appertaining thereto shall vest in the Gram Panchayat and be subject to its control ' '.
Provided that nothing in this sub section shall apply to any work which is, or is connected with, a work of irrigation or 544 to any adjacent land appertaining to any such work.
(2) Subject to such restrictions and control as may be prescribed, the Gram Panchayat shall have the fishery rights in any water work vested in it under sub section (1), the right to supply water from any such work for raising seed beds on payment of the prescribed fee, and the right to use the adjacent land appertaining thereto for planting of trees and enjoying the usufruct thereof or for like purpose.
(3) The Government may, by notification in the Andhra Pradesh Gazettee, define or limit such control or may assume the administration of any public source of water supply and public land adjacent and appertaining thereto after consulting the Gram Panchayat and giving due regard to its objections, if any ' '.
(emphasis supplied) A bird 's eye view of the provisions brings out vividly that any property or income which belongs to or has been administered for the benefit of the villagers in common or the holders in any of the village land generally or of land of a particular description or of lands under particular source of irrigation shall vest in the Gram Panchayat and be administered by it for the benefit of the villagers or holders aforesaid.
The lands or income use for communal purpose shall either belong to the GRam Panchayat or has been administered by the Gram Panchayat.
It is not the case of the Gram Panchayat nor any finding recorded by the courts below to the effect.
So section 64 is not attracted, though the villagers acquired prescriptive right to use the water from the tank for their use and of their cattle.
All public water courses, springs, reservoirs, tanks cisterns, etc.
and other water works either existing on the date of the Act or made thereafter by the Gram Panchayat, or otherwise including those use by the public ripened into prescriptive right for the use and benefit of the public and also adjacent or any appurtenant land not being private property shall vest in the gram Panchayat under section 85(1) and be subject to its control.
The proviso is not relevant for the purpose of this case.
Under sub s (2), the Gram Panchayat shall have fishery rights therein subject to any restriction or control prescribed by the Govt.
by rules.
The Gram Panchayat also shall have the right to use the adjacent land appertaining thereto for planting trees and enjoying the usufruct thereof or for like purposes.
Sub section (3) gives over riding power to 545 the Govt., by a notification published in the A.P. Gazettee to define or limit the control or supervision by the Gram Panchayat or the Govt.
may assume administration of any public source of water supply and public land adjacent and appertaining thereto.
The only condition precedent thereto is prior consultation of the Gram Panchayat and to have due regard to any objections.
If raised, by the Gram Panchayat and issue notification published in the Gazette resuming the water sources or the land etc.
The word `vest ' clothes varied colours from the context and situation in which the word came to be used in a statute or rule.
In Chamber 's Mid Century Dictionary at p. 1230 defined ``vesting ' ' in the legal sense `to settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right '.
In Black 's Law Dictionary, 5th Edition at p. 1401, the word, `vest ', to give an immediate, fixed right of present or future enjoyment, to accure to, to be fixed, to take effect, to clothe with possession, to deliver full possession of land or of an estate, to give seisin to enfeoff.
In Stroud 's Judicial Dictionary, 4th Edition, Vol. 5 at p. 2938, the word `vested ' was defined in several senses.
At p. 2940 in item 12 it is stated thus `as to the interest acquired by public bodies, created for a particular purpose, in works such as embankments which are vested in them by statue, see Port of London Authority vs Canvey Island Commissioners, in which it was held that the statutory vesting was to construct the sea wall against inundation or damages etc.
and did not acquire fee simple.
Item 4 at p. 2939, the word `vest ', in the absence of a context, is usually taken to mean vest in interest rather than vest in possession '.
In item 8 to `vest ',. ``generally means to give the property in ' '.
Thus the word `vest ' bears variable colour taking its content from the context in which it came to be used.
Take for instance, the land acquired under the Land Acquisition Act.
By operation of sections 16 & 17 thereof, the property so acquired shall vest absolutely in the Government free from all encumbrances.
Thereby, absolute right, title and interest is vested in the Government without any limitation divesting the pre existing rights of its owner.
Similarly, under section 56 of the , the estate of the insolvent vests in the receiver only for the purpose of its administration and to pay off the debts to the creditors.
The receiver acquired no personal interest of his own in the property.
The receiver appointed by the court takes possession of the properties in the suit on behalf of the court and administer the property on behalf of the ultimate successful party as an officer of the court and he has no personal interest in the property vested thereunder.
In Fruit and Vegetable Merchants Union vs Delhi 546 Improvement Trust, [1957] SCR p. 1 the question was whether the Delhi Improvement Trust was vested of the Nazul land belonging to the Government with absolute right, when the property was entrusted under the scheme for construction of the markets etc.
It was held by this court that placing the property at the disposal of the trust did not signify that the Government had divested itself of its title to the property and transferred the same to the trust.
The clauses in the agreement show that the Government had created the Trust as its agent not on permanent basis but as a convenient mode of having the scheme of improvement implemented by the Trust subject to the control of the Government.
The word `vesting ' in section 85 would signify that the water courses and tanks, lands etc.
used by the public to such an extent as to give a prescriptive right to their use, are vested in the Gram Panchayat, and placed them under the control and supervision of the Gram Panchayat.
It confers no absolute or full title.
It was open to the Government, even after vesting, to place restrictions upon the Gram Panchayat in the matter or enjoyment and use of such tanks, and appurtenant lands etc.
Sub section (3) of section 85 expressly makes the matter clear.
It empowers the Government to assume the administration of any such tank or lands or to define or limit the control which is vested in the Gram Panchayat.
Gram Panchayat being a statutory body is bound by the restrictions imposed by sub S3 (3) The assumption of management by the Govt.
would be subject to the prescriptive right of the villagers if any.
The Division Bench in Gram Panchayat, mandapaka & Ors.
V. Distt.
Collector Eluru & Ors., AIR 1981 AP 15 considered the meaning of the word `vesting and correctly laid the law in its interpreting section 85 of the Act.
Anna Narasimha Rao & Ors.
V. Kurra Venkata Narasayya & Ors., [1981] 1 AWR p. 325 relied on by Shri Kanta Rao, though supports his contention that the vesting of the tanks etc.
in the Gram panchayat was with absolute eights and the village community rights would over ride against rights of the Government, in our view the law was not correctly laid down.
Under A.P. Land Encroachment Act, 1905; Talengana Area Land Revenue Act, relevant Abolition Act like A.P. Estates (Abolition and Conversion into Ryotwari) Act, 1948, Inams Abolition Act etc.
give absolute rights of vesting in the State over the forest land, tanks, rivers, mines, poramboke, land, etc.
free from all encumbrances and the pre existing rights in the other land stood abolished and will be subject to the grant of Ryotwari patta etc.
It is also settled law that grant of Ryotwari patta is not a title but a right coupled with possession to remain in occupation and enjoyment subject to payment of the land revenue to the State.
Therefore, we 547 agree with the High Court that the tank is public tank and not a public trust and that under section 85(1) and section 64, the vesting of the tanks, the appurtenant land and the common land is only for the purpose of possession, supervision, control and use thereof for the villagers for common use subject to the over riding title by the Government and its assumption of management should be in terms of sub section
(3) of section 85 of the Act and subject to the prescriptive right in the water; water spread tank for common use.
Admittedly, N.S.L. or the descendants used the plaint schedule property till July 7, 1965.
The question then is what rights the descendants acquired therein.
Admittedly within six months from the date of dispossession no suit under section 6 of the was laid.
Therefore, though the Gram Panchayat was not justified to take law into its own hand to take unilateral possession without due course of law, since the suit filed by the descendants was based on title the descendants in Civil Appeal No.200 of 1978 have to establish their better title.
Their claim was based on the Ryotwari patta granted under section 3 of the Inams Act.
Therefore, entries in I.F.R. bear great evidenciary value to ascertain their rights.
In Arunachalam Chetty vs Venkatachalpathi Garu Swamigal, AIR 1919 PC.
p. 62 at 65 the Judicial Committee of the Privy Council considered the effect of the columns in the I.F.R. and held thus : ``It is true that the making of this Register was for the ultimate purpose of determining whether or not the lands were tax free.
But it must not be forgotten that the preparation of this Register was a great act of State, and its preparation and contents were the subject of much consideration under elaborately detailed reports and minutes.
It is to be remembered that the Inam Commissioners through officials made enquiry on the spot, heard evidence and examined documents, and with regard to each individual property, the government was put in possession not only of the conclusion come to as to whether the land was tax free, but of a statement of the history and tenure of the property itself.
While their Lordships do not doubt that such a report would not displace actual and authentic evidence in individual cases, yet the board, when such is not available, cannot fail to attach the utmost importance, as part of the history of the property, to the information set forth in the Inam Register ' '.
548 Construction of the relevant entries in the I.F.R. is a question of law.
Col. 2, the general class to which the land belongs, described as `Dharmadayam ' endowment for a charitable ``institution ' ', Col. 7, description of tenure for the ``preservation and repairs ' ' of Nori Lakshmipathi Somayajulu Western Tanks at Vatticherkuru, Col. 9 tax free, Col. 10, nature of the tenure, permanent, Col. 11, guarantor of the land Raja Manikya Rao in 1190 Fasli (1700 A.D.), Col 13, name of the original grantee `Nori Lakshmipathi Somayajulu ', Col. 21 to be confirmed under usual conditions of service and Col. 22, confirmed.
In the survey and settlement record of the year 1906 of the same columns have been repeated.
The land in the tank were classified as Village `Poramboke ' and the tank as `village tank '.
In the village map also the same remarks were reiterated.
Therefore, the entries in the I.F.R. are great acts of the State and coupled with the entries in the survey and settlement record furnishes unimpeachable evidence.
On construction of these documents, it would clearly emerge that the original grant was made for the preservation and maintenance of the tank and tax free Inam land was granted for that purpose through it was in the name of the individual granted.
We are of the view that the grant was for the preservation and maintenance of the tank.
In K.V. Krishna Rao vs Sub Collector, Ongole, ; this court held under the Inam Act that the tank is a charitable institution.
Thereby we conclude that the grant was for the institution.
Under section 3 of the Inams Act, the enquiry should be whether (1) a particular land is Inam land; (2) Inam land in a Ryotwari, Zamindar or Inam Village; and (3) is held by any institution.
In view of the finding that the grant was for the preservation and maintenance of tank, the Inam, land in an inam village was held by the institution, namely, the tank.
Ryotwari patta shall, therefore, be in favour of the institution.
Undoubtedly the ryotwari patta was granted in favour of the descendants.
In Nori Venkatarama Dikshitulu & Ors.
vs Ravi Venkatappayya & Ors., [1959] 2 A.W.R.357 in respect of the tope dedicated to the public benefits in the same village, namely Vatticherukuru, one of the question that arose was whether the patta granted in the individuals ' names, would be their individual property or for the endowment.
The Division Bench held that though the pattas were obtained in the individuals ' name, the trustees of an institution cannot derive personal advantage from the administration of the trust property.
It was held that the grant of patta was for the maintenance of the trust.
We approve that the law was correctly laid down.
In Krishan Nair Boppudi Punniah & Ors.
vs Sri Lakshmi Narasimhaswamy Varu, by its trustees & Ors.
, [1963] 1 A.W.R. 214 549 relied on by Shri Sitaramaiah, on the basis of the entries in I.F.R., the finding was that the grant was in favour of the individual burdened with service and not to an institution.
Therefore, the ratio therein does not assist us to the facts in this case.
Moreover, in view of the stand taken by Shri Sitaramaiah that the lands are not the private property of N.L.S. or his descendants but held by them as trustees, the grant of Ryotwari patta to the individuals by necessary implication, as a corollary, is of no consequence.
The question then is whether the enjoyment of the usufruct by the descendants would clothe them with any right as owners of the land.
In view of the concurrent finding that descendants did not acquire title by prescription, the passage in Tagore Law Lecture, `Hindu Religious Endowment and Institutions ' at p. 6 relied on by Shri Sitaramaiah to the effect `dedication of tanks and trees ' as private property also renders no assistance to the descendants.
Undoubtedly, a presumption of an origin in lawful title could be drawn, as held in Syed Md. Mazaffaralmusavi vs Bibi Jabeda & Ors., AIR (1930) P.C. 1031 that the court has so often readily made presumption in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forth coming.
It is not a mere branch of the law of evidence.
It was resorted to because of the failure of actual evidence.
The matter is one of presumption based upon the policy of law.
It was also further held that it is not a presumption to be capriciously made nor is it one which a certain class of possessor is entitled to, de jure.
In a case such as the one in question where it was necessary to indicate what particular kind of lawful title was being presumed, the Court must be satisfied that such a title was in its nature practicable and reasonably capable of being presumed without doing violence to the probabilities of the case.
It is the completion of a right to which circumstances clearly point where time had obliterated any record of the original commencement.
The longer the period within which and the remoter the time when first a grant might be reasonably supposed to have occurred the less force there is an objection that the grant could not have been lawful.
In Bhojraj vs Sita Ram & Ors., AIR (1936) P.C. 60 it was further held that the presumption, not to supplement but to contradict the evidence would be out of place.
A presumption should be allowed to fill in gaps disclosed in the evidence.
But the documentary evidence in the I.F.R. and the survey and settlement records furnish the unerring evidence.
Though the original grant was not produced, the grant was for the institution and not to the individuals.
Therefore, the colour of title though enabled them to enjoy the usufruct for personal use, once the tank and the appurtenant land was found to be public tank, the descendants acquired no personal right over it.
The decision in Bhupathiraju 550 Venkatapathiraju & Ors.
vs The President, Taluq Board, Naraspur & Ors., [1913]19.I.C.727(Mad.) (D.B.) relied by Shri Sitaramaiah the finding was that the grant was to the plaintiffs ' family subject to conditions of service.
Their right to take the usufruct of the trees therein was held to be for the benefit of the grantee.
In that view its ratio cannot be applied to the facts in this case.
In M. Srinivasacharyulu & Ors.
vs Dinawahi Pratyanga Rao & Ors., one of the contentions raised was that since the produce was being enjoyed by the trustees for over many years for personal use, it must be construed that the trust was for personal benefit of archakas.
It was repelled holding that it would be a dangerous proposition to lay down that if the trustees of the religious trusts have for many years being applying the income to their own personal use, the trust deed must be construed in the light of such conduct.
The decree of the trial court that the enjoyment was for the institution was upheld.
The finding in Civil Appeal No. 931 of 1977, that since the endowment was the dashabandam the descendants are entitled to the Ryotwari patta cannot be upheld.
Dashabandam grant of land burdened with the service of a public nature was made at a time when maintenance of water sources and water courses to the benefits of the villagers was left to the villagers.
In Ravipati Kotayya & Anr.v.
Ramansami Subbaraydu & Ors., it was held that in the case of dashabandam inams situated in Ryotwari villages, the government has the right of resumption on default of service.
The lands burdened with dashabandam service which is service of public nature, are inclinable as being against public policy.
We, therefore, hold that the descendants, though enjoyed the income from the properties, did not effect the repairs and neglected the maintenance and upkeep of the tank.
They rendered the tank disused and abandoned.
By operation of s.85 of the Act the lands and tank stood vested in the Gram Panchayat for control, management and supervision.
Undoubtedly, a hereditary trustee is entitled to be the Chairman of a Board of Trustees, if any, constituted under the Endowment Act or else be in exclusive possession and management of the public trust registered thereunder until he is removed as per the procedure provided therein.
Since the tank always remained a public tank and not being a public trust, the Endowment Act does not apply.
therefore, the question of initiating action under section 77 of the Endowment Act for removal of the descendants as trustees does not arise.
In the suit of the descendants the High Court did not consider the effect of grant of ryotwari patta under Inams Act and in the suit of the 551 Gram (Village) Panchayat the effect of vesting under s.85 of the Act on the grant of ryotwari patta was not considered.
Only section 14 i.e. the bar of civil suit was focussed.
Consequently both the suits were dismissed by different division benches.
The question is whether the suit is maintainable.
All communal lands, porambokes, tanks, etc., in inam villages shall vest in the government under s.2A of Inams Act free from all encumbrances.
Section 3 determines the inam lands whether held by the individual or the institution, provides procedure for determination and s.3(4) gives right of appeal.
Section 4 converts those lands into ryotwari lands and accords entitlement to grant of ryotwari patta.
Section 5 gives power to restitute the lands to the tenants in occupation though were ejected between specified dates.
Section 7 gives power to grant ryotwari patta to the tenants to the extent of two thirds share in the land and one third to the land holder.
If it was held by the institution, two third share would be to the institution and one third to the tenants.
Section 3 grants right of permanent occupancy to the tenants in inam lands held by institutions.
Section 9 prescribes procedure for eviction of the tenants having right of permanent occupancy.
Section 10 A provides right to ryotwari patta to tenants in Ryotwari or Zamindari village with the right of permanent occupancy, even in the lands, held under customary right etc.
Section 12 fastens liability on the ryotwari pattadars to pay land assessment.
Section 13 gives exclusive power of jurisdiction to Tehsildar, the Revenue court and the collector to try the suit as per the procedure as of a Civil Court under the Code of Civil Procedure.
Section 14 of the Inams Act reads thus: 14.
" Bar of jurisdiction of Civil Courts: No suit or other proceedings shall be instituted in any Civil Court to set aside or modify any decision of the Tahsildar, the Revenue Court, or the Collector under this Act, except where such decision is obtained by misrepresentation, fraud or collusion of parties.".
Section 14 A and Section 15 provides that: "14 A Revision (1) Notwithstanding anything contained in this Act, the Board of Revenue may, at any time either suo moto or on application made to it, call for and examine the records relating to any proceedings taken by the Tahsildar, the Revenue Court or the Collector under this act for the purpose of satisfying itself as to the regularity of 552 such proceeding or the correctness, legality or propriety of any decision made or order passed therein; and if, in any case, it appears to the Board of revenue that any such decision or order should be modified, annulled, reserved or remitted for consideration, it may pass order accordingly.
(2) No order prejudicial to any person shall be passed under sub section (1) unless such person has been given an opportunity of making his representation.
Act to override other laws: "Unless otherwise expressly provided in this Act the provision of this act and of any orders and Rules made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of any such law".
The Constitution intends to herald an egalitarian social order by implementing the goals of socio economic justice set down in the Preamble of the Constitution.
In that regard the Constitution created positive duties on the State in Part IV towards individuals.
The Parliament and the State legislatures made diverse laws to restructure the social order; created rights in favour of the citizens; conferred power and jurisdiction on the hierarchy of Tribunals or the authorities constituted thereunder and given finality to their orders or decisions and divested the jurisdiction of the established civil courts expressly or by necessary implication.
The Inam Act is a step in that direction as part of Estate Abolition Act.
Therefore, departure in the allocation of the judicial functions would not be viewed with disfavour for creating the new forums and entrusting the duties under the statutes to implement socio economic and fiscal laws.
We have to consider, when questioned, why the legislature made this departure.
The reason is obvious.
The tradition bound civil Courts gripped with rules of pleading and strict rules of evidence and tardy trial, four tier appeals, endless revisions and reviews under C.P.C are not suited to the needed expeditious dispensation.
The adjudicatory system provided in the new forums is cheap and rapid.
The procedure before the Tribunal is simple and not hide bound by the intricate procedure of pleadings, trial, admissibility of the evidence and proof of facts according to law.
Therefore, there is abundant flexibility in the discharge of the functions with greater expedition and inexpensiveness.
In order to find out the purpose in creating the Tribunals under 553 the statutes and the meaning of particular provision in social legislation, the Court would adopt the purposive approach to ascertain the social ends envisaged in the Act, to consider scheme of the Act as an integrated whole and practical means by which it was sought to be effectuated to achieve them.
Meticulous lexographic analysis of words and phrases and sentences should be subordinate to this purposive approach.
The dynamics of the interpretative functioning of the Court is to reflect the contemporary needs and the prevailing values consistent with the constitutional and legislative declaration of the policy envisaged in the statute under consideration.
In Denna vs Union of India, ; this Court held that the "Law is a dynamic science, the social utility of which consists in its ability to keep abreast of emerging trends in social and scientific advance and its willingness to readjust its postulates in order to accommodate those trends.
Law is not static.
The purpose of Law is to serve the needs of life".
The law should, therefore, respond to the clarion call of social imperatives evolve in that process functional approach as means to subserve "social promises" set out in the Preamble, directive principles and the fundamental Rights of the Constitution.
It is seen that the Inam 's Act is an integral part of the scheme of the Andhra Pradesh Estates (Aboilition and Conservation into Ryotwari) Act, 26 of 1984 for short 'Estate Abolition Act ' to cover the left over minor Inams.
It determined the pre existing rights of the Inamdars and the religious institutions; envisages grant of ryotwari patta afresh to the concerned and seeks to confer permanent occupancy rights on the tenants.
It also regulates the relationship between institutions and its tenants.
It created appellate and revisional and forums and declared finality to the orders passed by the tribunals and expressly excluded the jurisdiction of the Civil Court, notwithstanding anything contained in any other law or inconsistent therewith the Inams Act shall prevail.
The exception engrafted was that a suit would lie to challenge the decision obtained by fraud, misrepresentation and collusion by parties.
Section 9 of the Civil Procedure Code, 1908 provides that whenever a question arises before the Civil Court whether its jurisdiction is excluded expressly or by necessary implication, the Court naturally feels inclined to consider whether remedy afforded by an alternative provision prescribed by special statute is sufficient or adequate.
In cases where exclusion of the Civil Court 's jurisdiction is expressly provided for, the consideration as to the scheme of the statute in question 554 and the adequacy or sufficiency of the remedy provided for by it may be relevant, but cannot be decisive.
Where exclusion is pleaded as a matter of necessary implication such consideration would be very important and in conceivable circumstances might become even decisive.
The jurisdiction of a Tribunal created under statute may depend upon the fulfilment of some condition precedent or upon existence of some particular fact.
Such a fact is collateral to the actual matter which the Tribunal has to try and the determination whether it existed or not is logically temporary prior to the determination of the actual question which the tribunal has to consider.
At the inception of an enquiry by a Tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the Tribunal has to consider as the collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not.
There may be Tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the Tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise had.
Except such tribunals of limited jurisdiction when the statute not only empowers to enquire into jurisdictional facts but also the rights and controversy finally it is entitled to enter on the enquiry and reach a decision rightly or wrongly.
If it has jurisdiction to do right, it has jurisdiction to do wrong.
It may be irregular or illegal which could be corrected in appeal or revision subject to that the order would become final.
The questions to be asked, therefore, are whether the Tribunal has jurisdiction under Inam Act to decide for itself finally; whether the institution or the Inamdar or the tenant is entitled to ryotwari patta under sections 3,4 and 7 and whether the Tribunal is of a limited jurisdiction and its decision on the issue of patta is a collateral fact.
The consideration as to exclusion of the jurisdiction of Civil Court is no longer res integra.
This Court in bead roll of decisions considered this question in diverse situations.
In Kamala Mills Ltd. vs State of Bombay; , the questions arose were whether an assessment made in violation of the Bombay Sales Tax Act could claim the status of an assessment made under that Act, and whether the nature of the transactions was a decision of collateral fact.
A Bench of seven Judges of this Court held that if it appears that a statute creates a special right or liability and provides for the determination of the right or liability to be dealt with by tribunals specially constituted in that 555 behalf would be considered whether all questions of said right and liability shall be determined by the tribunals so constituted and it becomes pertinent to enquire whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
It was held that the Court was satisfied that the Act provided all the remedies associated with actions in Civil Courts and the remedy for refund of the tax illegally collected was provided and it was not collateral.
Section 20 prohibits such a claim being made before an ordinary Civil Court and held that the civil suit was not maintainable.
The leading decision of the Privy Council in Secretary of State vs Mask & C0.
, [1940] L.R. 67I.A.222; Raleigh Investment Co. Ltd. vs Governor General in Council, L.R. 74 I.A. 50 and the ratio in Firm and Illuri Subbayya Cheety & Sons vs State of Andhra Pradesh, ; were approved.
In Desika Charyulu vs State of A.P. , AIR 1964 SC 807 a Constitution Bench was to consider whether the jurisdiction of the Settlement Officer and the Tribunal created under the Estates Abolition Act to determine whether Shotrium Village was an inam estate was exclusive and the Civil Court 's jurisdiction to try the dispute was barred.
Despite the fact that no express exclusion of the Civil Court 's jurisdiction was made under the Act it was held that very provision setting up an hierarchy of judicial tribunals for the determination of the questions on which the applicability of the Act depends was sufficient in most cases to infer that the jurisdiction of the Civil Courts to try the same was barred.
Accordingly it was held that the jurisdiction of the Settlement Officer and the Tribunal by necessary implication was exclusive and that the Civil Courts are barred from trying or retrying the question once over.
The decisions of the Settlement Officer and of the Tribunal were held final and conclusive.
In Dhulabhai & Ors.
vs State of M.p. & Anr. ; another Constitution Bench reviewed the entire case law on the question of maintainability of civil suit and laid down seven propositions.
Propositions 1 and 2 are relevant, which read thus: "(1) Where the statute gives a finality to the orders of the special tribunals the Civil Court 's jurisdiction must he held to be excluded if there is adequate remedy to do what the Civil Courts normally do in a suit.
Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure.
556 (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
Where there is no express exclusion the examination of the remedies and the scheme of the particular act to find out the intendment becomes necessary and the result of the inquiry may be decisive.
In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statute or not.
" It was held therein that the civil suit was not maintainable to call in question of assessment made under the Madhya Bharat Sales Tax Act.
In hatti vs Sunder Singh, [1971]2 SCR 163 the tenant had a declaratory relief before the authorities under Delhi land Reforms Act that he was Bhoomidar.
When it was challenged in the civil suit as not being binding, this Court held that the civil suit was not maintainable.
In Muddada Chayana vs Karam Narayana and Anr.
; , under section 56(1) (c) of the Estates Abolition Act, the dispute whether who the lawful ryot in respect of any holding is, shall be decided by the Settlement Officer.
Whether it is liable to be questioned in the Civil Court.
Chinnappa Reddy, J., who had intimate knowledge as an Advocate and the Judge on the subject reviewed the law and held that the Act is a self contained code in which provision was also made for the adjudication of various types of disputes arising, after an estate was notified, by specially constituted tribunals.
On the general principles it was held that the special tribunals constituted by the Act must necessarily be held to have exclusive jurisdiction to decide dispute entrusted by the statute to them for their adjudication.
Dealing with the object of the Act it was held at p. 207 C D that the Act intended to protect ryots and not to leave them in wilderness.
When the Act provides machinery in section 56(1)(c) to discover who the lawful ryot of a holding was, it was not for the Court to denude the Act of all meaning and by confining the provision to the bounds of sections 55 and 56(1)(a) and (b) on the ground of contextual interpretation.
Interpretation of a statute, contextual or otherwise must further and 557 not frustrate the object of the statute.
It was held that the civil suit was not maintainable and approved the Full Bench judgment of 5 judges of the High Court of Andhra Pradesh in T. Munuswami Naidu vs R. Venkata Reddy., AIR 1978 A.P. 200.
The same view was reiterated in O. Chenchulakshmamma & Anr.
D. Subramanya Reddy; , and held that the order of the Addl.
Settlement Officer was final in so far as the dispute between the rival claimants to the ryotwari patta was concerned and not liable to be questioned in any court of law.
In A. Bodayya & Anr.
L. Ramaswamy (dead) by Lrs. [1984] (Suppl).
SCC 391 while reiterating the ratio in both the judgments, Desai, J. Speaking for a Bench of 3 Judges held that under Estate Abolition Act, who the lawful ryot was decided.
Self same question directly and substantially raised in the suit cannot be decided by the Civil Court as it had no jurisdiction to decide and deal with the same but Settlement Officer had the exclusive jurisdiction to decide and deal with it.
In Doe vs Bridges, at p. 859 the oft quoted dictum of Lord Tenerden, C.J. reads that: "where an act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner." In Premier Automobiles Ltd. vs Kamlakur Shantaram Wadke and Ors., ; a Bench of three Judges after reviewing the case law held that if a dispute was not industrial dispute, not does it relate to enforcement of any right under the Industrial Dispute Act, the remedy lies only in the civil court.
If the dispute arises out of the right or liability under the general common law and not under the Act, the jurisdiction of the civil court is always alternative, leaving it to the election of the suitor to choose his remedy for the relief which is competent to be granted in a particular remedy.
If the dispute relates to the enforcement of a right or obligation of the Act,the only remedy available to the suitor is to get an application adjudicated under the Act.
In that view, it was held that the civil suit was not maintainable.
In State of Tamil Nadu vs Ramalinga Samigal Madam, ; strongly relied on by Shri Kanta Rao, the question therein was whether the jurisdiction of the civil court was ousted to redetermine the nature of the land rendered by the settlement officer under section II of the Estate Abolition Act, Tulzapurkar, J. speaking for the Division Bench proceeded on three fundamental postulates namely that the decision of the Settlement authorities under section 11 of the Act was for (I) 558 revenue purposes '," that is to say for fastening the liability on him to pay the assessment and other dues and to facilitate the recovery of such revenue from him by the Government; and therefore, any decision impliedly rendered on the aspect of nature and character of the land on that occasion will have to be regarded as incidental to and merely for the purpose of passing the order of granting or refusing to grant the patta and for no other purpose".
(II) only revision against the order and not an appeal; and (III) that by Madras Amendment, section 64 c was deleted.
It was unfortunate that it was not brought to the notice of the court that the purpose of Estate Abolition Act was not solely for the purpose of collecting the revenue to the State.
The Act had its birth from a long drawn struggle carried on by the ryots in Madras Presidency for permanent ryotwari settlement of tenures and grant of permanent occupancy rights and the Indian National Congress espoused their rights and passed resolution at Arvadi Session to make a legislation in that regard.
The recovery of revenue was only secondary.
In Syamala Rao vs
Sri Radhakanthaswami Varu a division Bench of the Andhra Pradesh High Court to which one of us (K.R.S.,J) was a member considered the historical background, the purpose of the Act and the scheme envisaged therein in extenso and held that the preamble of the Estate Abolition Act was to repeal the permanent settlements, the acquisition of the rights of the land holders in the Estates and introduction of the ryotwari settlement therein; under section 1(4) by issuance of the notification the prexisting rights shall cease and determined; shall vest in the State free from all encumbrances and declared that all rights and interests created in particular over the State 'shall cease and determine as against the Government ' protected only dispossession of a person in possession of the ryoti land who was considered prima facie entitled to a ryotwari patta.
Section 11 envisaged to enquire into "the nature of the land" and whether "ryotwari land immediately before the notified dates" to be properly included or ought to have been properly included in the holding of the ryot".
The enquiry under the Act was entrusted to the Revenue Authorities who have intimate knowledge of the nature of the lands and the entries in the revenue records of the holders, etc.
Act created hierarchy of the tribunals, namely Asstt.
Settlement Officer; Settlement Officer; Director of Settlements and Board of Revenue; provided revisional powers to those authorities and ultimately the order is subject to the decision of the High Court under article 226.
In that view it was held that by necessary implication the jurisdiction of the civil court was ousted, the decision of settlement authorities under section 11 was made final and no civil suit was maintainable.
The legislature having made the Act to render economic justice to the ryots and 559 excluded the dispute between land holders and the ryots covered under sections 12 to 15 and the ryots inter se under section 56(1)(c), from the jurisdiction of the Civil Court, it would not be the legislative intention to expose the ryots to costly unequal civil litigation with the state of the dispute under section 11.
It is not necessary in this case to broach further but suffice to state that unfortunately this historical perspective and the real purpose and proper scope and operation of Estate Abolition Act was not focussed to the notice of this court.
In Jyotish Thakur & Ors.
vs Tarakant.
Jha & Ors.
,[1963] Suppl. 1 SCR 13 section 27 of regulation III of 1872 provides that in respect of transfer of ryoti interest in contravention of the regulation revenue courts shall not take cognizance of such a transfer.
It was contended that by necessary implication the civil suit was not maintainable.
In that context this Court held that provisions therein were not intended to be exhaustive to bar the relief in Civil Court.
In Sri Athmanathawami Devasthanam vs K. Gopalaswami Aiyangar, ; the question was whether the civil suit to recover damages and for ejectment of the ryoti lands belonging to the temple was barred.
The findings were that the lands were ryoti lands and that the tenant acquired the occupancy rights, but the lease was granted in excess of 5 years.
It was contended that it was a transfer without permission of the Endowment department.
While upholding that the lands were ryoti lands and the tenant acquired occupancy rights, this Court disagreeing with the High Court, held that there was no transfer and that the tenant is liable to pay the arrears of rent and the suit was maintainable.
In Sri Vedagiri Lakshmi Narasimha Swami Temple vs Induru Pattabhirami Reddy, ; the contention raised was that section 93 of the Madras Hindu Religious and Charitable Endowments Act, 1951 was a bar to maintain suit for rendition of accounts and recovery thereof against the ex trustees.
This Court repelled the contention and held that the suit for rendition of accounts was not expressly or by necessary implication barred the jurisdiction of the civil court under section 93.
In Shree Raja Kandregula Srinivasa Jagannadha Rao Panthulu Bahadur Garu vs State of Andhra Pradesh; , it was conceded that the question whether Kalipathnam village is an Inam estate was to be adjudicated before the tribunals appointed under the Rent Reduction Act.
It was contended that the tribunals have no jurisdiction to decide the validity of the notification reducing the rent by operation of section 8(1) thereof.
It was held that there was no statutory prohibition to determine the nature of the land contemplated by the Rent Reduction Act.
Accordingly the suit was held to be maintainable.
In Dr. Rajendra Prakash Sharma vs Gyan Chandra & Ors.,[1980] 3 SCR 207 it was found that under s, 7 of the , no proceedings were taken to 560 declare the suit house as on evacuee property.
No notification under sub section
(3) of 7 was published in the gazette.
Under those circumstances it was held that section 46 did not bar the civil suit.
In Anne Besant National Girls High School vs Dy.
Director of Public Instruction & Ors.
this Court held that the Civil Court has jurisdiction to examine whether action or decision of an administrative authority was ultra vires the relevant rules of Grant in Aid Code and Rule 9 (vii) was held to be ultra vires.
Accordingly the suit was held to be maintainable.
In Raja Ram Kumar Bhargava(dead) by Lrs.
vs Union of India, [1988] 2 SCR 352 two questions were raised, firstly the validity of the assessment and secondly recovery of the tax paid under Excess Profit Tax Act, 1940.
On the first question it was held that the suit was not maintainable.
On the second question, without going into the technicalities of the maintainability of the suit, this Court granted the relief.
In Pabbojan Tea Co., etc.
vs The dy.
Commissioner Lakhimpur, etc.[1968] 1 SCR 260 the questions were whether the workmen were ordinary unskilled labour or skilled labour; whether the jurisdiction of the authorities under section 20 of the is exclusive and whether the jurisdiction of the Civil Court was barred.
This court held that the authorities did not hold any inquiry nor received any evidence for determining that issue.
No proper hearing was given to the parties to tender evidence.
Section 20 is not a complete Code as there was no provision for appeal or revision against the orders passed under s.20(3).
There was no further scrutiny by any higher authority against the imposition of penalty.
The Act in terms does not bar the employers from instituting a suit.
In those circumstances, it was held that the legislature did not intend to exclude the jurisdiction of the civil court.
The ratio in K. Chintamani Dora & Ors.
vs G. Annamnaidu & ors.
; also does not assist Gram Panchayat for the reason that the decree therein originally granted became final.
Subsequently it was sought to be reopened in a later suit.
Under those circumstances the civil suit was held to be maintainable notwithstanding the provisions contained under the Estate Abolition Act.
Thus we have no hesitation to hold that the ratio in all these case are clearly distinguishable and render little assistance to the Gram Panchayat.
The scope, ambit and operation of the Inams Act was considered by P. Jaganmohan Reddy,J. (as he than was) in D.V. Raju vs B.G. Rao & Anr.
and held that the paramount object of the legislature was to protect the tenant in occupation and is sought to be achieved by making effective orders of eviction made by the Civil Court either in execution or otherwise.
It further prohibits the institution of any suit or proceeding in a Civil 561 Court under section 14 to set aside or modify any decision of the Tehsildar, Collector or Revenue Court except where such decision has been obtained by misrepresentation, fraud or collusion.
Section 15 enjoins that the provisions of the Act and orders made thereunder shall have effect notwithstanding anything inconsistent therewith contained in any other law for the time being in force or any instrument having effect by virtue of absolute jurisdiction on the Tehsilder, Revenue Court or the Collector, as the case may be, notwithstanding any provision of law or any suit or decree of a Civil Court or for that matter even where evictions have taken place in pursuance of such decrees, the evicted tenants can be restored to occupation provided the requirements for the protection of the possession of the tenants are satisfied.
In that case the occupant in possession laid proceeding before the Tehsildar for injunction restraining the writ petitioner from ejecting him from the lands.
The Tehsildar in exercise of the power under Rule 16 of the Rules granted injuction pending consideration of his right to Ryotwari patta.
The order of injunction was challenged firstly on the ground of ultra vires of Rule 16 and secondly on the ground of jurisdiction.
While upholding the order on both the grounds the learned Judge held that Tehsildar, Revenue Court and the Collector have exclusive jurisdiction and the civil suit is barred.
We respectfully approve it as correct law.
The Inams Act did not intend to leave the decisions of the revenue courts under section 3 read with section 7 to retry the issue once over in the Civil Court.
Undoubtedly the decision of the division Bench in P. Pedagovindayy vs Subba Rao, is in favour of the contention that the civil suit is maintainable.
It is not good law.
Thus the glimpse of the object of the Inames Act, scheme, scope and operation thereof clearly manifest that Inames Act is a self contained code, expressly provided rights and liabilities, prescribed procedure; remedies of appeal and revision, excluded the jurisdiction of the civil court, notwithstanding anything contained in any law, given primacy of Inams Act though inconsistent with any law or instrument having force of law.
The jurisdictional findings are an integral scheme to grant or refuse ryotwari patta under section 3, read with s.7 and not collateral findings.
It was subject to appeal and revision and certiorari under article 226.
The decision of the Revenue Tribunal, are final and conclusive between the parties or persons claiming right, title or interest through them.
The trick of pleadings and the camouflage of the reliefs are not decisive but the substance or the effect on the order of the tribunal under the Inams Act are decisive.
The civil suit except on grounds of fraud, misrepresentation or collusion of the parties is not maintainable.
The necessary conclusion would be that the civil suit 562 is not maintainable when the decree directly nullifies the ryotwari patta granted under section 3 of the Inams Act.
Under the Gram Panchayat Act the statutory interposition of vesting the tank and the appurtenant land in the Gram Panchayat made it to retain possession, control and supervision over it, though the Gram Panchayat unlawfully took possession.
The need to grant decree for possession in favour of the Gram Panchayat is thus redundant.
The suit of the descendants normally to be decreed on the finding that ryotwari patta under section 3 of the Inams Act was granted in their favour and that they were unlawfully dispossessed.
Since the grant of ryotwari patta, though in the name of individuals, was to maintain the public tank which stood vested under section 85 of the Act in the Gram Panchayat, the descendants are divested of the right and interest acquired therein.
Thus the suit of the descendants also is liable to be dismissed.
Accordingly, the decrees of dismissal of both the suits are upheld and the appeals dismissed.
But in the circumstances, parties are directed to bear their own costs.
V.P.R. Appeals dismissed. | Civil Appeal Nos. 931 of 1977 and 200 of 1978 relate to the same dispute though arose from, two suits and separate judgements.
Civil Appeal No. 931 of 1977 arose out of the suit for possession by the Gram Panchayat against the descendants of the grantee of inam.
The suit was dismissed by the Trial Court and was confirmed by the High Court and the High Court granted leave under Art.133.
Civil Appeal No. 200 of 1978 arose out of the suit for possession and mesne profits which was laid by the descendants of the grantee of inam.
The pleadings are the same in both cases.
A Zamindar granted 100 acres of land inam to dig, preserve 532 and maintain a tank in favour of the predecessors of the respondents of C.A. No. 931/77.
In 1700 A.D.i.e.
, 1190 Fasli, the tank was dug by the villagers and ever since, the villagers were using the tank for their drinking purpose and perfected their right by prescription.
In course of time the tank was silted up and fresh water existed only in and around 30 acres.
The grantee 's descendants respondents did not make any repairs, Grass and trees had been grown in the rest of the area and was being enjoyed.
Under section 3 of the A.P.Inams ( Abolition and Conversion into Ryotwari) Act, ( Act XXXVII of 1956) Ryotwari Patta was granted to the respondents in individuals capacity and on appeal the Revenue Divisional Officer confirmed the same and it became final, as it was not challenged any further.
On 7.7.1965, the Gram panchayat the appellant in C.A. No. 931/77 took unilateral possession of the tank and ever since , it was exercising possession, supervision and control over it.
After the expiry of three year from the date of dispossession, the respoondents filed a suit for possession based on title.
Earlier thereto the appellant Gram Panchayat had filed a suit for possession.
The Trial Court found that the tank was a 'public trust ', the appellants would be hereditary trustees and could be removed only by taking action under section 77 of the A.P. Hindu Charitable and Religious Institutions and Endowments Act, 1966 and that the respondents had acquired title by adverse possession.
Accordingly the suit for possession was decreed relegating the filing of separate application for mesne profit.
On appeal, the High Court reversed the decree and held that the tank was a public tank, and the tank and the lands stood vested in the Gram Panchyat under A.P. Gram Panchayat Act,1964.
Since, the Gram Panchayat was in possession from July 7, 1966, though dispossessed the respondents forcibly and as the suit was not under section 6 of the , but one based on title, it called for interference and dismissed the suit.
This court granted leave to appeal under article 136.
533 The respondents in C.A. No. 931/77 (the appellants in C.A. No. 200/78) contended that in view of the entries of the Inam Fair Register, the tank was a public trust and not a public tank; they could not be dispossessed until recourse made under section 77 of the A.P. Charitable and Religious Institutions and Endowments Act; that under the Gram Panchayat Act, the lands did not vest in the gram Panchayat; and that since the grant of ryotwari patta under the Inams Act had become final, section 14, thereof barred the jurisdiction of the Civil Court to entertain the suit.
The appellant Gram Panchayat in C.A. No. 931/77 (the respondents in C.A. No. 200/78) contended that the tank and the appurtenant land was correctly held as public tank by the High Court that by operation of sections 85 and 64 of the Gram Panchayat Act, the land and the tank stood vested in the Panchayat, that the entries in the Inam Fair Register established that the grant of land was for preservation, maintenance and repairs of the tank and therefore, the grant should be in favour of the institution, i. e., the tank and the respondents thereby did not acquire any title, that ryotwari patta was only for the purpose of land revenue; that the Gram Panchayat acquired absolute right, title and interest in the land; and the suit was not a bar in the facts of the case.
Dismissing both appeals, this Court HELD: 1.01.
Any property or income, which belongs to or has been administered for the benefit of the villagers in common or the holders in any of the village land generally or of land of a particular description or of lands under particular source of irrigation shall vest in Gram Panchayat and be administered by it for the benefit of the villagers or holders.
The lands or income used for communal purpose shall either belong to the Gram Panchayat or has been administered by the Gram Panchayat.
It is not the case of the Gram Panchayat nor any finding recorded by the courts below to that effect.
section 64 is not attracted though the villagers acquired prescriptive right to use the water from the tank for their use and of their cattle.
[554D F] 1.02.
All public water courses, springs, reservoirs, tanks, cisterns, etc.
and other water works either existing on the date of the Act or made thereafter by the Gram Panchayat, or otherwise including those used by the public ripened into prescriptive right for the use and benefit of the public and also adjacent or any appurtenant land not being private property shall vest in the Gram Panchayat under section 85(1) and be subject to its control.
[554F G] 534 2.01.
The word`vesting ' in section 85 would signify that the water courses and tanks, lands etc.
used by the public to such an extent as to give a prescripvtive right to their use, are vested in the Gram Panchayat, and placed them under the control and supervision of the Gram Panchayat.
It confers no absolute or full title.
It was open to the Government, even after vesting, to place restriction upon the Gram Panchayat in the matter of enjoyment and use of such tanks, and appurtenant lands etc.
The assumption of management by the Government would be subject to the prescriptive right of the villagers, if any.
The vesting of the tanks etc.
in the Gram Panchayat was with absolute rights and the village community rights would over ride against rights of the Government.
[546C F] 2.02.
The tank is a public tank and not a public trust and that under section 85(1) and section 64, the vesting of the tanks, the appurtenant land and the common land is only for the purpose of possession, supervision, control and use thereof for the villagers for common use subject to the over riding title by the Government and its assumption of management should be in terms of sub section
(3) of section 85 of the Act and subject to the prescriptive right in the water, water spread tank for common use.
[547A B] Gram Panchayat, Mandapaka & Ors.
V. Distt.
Collecctor, Eluru & Ors. , approved.
Anna Narasimha Rao & Ors.
vs Kurra Venkata Narasayya & Ors., , OVER RULED. 3.01.
Under A.P. Land Encroachment Act, 1905; Talengana Area Land Revenue Act, relevant Abolition Acts like A.P. Estates (Abolition and Conversion into Ryotwari) Act, 1948, Inams Abolition Act etc.
give absolute rights or vesting in the State over the forest land, tanks, rivers, mines, poramboke, land, etc.
free from all encumbrances and the preexisting rights in the other land stood abolished and will be subject to the grant of Ryotwari Patta etc.
[546F H] 3.02 Grant of Ryotwari patta is not a title but a right coupled with possession to remain in occupation and enjoyment, subject to payment of the land revenue to the State.
[546H] 3.03.
The entries in the Inam Fair Register are great acts of the State and coupled with the entries in the survey and settlement record 535 furnishes unimpeachable evidence.
On construction of these documents, it would clearly emerge that the original grant was made for the preservation and maintenance of the tank and tax free Inam land was granted for that purpose, though it was in the name of the individual grantee.
The grant was for the preservation and maintenance of the tank.
[548C D] 3.04.
The grant was for the institution.
Under section 3 of the Inams Act, the enquiry should be, whether (1) a particular land is Inam land; (2) Inam land in a Ryotwari, Zamindar or Inam Village; and (3) is held by any institution.
In view of the finding that the grant was for the preservation and maintenance of tank, the Inam land in an inam village was held by the institution, namely, the tank.
Ryotwari patta shall, therefore, be in favour of the institution.
Undoubtedly the ryotwari patta was granted in favour of the descendants.
[548D F] 3.05.
The pattas were obtained in the individuals name, the trustees of an institution cannot derive personal advantage from the administration of the trust property.
The grant of patta was for the maintenance of the trust.
[548G] 3.06.
The descendants, though enjoyed the income from the properties, did not effect the repairs and neglected the maintenance and upkeep of the tank.
They rendered the tank disused and abandoned.
By operation of section 85 of the Act the lands and tank stood vested in the Gram Panchayat for control, management and supervision.
[550E F] 3.07.
A hereditary trustee is entitled to be the Chairman of a Board of Trustees, if any, constituted under the Endowment Act or else be in exclusive possession and management of the public trust registered thereunder until he is removed as per the procedure provided therein.
Since the tank always remained a public tank and not being a public trust, the Endowment Act does not apply.
Therefore, the question of initiating action under section 77 of the Endowment Act for removal of the descendants as trustees does not arise.
[550F G] Arunachalam Chetty vs Venkatachalpathi Garu Swamigal, AIR 1919 P.C. 62 at P. 65; Syed Md. Mazaffaral Musavi vs Bibi Jabeda & Ors., AIR 1930 Pc 1031; Bhojraj vs Sita Ram & Ors, AIR 1936 P.C. 60; M. Srinivasacharyulu & Ors.
V. Dinawahi Pratyanga Rao & Ors., ; Ravipati Kotayya & Anr.
vs Ramaswamy Subbaraydu & Ors., , referred to.
536 K.V. Krishna Rao vs Sub Colletor, Ongole, ; , followed.
Nori Venkatarama Dikshitulu & Ors.
vs Ravi Venkatappayya & Ors., , approved.
Krishan Nair Boppudu Punniah & Ors.
vs Sri Lakshmi Narasimhaswamy Varu, ; Bhupathiraju Venkatapathiraju & Ors.
V. The President Taluq Board, Narsapur & Ors.; [1913] 19 1.C. 727 (Mad.) (D.B.), distinguished.
Tagore Law Lecture, ``Hindu Religious Endowments and Institutions at p. 6, distinguished.
In the laws made to restructure the social order creating rights in favour of the citizens and conferring power and jurisdiction on the hierarchy of Tribunals or the authorities constituted thereunder and giving finality to their orders or decisions and divested the jurisdiction of the established civil courts expressly or by necessary implication Departure in the allocation of the judicial functions would not be viewed with disfavor for creating the new forums and entrusting the duties under the statutes to implement socio economic and fiscal laws.
Courts have to consider, when questioned, why the legislature made the departure.
The reason is obvious.
The tradition bound civil courts gripped with rules of pleading and strict rules of evidence and tardy trial, four tier appeals, endless revisions and reviews under C.P.C. are not suited to the needed expeditious dispensation.
The adjudicatory system provided in the new forums is cheap and rapid,.
The procedure before the Tribunal is simple and not hide bound by the intricate procedure of pleadings, trial, admissibility of the evidence and proof of facts according to law.
Therefore, there is abundant flexibility in the discharge of the functions with greater expedition and inexpensiveness.
{552D H] 4.02.
In order to find out the purpose in creating the Tribunals under the statues and the meaning of particular provisions in social legislation, the Court would adopt the purposive approach to ascertain the socials ends envisaged in the Act, to consider scheme of the Act as an integrated whole and practical means by which it was sought to be effectuated to achieve them.
Meticulous lexographic analysis of words and phrases and sentences should be subordinate to this purposive approach.
The dynamics of the interpretative functioning of the Court is to reflect the contemporary needs and the prevailing values consistent with the constitutional and legislative declaration of the policy envisa 537 ged in the statute under consideration.
[552H 553B] 4.03.
The law should, therefore, respond to the clarion call of social imperatives evolve in that process functional approach as means to subserve ``social promises ' ' set out in the Preamble, Directive Principles and the Fundamental Rights of the Constitution.
[553d] 4.04.
Section 9 of the Civil Procedure Code, 1908 provides that whenever a question arises before the Civil Court whether its jurisdiction is excluded expressly or by necessary implication, the court naturally feels inclined to consider whether remedy afforded by an alternative provision prescribed by special statute is sufficient or adequate.
In cases where exclusion of the civil court 's jurisdiction is expressly provided for, the consideration as to the scheme of the statue in question and the adequacy of sufficiency of the remedy provided for by it may be relevant, but cannot be decisive.
Where exclusion is pleaded as a matter of necessary implication such consideration would be very important and inconceivable circumstances might become even decisive.
[553G 554B] 4.05.
The jurisdiction of a Tribunal created under statute may depend upon the fulfilment of some condition precedent or upon existence of some particular fact.
Such a fact is collateral to the actual matter which the Tribunal has to try and the determination whether it existed or not is logically temporary prior to the determination of the actual question which the Tribunal has to consider.
At the inception of an enquiry by a Tribunal of limited jurisdiction, when a challenge is made to its jurisdiction, the Tribunal has to consider as the collateral fact whether it would act or not and for that purpose to arrive at some decision as to whether it has jurisdiction or not.
There may be Tribunal which by virtue of the law constituting it has the power to determine finally, even the preliminary facts on which the further exercise of its jurisdiction depends; but subject to that, the Tribunal cannot by a wrong decision with regard to collateral fact, give itself a jurisdiction which it would not otherwise have except such tribunals of limited jurisdiction when the statue not only empowers to enquire into jurisdictional facts but also the rights and controversy finally it is entitled to enter on the enquiry and reach a decision rightly or wrongly.
If it has jurisdiction to do right, it has jurisdiction to do wrong.
It may be irregular or illegal which could be corrected in appeal or revision subject to that the order would become final.
[554B F] 4.06.
The Inams Act did not intend to leave the decisions of the revenue courts under section 3 read with section 7 to retry the issue once over in the civil court.
[561D E] 538 4.07.
The glimpse of the object of the Inams Act, scheme, scope and operation thereof clearly manifest that Inams Act is a self contained code, expressly provided rights and liabilities; prescribed procedure; remedies; of appeal and revision, excluded the jurisdiction of the civil court, notwithstanding anything contained in any law, given primacy of Inams Act though inconsistent with any law or instrument having force of law.
The jurisdictional findings are an integral scheme to grant or refuse ryotwari pattta under section 3, read with section 7 and not collateral findings.
It was subject to appeal and revision and certiorari under Art 226.
The decision of the Revenue Tribunal, are final and conclusive between the parties or persons claiming right, title or interest through them.
The trick of pleadings and the camouflage of the reliefs are not decisive but the substance or the effect on the order of the tribunal under the Inams Act are decisive.
The civil suit except on grounds of fraud, misrepresentation or collusion of the parties is not maintainable.
The necessary conclusion would be that the civil suit is not maintainable when the decree directly nullifies the ryotwari patta granted under section 3 of the Inams Act.
[561E 562A] Deena vs Union of India, [1984] ISCR, referred to.
Kamala Mills Ltd. vs State of Bombay, ; ; Secretary of State vs Mask & Co., [1940] L.R. 67 I.A. 222; Raleigh Investment Co. Ltd. V. Governor General in Council, L.R. 74 I.A. 50; Firm and Illuri Subbayya Chetty & Sons vs State of Andhra Pradesh; , ; Deesika Charyulu vs State of A.p., AIR 1964 SC 807; Dhulabhai & Ors vs State of M.P. & Anr., ; ; Hati vs Sunder Singh, ; ; Muddada Chayana vs Karam Narayana and Anr.
; , ; T. Munuswami Naidu vs R. Venkata Reddy, AIR 1978 A.P. 200; O. Chenchulakshmamma & Anr.
vs D. Subramanya Reddy; , ; A. Bodayya & Anr.
V. L. Ramaswamy(dead) by Lrs., ; Doe vs Bridges, at p. 359; Premier Automobiles Ltd. vs Kamlakar Shantaram Wadke and Ors., ; ; State of Tamil Nadu vs Ramalinga Samigal Madam, ; ; Syamala Rao vs Sri Radhakanthaswami Varu, ; Jyotish Tahakur & Ors.
vs Tarakant Jha & Ors., [1963] Suppl.
1 SCR 13; Sri Athmanathaswami Devasthanam vs K. Gopalaswami Aiyangar, {1964] 3 SCR 763; Sri VEdagiri Lakshmi Narasimha Swami Temple vs Induru Pattabhirami Reddy, ; ; Shree Raja Kandragula Srinivasa Jagannadha Rao Panthulu Bahadur Garu vs State of Andhra Pradesh, ; ; Dr. Rajendra Prakash Sharma vs Gyan Chandra & Ors., ; ; Anne Basant National Girls High School vs Dy.
539 Director of Public Instruction & Ors., ; Raja Ram Kumar Bhargava (dead) by Lrs.
vs Union of India, [1988] 2 SCR 352; Pabbojan Tea Co., Ltd., etc.
vs the Dy.
Commissioner, Lakhimpur, etc.
; , and K. Chintamani Dora & Ors.
vs G. Annamnaidu & Ors., ; , distinguished.
D.V. Raju vs B.G. Rao & Anr., , approved.
P.pedagovindayy vs Subba Rao, , over ruled.
The word `vest ' clothes varied colours from the context and situation in which the word came to be used in a statue of rule.
[545B C] 5.02.
The word [vest '], means, to give an immediate, fixed right of present or future enjoyment, to accrue to, to be fixed, to take effect, to clothe with possession, to deliver full possession of land or of an estate, to give seisin to enfeoff.
[545C D] 5.03.
The word, `vest ', in the absence of a context, is usually taken to mean, `vest ' in interest rather than vest in possesion '.[545E F] 5.04.
`Vest '.
``generally means to give the property in ' '.
[545E F] 5.05.
The word, `vested ' was defined, `as to the interest acquired by public bodies, created for a particular purpose, in works, such as embankments, whcih are `vested ' in them by statute. ' {545D E] 5.06.
``Vesting ' ' in the legal sense means, to settle, secure, or put in fixed right of possession; to endow, to descend, devolve or to take effect, as a right '.
[545C] Chamber 's Mid Century Dictionary at P. 1230; Blacks Law Dictionary, 5th Edition at P. 1401; Stroud 's Judicial Dictionary, 4th Edition Vol, 5 at P. 2938, Item 12, at P 2940, Item 4 at P. 2939; Port of London Authority vs Canvey Island Commissioners, {1932] 1 Ch.
446; Fruit and Vegetable Merchants Union vs Delhi Improvement Trust, ; , referred to.
Under the Gram Panchayat Act the statutory interposition of vesting the tank and the appurtenant land in the Gram Panchayat made it to retain possession, control and supervision over it, though the Gram Panchayat unlawfully took possession.
The need to grant decree for possession in favour of the Gram Panchayat is thus redundant.
The suit 540 of the descendants normally to be decreed on the finding that ryotwari patta under section 3 of the Inams Act was granted in their favour and that they were unlawfully dispossessed.
Since the grant of ryotwari patta, though in the name of individuals, was to maintain the public tank whcih stood vested under section 85 of the Act in the Gram panchayat, the descendants are divested of the right and interest acquired therein.
Thus the suit of the descendants also is liable to be dismissed.
[562A C] |
N: Criminal Appeal Nos.
345 346 of 1991.
From the Judgement and Order dated 14.6.1990 of the Madras High Court in Referred Trial Nos. 4/89 and 5/89 and Crl.
Appeal Nos.
593/89 and 594 of 1989.
715 Raju Ramachandran, Jaga Rao, Alok Agarwal, Ms. Malini Bhat and section Ravindra Bhatt for the appellants.
V.R. Karthikeyan and V. Krishnamurthy for the respondent.
The Judgment of the Court was delivered by K. RAMASAWAMY, J.
Special leave to appeals granted.
Heard the learned counsel, Sri Raju Ramachandran amicus curiae for the appellants and Sri V. Krishnamurthy, the learned Standing Counsel for the State.
The appellants Sevaka Perumal and Isakkimuthu for short 'A 1 ' and 'A 2 ' in Appeal arising out of S.L.P. (Crl.) No. 1842/90 are accused in Sessions Case No. 283 of 1986 on the file of the Addl.
Sessions Judge, Tirunelveli Sessions Division and appellants in Criminal Appeal No. 594 of 1989 and R.T. No. 4 of 1989 by judgment, dated June 14, 1990 of the High Court of Madras.
Criminal Appeal arise out of S.L.P. (Crl.) No. 1841/90; Sessions Case No. 284 of 1986 of the same Sessions Division and Criminal Appeal No. 593 and R.T. No. 5 of 1989 dated June 14, 1990 of the Madras High Court respectively, A 1 is the appellant.
In each case the Sessions Court convicted them under sections 120B, 364, 392 read with section 397; section 302 read with section 34 I.P.C. and sentenced to death.
In Crl.
Appeal No. 594 of 1989 and R.T. No. 4 of 1989, the High Court confirmed the conviction and sentence of death of both the appellants.
In Crl.
Appeal No. 593 of 1989 and R.T. No. 5 of 1989, the High Court confirmed the conviction and sentenced of death of the A 1 and acquitted A 2 of all the charges.
The case of the prosecution in brief is that the appellants and PW 1, the approver belonged to kidarakulam village and became friends.
A 1 used to bring money form the timber shop of his brother in law (PW 4) in Sessions Case No. 284/86 in whose shop A 1 had worked.
They used to go to various places.
A 1 used to purchase ganja from chenglapatai and other places and A 1 and A 2 used to sell them.
Yet they did not have enough money to spend lavishly.
They attempted to commit theft in the localities but became impracticable.
Therefore, they conspired to entice boys from affluent families to bring cash and jewellery from their houses; take them to far away places; take their money or jewellery and to murder them for gain.
Pursuant thereto in 1978 they murdered one Athippan; in 1981 one Chelladurai; in March, 1982 one Hariramachandran and in 1983 one Christodas.
In Sessions Case No. 283/86, the deceased boy is Athiappan.
In 716 Sessions Case No. 284/86, the deceased boy is Hariramachandran.
Sessions Case No. 282/86 on the file of the Sessions Court.
Madurai Division relates to deceased Chelladurai.
Therein also we are informed that the appellants were convicted but on appeal they were acquitted.
In sessions Case relating to the death of Christodas, it also ended in conviction and sentence of death was imposed on the appellants and is pending confirmation in the High Court.
It is sufficient to set out the material fact leaving out the minor details in Sessions Case No. 284/86 to meet the points raised by the counsel for the appellants.
A 1 enticed the deceased, Hariramachandran, his nephew (elder sister PW 2 ' son) to bring jewellery from the house of PW 2 and PW 4.
The appellants and PW 1 took him to Madurai.
On the way the deceased went to the house of PW 3 and handed over one chain to be delivered to his mother and took M.O. 1 chain with him.
A 1 had taken a room in the lodge at Madurai run by PW 16.
On coming to know that they were staying in Madurai, PW 2, PW 4, her husband and PW 3 went to the lodge and the deceased was found threat.
He informed them that the chain was with A 1 and he would come in the evening at 8.00 p.m. After waiting for some time and when it was getting dark, the ladies went away asking PW 4 to get the chain and the deceased after A 1 's arrival.
While PW 4 was waiting the deceased went down stairs and after A 1 's arrival told him of his mother 's coming etc.
and from there they went away to Madras, and having come to know that they left the place PW 4 left to his village.
On the next day they returned to Madurai.
From there they went to Usilampatti and A 1 then purchased a knife at the Bus Stand without the knowledge of the deceased and proceeded to Peraiyar road.
They sat near a jungle stream.
While A 1 and the deceased Harirmachandran were sitting near a stone on the southern side of the road, A 2 and PW 1 were standing at a distance, A 1 stabbed Harirmachandran in his stomach with a knife and the deceased collapsed on the stone.
A 1 threw away the knife in the river.
He threw the deceased in the nearby well and washed his hands and legs in the stream.
They returned to Usilampatti Bus Stand.
From there they came to Madurai.
A 1 sold M.O. 1 chain to PW 24 and gave one hundred rupees each to PW 1 and A 2.
This evidence of PW 1 received sufficient corroboration from the evidence of prosecution witnesses.
Sri Raju Ramachandran contended that the dead body was admittedly found in a highly decomposed condition.
There is no proper identification of the dead body to be of the deceased.
The 717 mother PW 2 identified only with reference to the photograph taken of the dead body.
There is evidence that the deceased wrote a letter of leaving to unknown destination.
Unless there is proof that the dead body belongs to Hariramachandran, it is not safe to convict to A 1 to a capital punishment of death sentence.
We find no force in the contention.
In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti.
The fact of death of the deceased must be established like any other fact.
Corpus delicti in some cases may not be possible to be traced or recovered.
Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or steam or burnt out.
It is unlikely that the dead body may be recovered.
If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc.
and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved.
What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.
In this case the evidence of PWs. 7 to 10 would establish that they have seen the dead body of the deceased Hariramachandran in the well and brought it out and the photograph was taken at the time of inquest.
It was identified to be that of the deceased by no other than his mother, PW 2.
Thus we have no hesitation to hold that there is no doubt as regards the identity of the dead body and that the medical evidence establishers that the deceased died due to stabbing with sharp edged weapon like knife.
It is next contended that PW 1 being an approver, his evidence must be reliable and must receive corroboration on all material particulars from independent evidence.
PW 1 is neither a reliable witness nor did his evidence receive such corroboration.
Therefore, his evidence cannot form the basis to convict the appellants.
It is his contention that in Hariramachandran 's death case the evidence of PW 1 was not accepted as regards the complicity of A 2 and he was acquitted.
Therefore, PW 1 is not a reliable witness.
This contention too is devoid of any force.
PW 1 had given wealth of details of commission of the crimes.
Under section 133 of the Evidence Act 1 of 1872, an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Section 114 illustration (b) postulates that an accomplice is unworthy of credit, unless he is corroborated in mate 718 rial particulars.
In King vs Baskervilli, Lord Reading, CJ, laid the test that the corroboration need not be direct evidence that the accused committed the crime.
It is merely circumstantial evidence of his connection with the crime.
The nature of the corroboration will depend and vary according to the particular circumstances of each case.
What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon.
In Mahadeo vs The King AIR 1936 P. C. 242 the judicial committee held that the evidence of an accesory must be corroborated in some material particulars not only bearing upon the facts of the crime but upon the accused 's implication in it.
This Court in Rameshwar vs The State of Rajasthan, ; held that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence of the case, apart from the testimony of the complainant or its accomplice should in itself be sufficient to sustain conviction.
All that is necessary is that there should be independent evidence which will make it reasonably safe to believe that the witness 's story that the accused was the one that committed the offence could be acceptable.
The corroboration need not be direct evidence that the accused committed the crime.
It is sufficient if it is merely circumstantial evidence of his connection with the crime.
In section Swaminathan vs State of Madras, AIR 1957 SC 340 this Court held that corroboration of approver 's evidence need not be of a kind which prove the offence against the accused.
It is sufficient if it connects the accused with the crime when the accused had been charged for the offences of conspiracy and of cheating, a specific instance of cheating proved beyond doubt against one of the accused would furnish the best corroboration of the offence of the conspiracy.
In Sarwan Singh vs The State of Punjab, ; relied by Shri Raju Ramachandran, this Court held that the approver must be a reliable witness and the evidence must receive sufficient corroboration.
In that case the corroboration of minor particulars was accepted to be sufficient to hold the approver to be reliable witness.
In B.D. Patil vs State of Maharashtra, this Court held that the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will, as a matter of practice do not accept the evidence of such a witness without corroboration in material particulars.
There should be corroboration of the approver in material particulars and must be qua each accused.
In Md. Hussain Umar Kochra etc.
vs K.S. Dalipsinghji & Anr., [1970] 1 S.C.R. 130 it was held that the combined effect of sections 133 and 114(b) is that though a conviction based upon accomplice evidence is legal the court will not accept such evidence unless it is 719 Corroborated in material particulars.
The corroboration must be from an independent source.
If several accomplices simultaneously and without previous concert giving consistent account of the crime implicating accused, the court may accept the several statements as corroborating each other.
In Ram Narain vs State of Rajasthan, ; this Court held that section 114(b) strikes a note of warning, cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars.
In other words, the rule is that the necessity of corroboration is as matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge.
In Abdul Sattar vs Union Territory, Chandigarh, [1985] (Suppl.) S.C.C. 599 this Court further held that it is not safe to convict an accused on the charges like murder upon the evidence of uncorroborated testimony of the approver.
Thus the settled law is that an approver is a competent witness against the accused person.
But the court, to satisfy its conscience, insists as caution and prudence to seek, as a rule, corroboration to the evidence of the approver, a particips criminis from independent evidence occular or circumstantial, of general particulars regarding the story spoken off by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance.
The reliability of the evidence of an approver should be considered from totality of the facts and circumstances.
In the trial of Athiappan murder there is no dispute that such a corroborative evidence connecting both the appellants is available which was minutely considered by the trial court and the High Court and was accepted.
We find no infirmity in that regard.
In the trial of the death of Hariramachandran, A. 2 was acquitted on the ground that his extra judicial confession made to P.W. 23, the only corroborative evidence,was disbelieved by the High Court.
Both the courts below gave categorical finding that P.W. 1 is a reliable witness.
the evidence of the approver received corroboration from independent evidence on general prosecution case, namely, P.W. 16 spoke that the deceased was brought by the accused and stayed in the lodge.
P.Ws 2 to 4 spoke of A 1 working in their shop, previous theft by A 1 and M.O. 1 being missing, their attempt to take back the deceased and M.O, 1, the deed body was found in the well and was taken out as spoke to by P. Ws.
7to 10.
The medical evidence establishes the stabbing with the knife and death was due to it.
P.W. 24 corroborates A. 1 of selling M.O. 1 chain and taking the money.
The canopy of the material evidence from independent sources sufficiently corroborates the approver ' evidence.
720 PW 1 is a reliable witness.
No infirmity has been pointed out to disbelieve his evidence.
It is next contended that the courts below were not justified in imposing the extreme penalty of death sentence under section 302, I.P.C. and strongly relied upon the judgment of Bachan Singh 's case.
It is contended that the acquittal of A. 2 giving the benefit of doubt in Hariramachandran 's death trial introduces an element of doubt which should be extended to convert the death sentence of A. 1 to life imprisonment.
We find no susbstance in the contention.
The doctrine of benefit of doubt only would operate in proof of the commission of the offence.
If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to the benefit and acquitted.
The benefit of doubt again does not enter in the area of consideration of imposing sentence.
The law regulates social interest, arbitrates conflicting claims and demands.
Security of persons and property of the people is an essential function of the State.
It could be achieved through instrumentality of criminal law.
Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges.
The contagion of lawlessenss would undermine social order and lay it in ruins.
Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.
Therefore, law as a corner stone of the edifice of order should meet the challenges confronting the society.
Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be.
The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration.
For instance a murder committed due to deep seated personal rivalry may not call for penalty of death.
But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.
In Mahesh vs State of M.P., this Court while refusing to reduce that death sentence observed thus: 721 `It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser punishment for the accused would be to render the justicing system of the country suspect.
The common man will lose faith in courts.
In such cases, he understands and appreciates the language of deterrence more than the reformative jargon '.
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats.
If the courts did not protect the injured, the injured would then resort to private vengeance.
It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
It is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja.
They conspired to entice innocent boys from affluent families took them to far flung places where the dead body could not be identified.
The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected.
Four murders in a span of five years were committed for gain in cold blooded , pre meditated and planned way.
It is undoubted that if the trial relating to Athiappan murder had taken place and concluded earlier to the trial and conviction of other three murders, the subsequent murders are not relevant facts to be considered.
But in this case the trial of the murder relating to Athiappan and Hariramachandran practically took place simultaneously by which date the appellants were convicted for the murder of Chelladurai and Christodas.
Therefore ,the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts.
The deceased Hariramachandran is no other than the nephew (elder sister 's son) of A 1.
This would establish his depravity and hardened criminality.
No regard for precious lives of innocent young boys was shown.
They adopted the crime of murder for gain as a means to living.
Undoubtedly under section 235(2) of Code of Criminal Procedure, the accused is entitled to an opportunity to adduce evidence and if need be the case is to be adjourned to another date.
It is illegal to convict, an accused and to impose sentence on the same day.
It is true 722 as contended for the State that under section 309, third proviso brought by Amendment Act, 1978 that no adjournment should be granted for the purpose only of enabling the accused person to show cause against sentence to be imposed upon him.
Under section 235(2) when the accused has been given right to be heard on the question of sentence it is a valuable right.
To make that right meaningful the procedure adopted should be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence.
The hearing may be on the same day if the parties are ready or be adjourned to a next date but once the court after giving opportunity propose to impose appropriate sentence again there is no need to adjourn the case any further thereon.
No doubt the Sessions Judge needed to adjourn the case under section 235(2) to next date but in the High Court the counsel was directed to show any additional grounds on the question of sentence .
The High Court observed that the counsel was unable to give any additional ground.
It is Further contended that the appellants are young men.
They are the bread winners of their family each consisting of a young wife.
minor child and aged parents and that, therefore, the death sentence may be converted into life.
We find no force.
These compassionate grounds would always be present in most cases and are not relevant for interference.
Thus we find no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court warranting interference.
The appeals are accordingly dismissed.
G.N. Appeal dismissed. | According to the Prosecution, appellants 1 and 2 have been friends and were in the habit of selling ganja and spending money lavishly.
They attempted to commit theft in their locality, but were no successful.
Therefore, they hatched a conspiracy to entice boys from affluent families to bring cash and jewellery and murder them after taking away the cash and jewellary.
Likewise, they killed 4 boys, in a span of about 5 years.
Both of them were charged with offences under section 120B read with section 34 IPC, section 364 and 392 read with section 397 IPC in all the four cases filed against them, and were convicted by the Sessions Court.
However, in one case, on appeal, they were acquitted by the High Court.
In another case, the death sentence imposed by the Sessions Court is pending confirmation by the High Court.
In the other two cases, both the appellants were sentenced to 712 death by the Sessions Court and on appeal the High Court confirmed the sentence in one case and in the other, the High Court confirmed the death sentence passed against appellant No. 1 and acquitted appellants No. 2 of all the charges.
The appellants preferred the present appeals challenging the said order of the High Court confirming the sentences against them by contending that there was no proper identification of the dead body and that the approver was not a reliable witness and since his evidence did not receive corroboration, it cannot form the basis for convicting the appellants.
It was also contended that the extreme penalty of death sentence imposed was not justified.
Dismissing the appeals, this Court, HELD: 1.1 In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti.
The fact of death of the deceased must be established like any other fact.
Corpus delicti in some cases may not be possible to be traced or recovered.
If a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out, it is unlikely that the dead body may be recovered.
If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc.
and that would afford a complete immunity to the guilty from being punished and the accused would escape even when the offence of murder is proved.
What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.
[717A D] 1.2 In the instant case, the evidence of PWs.
7 to 10 would establish that they have seen the dead body of the deceased in the well and brought it out and the photograph was taken at the time of inquest.
It was identified to be that of the deceased by no other than the mother of the deceased.
Thus there is no doubt as regards the identity of the dead body.
Also the medical evidence establishes that the deceased died due to stabbing with sharp edged weapon like knife.
[717E] 2.
Law is settled that an approver is a competent witness against the accused person.
But the court, to satisfy its conscience, insists as caution and prudence to seek, as a rule, corroboration to the evidence 713 of the approver, a particips criminis from independent evidence occular or circumstantial, of general particulars regarding the story spoken of by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance.
The reliability of the evidence of an approver should be considered from totality of the facts and circumstances.
In one of the two trials there is no dispute that such a corroborative evidence connecting both the appellant is available which was minutely considered by the trial court and the High Court and was accepted.
There is infirmity in that regard.
In the other trial appellant No. 2 was acquitted on the ground that his extra judicial confession made to PW 23, the only corroborative evidence, was disbelieved by the High Court.
Both the Courts below gave categorical finding that PW 1 is a reliable witness.
The evidence of the approver received corroboration from independent evidence.
The canopy of the material evidence from independent sources sufficiently corroborates the approver 's evidence.
He is a reliable witness.
No infirmity has been pointed out to disbelieve his evidence.
[719D H; 720A] Rameshwar vs The State of Rajasthan, ; ; section Swaminathan vs State of Madras, AIR 1957 SC 340; Sarwan Singh vs The State of Punjab, , ; ; B.D. Patil vs State of Maharashtra, ; Md. Hussan Umar Kochra etc.
vs K.S. Dalipsinghji & Anr., [1970] 1 SCR 130; Ram Narain vs State of Rajasthan, ; and Abdul Sattar vs Union Territory, Chandigarh, [1985] (Suppl.) SCC 599, relied on.
King vs Baskervilli, and Mahadeo vs The King, AIR 1936 P.C. 242, referred to.
In the instant case, it is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja.
They conspired to entice innocent boys from affluent families, took them to far flung places where the dead body could not be identified.
The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected.
Four murders in a span of five years were committed for gain in cold blooded, premeditated and planned way.
In this case the trial of the murder relating to the two deceased practically took place simultaneously by which date the appellants were convicted for the murder of two other boys.
Therefore, the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts.
One of the deceased is no other than the nephew of appellants No. 1.
This 714 would establish his depravity and hardened criminality.
No regard for precious lives of innocent young boys was shown.
They adopted the crime of murder for gain as a means to living.
As such there is no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court.
[721D G] 4.
The doctrine of benefit of doubt only would operate in proof of the commission of the offence.
If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to that benefit and be acquitted.
The benefit of doubt again does not enter in the area of consideration of imposing sentence.
[720C] 5.1.
Undue sympathy to impose inadequate sentence would do harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.
If the courts did not protect the injured the injured would then resort to private vengeance.
It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
[721C] 5.2.
The compassionate grounds such as the accused being young bread winners of the family etc.
would always be present in most casts and are not relevant for interference with the sentence.
[722D] 6.
Under section 235(2) when the accused has been given right to be heard on the question of sentence it is a valuable right.
To make that right meaningful the procedure adopted would be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence.
The hearing may be on the same day if the parties are ready or to a next date but once the court after giving opportunity, proposes to impose appropriate sentence again there is no need to adjourn the case under section 235(2) to next date.
In the present matters the counsel was directed by the High Court to show any additional grounds on the question of sentence, but the counsel was unable to give any additional ground.
[722B C] |
N: Criminal appeal No. 383 of 1991.
From the Judgment and Order dated 17.7.1990 of the Orissa High Court in Crl.
Rev. No. 382 of 1986.
Janaranjan Das for the Appellants.
A.K. Panda for the Respondent.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Arguments heard.
This appeal by special leave is directed against the judgment and order dated July 17, 1990 passed by the High Court of Orissa in Criminal Revision No. 382 of 1986 dismissing the revision and affirming the concurrent findings of the courts below.
The prosecution case in short is that on 19th March, 1983 at about 7.p.m.
while the victim girl Srimanthini Samal (P.W. 2) was going to the house of Rama Samal, for study, the appellant Gagan informed her that the other appellant Prafulla and others had tied her tutor Rabi Babu in a nearby mango grove and her father was present there.
Having believed the version of the appellant Gagan, her agnatic uncle, she accompanied him and ultimately the appellants forcibly took her to a lonely house in hills where she was made to sit on a chair and the appellant Gagan forcibly thrushed in her mouth a liquor bottle and she was made to drink the liquor.
Thereafter both the appellants after having undressed her committed sexual assault on her.
Then she was brought to expression highway from where she was bodily lifted to a truck standing there and left her in the truck.
While the said truck was unloading materials near village Kurujanga, the victim girl stealthily left the truck and concealed her presence near a fence.
Subsequently, one Purusottam Mohanty rescued her and brought her to his house and then she was left to the house of one Niranjan Rout (P.W. 8), who was distantly related to her and took shelter till her father took her back on being 842 informed.
On the information lodged by her father (P.W. 1) in the police station of Badachana a case under sections 363 and 376 read with section 34 of the I.P.C. was registered against the accused appellants and after investigation the I.O. sent the victim girl as well as the appellants for medical examination and after completion of the investigation a charge sheet was submitted against the appellants to stand their trial.
The pleas of the appellants were a total denial of the prosecution case.
The appellant Prafulla took the plea the there was a marriage proposal of the victim girl with him but when it was disclosed that she had illicit relationship with her tutor Rabi, he refused to marry her for which this false case was foisted against him.
The plea of the other appellant Gagan as suggested to the informant, was that due to his previous enmity he was falsely implicated with the alleged crime.
The appellants were committed to the Court of Sessions.
The learned Assistant Sessions Judge after considering the evidences on record rejected the defence pleas, and found that the accused appellants committed rape on the victim girl without her consent relying on the provisions of Section 114(A) of the Evidence Act, and convicted them under section 376(2)(g) I.P.C. and sentenced each of the accused appellants to rigorous imprisonment for three years considering the young age of the appellants.
The Assistant Sessions Judge, however, acquitted the appellants from the charge under section 366 I.P.C. as the victim girl was more than 16 years of age at the time of occurrence.
Against this judgment and order of conviction the appellants filed an appeal being Criminal Appeal No. 153 of 1984 in the Court of First Additional Sessions Judge, Cuttack.
The Additional Sessions Judge considered the pleas of the appellants as well as duly scrutinized and appraised the evidences on record and found that the accused appellants committed rape on the victim girl without her consent and affirmed the conviction and sentence imposed by the Trial Court dismissing the appeal.
The appellants thereafter filed a Revision Case being Criminal Revision No. 382 of 1986 in the High Court of Orissa at Cuttack against the said judgment and order passed by the First Additional Sessions Judge, Cuttack.
The High Court duly considered and appraised the evidences of all the 9 P. Ws. including the deposition of the victim girl Srimanthni Samal (P.W. 2), the evidence of her father (P.W. 1) as well as the evidence of her mother (P.W. 3) and the evidences of the two Doctors (P.W. 4) and P.W. (5) and held that the accused persons committed rap on P.W. 2 forcibly without her con 843 sent.
It has been further found from the reliable evidences of P.Ws. 1 and 3 that as soon as P.W. 2 met her mother, P.W. 3, P.W. 2 told her mother about both the accused persons committing rape on her in a solitary house and also about the accused persons taking her away to the highway and keeping her in a truck, and corroborate the version of P.W. 2 regarding the occurrence of rape committed n her by both the accused persons.
It has been further observed that even though the P.Ws. 7 and 8 became hostile still then their evidences can be safely relied on as the same fully corroborates the version of P.W. 2 that on the relevant night the she, with the help of P.W. 7 had taken shelter in the house of P.W. 8 P.W. 6 who the driver of the truck No. ORG 4839 also stated in his evidence that the accused persons and two others took the victim girl and left her in the truck.
P.W. 6 further admitted that as he stopped the truck at village Ambura for unloading the boulders, the girl had stealthily left his truck and inspite of his searching her, he could not trace her.
This fully supports the version of P.W. 2 that she left the truck and concealed herself near a fence in darkness.
The learned Judge, therefore, held "Hence, on a careful scrutiny of the evidences of the hostile witnesses P.Ws. 6 and 8 it is seen that even they corroborate the evidence of the victim gild, P.W. 2 on material aspects of the prosecution case.
" In cases of rape, generally it is difficult to find any corroborative witnesses except the victim of the rape.
It has been observed by this Court in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, ; as follows: "Corroboration is not the sine qua non for a conviction in a rape case.
In the Indian setting, refusal to act on the testimony of a victim of sexual assault inthe absence of corroboration as a rule, is adding insult to injury.
Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male dominated society.
A girl or a woman in the tradition bound non permissive society of India would be extremely reluctant even to admit that only incident which is likely to reflect on her chastity had ever occurred.
She would be conscious of the danger of being ostracized by the society or being looked down by the society including by her own family members, 844 relatives, friends, and neighbours.
She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.
If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable or an acceptable family.
In view of these and similar factors, the victims and their relatives are not too keen to bring the culprit to book.
And when in the face of these factors the crime is brought to light there is a built in assurance that the charge is genuine rather than fabricated.
" The above observation has been made by this Court relying on the earlier observations made by this Court in Rameshwar vs The State of Rajasthan, with regard to corroboration of girl 's testimony and version.
Vivian Bose, J, who spoke for the Court observed as follows: "The rule, which according to the case has hardened into one of law, is not that corroboration is essential before there can be a conviction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, . . . .The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in very case, be corroboration before a conviction can be allowed to stand.
" In the instant appeal as had been stated hereinbefore that P.W. 2, the victim girl has clearly stated in her evidence that she had been taken to a solitary house in the hills by the appellant No. 1 Gagan Bihari Samal and there she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other.
He uncontroverted testimony has been accepted by all the courts and the courts concurrently found that she was raped without her consent.
It has been tried to be contended on behalf of the appellants that the amended section 114(A) was brought into the Evidence Act after the commission of the offence for which the appellants were charged and as such no assumption can be made on the basis of this provision.
This submission is of no avail in as much as it is clearly evident that the victim girl protested and 845 struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on part of the victim girl in such sexual intercourse apart from the legal presumption that follows from the provisions of Section 114(A) of the Evidence Act.
The learned counsel on behalf of the appellants further tried to argue on the basis of some minor discrepancies in the evidences of P.W. 2 that the prosecution case was a false one and it has been foisted on the appellants due to enmity and also due to accused Prafulla, one of the appellants, having disagreed to marry the victim girl.
The courts below have clearly found that the defence case was not at all sub stantiated by any cogent evidence.
So this contention is not at all tenable.
It is apropos to mention here the observation made by this Court in the case of State of Orissa vs Nakula Sahu and Ors., ; which are set out herein: "Although the revisional power of the High Court under Section 439 read with section 435 is as wide as the power of Court of appeal under Sec.
423 of the Code, it is now well settled that normally the jurisdiction of the High Court under Section 439 is to be exercised only in exceptional cases when there is a glaring defect in the procedure or there is a manifest error on a point of law which has consequently resulted in flagrant miscarriage of justice.
Inspite of the wide language of Section 435, the High Court is not excepted to act under Section 435 or Section 439 as if it is hearing an appeal.
" The High Court of Orissa referred to the said observation and rightly held that the High Court cannot be expected to re appraise the evidence as a court of appeal.
This Court hearing an appeal by special leave cannot consider and re appraise the evidences once again in the face of concurrent findings of facts arrived at by all the courts below.
For the reasons aforesaid we dismiss the appeal and uphold the conviction and sentence as found by the High Court.
R.P. Appeal dismissed. | The appellants forcibly took P.W. 2 to a lonely place on 19.3.1983, made her to drink liquor and committed sexual assault on her.
Thereafter they left her in a truck.
While the said truck was unloading materials near a village, the victim stealthily left the truck and concealed herself near a fence.
P.W. 7 rescued her and took her to the house of P.W. 8, one of her distant relative, from where her father P.W. 1 took her back and lodged the report at the police station.
A case under sections 363 and 376 read with section 341.I.P.C. was registered against both the appellants.
After completion of the investigation, a charge sheet was submitted and the appellants were tried for the aforesaid offences.
The appellants denied the prosecution allegations and pleaded that they were falsely implicated because of refusal by one of them to marry the girl and previous enmity with the other.
The Assistant Sessions Judge rejected the defence pleas, and found that the appellants committed rape on the victim without her consent, and relying on section 114A of the Evidence Act, convicted the appellants under section 376(2)(g), I.P.C. and sentenced each of them to rigorous imprisonment for three 840 years.
Since the victim was more than 16 years of age, the appellants were acquitted of the charge under section 363, I.P.C. On dismissal of their appeal against the conviction and sentence by the Addl.
Session Judge, the appellants filed a revision application before the High Court.
The High Court duly considered and appraised the evidence and held that the appellants committed rape on PW 2 forcibly without her consent.
Ultimately the appellants came in appeal by special leave to this Court.
Dismissing the appeal, this Court, HELD: 1.
In cases of rape, generally it is difficult to find any corroborative witnesses except the victim of the rape.
However, corroboration is not the sine que non for a conviction in a rape case.
In the Indian setting, refusal to act on the testimony of a victim of sexual assault in the absence of corroboration as a rule, is adding insult to injury.
[843D F] Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, ; and Rameshwar vs The State of Rajasthan, ; , relied on.
In the instant case, the victim girl clearly stated in her evidence that she had been taken to a solitary house in the hills by appellant No. 1 where she was made to drink liquor and thereafter she was undressed and forcibly subjected to sexual intercourse by both the accused appellants one after the other.
Her uncontroverted testimony was accepted by all the courts and they concurrently found that she had been raped without her consent.
[844F G] 3.
Apart from the legal presumption that flows from the provisions of section 114A of the Evidence Act, it is clearly evident in the instant case, that the victim girl protested and struggled while she was subjected to sexual assault forcibly by the accused persons and this clearly evinces absence of consent on her part in such sexual intercourse.
[844H; 845A] 4.
The High Court rightly held that it cannot be expected to re appraise the evidence as a court of appeal while exercising its revisional power under section 401 Cr.
P.C. [845E F] 841 State of Orissa vs Nakula Sahu and Ors., ; , relied on.
This Court hearing an appeal by special leave cannot consider and re appraise the evidence once again in the face of concurrent findings of facts arrived at by all the courts below.
[845F] |
t Petition (Civil) No. 13704 of 1983.
(Under Article 32 of the Constitution of India) P.N. Lekhi and M.K. Garg for the Petitioner.
Prithvi Raj, P.P. Rao, Govind Mukhoty, Satish Chander, Raju Ramachandran, Mrs. section Dikshit, A.K. Sangal, P.K. Chakraborty.
Ms. Sadhya Goswami and Y.C. Maheshwari for the Respondents.
K.R. Gupta, Smt.
Nanita Sharma, R.C. Gubrele, Vivek Sharma and O.P. Sharma for the Intervener.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Ram Sewak Prasad, the petitioner before us, was appointed as Excise Sub Inspector, in the State of Uttar Pradesh in February, 1964 and was promoted to the post of Excise Inspector on ad hoc basis on February 24, 1972.
He was confirmed as Excise Sub Inspector by an order dated December 2, 1972 with effect from April 1, 1967.
Though promoted on ad hoc basis the petitioner 887 has continuously been working as Excise Inspector since February 24, 1972.
Raghubir Singh and Ram Dhan, respondents are direct recruits to the post of Excise Inspector.
The joined as such on March 29, 1972 and May 14, 1972 respectively.
They were promoted to the post of Excise Superintendent by an order dated September 29, 1983.
It is not disputed that the petitioner was not considered for promotion alongwith the respondents or at any time thereafter.
Even his name was not shown in the seniority list of Excise Inspectors circulated from time to time.
The respondents, including the State Government, have taken the stand that the petitioner 's promotion to the post of Excise Inspector was against the rules, he continues to be an ad hoc appointee and is not a member of the Excise Inspectors Service constituted under the rules.
For that reason he is neither been shown in the seniority list of Excise Inspectors nor considered for promotion to the post of Excise Superintendent.
It is necessary to examine the relevant statutory rules regulating recruitment and conditions of service of the Excise Inspectors.
Rule 3(ix) and 5 of the Uttar Pradesh Subordinate Excise Service Rules, 1967 (hereinafter called `1967 rules ') are as under: "3(ix).
"Member of the service" means a person appointed in a substantive capacity under the provisions of these rules, or of rules in force previous to the enforcement of these rules to a post in the cadre of the service" . 5.
Sources of recruitment Recruitment to the service shall be made (a) by direct recruitment of candidates, on the result of a combined competitive examinations conducted by the Commission, who having been selected in the prescribed manner for undergoing practical training have completed the course of training and passed the departmental examination prescribed in rule 23: Provided that no candidate shall be allowed to avail of more than three chances for appearing at the competitive examination; (b) by promotion of permanent clerks of the office at 888 the Headquarters of the Excise Commissioner and other regional and Subordinate Excise Offices of Assistant Excise Commissioners and Superintendents of Excise in Uttar Pradesh; and (c) by promotion of permanent Tari Supervisors The 1967 rules were superseded by the Uttar Pradesh Subordinate Excise Service Rules, 1983 (hereinafter called 1983 rules) which came into force on March 24, 1983.
Rule 3(g), 3(j), 5 and 21(1) of the 1983 rules are reproduced hereinafter: "3(g).
"Member of Service" means a person substantively appointed under or the rules or orders in force prior to the commencement of these rules to a post in the cadre of the service". "3(j).
"Substantive appointment" means an appointment, not being an ad hoc appointment, on a post in the cadre of the service, made after selection in accordance with the rules and, if there are no rules, in accordance with the procedure prescribed for the time being by executive instructions, issued by the Government.
" Sources of Recruitment.
Recruitment to the various categories of posts in this service shall be made from the following sources: (A) EXCISE INSPECTOR (1) 90% by direct recruitment on the result of a combined competitive examination conducted by the Commission.
(2) 10% by promotion from amongst the permanent sub Excise Inspectors.
"Rule 21(1) Except as hereinafter provided, the seniority of persons in any category of post shall be determined from the date of the order of substantive appointment and if two or more persons are appointed together, by the order in which their names are arranged in the appointed order; 889 Provided that if the appointment order specifies a particular back date with the effect from which a person is substantively appointed, that date, will be deemed to be the date of order of substantive appointment and, in other case it will mean the date of issue of the order;" Mr. Satish Chandra, learned senior advocate, appearing for some of the respondents who are direct recruits of 1982/83 has contended that the 1967 rules were holding the field when the petitioner was promoted as Excise Inspector on ad hoc basis.
According to him only clerks and Tari Supervisors could be considered for promotion to the post of Excise Inspector under rule 5 of the 1967 rules and the Excise Sub Inspectors were not eligible.
The petitioner 's promotion being in violation of the 1967 rules, he was not a member of the service and as such was rightly not shown in the seniority list of Excise Inspectors.
He, however, accepts the position that the petitioner can be considered for promotion to the post of Excise Inspector under the 1983 rules and would become member of the service from the date of promotion under the said rules.
Mr. Satish Chandra finally contended that the appointment of the petitioner from 1972 to 1983 being violative of 1967 rules, the benefit of the said service cannot be given to the petitioner towards seniority in the cadre of Excise Inspectors.
In support of his arguments Mr. Satish Chandra relied upon the judgments of this Court in Masood Akhtar Khan and Others vs State of Madhya Pradesh and Others, and Direct recruits class II Engineering Officers Association vs State of Maharashtra and Others, [1990] 2S.C.C. 715.
Mr. Govind Mukhoty, Mr. P.P. Rao and Mr. O.P. Sharma, learned senior advocates appearing for various respondents reiterated, with different flavour, the arguments advanced by Mr. Satish Chandra.
They further cited P. Mahendran and Ors etc.
vs State of Karnataka and Ors. etc.
, ; State of Punjab vs Jagdip Singh and Ors., ; ; Krishena Kumar and Ors.
vs Union of India and Ors.
, ; and A.K. Bhatnagar and Ors.
vs Union of India and Ors.
, ; Mr. Prithviraj, learned senior advocate appearing for the State of Uttar Pradesh stated that it may be possible to absorb the petitioner in the cadre of Excise Inspectors from the date of enforcement of the 1983 rules but the benefit of service rendered by him as Excise Inspector prior to that date cannot be given to him.
Mr. P.N. Lekhi, learned senior advocate appearing for the petitioner vehemently argued that the petitioner was promoted in `public interest ' as Excise Inspector in the year 1972 and since then he 890 has been working as such continuously.
He is being paid the same salary for doing the same work as is being done by the directly recruited Excise Inspectors.
There can no justifiable reason to treat the petitioner as an ad hoc Excise Inspector even after working as such for almost two decades.
According to him the 1967 rules which confined the channel of promotion to Tari Inspectors and Clerks were wholly arbitrary and as such violative of Articles 14 and 16 of the Constitution of India.
The Excise Sub Inspectors are at a lower rung in the same hierarchy of service to which Excise Inspectors belong.
The Sub Inspectors perform similar duties of less responsibility.
Mr. Lekhi further contended that providing avenue of promotion to Tari Inspectors and Clerks who had no similarity or service0link with the cadre of Excise Inspectors and depriving the same to the Excise Sub Inspectors render the 1967 rules arbitrary and discriminatory.
He relied upon Baleshwar Dass and Ors.
vs State of U.P. and Ors., [1981] 1 SCR 449; Narender Chadha and Ors.
vs Union of India and Ors.
, ; ; Rajendera Parsad Dhasmane vs Union of India and Ors., ; and Kumari Shrilekha Vidyarthi etc.
vs State of U.P. and Ors., Mr. Lekhi finally submitted that the petitioner is, in any case, entitled to be promoted substantively to the cadre of Excise Inspectors under the 1983 rules and he is entitled to fixation of seniority by counting his entire service as Excisa Inspector from 1972 onwards.
It is not necessary to go into the judgments cited by the learned counsel for the parties.
The judgments are on the peculiar facts of these cases and do not render much assistance to resolve the controversy before us.
The 1967 rules provided recruitment to the cadre of Excise Inspectors by way of direct recruitment and by promotion.
Recruitment by promotion was only confined to permanent clerks in the office of Excise Commissioner and Tari Supervisors.
The Excise Sub Inspectors were not eligible.
On the plain interpretation of 1967 rules Mr. Satish Chandra is justified to contend that the petitioner was not eligible for promotion to the post of Excise Inspector and as such he could not be member of the Uttar Pradesh Subordinate Excise Service as constituted under the 1967 rules.
On the other hand there is plausibility in the argument of Mr. P.N. Lekhi that rule 5 of the 1967 rules which denies avenue of promotion to the Excise Sub Inspectors is arbitrary and discriminatory.
When the 1967 rules were enforced on May 24, 1967 there was in existence a permanent cadre of Excise Sub Inspectors.
The nature of duties of both the cadres 891 were similar.
The Excise Inspectors, on molasses duty of the ranges, used to supervise the work of Excise Sub Inspectors under them.
The Excise Sub Inspectors were thus natural contenders for the post of Inspectors.
There was no justification whatsoever with the framers of the 1967 rules to have kept the Excise Sub Inspectors out of the channel of promotion to the post of Excise Inspectors.
Prima facie there is no escape from the conclusion that the Excise Sub Inspectors were dealt with in an arbitrary manner by the framers of 1967 rules.
However, the view we propose to take on the interpretation of 1983 rules it is not necessary for us to deal with the respective arguments of the learned counsel for the parties regarding the 1967 rules.
Rule 5 of the 1983 rules provides recruitment to the cadre of Excise Inspectors from two sources, 90% by direct recruitment and 10% by promotion from amongst the permanent Excise Sub Inspectors.
It is not disputed that under the 1983 rules the petitioner is eligible to be promoted and appointed as Excise Inspector.
In the writ petition the petitioner has specifically pleaded that the service record of the petitioner is unblemished and he is holding the post of Excise Inspector within the 10% promotion quota provided for the permanent Excise Sub Inspectors.
The State Government in its counter has not denied these averments.
The 1983 rules came into force on March 24, 1983.
There is nothing on the record to show as to why the petitioner was not considered for promotion under the 1983 rules till today.
Inaction on the part of the State Government is wholly unjustified.
The petitioner has been made to suffer for no fault of his.
He has been serving the State Government as Excise Inspector since February 24, 1972 satisfactorily.
Least the State Government could do was to consider the petitioner under the 1983 rules.
Mr. Prithviraj, learned counsel for the State of Uttar Pradesh has however fairly stated that the State Government is willing to promote the petitioner to the cadre of Excise Inspectors under the 1983 rules effect from the date of enforcement of the said rules.
Rule 21(1) of the 1983 rules provides that the seniority of a person in any category of post shall be determined from the date of the order of substantive appointment.
First proviso provides that if the appointment order specifies a particular back date with effect from which a person is substantively appointed then the said back date shall be deemed to be the date of order of substantive appointment.
It is thus obvious that rule 21(1) of the 1983 rules specifically permits substantive appointment to the cadre of Excise Inspectors with back date.
The framers of the 1983 rules were conscious that the cadre of 892 Excise Sub Inspectors was in existence from 1964 onwards and some of them were promoted to the post of Excise Inspectors much earlier to the enforcement of the 1983 rules.
In all probability the provision of back date appointment was made in the 1983 rules to do justice to persons like the petitioner.
The petitioner is eligible under the rules to be appointed as Excise Inspector by way of promotion.
It is not disputed that the petitioner was appointed as Excise Inspector on February 24, 1972 and he has been actually working in the said post continuously from that date and has been drawing the salary of the post of Excise Inspector.
This is a fit case where the petitioner should be appointed as Excise Inspector under the 1983 rules by giving him back date appointment with effect from February 24, 1972.
We, therefore, hold that the petitioner shall be deemed to be appointed by way of promotion as substantive Excise Inspector under the 1983 rules with effect from February 24, 1972.
The petitioner shall be entitled to the benefit of his entire period of service as Excise Inspector from February 24, 1972 towards fixation of his seniority in the cadre of Excise Inspector.
We further direct that the petitioner shall be considered for promotion to the post of Excise Superintendent from a date earlier than the date when respondents Ram Dhan and Raghubir Singh were promoted to the said post.
The petitioner shall also be entitled to be considered to the post of Assistant Excise Commissioner in accordance with the rules from a date earlier than the date when any of his juniors were promoted to the said post.
We make it clear that none of the respondents who have already been promoted to the higher rank of Excise Superintendents or Assistant Excise Commissioners be reverted to accommodate the petitioner or any other person similarly situated.
The State Government shall create additional posts in the cadre of Excise Superintendents and Assistant Excise Commissioners to accommodate the petitioner and other similar persons, if necessary.
The writ petition is allowed with costs in the above terms.
We quantify the costs as Rs.10,000 to be paid by the State of Uttar Pradesh.
Y.Lal.
Petition allowed. | The petitioner was appointed as Excise Sub Inspector in February 1964 in the State of U.P. and was later promoted as Excise Inspector on ad hoc basis on February 24, 1972.
He was confirmed as Excise Sub Inspector w.e.f. April 1, 1967.
Though promoted on ad hoc basis, the petitioner has continuously been working as Excise Inspector since February 24, 1972.
Raghubir Singh and Ram Dhan, respondents are direct recruits to the post of Excise Inspector and they had joined the cadre later in point of time than the petitioner i.e. after 24.2.1972.
They were promoted to the post of Excise Superintendent on 29.9.1983 and the petitioner was ignored.
Being aggrieved the petitioner has filed this petition under Article 32 of the Constitution.
According to the State and other respondents, the petitioner 's promotion to the post of Excise Inspector being on ad hoc basis was against the 1967 rules, he continues to be an ad hoc appointed and as such is not a member of the Excise Inspectors service constituted under the rules.
His name has not been shown in the seniority list of Excise Inspectors.
According to them his case has rightly not been considered for further promotion.
On the other hand, it is contended on behalf of the petitioner that the 1967 Rules in as much as they confine the channel of promotion to Tari Inspectors and Clerks were wholly arbitrary and as such violative of Articles 14 and 16 of the Constitution.
It is submitted on his behalf that the petitioner is, in any case, entitled to be promoted substantively to the cadre of excise Inspectors under 1983 rules and he is also entitled to fixation of seniority by counting his entire service as Excise Inspector from 1972 onwards.
Respondents concede that the petitioner can be appointed under 1983 rules, but contend that he is not entitled to the benefit of past service for purposes of seniority.
885 Allowing the writ petition this Court HELD: When the 1967 rules were enforced on May 24, 1967 there was in existence a permanent cadre of Excise Sub Inspectors.
The nature of duties of both the cadres were similar.
The Excise Inspectors, on molasses duty of the ranges, used to supervise the work of excise Sub Inspectors under them.
The Excise Sub Inspectors were thus natural contenders for the post of Inspectors.
There was no justification whatsoever with the framers of the 1967 rules to have kept the Excise Sub Inspectors out of the channel of promotion to the post of Excise Inspectors.
Prime facie there is no escape from the conclusion that the Excise Sub Inspectors were dealt with in an arbitrary manner by the framers of 1967 rules.
[890H 891B] It is not disputed that under the 1983 rules, the petitioner is eligible to be promoted and appointed as Excise Inspector.
[891C D] The 1983 rules came into force on March 24, 1983.
There is nothing on the record to show as to why the petitioner was not considered for promotion under the 1983 rules till today.
Inaction on the part of the State Government is wholly unjustified.
The petitioner has been made to suffer for no fault of his.
He has been serving the State Government as Excise Inspector since February 24, 1972 satisfactorily.
[891E] Rule 21(i) of the 1983 rules specifically permits substantive appointment to the cadre of Excise Inspectors with back date.
In all probability the provision of back date appointment was made in the 1983 rules to do justice to persons like the petitioner.
The petitioner is eligible under the rules to be appointed as Excise Inspector by way of promotion.
Accordingly the Court directed that the petitioner shall be deemed to be appointed by way of promotion as substantive Excise Inspector under the 1983 rules with effect from February 24, 1972.
The petitioner shall be entitled to the benefit of his entire period of service as Excise Inspector from February 24, 1972 towards fixation of his seniority in the cadre of Excise Inspector.
The petitioner shall be considered for promotion to the post of Excise Superintendent from a date earlier than the date when respondents Ram Dhan and Raghubir Singh were promoted to the said post.
The petitioner shall also be entitled to be considered to the post of Assistant Excise Commissioner in accordance with the rules from a date earlier than the date when any of his juniors were promoted to the said post.
[891G, 892B E] None of the respondents who have already been promoted to the 886 higher rank of Excise Superintendents or Assistant Excise Commissioners be reverted to accommodate the petitioner or any other person similarly situated.
The State Government shall create additional posts in the cadre of Excise Superintendents and Assistant Excise Commissioners to accommodate the petitioner and other similar persons, if necessary.
[892F] Masood Akhtar Khan & Ors.
vs State of Madhya Pradesh, ; Direct recruits Class II Engineering Officers Association vs State of Maharashtra & Ors., ; ; P. Mahendran & Ors, etc.
vs State of Karnataka Singh & Ors.
, ; ; Krishena Kumar & Ors.
vs Union of India & Ors.
, ; ; A.K. Bhatnagar & Ors.
vs Union of India & Ors.
, ; ; Baleshwar Dass & Ors. etc.
vs State of U.P. & Ors.
, [1981] 1 S.C.C. 449; Narender Chadha & Ors.
vs Union of India & Ors.
, ; and Kumari Shrilekha Vidyarthi etc.
vs State of U.P. & Ors.
, , referred to. |
ivil Appeal Nos.
338 339 of 1991.
From the Judgment and Order dated 28.12.85 of the Hyderabad High Court in OMA No. 456 of 1984 and CRP No. 2743 of 1984.
WITH Civil Appeal Nos. 2692 930F 1991.
K.R. Choudhary for the Appellant.
K. Madhava Reddy, G. Prabhakar, T.V.S.N. Chari (N.P.) for the Respondents.
J. Leave granted in S.L.P. (C) Nos.
7071 72 of 1986.
These appeals are brought against the common judgment of the 929 Andhra Pradesh High Court in O.M.A. No. 456 of 1984 and C.R.P. No. 2743 of 1984.
The High Court set aside in part the common judgment of the Ist Additional Chief Judge, Civil Court at Hyderabad, in Original Suit No. 174 of 1983 and O.P. No. 49 of 1983 whereby he made the award of the umpire (hereinafter referred to as the `umpire ' or `arbitrator ') a rule of court and passed a decree in terms of the award together with interest on the principal amount awarded at the rate of 12 per cent per annum from the date of the decree.
The High Court set aside the decree in respect of Claim Nos.
III, Vi and IX and affirmed the decree for the other claims.
The main appeal Nos. 338 & 339 of 1991 arising from S.L.P. (C) Nos.
1573 & 1574 of 1986 are by the Associated Engineering Co. (hereinafter referred to as `the Contractor ').
It challenges the judgment of the High Court setting aside the decree of the Civil Court in respect of Claim Nos.
III, VI and IX.
The other appeals arising from S.L.P. (C) Nos.
7071 & 7072 of 1986 are by the Government of Andhra Pradesh and they are against the judgment of the High Court confirming the decree of the Civil Court in respect of Claim Nos.
II, IV and VII(4).
The High Court set aside Claim Nos.
III, VI and IX on the ground that those claims were not supported by the agreement between parties and that the arbitrator travelled outside the contract in awarding those claims.
While that portion of the judgment of the High Court is supported by the Government, the Contractor submits that the High Court exceeded its jurisdiction in interfering with non speaking award.
The Government challenges the judgment of the High Court in so far as it affirmed the findings of the Civil Court in respect of Claim Nos.
II IV and VII(4) on the ground that the arbitrator awarded those claims totally unsupported by the contract.
Mr. A.B. Dewan, appearing for the Contractor, submits that the umpire made a non speaking award.
He did not incorporate any document as a part of the award, notwithstanding his reference to the contract.
In the circumstances, counsel submits, the law does not permit interference by the Court with such an award.
Mr. K. Madhava Reddy, appearing for the Government, on the other hand, submits that the umpire made a speaking award with reference to the claims and he gave reasons for awarding those claims.
It is true, counsel says, that the umpire made only brief reference to the provisions of the contract and his reasons for making the award.
But notwithstanding the brevity of his reasoning, he has spoken sufficiently clearly as a result of which errors of law and fact have become 930 apparent on the face of the award disclosing that the umpire acted contrary to, and unsupported by, contract, thereby exceeding his jurisdiction.
He says that the umpire has referred to the contract not merely for the purpose of reciting or narrating his authority to hear the matter and resolve the dispute, but for incorporating it as a part of the award.
In doing so, he exceeded the contract, not merely by misinterpreting it, but by travelling totally outside it, and by making an award without regard to and independent of the contract.
A number of decision have been cited on either side in support of the respective contentions.
The award was made in respect of disputes which arose between the Government and the Contractor for the cement concrete lining under Agreement dated 20.1.1981 (as supplemented subsequently) in connection with the construction of Nagarjunasagar Dam.
The parties filed their pleadings and documents before the arbitrator/umpire.
There were 15 claims apart from the general claim for cost and interest.
As stated earlier, we are concerned only with Claim Nos.
III, VI and IX which are claims awarded by the umpire and decreed by the Civil Court, but set aside by the High Court, and with Claim Nos.
II, IV and VII(4) which were awarded by the umpire and decreed by the Civil Court as well as by the High Court.
The first set of claims respectively, are: `Escalation on Napa Slabs '; `Payment of Extra Lead for water; and, `Extra Expenditure incurred due to flattening of canal slopes and consequent reduction in top width of banks used as roadway '.
The other set of claims relate respectively to `Labour Escalation '; `Refund of excess Hire Charges of Machinery '; and ' `Stand conveyance '.
The umpire after reciting the background of the dispute which led to his entering upon reference on 16.12.82 to decide the dispute and the relevant agreement between the parties deals with the claims seriatim.
As regards Claim No. III, he says: "I hereby declare and award and direct the respondent to compensate the claimants towards escalation in the cost of napaslabs calculated at Rs.4.25 (Rupees four and paise twenty five) per Sq.
of napa slab lining, under item 11 of schedule A of the agreement for the entire work and make payments accordingly".
The main criticism levelled by the Government against this award is that there was no provision in the contract for escalation of 931 the cost or price of napa slabs.
The escalation provision in the contract related to labour, diesel oil, tyres and tubes, as provided in Item 35 thereof.
There was no escalation provision in the contract as far as napa slabs were concerned.
The price for these slabs had been determined in the contract at Rs. 4.25 Per Sq.
and there was no provision for increase or decrease of that price.
Both the parties to the contract were bound by that price and the arbitrator, therefore, had no jurisdiction to award any escalation in the price of napa slabs.
In the absence of any provision in the contract, the arbitrator had no jurisdiction to make an award for escalation.
This contention of the Government was accepted by the High Court.
Mr. Dewan, appearing for the Contractor, is not in a position to refer to any provision of the contract allowing escalation for napa slabs.
All that he is in a position to refer to is Item 35 of the contract which refers to price adjustment for increase or decrease inthe cost.
That item, as stated earlier, refers to various matters such as, diesel oil, labour, etc., but not to napa slabs.
On the other hand, at the end of that item, it is specifically stated `no claims for price adjustment other than those provided herein, shall be entertained '.
Furthermore, it is specifically provided in the contract `the contractor shall have to make his own arrangements to obtain the napa slabs as per standard specifications.
The Department does not accept any responsibility either in handing over the quarries or procuring the napa slabs or any other facilities.
The contractor will not be entitled for any extra rate due to change in selection of quarries as above '.
There is thus a specific prohibition against price adjustment or award for escalated cost in respect of any matter falling outside Item 35.
Mr. Dewan, however, submits that being a non speaking award, the Court cannot examine the reasons.
Mr. Madhava Reddy, appearing for the Government, submits that the award is not silent on the point.
It speaks eloquently, though briefly.
It is not merely in the recital or narrative portion of the award that the agreement is referred to, but in making the award under Claim No. III the agreement is specifically incorporated by directing payment for escalation on napa slabs under Item 11 of Schedule A of the Agreement at the rate of Rs.4.25.
The agreement is thus bodily incorporated into the award thereby disclosing an error apparent on its face and the total lack of the arbitrator 's jurisdiction by reason of his going totally outside and opposed to the contract.
This, counsel says, is revealed not by a construction of the contractual provisions, but by merely looking at the matters covered by the contract.
932 Claim No. VI Payment of Extra Lead for water.
This is what the arbitrator says: "I hereby declare and award and direct the Respondent to pay extra towards additional lead for water i.e. 3 K. Ms. over the specified lead of 2 K.Ms.
in the agreement for items 4, 5, 6, 10 and 11 of Schedule A".
As regards this claim, Mr. Dewan reiterates his contention that the award is silent as to the reasons and, therefore, the Court should not interfere.
Mr. Madhava Reddy on the other hand submits that the award speaks as to the reasons for allowing the claim for extra amount towards additional lead for water i.e. for 3 K.Ms.
over and above the specified lead of 2 K.Ms.
But counsel says, the agreement provides for no payment at all for any lead and much less for any additional lead.
He refers to the specific provision of the agreement regarding water.
He says that the Contractor had to make its own arrangements for supply of water at work site for all purposes including quarry.
There is no provision in the contract for making any payment to the Contractor for the water brought by it to the site.
In the absence of any such provision, counsel says, it is preposterous that the arbitrator should have awarded extra amount for additional lead for water.
The contract specifically stated that it was the responsibility of the Contractor to make its on arrangements for the supply of water.
The Government gave no assurance to the Contractor regarding the availability of water or the prices payable therefor.
The umpire, therefore, had no jurisdiction to allow Claim No. VI.
The High Court accepting the contention of the State reversed the Civil Court 's decree as regards that claim and held" . .
In view of unequivocal agreement that the contractor should make his own arrangements for supply of water for the purpose of curing, the award of compensation is outside the purview of the agreement and is vitiated".
Claim No. IX Extra expenditure incurred due to flattening of canal slopes and consequent reduction in top width of banks used as roadway.
Referring to this claim, this is what the award says: "I hereby declare and award and direct the respondent to pay the claimant for 50% of the work done on the napa slab lining on the left side slope of Canal at the extra rate of Rs.4.00 per Sq.
Met of lining work".
933 Rejecting the contentions of the Contractor and accepting those of the Government, the High Court held that the contract did not provide for any payment whatever for the maintenance of canal slopes and consequent deduction in top width of banks used as roadway.
The High Court found that it was the responsibility of the Contractor to repair the banks and the contract contained no provision for payment of any amount towards the decrease in the width or otherwise.
The High Court says `. the acceptance of claim on this score is beyond the purview of the agreement and as such vitiated '.
While counsel for the Contractor repeats his contentions regarding the award being silent as to reasons, Mr. Madhava Reddy submits that the contract provides for no payment whatever under Claim No. IX.
On the other hand, it specifically states "8(A) SITE FACILITIES Haul roads from batching plant site to the work site in the first instance will be formed by the Department as per site surveys per each batching plant site.
These haul roads are fair weather roads only with hard passages at stream crossings.
Formation of haul roads within the batching plant area, maintenance of all haul roads including those formed by the Department shall be the responsibility of the contractors.
Existing roads and roads under the control of N.S. Project can be made use of by the Contractor.
Any other haul roads required by the Contractor and not specified in plan shall be carried out by the Contractor at his cost.
8.(A) 1.
WIDENING OF BANKS The canal banks will be widened to 5 meters and 3 meters width respectively by the Department for right and left banks to facilitate transport of materials.
The contractor however has to maintain the haul roads".
In the absence of any provision to pay for extra expenditure and in the light of the specific provision placing the sole responsibility for the maintenance of the haul roads on the Contractor, the arbitrator had no jurisdiction to award 50% at extra rate of Rs. 4 per Sq.
Meter.
The contract contains no provision for payment of any amount outside what is strictly specified under the clause.
In the circumstances, Mr. 934 Madhava Reddy says, the High Court was perfectly justified in coming to the conclusion, which it did, as regards the arbitrator acting outside his jurisdiction.
We shall now deal with the other set of claims, namely, Claim Nos.
II, IV and VII(4) which had been awarded and decreed by both the courts below.
The arbitrator deals with Claim No. II as follows: "The claim is admitted.
I hereby declare and award and direct the Respondents that due to the statutory revision of Minimum rates of wages payable to various categories of workers, the claimant is to be paid compensation as per the following formula: P1 (WSI WSO)0.10+ (WSSI WSSO)0.10 (WUSI WUSO)0.8 V2 X R 100 WSO WSSO WUSO increase in Min.
Wages of labour notified by the Government of A.P. after 22.10.1980 under the Min.
Wages Act., 1948.
Percentage Labour component of each item of Work as per Appendix 9 at page 139 of Agreement.
R Value of work done under each item of work during the period under review.
WSO 11.15 (Daily Minimum wage in force on the date of Tender for skilled labour).
WSSO 8.50 (Daily Minimum wage in force on the date of Tender for semiskilled labour).
WUSO 5.65 (Daily Minimum wage in force on the date of Tender for unskilled labour).
WSI Revised daily Min. wage as fixed by Govt.
A.P. for skilled labour applicable for the period under review.
935 WSSI Revised daily Min. wage as fixed by Govt.
of A.P. for semiskilled labour applicable for the period under review.
WUSI Revised daily Min. wage as fixed by Govt.
of A.P. for semiskilled labour applicable for the period under review.
WUSI Revised daily Min.
Wages as fixed by Government of A.P. for unskilled labour applicable for the period under review.
The above compensation is payable to the claimant for the work done after 23.12.80, the date of publication of G.O. No. 835 dated 18.12.80, till the completion of the work".
It is not seriously disputed that the observation "The claim is admitted" is only a reference to the arbitrator 's decision to allow the claim and not as a concession or admission on the part of the Government.
In fact from the pleadings it is quite clear that the Government had opposed every claim and there was no concession on its part.
Claim No. II had been, as seen above, elaborately dealt with by the arbitrator.
On account of the statutory revision of minimum rates of wages payable to various categories of workers, the arbitrator made the award in respect of labour escalation.
Escalation under this item is in fact, as stated above, provided for under the contract, but in terms thereof.
The grievance of the Government is not because the umpire awarded escalation for labour, but because he allowed escalation otherwise than as provided under the contract.
The contract under Item 35 provides `Increase or decrease in the cost due to labour shall be calculated quarterly in accordance with the following formula: V1 = 0.75 P1 X R(i i) 100 10 V1 = increase or decrease in the cost of work during the quarter under consideration due to changes in rates for labour.
R = the value of the work done in Rupees during the quarter under consideration 936 1 = the average consumer price index for industrial workers (wholesale prices) for the quarter in which tenders were opened (as published in Nalgonda District by the Director of Bureau of Economics and Statistics, Andhra Pradesh).
P1 = Percentage of labour components (specified in schedule in appendix 9 of the item).
i = the average consumer price index for industrial workers (wholesale prices) for the quarter under consideration.
Price adjustment clause shall be applicable only for the work that is carried out within the stipulated time or extensions thereof as are not attributable to the contractor.
No claims for price adjustment other than those provided herein, shall be entertained".
The contention of the Government is that the two formulae are totally different from each other as a result of which the arbitrator awarded very much more than what is warranted under the agreed formula.
Mr. Madhava Reddy submits that it is true that the contractor was bound to pay minimum wages according to the relevant statutory provisions.
In fact the contract contains a provision making it necessary for the Contractor to conform to all laws, regulations, bye laws, ordinances, regulations, etc.
But the fact that the Contractor necessarily had to pay enhanced rates of wages did not entitle it to claim any amount from the Government in excess of what had been strictly provided under the contract.
A specific formula had been prescribed under Item 35, as seen above, and the function of the umpire was to make an award in accordance with that formula.
He had no jurisdiction to alter the formula, which he has done, as seen from the award.
It is not disputed on behalf of the Contractor that the formula followed by the arbitrator, as seen from the award under Claim No. II, is different from the formula prescribed under the contract.
But Mr. K.R. Chowdhury, one of the counsel appearing for the Contractor, points out that the contract provided for payment of all wages according to the current rates and, therefore, the arbitrator was well within his jurisdiction to make an award by adopting a formula in keeping with the enhanced rates of wages, and the High Court, he contends, 937 rightly decreed the amounts under that claim in terms of the award.
We shall deal with Claim Nos.
IV and VII(4) separately.
But as regards Claim Nos.
III, VI and IX, we are of the view that the High Court was right in stating that the arbitrator acted outside the contract in awarding those claims.
For the very same reason we are of the view that the High Court was wrong in coming to the conclusion, which it did, regarding Claim No. II.
We say so because there is no justification whatsoever for the arbitrator to act outside the contract.
These four claims are not payable under the contract.
The contract does not postulate in fact it prohibits payment of any escalation under Claim No. III for napa slabs or Claim No. VI for extra lead of water or Claim No. IX for flattening of canal slopes or Claim No. II for escalation in labour charges otherwise than in terms of the formula prescribed by the contract.
The conclusion is reached not by construction of the contract but by merely looking at the contract.
The umpire travelled totally outside the permissible territory and thus exceeded his jurisdiction in making the award under those claims.
This is an error going to the root of his jurisdiction: See Jivarajbhai Ujamshi Sheth & Ors.
vs Chintamanrao Balaji & Ors., AIR 1965 SC 214.
We are in complete agreement with Mr. Madhava Reddy 's submissions on the point.
As regards Claim Novs.
IV and VII(4), we see no merit in Mr. Madhava Reddy 's contentions.
Claim No. IV relates to `Refund of excess hire charges of machinery and payment towards losses suffered as a result of poor performance of department machinery and also direction for the future '.
This claim, was rightly allowed by the arbitrator and his decision was rightly upheld by High Court.
The Government was, in terms of the contract, bound to compensate the Contractor for the excess higher charges paid as a result of the poor performance of the machinery supplied by the Government.
Claim No. VII(4) is as regards `Sand Conveyance '.
The arbitrator says "The diesel oil requirement shall be taken as 0.35 lit for item No. 5 of statement (A) at page 59 of Agreement as indicated in the original tender and not as 0.035 and price adjustment made accordingly".
The arbitrator was, in our view, right in so stating and the High Court, 938 in our view, rightly upheld this claim.
The arbitrator cannot act arbitrarily, irrationally, capriciously or independently of the contract.
His sole function is to arbitrate in terms of the contract.
He has no power apart from what the parties have given him under the contract.
If he has travelled outside the bounds of the contract, he has acted without jurisdiction.
But if he has remained inside the parameters of the contract and has construed the provisions of the contract; his award cannot be interfered with unless he has given reasons for the award disclosing an error apparent on the face of it.
An arbitrator who acts in manifest disregard of the contract acts without jurisdiction.
His authority is derived from the contract and is governed by the Arbitration Act which embodies principles derived from a specialised branch of the law of agency (see Mustill & Boyd 's Commercial Arbitration, Second Edition, p. 641).
He commits misconduct if by his award he decides matters excluded by the agreement (see Halsbury 's Laws of England, Volume II, Fourth Edition, Para 622).
A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action.
A conscious disregard of the law or the provisions of the contract from which he has derived his authority vitiates the award.
A dispute as to the jurisdiction of the arbitrator is not a dispute within the award, but one which has to be decided outside the award.
An umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract.
He cannot say that he does not care what the contract says.
He is bound by it.
It must bear his decision.
He cannot travel outside its bounds.
It he exceeded his jurisdiction by so doing, his award would be liable to be set aside.
As stated by Lord Parmoor: ". .It would be impossible to allow an umpire to arrogate to himself jurisdiction over a question which on the true construction of the submission was not referred to him.
An umpire cannot widen the area of his jurisdiction by holding, contrary to the fact, that the matter which he affects to decide is within the submission of the parties . .".
939 Attorney General for Manitoba vs Kelly & Others, , 276.
Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator travelled outside the bounds of the contract and thus exceeded his jurisdiction.
In order to see what the jurisdiction of the arbitrator is, it is open to the Court to see what dispute was submitted to him.
If that is not clear from the award, it is open to the Court to have recourse to outside sources.
The Court can look at the affidavits and pleadings of parties; the Court can look at the agreement itself.
Bunge & Co. vs Dewar & Webb, [1921] 8 L1.
L.Rep.
436(K.B.).
If the arbitrator commits an error in the construction of the contract, that is an error within his jurisdiction.
But if he wanders Outside the contract and deals with matters not allotted to him, he commits a jurisdictional error.
Such error going to his jurisdiction can he established by looking into material outside the award.
Extrinsic evidence is admissible in such cases because the dispute is something which arises under or in relation to the contract or dependent on the construction of the contract or to be determined within the award.
The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award.
The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence.
The rationale of this rule is the nature of the dispute is something which has to be determined outside and independent of what appears in the award.
Such jurisdictional error needs to be proved by evidence extrinsic to the award.
See M/s. Alopi Parshad & Sons.
Ltd. vs The Union of India, ; ; Bunge & Co. vs Dewar & Webb.
, [1921] 8 L1.
L. Rep. 436 (K.B.); Christopher Brown Ld.
vs Genossenschaft Oesterreichischer, ; Rex vs Fulham, ; Falkingham vs Victorian Railways Commission, ; Rex vs All Saints, Southampton, [1828] 7 B. & C. 785; Laing.
Son & Ltd. vs Eastcheap Dried Fruit Co., [961] 1 L1.L. Rep. 142, 145 (Q.B.); Dalmia Dairy Industries Ltd. vs National Bank of Pakistan, [1978] 2 L1.
L. Rep. 223 (C.A.); Heyman vs Darwing Ld., Union of India vs kishorilal; , ; Renusager Power Co. Ltd. vs General Electric Company, ; ; Jivarajbhai vs Chintamanrao, AIR 1965 SC 214; Gobardhan Das vs Lachhmi Ram, AIR 1954 SC 689, 692; Thawardas vs Union of India., AIR 1955 SC 468; Omanhene vs Chief Obeng, AIR 1934 P.C. 185, 188; F.R. Absalom.
Ltd. vs Great Western London Garden Village Society.
Limited, and M. Golodetz 940 vs Schrier & Anr., [1947] 80 L1.
L. Rep. 647.
In the instant case, the umpire decided matters strikingly outside his jurisdiction.
He outstepped the confines of the contract.
He wandered far outside the designated area.
He diagressed far away from the allotted task.
His error arose not by misreading or misconstruing or misunderstanding the contract, but by acting in excess of what was agreed.
It was an error going to the root of his jurisdiction because he asked himself the wrong question, disregarded the contract and awarded in excess of his authority.
In many respects, the award flew in the face of provisions of the contract to the contrary.
See the principles state in Anisminic Ltd. vs Foreign Compensation Commission., ; ; Pearlman vs Keepers and Governors of Harrow School, ; ; Lee vs Showmen 's Guild of Great Britain, ; M.L. Sethi vs R.P. Kapur, ; ; The Managing Director.
J. and K. Handicrafts vs M/s. Good Luck Carpets, and State of Andhra Pradesh & Anr.
vs R.V. Rayanim; , See also Mustill & Boyd 's Commercial Arbitration, Second Edition; Halsbury 's Laws of England, Fourth Edition,Vol.
The umpire, in our view, acted unreasonably, irrationally and capriciously in ignoring the limits and th clear provisions of the contract.
In awarding claims which are totally opposed to the provisions of the contract to which he made specific reference in allowing them, he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the contract from which he derived his authority thereby acting ultra fines compromissi.
In the circumstances, we affirm the judgment of the High Court under appeals except in respect of Claim No. II.
Accordingly, the appeals of the contractor are dismissed; and, the appeals of the Government are allowed in respect of claim No. II.
We do not, however make any order as to costs.
G.N. Appeals dismissed. | Some disputes arose between the Respondent State and the Contractor in respect of the Cement concrete lining under an agreement in connection with the construction of Nagarjunasagar Dam.
Arbitrator Umpire was appointed and the parties filed their pleading and documents before him.
There were 15 claims apart from the general claim for cost and interest.
The award made by the Umpire was filed before the Civil Court.
The Civil Court made the award a rule of Court and passed a decree in terms of the award together with interest at 12% per annum from the date of the decree.
On appeal, the High Court set aside the decree in respect of three claims on the ground that the claims were not supported by the agreement between the parties and that the arbitrator had gone beyond the contract in awarding the claims, and confirmed the decree in respect of three other claims.
Aggrieved by the High Court 's Judgment, both the Contractor and the State Government preferred appeals by special leave.
On behalf of the Contractor it was contended that since the Umpire made a non speaking award and did not incorporate any document as part of the award except his reference to the contract, law did not permit interference by the Court with the award, and that the High Court exceeded its jurisdiction in interfering with a non speaking award.
On behalf of the State Government it was contended that notwith 925 standing the brevity of his reasoning, the arbitrator had given a speaking award, but with errors of law and fact apparent on the face of it; and that he acted contrary to the contract, thereby exceeding his jurisdiction.
Dismissing the appeal of the Contractor and partly allowing the appeal of the State Government, this Court, HELD: 1.
The arbitrator cannot act arbitrarily, irrationally capriciously or independently of the contract.
His sole function is to arbitrate in terms of the contract.
He has no power apart from what the parties have given him under the contract.
If he has travelled outside the bounds of the contract, he has acted without jurisdiction.
But if he has remained inside the parameters of the contract and has construed the provisions of the contract, his award cannot be interfered with unless he has given reasons for the award disclosing an error apparent on the face of it.
[938A B] 2.
An arbitrator who acts in manifest disregard of the contract acts without jurisdiction.
His authority is derived from the contract and is governed by the Arbitration Act which embodies principles derived from a specialised branch of the law of agency.
He commits misconduct if by his award he decides matters excluded by the agreement.
A deliberate departure from contract amounts to not only manifest disregard of his authority or a misconduct on his part, but it may tantamount to a mala fide action.
A conscious disregard of the law or the provisions of the contract from which he has derived his authority vitiates the award.
[938C E] Mustill & Boyd 's Commercial Arbitration, Second Edition, p. 64; Halsbury 's Laws of England, Volume II, 4th Edn., para 622, referred to.
A dispute as to the jurisdiction of the arbitrator is not a dispute within the award, but one which has to be decided outside the award.
An Umpire or arbitrator cannot widen his jurisdiction by deciding a question not referred to him by the parties or by deciding a question otherwise than in accordance with the contract.
He cannot say that he does not care what the contract says.
He is bound by it.
It must bear his decision.
He cannot travel outside its bounds.
If he exceeded his jurisdiction by doing so, his award would be liable to be set aside.
[938E F] Attorney General for Manitoba vs Kelly & Others, , referred to.
926 4.1 Evidence of matters not appearing on the face of the award would be admissible to decide whether the arbitrator travelled outside the bounds of the contract and thus exceeded his jurisdiction.
In order to see what the jurisdiction of the arbitrator is, it is open to the Court to see what dispute was submitted to him.
If that is not clear from the award, it is open to the Court to have recourse to outside sources.
The Court can look at the affidavits and pleadings of parties; the Court can look at the agreement itself.
[939A B] Bunge & Co. vs Dewar & Webb, [1921] 8 LI.
L.Rep.
436(K.B.), referred to.
If the arbitrator commits an error in the construction of the contract, that is an error within his jurisdiction.
But if he wanders outside the contract and deals with matters not allotted to him, he commits a jurisdictional error.
Such error going to his jurisdiction can be established by looking into material outside the award.
Extrinsic evidence is admissible in such cases because the dispute is not something which arises under to the contract or dependent on the construction of the contract or to be determined within the award.
The dispute as to jurisdiction is a matter which is outside the award or outside whatever may be said about it in the award.
The ambiguity of the award can, in such cases, be resolved by admitting extrinsic evidence.
The nature of the dispute is something which has to be determined outside and independent of what appears in the award.
Such jurisdictional error needs to be proved by evidence extrinsic to the award.
[939C F] M/s. Alopi Parshad & Sons Ltd. vs The Union of India, ; ; Union of India vs Kishori Lal, ; ; Renusagar Power Co. Ltd. vs General Electric Company, ; ; Jivarajbhai vs Chintamanrao, AIR 1965 SC 214; Gobardhan Das vs Lachhmi Ram, AIR 1954 SC 689 and Thawardas vs Union of India, AIR 1955 SC 468, relied on.
Bunge & Co. vs Dewar & Webb, [1921] 8 LI.
L. Rep. 436 (K.B.); Christopher Brown Ltd. vs Genossenschaft Oesterreichischer, ; Rex vs fulham, ; Falkingham vs Victorian Railways Commission, ; Rex vs All Saints, Southampton, [1828] 7 B. & C. 785; Laing, Son & Co. Ltd. vs Eastcheap Dried Fruit Co., [1961] 1 LI.
L. Rep. 142, 145 (Q.B.); Dalmia Dairy Industries Ltd. vs National Bank of Pakistan, [1978] 2 LI.
L. Rep. 223 (C.A.); Heyman vs Darwins Ltd., [1942] A.C. 356; Omanhene vs Chief Obeng, AIR 1934 P.C. 185; F.R. Absalom Ltd. vs Great Western (London) Garden 927 Village Society, Limited, and M. Golodetz vs Schrier & Anr., [1947] 80 LI.
L.Rep.
647, referred to.
In the instant case, the umpire decided matters strikingly outside his jurisdiction.
He outstepped the confines of the contract.
He wandered far outside the designated area.
He diagressed far away from the allotted task.
His error arose not by misreading or misconstruing or misunderstanding the contract, but by acting in excess of what was agreed.
It was an error going to the root of his jurisdiction because he asked himself the wrong question, disregarded the contract and awarded in excess of his authority.
In many respects, the award flew in the face of provisions of the contract to the contrary.
The umpire acted unreasonable, irrationally and capriciously in ignoring the limits and the clear provisions of the contract.
In awarding claims which are totally opposed to the provisions of the contract to which he made specific reference in allowing them, he has misdirected and misconducted himself by manifestly disregarding the limits of his jurisdiction and the bounds of the contract from which he derived his authority thereby acting ultra fines compromissi.
[940A D] M.L. Sethi vs R.P. Kapur, ; ; The managing Director, J. and K. Handicrafts vs M/s. Good Luck Carpets, and State of Andhra Pradesh & Anr.
vs R.V. Rayanim; , , relied on.
Anisminic Ltd. vs Foreign Compensation Commission, ; ; Pearlman vs Keepers and Governors of Harrow School, ; and Lee vs Showmen 's Guild of Great Britain, , referred to.
Mustill & Boyd 's Commercial Arbitration, Second Edition, p. 641 and Halsbury 's Laws of England, 4th Edn., Vol. 2, para 622, referred to.
In the instant case, the contract did not postulate in fact it prohibited payment of any escalation under Claim No. III for napaslabs or Claim No. VI for extra lead of water or Claim No. IC for flattening of canal slopes or Claim No. II for escalation in labour charges otherwise than in terms of the formula prescribed by the contract.
The umpire travelled totally outside the permissible territory and thus exceeded his jurisdiction in making the award under those claims.
This is an error going to the root of his jurisdiction.
As such, the High Court was right in holding that the arbitrator acted outside the contract 928 in awarding the abovesaid claims.
However, the High Court went wrong in confirming the decree in respect of Claim No. II relating to escalation in labour charges since a specific formula had been prescribed under Item 35, and the function of the umpire was to make an award in accordance with the formula; he had no jurisdiction to alter the same.
[937C D; 936F] Jivarajbhai Ujamshi Sheth & Ors.
vs Chintaman rao Balaji & Ors., AIR 1965 SC 214, relied on.
Claim No. IV relating to `Refund of Excess hire charges of machinery and payment towards losses suffered as a result of poor performance of department machinery and also direction for the future ' was rightly allowed by the arbitrator and his decision was rightly upheld by the High Court.
The Government was, in terms of the contract, bound to compensate the contractor for the excess higher charges paid as a result of the poor performance of the machinery supplied by the Government.
[937E F] 6.3.
As regards Claim No. VII(4) relating to `Sand Conveyance ' the arbitrator was right in stating that the diesel oil requirement should be taken as 0.35 lit for item No. 5 of statement (A) at page 59 of Agreement as indicated in the original tender and not as O.035 and price adjustment made accordingly.
The High Court Court rightly upheld this claim.
[937G H; 938A] |
N: Criminal Appeal No. 168of 1991.
From the Judgment and Order dated 26.7.1989 of the Madya Pradesh High Court in Crl.
A. No. 102 of 1984.
G.L. Sanghi and A.K. Sanghi for the Appellants.
The facts are few and simple.
The first appellant Rajendra, on 30th June, 1982, while running a shop under the name and style of M/s. Kumarvad Bros. in Khargaon Municipal ity, was found exhibiting and offering for sale tea dust, the quantity of which was about 11/2 kgs.
D.P. Nath, P.W. 1, the Food Inspector for Khargaon purchased tea dust in the requisite quantity for test.
The purchased tea was dealt with in the prescribed manner as per rules on the subject.
The purchase and other attendant documents were witnessed by Madan, P 'W ' 2 and another.
The Public Analyst, Bhopal, to whom one of the three samples was sent for analysis opined that the food article fell below the prescribed standard as its contents were present in quantities not within the prescribed limits of variabili ty.
The report of the Public Analyst was communicated to the first appellant as well as to his two brothers, the second and third appellants, because it appears that at the time of 99 the sale of the tea to the Food Inspector, he was told by the first appellants that the court 's intervention could be sought to have one of three brothers.
The accompanying covering letter suggested to the appellants that the court 's intervention could be sought to have one of the samples kept by the Local Health Authority examined one more time.
The appellants did not avail of the opportunity and faced the prosecution launched under section 7 read with section 16 of the before the Chief Judicial Magistrate, Khargaon.
Before the Trial Magistrate the facts as alleged by the prosecution regarding sale by the first appellant to the Food Inspector and of the article of food being adulterated as per report of the Public Analyst were not disputed.
Shelter, however, was taken behind the provisions of Rules 7(3) and 9 A of the Prevention of Food Adulteration Rules, 1955, as then standing, whereunder the Public Analyst was required to send his report to the Local Health Authority within 45 days, which he had not done, and the Local Health Authority was required to 'immediately ' after the institu tion of prosecution forward a copy of the report of the result of the analysis to the appellants.
Since there was a delay of nearly a month on that count the Trial Magistrate viewed this lapse as total to the prosecution.
Furthermore, the Trial Magistrate took the view that in the covering letter while sending the report, nowhere had the appellants been told that they had a right to have the second sample with the Local Health Authority analysed by the Central Food Laboratory in terms of section 13(2) of the Act.
The Trial Magistrate perhaps had in mind that had this been mentioned, the appellants may have chosen to avail of the opportunity of the analysis by the Central Food Laboratory and such report would have superseded the report of the Public Ana lyst, whether for or against the appellants.
On these two grounds the learned Trial Magistrate recorded acquittal of the appellants.
The High Court on appeal by the State of Madhya Pradesh, reversed the Order of acquittal and recorded conviction of the appellants add sentenced each one of them to six months ' rigorous imprisonment and to pay a fine of Rs.5000 each.
This has occasioned the appeal before us.
Our attention was brought to the aforesaid rules and section 13(2) of the Act and the case law on the subject.
Rule 7(3) requires that the Public Analyst shall within a period of 45 days of the receipt of any sample for analysis, deliver to the Local Health Authority, a report of the result of such analysis in Form III.
The Trial Magistrate found that this duty was not discharged by the Public Ana lyst within 100 the prescribed period of 45 days.
The High Court, however, recomputed the period and came to the conclusion that such duty was performed within the prescribed period.
That find ing is one of fact and nothing has been addressed to us in that regard.
So far as the Local Health Authority being required to 'immediately ' after the institution of prosecu tion send a copy of the report of the result of the analysis in Form III, its failure to do so instantly was held to be of no consequence, relying on a judgment of this Court in Tulsiram vs State of Madhya Pradesh, ; where in the word 'immediately ' was interpreted to convey 'reason able despatch and promptitude ' intending to convey a sense of continuity rather than urgency.
This Court then ruled at page 497 as follows: "The real question is, was the Public Ana lyst 's report sent to the accused sufficiently early to enable him to properly defend himself by giving him an opportunity at the outset to apply to the court to send one of the samples to the Central Food Laboratory for analysis.
If after receiving the Public Analyst 's report he never sought to apply to the court to have the sample sent to the Central food Laborato ry, as in the present case, he may not be heard to complain of the delay in the receipt of the report by him, unless, of course, he is able to establish some other prejudice.
Our conclusions on this question are: The expres sion 'immediately ' in Rule 9 A is intended to convey a sense of continuity rather than urgency.
What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under section 13(2) in good and sufficient time before the prosecution commences leading evidence.
Non compliance with Rule 9 A is not fatal.
It is a question of prejudice.
" Tulsirarn 's case was thus a complete answer to the conten tion to contrary.
The next question which requires consideration is wheth er all the appellants are guilty of the crime.
From the material available on the record, we find no basis to sus tain the conviction of the second and third appellants, Om Prakash and Subhash.
There is no evidence worth the name to conclusively prove their complicity beyond reasonable doubt.
The first appellant is alleged to have told the Food Inspec tor on the date of sale of tea dust that the shop was being run in partnership by him with his two brothers.
This was the only case set up by 101 the prosecution at the trial.
No evidence was gathered or tendered to prove the partnership.
On the facts, which are eloquent, the first appellant alone made the sale of tea dust to the Food Inspector and not all.
Burden was on the prosecution to prove the existence of the partnership.
We do not propose to indulge in the refinery of civil law but have to adopt the cautious approach to adjudge criminality of the accused appellants.
Even it the Food Inspector is believed that the first appellant told him that 'the business on the shop was being run in partnership that per he was not enough to inculpate the remaining two appellants without further evidence '.
We find an area of doubt in this sphere and extending the same to the second and third appellants order their acquittal.
They be discharged from their bail bonds.
Fine, if paid, be refunded to them.
The case of the first appellant stands singled out.
His conviction was well deserved which is hereby maintained confirming the sentence of imprisonment but reducing the fine to Rs. 1000, in default of payment of which further rigorous imprisonment for one month is ordered.
He shall surrender to his bail bonds.
The excess fine, if paid, be refunded to the first appellant.
As a result the appeal of appellants 2 & 3 is allowed and that of appellant No. 1 dismissed, subject, however to the reduction of sentence.
R.P. Appeal dis posed of. | Appellant No. 1 was found exhibiting and offering for sale tea dust.
P.W. 1, the Food Inspector purchased tea dust in the requisite quantity for test.
Appellant No. 1 told P.W. 1 that the shop which was being run by him was a part nership concern of the three brothersappellant No. 1 to 3.
On receipt of Public Analyst 's report, prosecution was lanuched against the appellants under section 7 read with section 16 of the .
Before the trial Magistrate the facts regarding sale by appellant no.1 of the food article and the same being adul terated as reported by the Public Analyst were not disputed.
The appellants however, argued that the Public Analyst did not send the report within the period prescribed under r. 7(3) Prevention of Food Adulteration Rules, 1955 and the Local Health Authority did not forward the copy of the result of the analysis to the appellants 'immediately ' after institution of the prosecution as envisaged by r. 9A.
Since there was a delay of nearly a month on that count, the trial Magistrate viewed this lapse as fatal to the prosecution.
He also held that in the covering letter while sending the report, it was not mentioned that the appellants had a right to have analysed the second sample by the Central Food Laboratory in terms of section 13(2) of the 96 97 Act.
He, therefore, acquitted the appellants.
On appeal by the State, the High Court reversed the order of acquittal.
It convicted the appellants and sen tenced each of them to six months ' rigorous imprisonment and to pay a fine of Rs.5000 each.
Aggrieved the appellants preferred the appeal by special leave to this Court.
On consideration of evidence regarding guilt of all the appellants and requirements of section 13(2) of the and rr.
7(3) and 9A of the Prevention of Food Adulteration Rules, 1955, Disposing of the appeal, this Court, HELD: 1.
In the instant case, there was no basis to sustain the conviction of appellants No. 2 and 3.
There was no evidence worth the name to conclusively prove their complicity beyond reasonable doubt.
The only case set up by the prosecution against these appeliants was that appellant No. 1 was alleged to have told the Food Inspector that the shop was being run in partnership by him with his these two brothers.
Appellant No. 1 alone made the sale in question to the Food Inspector.
Burden was on the prosecution to prove the existence of partnership.
Even if the Food Inspector is believed that appellant No. 1 told him that the shop was being run in partnership, that per he was not enough to inculpate the remaining two appellants without further evidence.
There is an area of doubt in this sphere and extending the same to appellants No. 2 and 3, they are acquitted.
[100G H; 101A B] The case of first appellant stood singled out.
His conviction was well deserved, which should be maintained and the sentence confirmed.
However, fine was to be reduced to Rs.1,000.
[101C] 2.
The expression 'immediately ' in r. 9A of the Preven tion of Food Adulteration Rules, 1955, is intended to convey a sense of continuity rather than urgency.
What must be done is to forward the report at the earliest opportunity, so as to facilitate the exercise of the statutory right under section 13(2) in good and sufficient time before the prosecution commences leading evidence.
Non compliance with r. 9 A is not fatal.
It is a question of prejudice.
The word 'immedi ately ' was to be interpreted to convey 'reasonable despatch and promptitude ' intending to convey a sense of continuity rather than urgency.
The High Court was right in holding that failure to send instantly a copy of the analysis 98 report to the appellants was of no consequence.
[100A F] Tulsiram vs State of Madhya Pradesh, ; , relied on.
On the question of compliance of r. 7(3) in regard to the period of submission of the report by Public Analyst to the Local Health Authority, the High Court 's conclusion, reached by it after recomputing the period, that such duty was performed within the prescribed period was a finding of fact and nothing was addressed before this Court in that regard.
[99G H; 100A] |
ICTION: Criminal Appeal No. 778 of 1979.
From the Judgment and Order dated 21.6.1979 of the Punjab and Haryana High Court in Crl.
A. Nos. 120 and 163 of 1977.
Frank Anthony and Sushil Kumar for the Appellants.
R.S. Suri for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
Harnam Singh, Sarpanch of Village Naushera, was murdered on the night between 6th June, 1976 while he was sleeping at his tubewell to guard the wheat bags stacked in his filed.
PW 1 Dr. Malhotra who conducted the autopsy at about 4.15 p.m. on 7th June, 1976 found four injuries on the person of the deceased, namely, (i) a lacerated penetrating circular would, 1/4 ' ' in diameter, with black margins inverted on right middle back, 3 ' 'from mid line and 9 ' ' from iliac crest, (ii) a vertical bruise 6 ' ' X 1/2 ' ' on the front of right forearm running downwards and outwards, (iii) beuises in the area of 5 ' ' X 1 ' ' on the front and inner aspect of right upper arm above the elbow joint, running forwards, outwards and downwards and (iv) an abrasion 5 ' ' X 1 ' ' on the right side of the chest, 5 ' ' from mid line and 3 ' ' from the clavicle running downward and inward.
On opening the first would it was found that the 8th and 9th ribs were fractured posteriorly; the diaphram and superior surface on the left lobe of the liver were lacerated; the heart was lacerated into pieces and the third, fourth, fifth, sixth and seventh ribs of the left side were broken anteriorly.
The exit wound was 8 ' ' X 4 ' ' on the left upper chest just 969 above the nipple.
Death was on account of shock and haemorrhage resulting from the bullet injury.
This injury No. 1 was stated to be sufficient in the ordinary course of nature to cause death.
The other injuries were possible by a hard and blunt weapon and were simple in nature.
Death was instantaneous.
Both the Courts below, therefore, rightly concluded that death was homicidal.
The prosecution case, briefly stated, was that the appellant and the deceased who were neighbours in the village had quarrelled over the passage of sullage water a few months before the incident.
The appellants had diverted their sullage water towards the house of the deceased and the latter had protested and frustrated their effort.
On account of this obstruction the sullage water collected in a pool near the house of the appellants which infuriated them.
On account of this incident as well as past election rivalries the relations between the appellants and the deceased were so soured that on the night of the incident the three appellants went armed with weapons to the tubewell of the deceased where the latter was sleeping to guard his wheat stacked in bags.
Gurmej Singh was armed with a rifle, Gian Singh was armed with Gandasi and Bur Singh carried a Dang.
The prosecution alleged that Gurmej Singh had concealed the rifle in the Chadar wrapped around him and on reaching the place where the deceased was sleeping on a cot he threw off the chadar and shot the deceased at point blank range.
The incident was witnessed by three persons.
PW2 Swaran Singh, nephew of the deceased, PW3 Fauja Singh, a close relative of the deceased and one Narain Singh (not examined) who too were sleeping in the field.
Actually Narain Singh was sleeping near the deceased whereas PWs 2 and 3 were sleeping at a distance of approximately 10/15 karams therefrom.
the prosecution did not examine Narain Singh on the plea that he was won over.
The evidence of PWs 2 and 3 shows that they got up on hearing some movement in the filed and they saw the three appellants near the cot of the deceased.
They were able to identify them because of the existence of an electric light at the tubewell.
According to them on reaching near the cot of the deceased Gurmej Singh fired a shot from close range at the deceased who was still sleeping in his cot.
Thereafter Gian Singh struck a Gandasi blow on the chest of the deceased followed by a Dang blow on the right arm by Bur Singh.
Gurmej Singh is stated to have warned others not to get up unless they wanted to be killed.
On account of this warning PWs 2 and 3 did not run to the rescue of the deceased for fear of being killed.
After making sure that their victim was dead, the appellants fled away.
PW 2 Swaran Singh then went to the house of his father PW4 Waryam Singh and narrated the incident.
PW2 accom 970 panied by Gurdas Singh, Lambardar, then went to the Police Station at about 8.30 a.m. on 7th June, 1976 and lodged the first information report.
PW8 Sub Inspector Kartar Chand Singh then reached the place of occurence, held an inquest on the dead body of the deceased, lifted the blood stained earth from the place of occurrence and then recorded the statements of PW3 Fauja Singh, Narain Singh and others.
Gian Singh and Bur Singh were arrested on 2nd July, 1976 while Gurmej Singh was arrested on 7th July, 1976.
It appears that two more persons, namely, Sucha Singh and Santokh Singh (original accused Nos. 1 and 4, respectively) were also shown as arrested for the commission of this crime on 2nd July.
1976 although their names were not disclosed in the first information report.
The allegation of the prosecution witnesses PWs 2, 3 and 4 is that these two persons were falsely involved as PW8 Sub Inspector Kartar Chand Singh wanted to save his skin as he was found to have illegally and wrongly detained them at the police station.
We will deal with this aspect later but suffice it to say that both the courts below have come to the conclusion that they were falsely involved in the commission of this crime by fabricating statements of PWs 2 and 3 under Section 161 of Criminal Procedure Code (`the Code ' for short).
In view of this conclusion reached by both the courts, the said two persons were acquitted.
No appeal was preferred challenging their acquittal.
The Trial Court convicted Gurmej Singh under section 302 IPC and the other two under Section 302/34 IPC and sentenced all the three to imprisonment for life and also imposed token fines.
Against their conviction the present three appellants filed an appeal which was dismissed by a Division Bench of the High Court on 21st June, 1979.
It is against this finding of guilt recorded by both the courts below that the present three appellants have preferred this appeal by special leave.
Mr. Frank Anthony, counsel for the appellants, submitted that there were three eye witnesses to the incident even according to the prosecution case and out of them Narain Singh was nearest to the deceased when the incident occurred on that dark night in the field.
This Narain Singh alone was an independent witness and yet the prosecution did not examine him on the specious plea that he was won over.
The other two eye witnesses.
PWs 2 and 3, are admittedly close relatives of the deceased and out of them the presence of PW3 is extremely doubtful being a resident of a nearby village.
At any rate he can be termed as a chance witness and in all probability he came to the filed from his village after learning about the incident.
Besides, since the incident occurred on a dark night and the evidence that the electric light at the tubewell was on at that hour is extremely doubtful, it is 971 difficult to believe that PWs 2 and 3 saw the actual incident from a distance of 10/15 karams and were able to identify the assailants.
Said counsel, the conduct of both these eye witnesses is not normal since they did not raise an alarm even though they depose to have woken up on hearing some movement in the field.
They could have cautioned the deceased and Narain Singh about the entry of third parties in the field since they were there precisely for that purpose.
They have tried to explain their unnatural conduct on the plea that the appellant Gurmej Singh had raised a `lalkara ' that anyone trying to come near the deceased would be killed.
But this `lalkara ' was after the event and not before, while the conduct of the eye witnesses before the in incident is unnatural if they had actually got up on hearing some movement of third parties in the field.
Else it must be accepted that they got up on hearing the gun fire and before they could go near the deceased, the assailants had fled away.
In this situation the evidence of Narain Singh assumes importance as he was most competent to unfold the true version regarding the incident, being just by the side of the deceased at the time of the incident.
The failure to call him to the witness stand was, counsel submitted, unfair to the defence as it deprived the defence of the opportunity to elicit the true version regarding the offence.
Lastly he submitted that the prosecution has not place any material on record nor has it stated any reason in its written report in support of its conclusion that he had been won over.
In any event, it is hazardous to base a conviction on the highly interested testimony of PWs 2 and 3, particularly when the motive alleged by the prosecution for implicating the appellants is very weak.
Besides the evidence of PWs2 and 3 suffers from several infirmities.
Counsel for the State submitted that this Court should not disturb the concurrent findings of fact recorded by the two courts and the reliance placed by them on the two eye witnesses whose evidence is corroborated by PW4.
He pointed out that both the courts below had recorded a positive finding that the electric light was on at the tubewell which provided sufficient light to enable PWs 2 and 3 to identify the assailants even from a distance of 10/15 karams.
The assailants were not strangers to PWs 2 and 3 and, therefore, their evidence on the question of identity cannot be doubted.
The prosecution had stated the reason for not examining Narain Singh and if the defence had any doubt in that behalf it could have requested the court to examine the said witness as a court witness rather than keeping silent and then raising a belated grievance.
In short he supported the line of reasoning adopted by the two courts below.
972 It must be conceded at the outset that the prosecution se hinges on the credibility of PWs2 and 3.
PW2 is the nephew of the deceased.
PW3 is the maternal cousin of PW2 and ws closely related to the deceased as the latter 's daughter Piari was his younger brother 's wife.
PW3 is a resident of a neighbouring village lying at a distance of three miles from the village of the deceased.
Ordinarily, therefore, PW3 would not be expected to be present at the scene of occurrence but according to him he had gone to see P.W. 2 and after having his meals both he and PW 2 had gone to the tubewell of the deceased.
PW 3 claims that he woke up at about 3.00 a.m. as he was to return to his village when he saw the three persons and identified them as the appellants.
He does not speak of any `lalkara ' or to have got up on hearing footsteps as desposed by PW2 but he too did not raise any alarm or try to caution the deceased and Narain Singh who were sleeping 10/15 karams away.
After the incident he went to the village to inform his younger brother 's wife about the death of her father and returned with her to the village by which time the police has arrived.
In these circumstances the question is whether absolute reliance can be placed on PWs 2 and 3 regarding the involvement of the appellants? Mr. Frank Anthony, the learned counsel for the appellants, firstly submitted that the incident occurred on a dark night in an open field at about 3.00 a.m. when as shown by the defence through the evidence of two independent witnesses DW 1 and DW 2 the electricity had tripped and, therefore, the prosecution witnesses could not have seen the assailants from a distance of about 10/15 karams.
He, therefore, submitted that the claim of the prosecution witnesses that they had identified the assailants on account of the presence of electric light at the tubewell is clearly belied by the evidence of DWs 1 and 2.
DW 1 Kewal Krishan.
Sub Station Attendant, Punjab State Electricity Board, Gurdaspur, stated that on 7th June, 1976 the electric current had broken down at about 2.35 a.m. and was not restored till 5.50 a.m.
In support of this statement he produced certain entries from the register but on cross examination he admitted that the log sheets were not available and it was noticed that the register was not properly bound and the threads of the previous binding were broken and fresh binding was done raising a suspicion about the register having been tampered with.
DW2 Inder Pal Singh, SDO, Subarban Gurdaspur, merely reiterated what DW1 had stated.
The courts below suspected the correctness of the entry in the register.
But that apart, the High Court was right in saying that the time of 3.00 a.m. was a mere estimate of eye witnesses PWs 2 and 3 and neither of them had verified the time with any wrist watch so as to vouch for its accuracy.
PW 2 had 973 categorically stated that a 200 watt bulb was on at the time when the incident in question occurred.
He does not depose to have checked the time with his wrist watch or with the wrist watch of PW3.
Infact PW3 has deposed that he was not wearing a wrist watch at the time of the incident.
Therefore, the estimate of time given by PWs 2 and 3 cannot be taken as accurate and it is quite possible that the incident occurred before the tripping of supply of electric energy took place.
We are, therefore, not impressed by the contention of Mr. Anthony that the evidence of DWs 1 and 2 belies the version of PWs 2 and 3 that they were able to identify the appellants because of existence electric light at the tubewell.
Besides, it must be remembered that the appellants were no strangers to these prosecution witnesses to make their identification by them difficult.
It was next submitted by Mr. Anthony that Narain Singh, an independent witness, was deliberately dropped for fear that he would reveal the truth and expose the falsehood of PWs 2 and 3.
He submitted, relying on the decision of this Court in Sahaj Ram vs State of UP, that the prosecution should, in fairness, have produced this witness since he was one who would have unfolded the true version regarding the incident as he was in the vicinity of the deceased.
The presence of blood at the scene of occurrence establishes, beyond any manner of doubt that the incident occurred at the place pointed out by PWs 2 and 3.
It is true that Narain Singh was sleeping near the deceased when the latter was shot at.
Narain Singh was indeed a witness to the occurrence and ordinarily we would have expected the prosecution to examine him.
Dropping a witness on the specious plea that he won over without laying the foundation therefore is generally to be frowned upon.
Counsel for the appellants, therefore, submitted that an adverse inference should be drawn against the prosecution for its deliberate failure to examine Narain Singh.
But it must be remembered that the investigating office had recorded the further statement of Narain Singh under section 161 of the Code for involving the two acquitted persons who were nowhere in the picture.
Narain Singh was, therefore, not likely to support the prosecution version.
The defence at no point of time questioned the prosecution statement that Narain Singh was won over.
The courts below accepted the prosecution statement in this behalf.
The judgment of both the courts reveal that no submission was made before them regarding the non examination of this witness.
If an objection was raised at the earliest point of time, the prosecution may have called him to the witness stand.
His presence was not required to unfold the prosecution story.
That had been done by PWs 2 and 3.
Therefore, the non 974 examination of Narain Singh cannot reflect on the credibility of PWs 2 and 3.
Counsel for the appellants next submitted that according to the prosecution applellant Gian Singh was armed with a Gandasi and he is alleged to have given a blow therewith on the chest of the deceased.
Ordinarily a Gandasi blow would cause an incised wound whereas the deceased had an abrasion 5 ' ' X 1 ' ' on the chest caused by a hard and blunt substance.
According to counsel normally when a witness deposes to the use of a particular weapon there is no warrant for supposing that the blunt side of the weapon was used by the assailant.
In support of this contention counsel invited our attention to two decisions, namely, Hallu & Ors.
vs State of MP, ; and Nachhattar Singh & Ors vs The State of Punjab, In his submission, therefore, the injury found on the chest could not be attributed to Gian Singh who is stated to have used the Gandasi.
We see no merit in this contention for the simple reason that the prosecution witnesses have categorically stated that Gian Singh used the blunt side of the Gandasi.
If the prosecution witnesses were silent in this behalf the submission of counsel would have carried weight.
But where the prosecution witnesses categorically state that the blunt side of the weapon was used there is no room for believing that the sharp side of the weapon which would be normally used had in fact been used.
The observations in the aforesaid two judgments do not lay down to the contrary.
In fact in the first mentioned case it is clearly stated that if the prosecution witnesses have clarified the position, their evidence would prevail and not the normal inference.
Counsel, however, made a grievance that the prosecution had not tried to elicit the opinion of PW 1 Dr. Malhotra on the question whether such an abrasion was possible by a Gandasi blow.
According to him, as held by this Court in Kartarey vs State of U.P., and Ishwar Singh vs State of UP, , it was the duty of the prosecution to elicit the opinion of the medical man in this behalf.
PW1 clearly stated in the course of his examination in chief that injuries Nos. 2, 3 and 4 were caused by a blunt weapon.
It is true that he was not specifically asked if the chest injury could have been caused by the blunt side of the Gandasi.
It cannot be gainsaid that the prosecution must endeavour to elicit the opinion of the medical man whether a particular injury is possible by the weapon with which it is alleged to have been caused by showing the weapon to the witness.
In fact the Presiding Officer should himself have elicited the opinion.
However, in this case it should not make much difference because the evidence of PWs 2 and 3 is acceptable and is corroborated by the first information report as well 975 as PW 3.
If the medical witness had also so opined it would have lent further corroboration.
But the omission to elicit his opinion cannot render the direct testimony of PWs 2 and 3 doubtful or weak.
We, therefore, do not see any merit in this submission.
In fact if we turn to the cross examination of PW1 we find that the defence case was that these three injuries were caused by the rubbing of the body against a hard surface, a version which has to be stated to be rejected.
It was next contended that PWs 2 and 3 being close relatives of the deceased could not be relied upon particularly because their version regarding the incident is not corroborated by independent evidence and it is extremely doubtful if they could have identified the assailants from a distance of about 10/15 karams.
We have already dealt with the latter part of this submission.
We have no hesitation in agreeing with the two courts below that they could have identified the assailants who were no strangers to them from that distance of 10/15 karams since the electric light at the tubewell was switched on.
Once the evidence of the prosecution witnesses regarding existence of light is accepted, there is no difficulty in accepting their evidence regarding identification.
The presence of PW 2 at the tubewell cannot be doubted as it was he who went to PW 4 in the early hours and then travelled a distance of about 12 km.
to the police station where he lodged his complaint.
Since PW3 was visiting PW2 it was natural for him to accompany the latter to the field.
Both the courts accepted their evidence and we see no reason to discard the same on the specious ground that they are interested witnesses.
Their evidence has been subjected to close scrutiny but nothing adverse is found to doubt their credibility.
The next submission of counsel for the appellants is that the evidence regarding motive is weak and, therefore, it is not possible to believe that the appellants would kill the deceased on account of a minor quarrel regarding the passage of sullage water which had taken place a few months back.
In this connection he invited our attention to the decisions of this Court in A.N. Rao vs Public Prosecutor, Andhra Pradesh, and State of UP vs Hari Prasad & Ors., ; This submission cuts both ways.
It the evidence regarding motive is not sufficiently strong as argued by the counsel for the appellants, it is difficult to believe that PWs 2 and 3 would go out of their way to falsely involve the appellants.
But it must be realised that there were election disputes and the deceased had successfully contested the election against Dalbeer Singh who was the candidate of Gian Singh, Bur Singh and others.
This old enmity coupled with the incident regarding the passage of sullage water in regard to which 976 proceedings under section 107/151 of the Code were pending is the motive alleged by the prosecution and we do not think it is so weak that it would not prompt the appellants to kill their rival.
The decisions on which counsel places reliance can, therefore, have no application in the special facts and circumstances of the present case.
Counsel for the appellants then submitted that the evidence of PWs 2 and 3 which is corroborated by the evidence of PW4 to whom the incident was narrated by PW2 cannot be believed in view of the contradictions brought on record from their statements recorded under section 161 of the Code.
As stated earlier both the Courts have come to the conclusion that these statements are a fabrication.
Both the courts below have given cogent reasons for reaching this conclusion.
In particular the High Court has after examining the record of the habeas corpus petition shown beyond any manner of doubt that PW8 had intentionally prepared false statements of all these eye witnesses for falsely involving Sucha Singh and Santokh Singh since they were wrongly and illegally detained by him in the police station, a fact which was noticed by the Court 's Warrant Officer who had visited the police station on 2nd July, 1976 at about 5.15 p.m.
He was initially told that no such person or persons had been detained inthe police station.
The Warrant Officer, however, searched the police station and noticed the presence of these two and other persons.
It, therefore, became necessary for PW 8 to explain their presence in the police station since it was alleged in the habeas corpus petition filed on 30th June, 1976 that they were illegally detained.
The Court had appointed the Warrant Officer to verify this allegation.
PW8 had, therefore, to cover up the illegal detention of these two persons.
So he substituted statements purported to have been made by PWs 2 and 3 under section 161 of the Code involving the said two persons in the commission of the crime although their names did not figure in the first information report.
The courts below, therefore, rightly came to the conclusion that the contradictions brought on record on the basis of these statements cannot shake the credibility of the two eye witnesses to the occurrance.
It must be realised that immediately after two of the appellants were arrested on 2nd July, 1976, PW2, Swaran Singh had gone to the police station and had informed PW8 that the said two persons, namely, Sucha Singh and Santokh Singh were wrongly detained.
PW2 lost no time and followed it up by filing an affidavit in the trial court on 3rd July, 1976 alleging that the investigating agency was trying to favour Gurmej Singh and had for that purpose fabricated his statement as also the statements of other witnesses under section 161 of the Code.
In his evidence before the court also PW2 stated that 977 he had informed the police officials that Sucha Singh and Santokh Singh were in no way concerned with the crime and had been wrongly named by the police to bail out Gurmej Singh.
It is also difficult to believe that PW 2 would give a total go by to his immediate version in the first information report while making his statement under section 161 of the Code.
We are, therefore, of the opinion that both the courts were right in coming to the conclusion that the contradictions brought on record from such statements of PWs 2 and 3 can have no evidentiary value.
Counsel, however, submitted that the inference drawn by the two courts below is falsified by the fact that DSP Oujla had verified the investigation papers on 10th June, 1976 and had given a direction that Gurmej Singh should be shown in column No. 2 There is, however, nothing on record to show that Oujla had counter signed these two statements which are used for contradicting the two eye witnesses.
Therefore, the mere fact that Oujla had verified the investigation record on 10th June, 1976 cannot come to the rescue of the appellants.
There is, therefore, no substance in the criticism levelled by the learned counsel for the appellants that the prosecution had shifted its case at the trial from the one narrated to the police in the course of investigation.
The prosecution version is that immediately after the incident PW2 went to the residence of his father PW4 and informed him about the incident.
This conduct of PW2 is quite natural.
The evidence of PW2 stands corroborated by the evidence of PW4.
PW2 thereafter hired a tempo and left for the police station and promptly lodged the first information report.
It must be realised that PW2 had no time for manipulation as he had reached the Police Station, which was at a distance of 12 Km.
before 8.30 a.m. He would not have named the assailants if he had not seen them.
There was no reason for him to falsely implicate the appellants since he bore no grudge against them; it was just the reverse.
A copy of this report had reached the concerned Magistrate by about 11.15.a.m.
This first information report also lends corroboration to his testimony.
The medical evidence tendered by PW1 also corroborates the version of PWs 2 and 3.
We, therefore, do no see any infirmity in the approach of the two courts below in convicting the appellants.
For the above reasons we see no merit in this appeal and dismiss the same.
The appellants who are on bail will surrender to their bail forthwith.
Y.Lal.
Appeal dismissed. | The appellants and the deceased Harnam Singh, were neighbours and had strained relations on account of passage of sullage water and elections.
According to the prosecution, they had quarrelled over the passage of sullage water a few months before the incident; the appellants had diverted their sullage water towards the house of the deceased and the latter had protested and frustrated their effort, with the result the water collected in a pool near the house of the appellants which infuriated them.
The appellants attacked and murdered Harnam Singh on the night between 6th and 7th June, while he was sleeping at his tubewell alongwith P.Ws 2 and 3 and one Narain Singh (not examined); P. Ws 2 and 3 were sleeping at a distance of about 15 karams while Narain Singh was sleeping near the deceased.
The prosecution alleged that Gurmej Singh fired a shot from close range at the deceased while he was asleep; Gian Singh struck a Gandasi blow on the chest and Bur Singh gave a Dang blow on the arm.
After making sure that the victim had died, the appellants fled away.
P. Ws 2 and 3 did not raise any alarm as they were threatened by the appellants that they would be killed in case they made any hue and cry.
P. W. 2 lodged the F.I.R. and disclosed therein the names of the appellants only as assailants.
Two other persons Sucha Singh and Santokh Singh were also shown as arrested for the commission of this crime though their names did not figure in the F.I.R.
According to the prosecution witnesses, these persons were falsely implicated by P.W. 8 Sub Inspector.
The appellants alongwith these two persons were put up for trial.
The trial Judge acquitted these persons as having been falsely involved and no appeal against their acquittal was preferred.
However the Trial Court relying on the evidence of P.Ws, convicted Gurmej Singh under Section 302, I.P.C. and the other two under Section 302/34 I.P.C. and sentenced all 967 the three to imprisonment for life and also imposed token fines.
The appellants appealed against their conviction before the High Court but the Division Bench of the High Court dismissed their appeal.
They have now filed this appeal against their conviction and sentence, after obtaining special leave.
Dismissing the appeal, this Court HELD: It is true that Narain Singh was sleeping near the deceased when the latter was shot at Narain Singh was indeed a witness to the occurrence and ordinarily we would have expected the prosecution to examine him.
Dropping a witness on the specious plea that he was won over without laying the foundation therefor is generally to be frowned upon.
[973E] The defence at no point of time questioned the prosecution statement that Narain Singh was won over.
The courts below accepted the prosecution statement in this behalf.
The judgment of both the courts reveal that no submission was made before them regarding the non examination of this witness.
If an objection was raised at the earliest point of time, the prosecution may have called him to the witness stand.
His presence was not required to unfold the prosecution story.
That had been done by P.Ws. 2 and 3.
Therefore, the non examination of Narain Singh cannot reflect on the credibility of P.Ws. 2 and 3.
[973G 974A] Both the courts were right in coming to the conclusion that the contradictions brought on record from the statement of PWs 2 and 3 can have no evidentiary value.
[977B] There is no substance in the criticism levelled by the learned Counsel for the appellants that the prosecution had shifted its case at the trial from the one narrated to the police in the course of investigation.
The prosecution version is that immediately after the incident PW2 went to the residence of his father P.W. 4 and informed him about the incident.
This conduct of P.W. 2 is quite natural.
The evidence of P.W. 2 stands corroborated by the evidence of P.W. 4 P.W. 2 therefore hired a tempo and left for the police station and promptly lodged the first information report.
It must be realised that P.W. 2 had no time for manipulation as he had reached the Police Station, which was at a distance of 12 Km.
before 8.30 a.m. He would not have named the assailants if he had not seen them.
There was no reason for him to falsely implicate the appellants since he bore no grudge against them; it was just the reverse.
A copy of this report had reached the concerned 968 Magistrate by about 11.15.
a.m. This first information report also lends corroboration to his testimony.
The medical evidence tendered by P.W. 1 also corroborates the version of P.Ws. 2 and 3.
There is, therefore, no infirmity in the approach of the two courts below in convicting the appellants.
[977D G] Sahaj Ram vs State of U.P., ; Hallu Singh & Ors.
vs State of Punjab, ; Kartarey vs State of U.P., ; Ishwar Singh vs State of U.P., ; A.N. Rao vs Public Prosecutor, Andhra Pradesh, and State of U.P. vs Hari Prasad & Ors., {1974} 3 S.C.C. 673, referred to. |
DICTION: Civil Appeal Nos.
4522 4529 of 1985 etc.
etc From the Judgment and order dated 16.8.1985 of the Karnataka High Court in W P.
Nos t5536 40/1982 and W P. Nos.
13981, 17071, .
17072.
19118 and 19285/ 1983.
G. Ramaswami.
Additional Solicitor General, R J Babu, R.F Nariman, Ranjan Karanjawala, Mrs. M. Karanjawala and Ejaz Maqbool for the Appellant in C.A. Nos 4522 29/1985 Shanti Bhushan, Kapil Sibal, Soli J. Sorabjee, G.B. Pai, V.A 353 Bobde, K.P. Kumar, R. Vasudevan, K.T. Anantharaman, Harish N. Salve, H.K. Dutt, Ms. Mridula Ray, O.C. Mathur, Ms. Meera Mathur and Ms. Lekha Mathur for the Petitioners in W.P. Nos. 36, 37, 39 and 358 of 1986.
T.S. Krishnamurthi Iyer, section Padmanabhan, Soli J. Sorabjee, R.P. Srivastava, P. Parmeshwaran, R. Mohan, Harish N. Salve, Ms. M. Ray and H.K. Dutt for the Intervener in C.A. Nos.
4522 29 of 1985.
Dr. Y.S. Chitale, M.Veerappa, Ashok Kumar Sharma and Atul Chitale for the Respondents.
The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J.
These appeals by certificates are from the judgment and order of the High Court of Karnataka dated 16th of August, 1985.
By the impugned judgment and order the writ petitions filed by the Coffee Board and others were dismissed.
In order to appreciate the questions involved in the decision, it may be noted that the appellant herein Coffee Board contended that the compulsory delivery of coffee under the extinguishing all marketing rights of the growers was 'compulsory acquisition ' and not sale or purchase to attract levy of purchase tax; it was further contended that the appellant was only a 'trustee ' or 'agent ' of growers not exigible to purchase tax and that all export sales were 'in the course of export ' immune to tax under Article 286 of the Constitution.
It was held by the Division Bench of the Karnataka High Court that an element of consensuality subsists even in compulsory sales governed by law and once there is an element of consensuality, however minimal that may be, whether express or implied, then that would be sale or purchase for purposes of and the same would be exigible to sales or purchase tax as the case may be under the relevant Sales Tax Law of the country.
The power conferred on the Board under section 25(2) of the , to which we will make reference later, to reject coffee offered for delivery or even the right of a buyer analogous to section 3; ' of the showed that there was an element of consensuality in the compulsory sales regulated by the Act.
The amount paid by the Board to the grower under the Act was the value or price of coffee in conformity with the detailed accounting done thereto under 354 the Act.
It was further held by the High Court that the amount paid to the grower was neither compensation nor dividend.
The payment of price to the grower was an important element to determine the consensuality test to find out whether there was sale under section 4(1) of the .
The Act also ensures periodical payments of price to the growers.
The Rules provide for advancing loans to growers.
Therefore, according to the Division Bench of the Karnataka High Court without any shadow of doubt these elements indicated that in the compulsory sale of coffee, there was an element of consensuality.
When once the Board was held to be a 'dealer ' it also followed from the same that there was sale by the grower, purchase by the Board and then a sale by the Board.
The purchases and the exports if any made by the Board thereafter on any principle would not be 'local sales ' within the State of Karnataka.
Explanation 3(2)(ii) to section 2(1) of the Karnataka Sales Tax Act had hardly any relevance to hold that the later export sales were 'local sales ' to avoid liability under section 6 of the Karnataka Sales Tax Act.
The direct export sales made by the appellant for the period in challenge were not 'in the course of export ' and they did not qualify for exemption from purchase tax under section 6 of the Karnataka Sales Tax Act.
The levy of sales tax on coffee, it was held by the High Court fell, under Entry No. 43 of the second schedule of the Act and it was governed by section 5(3)(a) of the Act and not by section 5(1) of the Act.
It was further held that under section 5 of the purchases and exports made by the Coffee Board are 'for export ' and not 'in the course of export ' and thus did not qualify for exemption under Article 286 of the Constitution of India.
It was observed by the High Court that the Board did not purchase or take delivery of any specific coffee or goods of any grower and exported the same under prior contracts of sale.
The Board did not purchase any specific coffee of any specific grower for purposes of direct exports at all.
The purchases made and exportes made would be 'for export ' only and not in 'in the course of export ' to earn exemption under Article 286 of the Constitution of India.
It was further held that sections 11 and 12 of the Act which regulate the levy and payment of Customs and Excise Duties when closely examined really established according to the High Court that what was grown by the growers and delivered to the Board was not at all compulsory acquisition but was sale.
If it was compulsory acquisition and there was payment of compensation, then these provisions would not have found their places in the at all, according to the High Court.
Levy of Customs and Excise Duties on compensation was something unheard, an incongruity and an anachronism in compulsory acquisition,according to the High Court.
355 On an analysis of all the provisions of the Act in general and sections 17 and 25 in particular it was held by the High Court that on the true principles of compulsory acquisition or eminent domain, it was difficult to hold that on compulsory delivery by growers to the Board, there would be compulsory acquisition of coffee by the Board.
In order to determine the questions at issue, that is to say the nature of the transaction one has to in a case of this nature telescope into the history and project it into the dimensions of the present levy.
In November 1935 the Indian Coffee Cess Act, 1935 (Act 14 of 1935) came into operation, for levying cess on coffee produced in and exported out of India, for promoting the consumption in India and elsewhere of coffee produced in India and also for promoting agricultural and technological research in the interests of the coffee industry in India.
The purpose seems to have been to develop the coffee industry, popularise the same and win a market in the international field.
On 14th of September, 1940 Coffee Market Expansion ordinance (No. XIII of 1940) was promulgated by the Central Government and the Pool Marketing Scheme for coffee introduced in India for the first time.
An 'internal sale quota ' was to be allotted to each coffee estate upto which the owner could sell his coffee in the Indian Market.
Coffee in excess of the internal sale quota allotted and grown on the estates which were henceforth to be registered, were required to be compulsorily delivered to the surplus pool of the Coffee Market Expansion Board set up under the ordinance.
The Pool Marketing Scheme was inspired by the pool marketing schemes for agricultural produce under Australian statutes.
On or about 2nd March, 1942 the Coffee Market Expansion Act, 1942 (the title of the Act was later changed to in 1955) (hereinafter referred to as "the Act") was enacted and the ordinance repealed.
The Act was to remain in operation for the duration of the second world war and a period of one year thereafter.
The Act, inter alia, added a new sub section (6) to section 25 of the Act, specifically providing for extinguishment of all the rights of the owners of the registered coffee estates in the coffee delivered by them to the surplus pool of the Coffee Board (hereinafter referred to as 'the Board ') set up under the Act, except the right to receive payments referred to in section 34 of the Act.
Under section 34 of the Act the Coffee Board was required to pay to the registered owners who had delivered coffee for inclusion in the surplus pool such payments out of the Pool Fund (comprising of the monies realised from the sale of coffee pooled with the Board) as the Board may think proper, the amount so paid being dependent upon the quantity and the kind of the coffee delivered to the Board 356 on or about 26th March, 1943 the Act was amended, inter alia, to enable the Coffee Board with the previous approval of the Central Government not to allow any internal sale quota to the growers.
Since 1943 in each year the Board with the previous sanction of the Central Government has decided that no internal sale quota should be allowed.
Sections 38A and 38B were added making failure to deliver coffee to the Board an offence to be penalised by fine and confiscation of the quantities not delivered.
Power was also conferred on the Coffee Board to seize coffee required to be but not delivered to the Board.
Ever since 1943, internal sale quotas have not been al1owed and all the coffee grown on estates in the areas to which Section 25(1) of the Act was applicable was required to be compulsorily pooled.
The surplus pool referred to in the Act was now in fact the pool of practically all coffee produced in India, it is not necessary to refer to the actual quantities available in the internal pool in different years though a table to that effect was placed before us by the learned Additional Solicitor General, Sree G. Ramaswamy.
On the 11th of March, 1947 the Coffee Market Expansion (Amendment) Act IV of 1947 was enacted.
The life of the Act was extended without any time limit and, inter alia, changes were made in the constitution of the Board providing for representation of labour.
On 1st August, 1955 the Coffee Market Expansion (Amendment) Act, 1954 was brought into force.
The object of the was modified from 'the continuation of the provisions made under the Coffee Market Expansion ordinance, 1940 for assistance to the coffee industry by regulating the sale of coffee in India and by other means ' to "Development under the control of the union of the coffee industry".
It was highlighted before us in the course of the submission that the pool system of marketing is a unique feature of the coffee industry in India.
The principal features, according to the learned Additional Solicitor General, of this system are: (a) Compulsory registration of all lands planted with coffee (section 14 of the ).
(b) Mandatory delivery of all coffee grown in the registered estates except the quantities permitted by the Board to be retained for domestic consumption and for seed purposes, (see section 25(1) of the ).
Estates situated in remote areas specified in the notification issued by the Central Government under the proviso to section 25(1) of the are exempt from this provision.
(c) Seizure by the Board of coffee wrongly withheld from the pool.
Prosecution for failure to deliver and confiscation of quantity not delivered.
(d) Delivery to be effected at such times and at such places as designated by the Board (section 25(2)); the extinguishment on delivery of all rights of the growers in respect of the coffee delivered to the Board excepting the right to receive payment under section 34 of 357 the Act.
(section 25(6)).
(e) Sale of coffee in the pool by the Board in the domestic market and for export through auctions and other channels in regulated quantities and at convenient intervals.
(section 26(1)).
(f) Payment to growers in such amounts and at such times as decided by the Board (section 34).
The payment to be made on the basis of the value as determined by the price differential scale (section 24(4)), and in proportion to the value of such coffee to the total realisations in the pool (section 34(2)).
(g) Sale or contracts to sell coffee by growers in the years in which internal sale quota was not allotted were prohibited by section 17 of the Act.
All contracts for the sale of coffees at variance with the provisions of the Act were declared as void by section 47 of the Act.
Learned Additional Solicitor General sought to urge before us that the framers of the Act made a conscious distinction between (i) mandatory delivery of coffee to the Coffee Board under section 25(1) and (ii) purchase of coffee by the Coffee Board from the growers exempted from mandatory delivery and from out of the internal sale quota during the years when such quotas were allotted under section 26(2) and (iii) sale of coffee by the growers in the Indian Market whenever internal sale quotas were allotted under sections 17 and 22.
It was highlighted that the Board has no capital of its own and it did not have any Reserve Fund.
The estates on which coffee is grown are not owned by the Board.
The Board is required to maintain two separate funds one General Fund and the other Pool Fund.
Our attention was drawn to the fact that the Pool Fund consists of amounts realised from the sale of coffee marketed by the Board.
The accounts of the Pool Fund are required to be maintained separately for each coffee season.
The coffee season is from July to June of the following year.
The sales realisations, less the costs of storing, curing and marketing the coffee, are to be utilised for making payments to growers who had delivered coffee in that season, in proportion to the value of the coffee delivered by them.
The value is determined with reference to the kind, quality and quantity of coffee delivered by the growers There are various other features which have to be borne in mind on the maintenance of the separate funds.
It may be highlighted, however, that the General Fund consisted principally of the amounts paid to the Board by the Central Government from out of appropriations made by the Parliament annually.
This fund was to be utilised for meeting the costs of administration, research, measures for the welfare of plantation labour, promotion of coffee consumption and developmental assistance to coffee estates.
After the was enacted the production of coffee and the quantities exported and the value of the exports have increased greatly.
358 It may be mentioned that the production of coffee was less than 15,000 tonnes in 1940.
The production in the year 1984 85 was about 1,93,000 tonnes.
Over 50% of the coffee grown in the country is grown in the State of Karnataka.
There are 1,12,153 coffee estates in the country of which 1,04,958 estates are less than l0 acres in size and 3,62,689 persons were employed on the estates in 1982 83.
Over 59,000 tonnes of coffee of the value of about Rs.209 crores was ex ported in the year 1984 85.
The Madras High Court in the case of Indian Coffee Board vs / State of Madras, S S.T.C. 292 held that the Coffee Board was a 'dealer ' under the Madras General Sales Tax Act, 1939 and inter alia, held that there was no contract, express or implied, between the coffee grower and the Board and that the object and scheme of the Act were analogous to the statutes in Australia, providing for compulsory acquisition of pool marketing of agricultural produce.
So far as the Madras High Court held that the Indian Coffee Board was a dealer we accept the same.
The observation that there was no contract was made in the context of agency contract between the Coffee Board and the grower.
In or about 1957 Karnataka Sales Tax Act, 1957 was enacted and the Mysore Sales Tax Act, 1948 repealed. 'Sale ' is defined in section 2(t) and 'dealer ' in section 2(k) of the said Act.
Growers of agricultural produce are not 'dealers ' by reason of the Exception to section 2(k) of the said Act.
This position was not disputed before us.
Section S of the Act provides for levy of sales tax.
Coffee is mentioned at item 43 in Schedule II to the Karnataka Sales Tax Act.
Sales tax on coffee is a single point tax payable on the first sale in the State.
The basic rate of tax is l0% in Karnataka.
The rate in Tamil Nadu, Andhra Pradesh and Kerala is 6%.
The question involved in these appeals and the writ petitions is the exigibility of tax on sale if there be any, by the growers of the coffee to the Board.
Basically, it must depend upon what is sale in the general context as also in the context of the relevant provisions of the Act namely, the Karnataka Sales Tax Act, 1957, as amended from time to time, (hereinafter called the Karnataka Act) and the Central , (hereinafter called the Central Act).
We must, however, examine these in the context of general law, namely, the and the concept of sale in general.
The essential object of the contract of sale is the exchange of property for a money price.
There must be a transfer of property, or an agreement to transfer it, from one party, the seller, to the other, the buyer, in 359 consideration of a money payment or a promise thereof by the buyer.
Lord Denning, M.R., in C.E.B. Draper & Sons Ltd. vs Edward Turner & Son Ltd., , at page 432, observed as follows: "I know that often times a contract for sale is spoken of as a sale.
But the word 'sale ' properly connotes the transfer of the absolute or general property in a thing for a price in money (see: Benjamin on sale, 2nd ed.
(1873) p. 1 quoted in Kirkness vs John Hudson & Co., , 708, 719.
In this Act of 1926 I think that 'sale ' is used in its proper sense to denote the transfer of property in the goods.
The sale takes place at the time when the property passes from the seller to the buyer and it takes place at the place where the goods are at that time.
Lord Denning was speaking for the English Act of 1926 for the sale of Goods Act.
D In the , (hereinafter called the ' ') Contract of sale of goods is defined under section 4(1) as a contract whereby the seller transfers or agrees to transfer the property in goods to the buyer for a price.
It also stipulates by sub section (4) of section 4 that an agreement to sell becomes a sale when the time elapses or the conditions are fulfilled subject to which the property in the goods is to be transferred.
Benjamin 's Sale of Goods (2nd Edition) states that leaving aside the battle of forms, sale is a transfer of property in the goods by one, the seller, to the other, the buyer.
F Under the Karnataka Sales Tax Act, sale is defined under section 2(t) as: "Sale" with all its grammatical variations and cognate expressions means every transfer of the property in goods by one person to another in the course of trade or business for case or for deferred payment or other valuable consideration, but does not include a mortgage, hypothecation, charge or pledge.
" The Central Act defines "sale" as under in section 2(g): 360 "Sale" with its grammatical variations and cognate expressions, means any transfer of property in goods by one person to another for case or for deferred payment or for any other valuable consideration, and includes a transfer of goods on the hire purchase or other system of payment by instalments, but does not include a mortgage or hypothecation of or a charge or pledge on goods." Coffee Board is a 'dealer ' duly registered as such under the Sales Tax Acts of all the States in which it holds auctions/maintains depots/ runs coffee houses.
The Board is also registered as a 'dealer ' under the .
The Board collects and remits sales tax on all the coffee sold by it for domestic consumption to the State in which the sale takes place.
Coffee is sold through auctions held in the States of Karnataka, Tamil Nadu and Andhra Pradesh, and also through the Board 's own depots located in nine States.
Sale is also effected by way of allotments to cooperative societies.
The Board directly exports coffee and also sells coffee to registered exporters through separate export auctions.
It may be mentioned that over fifty per cent of the coffee is produced in Karnataka and most of the Robusta variety of coffee is produced in Kerala.
All the coffee produced in these States cannot be sold within the State where the coffee is produced.
Coffee meant for export has also to be stored at convenient places.
The Board, therefore, transfers coffee from one State to another.
Sales tax is not payable or paid on the transfer of such coffee.
In order to appreciate the actual controversy and the point at issue in the instant case, it is vital to appreciate the real nature of the transaction.
In 1966 this Court in the case of State of Kerala vs Bhavani Tea Produce Co.; , , (an unanimous decision of a Bench of five learned judges) which arose under the Madras Plantations Agricultural Income Tax Act, 1955, held that when growers delivered coffee under section 25 of the Act to the Board all their rights therein were extinguished and the coffee vested exclusively in the Board.
This Court observed that when growers delivered coffee to the Board, though the grower "does not actually sell" the coffee to the Board, there was a 'sale ' by operation of law.
This was in connection with section 25 of the Act.
The Court, however, did not hold that there was a taxable 'sale ' by the grower to the Board in the year in question.
The sale, according to this Court in that case took place in earlier years in which the Agricultural Income Tax Act did not operate.
All the States in which coffee is grown and all the persons concerned with the coffee industry, it is asserted on behalf of the Additional Solicitor General, NIRANJAN 361 understood this decision as laying down that the 'sale by operation of law ' mentioned therein only meant the 'compulsory acquisition ' of the coffee by the Coffee Board.
We are, however, bound by the clear ratio of this decision.
The Court considered this question "was there a sale to the Coffee Board?" at page 99 of the Paper Book and after discussing clearly said the answer must be in the affirmative.
It was rightly argued, in our opinion, by Dr. Chitale on behalf of the respondents that the question whether there was sale or not or whether the Coffee Board was a trustee or an agent could not have been determined by this Court, as it was done in this case unless the question was specifically raised and determined.
We cannot also by pass this decision by the argument of the learned Additional Solicitor General that section 10 of the Act had not been considered or how it was understood by some.
This decision in our opinion concludes all the issues in the instant appeal.
In 1970 purchase tax was introduced.
The Karnataka Sales Tax Act was amended by Karnataka Act 9 of 1970 and section 6 was substituted.
The new section 6 provided for the levy of purchase tax on every dealer who in the course of his business purchased any taxable goods in circumstances in which no tax under section 5 was leviable and, inter alia, despatched these to a place outside the State, at the same rate at which tax would have been leviable on the sale price of such goods under section 5 of the Karnataka Act.
The delivery of coffee by the coffee growers to the Coffee Board not being treated a purchase by the Board, the State did not demand any tax from the Board in respect of such deliveries.
Demands were raised for the first time in 1983.
Assessments for the years upto 1975 were completed without any demand for purchase tax being raised.
This Court on or about 15th of April, 1980 in the case of Consolidated Coffee Ltd. and Anr.
vs Coffee Board, Bangalore etc.
; , held that sale of coffee at export auctions were sales which preceded the actual export and thus exempt from sales tax under section 5(3) of the .
The Court also directed the State Governments to refund the amounts collected as sales tax on such sales and set a time limit for effecting such refunds.
The Karnataka Government, as a consequence, became liable to refund to the Coffee Board about Rs.7 crores which amount in turn was to be refunded by the Board of Directors to the exporters.
In 1981 the Commissioner of Sales Tax, Karnataka informed the Board by a letter that the mandatory delivery of coffee to the Board by the grower would be 362 regarded as 'sale ' and that the Board should pay purchase tax as the coffee growers, being agriculturists are not 'dealers '.
It is the case of the Coffee Board that no such claim had been made at any time in the past in any of the States in India.
The Commissioner issued a show cause notice proposing to re open the assessment for the year 1974 75.
In June 1982 pre assessment notice was sent by the authorities proposing to assess the Board to purchase tax for the assessment year 1975 76 and a sum of Rs.3.5 crores was demanded as purchase tax on the coffee transferred from Karnataka to outside the State either as stock transfers or as exports directly to buyers abroad.
In August 1982 Coffee Board along with two coffee growers filed writ petitions being writ petition Nos. 15536 to 15540 of 1982 in the High Court of Karnataka praying for a declaration that the mandatory delivery of coffee under section 25(i) of the Act was not sale and that section 2(t) of the Karnataka Sales Tax Act required to be struck down if the same encompassed compulsory acquisition also.
The show cause notice and the preassessment notice were also challenged and prayers were made for quashing the same.
The High Court granted interim stay.
In the meantime on or about 3rd of February, 1983 Constitution (46th Amendment) Act, 1983 came into force and the definition of "Tax on sale or purchase of goods" was added by insertion of clause 29A in Article 366.
This definition is prospective in operation.
Subsequent to 3rd of February, 1983, the Karnataka Sales Tax Act was amended by Act 10 of and Act 8/1984.
The definition of 'sale ' in section 2(t), however, was not amended.
That definition was amended with effect from 1st of August, 1985 by the Karnataka Act 27 of 1985.
After hearing the State Government, the High Court made absolute the stay of further proceedings pursuant to the show cause notice of the Commissioner proposing to re open the assessment for the year 1974 75.
The Court modified the stay order regarding the pre assessment notice and permitted the completion of assessment reserving liberty to the Coffee Board to move the High Court after the assessment was completed.
On 31st of May, 1983 assessment order was made for the year 1975 76.
On or about 17th of June, 1983 demand for Rs.3.5 crores as arrears of tax for the assessment year 1975 76 was issued to the Coffee Board.
On 2nd July, 1983, the High Court stayed the assessment demand for purchase tax for the assessment year 1975 76.
On or about 18th of June, 1983 the assessment order was issued for the year 1976 77.
The Board was assessed on a taxable turnover of Rs.92.99 crores and Rs. 10.18 crores was assessed as tax.
Of this sum, Rs.8.06 crores is the demand on account of purchase tax.
Thereafter notice demanding payment of Rs.8.06 crores a 363 arrears of tax for the assessment year 1976 77 was issued.
The Coffee Board filed a writ petition in August, 1983 being Writ Petition No. 13981 of 1983 challenging the assessment and the demand for the purchase tax for the assessment year 1976 77.
Rule was issued and the assessment as also demand for purchase tax was stayed .
In the meantime, notice of demand for Rs.8.08 crores as arrears of tax for the assessment year 1977 78 was issued.
In September, 1983 Writ Petition No. 17071 of 1983 was filed by the Coffee Board for the assessment year 1977 78.
Rule was issued.
Assessment and demand for purchase tax was stayed.
Similarly, Writ Petition No. 17072 of 1983 was filed by the Coffee Board regarding assessment year 1978 79.
Rule was issued.
Assessment and demand for purchase tax was stayed.
In the meantime in October, 1983, there was another Writ Petition No. 19285 of 1983 filed challenging the demand for the purchase tax for the year 1979 80.
Rule was issued.
Assessment and demand was stayed.
Writ Petition No . 19118 of 1983 was filed challenging the demand of purchase tax for the year 1980 81.
Rule was issued.
Assessment and demand for purchase tax was stayed.
All these writ petitions in January, 1984 were referred to the Division Bench for hearing and disposal.
It may be mentioned here that in or about May, 1984 the Coffee Board started for the first time to collect contingency deposits to cover purchase tax liability, if any, for the period 3.2.83 onwards subsequent to the 46th Amendment to a limited extent.
This was by a circular.
It is stated that the Board withheld about Rs.6.8 crores from the pool payment to growers for the season 1982 83 for meeting in part the liability, if any, for the purchase tax for the period subsequent to 3.2.1983.
The Court however, in 1985 directed the appellant Coffee Board to remit to the State Government Rs.6.8 crores.
The High Court also directed the Board to remit to the State Government Rs.1.5 crores collected by the Board as contingency deposits between May and December, 1984.
The State Government undertook to return these monies with interest, in the event of the writ petitions being allowed.
By the judgment delivered on 16th August, 1985, the High Court dismissed the writ petitions by a common judgment and various sums of money for the various years became payable as purchase tax.
The said judgment is reported in Indian Law Reports, Karnataka, Vol.
36 at page 1365.
These appeals challenge the said decision.
In view of the decision of the High Court several questions were canvassed in these appeals.
The questions were (1) Was there transfer of coffee to the Board from the coffee growers or acquisition? (ii) Was 364 there any element of sale involved? (iii) Was the Coffee Board trustee or agent for the coffee growers for sale to the export market, and (iv) if it is sale, is it in the course of export of the goods to the territory outside India? The first and the basic question that requires to be considered in these appeals is whether the acquisition of coffee by the Board is compulsory acquisition or is it purchase or sale? As mentioned all the questions were answered by this Court in Bhavani Tea Produce Co 's case (supra) against the appellant.
We were, however, invited to compare the transaction in question with transactions in Peanuts Board vs The Rockhampton Harbour Board, 48 Commonwealth Law Reports 266).
Was there any mutuality? In this connection it is necessary to analyse and compare the decision of this Court in Vishnu Agencies (Pvt.) Ltd. etc.
vs Commercial Tax officer and others etc.
, [1978] 2 S.C.R. 433 and to what extent the principles enunciated in the said decision affect the position.
In order to address ourselves to the problem posed before this Court, we must bear in mind the history and the provisions of the Coffee Market Expansion Act, 1942, under which the Board was constituted, which we have already noted.
The control of marketing of farm produce for the economic benefit of the producers and to bring about collective marketing of the produce is a recognised feature of Governments of several countries, particularly, United States of America, Britain and Australia.
The object was to prevent unhealthy competition between the producers, to secure the best price for the produce in the local market, to conserve for local consumption as much produce as was needed and to make available the surplus for export outside the States and also to foreign markets.
The method usually adopted to achieve the object is to establish a marketing board with power to control the price, to obtain possession of the produce and to pool it with a view to collective marketing.
The legislation in this behalf is compendiously described as "pooling legislation" and is based on the fundamental idea that the collectivist economy is superior to individualistic economy.
There are therefore, different marketing boards for different kinds of produce, such as sugar, dairy produce, wheat, lime fruit, apples, pears and so on.
The Indian Coffee Market Expansion Act was modelled somewhat on the lines which obtained in other countries and was intended to control the development of the coffee industry and to regulate the export and sale of coffee.
If, however, the transaction amounts to sale or purchase under the relevant Act then that is the end of the matter.
All parties drew our attention to the decision in the case of Vishnu Agencies Pvt.
Ltd. (supra).
There the Court was concerned 365 with the Cement Control order and the transactions taking place under the provisions of that control order.
The Cement Control order was promulgated under the West Bengal Cement Control Act, 1948 which prohibited storage for sale and sale by a seller and purchase by a consumer of cement except in accordance with the conditions specified in the licence issued by a designated officer.
It also provided that no person should sell cement at a higher price than the notified price and no person to whom a written order had been issued shall refuse to sell cement "at a price not exceeding the notified price".
Any contravention of the order became punishable with imprisonment or fine or both.
Under the A.P. Procurement (Levy and Restriction on Sale) order, 1967, (Civil Appeals Nos. 2488 to 2497 of 1972) every miller carrying on rice milling operation was required to sell to the agent or an officer duly authorised by the Government, minimum quantities of rice fixed by the Government at the notified price, and no miller or other person who gets his paddy milled in any rice mill can move or otherwise dispose of the rice recovered by milling at such rice mill except in accordance with the directions of the Collector.
Breach of these provisions became punishable.
It was held dismissing the appeals that sale of cement in the former case by the allottees to the permitholders and the transactions between the growers and procuring agents as well as those between the rice millers on the one hand and the wholesalers or retailers on the other, in the latter case, were sales exigible to sales tax in the respective States.
It was observed by Beg, C.J. that the transaction in those cases were sales and were exigible to tax on the ratio of Indian Steel and Wire Products Ltd., Andhra Sugar Ltd., and Karam Chand Thapar, ; In cases like New India Sugar Mills, the substance of the concept of a sale itself disappeared because the transaction was nothing more than the execution of an order.
The Chief Justice emphasised that deprivation of property for a compensation called price did not amount to a sale when all that was done was to carry out an order so that the transaction was substantially a compulsory acquisition.
On the other hand, a merely regulatory law, even if it circumscribed the area of free choice, did not take away the basic character or core of sale from the transaction.
Such a law which governs a class obliges a seller to deal only with parties holding licences who may buy particular or allotted quantities of goods at specified prices, but an essential element of choice was still left to the parties between whom agreements took place.
The agreement, despite considerable compulsive elements regulating or restricting the area of his choice, might still retain the basic character of a transaction of sale.
In the former type of cases, the binding character of the transaction arose from the order directed to particular parties asking them 366 to deliver specified goods and not from a general order or law applicable to a class.
In the latter type of cases, the legal tie which binds the parties to perform their obligations remains contractual.
The regulatory law merely adds other obligations, such as the one to enter into such a tie between the parties.
Although the regulatory law might specify the terms, such as price, the regulation is subsidiary to the essential character of the transaction which is consensual and contractual.
The parties to the contract must agree upon the same thing in the same sense.
Agreement on mutuality of consideration, ordinarily arising from an offer and acceptance, imports to it enforceability in courts of law.
Mere regulation or restriction of the field of choice does not take away the contractual or essentially consensual binding core or character of the transaction.
Analysing the Act, it was observed that according to the definition of "sale" in the two Acts the transactions between the appellants in that case and the allottees or nominees, as the case may be, were patently sales because in one case the property in the cement and in the other property in the paddy and rice was transferred for cash consideration by the appellants.
When the essential goods are in short supply, various types of orders are issued under the with a view to making the goods available to the consumer at a fair price.
Such orders sometimes provide that a person in need of an essential commodity like cement, cotton, coal or iron and steel must apply to the prescribed authority for a permit for obtaining the commodity.
Those wanting to engage in the business of supplying the commodity are also required to possess a dealer 's licence.
The permit holder can obtain the supply of goods, to the extent of the quantity specified in the permit and from the named dealer only and at a controlled price.
The dealer who is asked to supply the stated quantity to the particular permit holder has no option but to supply the stated quantity of goods at the controlled price.
Then the decisions in State of Madras vs Gannon Dunkerley & Co. Ltd., ; and New India Sugar Mills vs Commissioner of Sales Tax, Bihar, [1963] Suppl.
2 S.C.R.459 were discussed and the correctness of the view taken in the former case was doubted and the majority opinion in the latter case was overruled.
It was submitted by the learned Additional Solicitor General that these cases, namely, Bhavani Tea Estate (supra) and Vishnu Agencies (supra) would have no application within the set up of the because the provisions of the statute expressly provided that there could be no sale or contract of sale, yet the High Court had for purposes of Sales Tax assumed (notwithstanding the statutory prohibi 367 tion) that the transaction contemplated by the statute in the present case, the mandatory delivery, would be a sale.
It was submitted that where a statute prohibited a registered owner from selling or contracting to sell coffee from any registered estate, there could be no implication of any purchase on the part of the Coffee Board of the coffee delivered pursuant to the mandatory provisions of section 25(1) of the Act.
It was urged that section 17 of the read with sections 25 and 47 enacts what since 1944 is a total prohibition against the sale of coffee by growers and corresponding purchase of coffee from growers.
In view of section 17 read with section 25, purchase by the Coffee Board of coffee delivered under section 25(1) was also impliedly prohibited.
It is in view of this express prohibition of sale and corresponding implied prohibition of purchase that the Act provided the only method of disposal of coffee, viz., by the delivery of all coffee to the Coffee Board with no rights attached on such delivery, save and except the statutory right under section 34.
It was also argued that the Legislature has made a conscious difference between acquisition of coffee by compulsory delivery by the growers under Section 25(1) of the Act and purchase of coffee by the Board under Section 26(2) and, as such, compulsory delivery of coffee under Section 25(1) cannot constitute a sale transaction as known to law between the growers and the Coffee Board.
We are, however, unable to accept the submissions of the learned Additional Solicitor General.
All the four essential elements of sale (1) parties competent to contract, (2) mutual consent though minimal, by growing coffee under the conditions imposed by the Act, (3) transfer of property in the goods and (4) payment of price though deferred, are present in the transaction in question.
As regards the provisions under Section 26(2) empowering the Coffee Board to purchase additional coffee not delivered for inclusion in the surplus pool, it is only a supplementary provision enabling the Coffee Board to have a second avenue of purchase, the first avenue being the right to purchase coffee under the compulsory delivery system formulated under Section 25(1) of the Act.
The scheme of the Act is to provide for a single channel for sale of coffee grown in the registered estates.
Hence, the Act directs the entire coffee produced except the quantity allotted for internal sale quota, if any, to be sold to the Coffee Board through the modality of compulsory delivery and imposes a corresponding obligation on the Coffee Board to compulsorily purchase the coffee delivered to the pool, except: (1) where the coffee delivered is found to be unfit for human 368 consumption; and (2) where the coffee estate is situated in a far off and remote place or the coffee grown in an estate is so negligible as to make the sale of coffee through compulsory delivery an arduous task and an uneconomical provision.
Since all persons including the Coffee Board are prohibited from purchasing/selling coffee in law, there could be no sale or purchase to attract the imposition of sales/purchase tax it was urged.
Even if there was compulsion there would be a sale as was the position in Vishnu Agencies (supra).
This Court therein approved the minority opinion of Hidayatullah, J. in New India Sugar Mills vs Commissioner of Sales Tax (supra).
In the nature of the transactions contemplated under the Act mutual assent either express or implied is not totally absent in this case in the transactions under the Act.
Coffee growers have a volition or option, though minimal or nominal to enter into the coffee growing trade.
Coffee growing was not compulsory.
If any one decides to grow coffee or continue to grow coffee, he must transact in terms of the regulation imposed for the benefit of the coffee growing industry.
Section 25 of the Act provides the Board with the right to reject coffee if it is not upto the standard.
Value to be paid as contemplated by the Act is the price of the Coffee.
Fixation of price is regulation but is a matter of dealing between the parties.
There is no time fixed for delivery of coffee either to the Board or the curer.
These indicate consensuality which is not totally absent in the transaction.
It was urged that regard having been to the sovereign nature of the power exercised by the Coffee Board and the scheme of the , the ratio of Vishnu Agencies (supra) will not apply to the acquisition of coffee under section 25(1) by the .
It is in this connection appropriate to refer to the question of compulsory acquisition and this naturally leads to the problem of exercising eminent domain by the State.
It is trite knowledge that eminent domain is an essential attribute of sovereignty of every state and authorities are universal in support of the definition of eminent domain as the power of the sovereign to take property for public use without the owner 's consent upon making just compensation.
Nichols on Eminent Domain (1950 Edition) a classic authority on the subject, defines 'eminent domain ' as 'the power of the sovereign to take property for public use without the owner 's consent '; see para 1.11 page 2 of Vol. 1 which elaborates the same in these words: 369 ".
This definition expresses the meaning of the power in its irreducible terms: (a) Power to take, (b) Without the owner 's consent, (c) For the public use.
All else that may be found in the numerous definitions which have received judicial recognition is merely by way of limitation or qualification of the power.
As a matter of pure logic it might be argued that inclusion of the term 'for the public use ' is also by way of limitation.
In this connection, however, it should be pointed out that from the very beginning of the exercise of the power the concept of the 'Public use ' has been so inextricably related to a proper exercise of the power that such element must be considered as essential in any statement of its meaning.
The 'public use ' element is set forth in some definitions as the 'general welfare ', the 'welfare of the public ', the 'public good ', the 'public benefit ' or 'public utility or necessity '.
It must be admitted, despite the logical accuracy of the foregoing definition and despite the fact that the payment of compensation is not an essential element of the meaning of eminent domain, that it is an essential element of the valid exercise of such power.
Courts have defined eminent domain so as to include this universal limitation as an essential constituent of its meaning.
It is much too late in the historical development of this principle to find fault with such judicial utterances.
The relationship between the individual 's right to compensation and the sovereign 's power to condemn is discussed in Thayer 's cases on Constitutional Law.
But while this obligation (to make compensation) is thus well established and clear let it be particularly noticed upon what ground it stands, viz., upon the natural rights of the individual.
On the other hand, the right of the State to take springs from a different source, viz, a necessity of government.
These two, therefore, have not the same origin; they do not come, for instance, from any implied contract between the state and the individual, that the former shall have the property, if it will make compensation; the right is no mere right of pre emption, and it has no condition of compensation annexed to it, either precedent or subsequent.
But, there is a right to take, and 370 attach to it as an incident, an obligation to make compensation; this latter, morally speaking, follows the other, indeed like a shadow, but it is yet distinct from it, and flows from another source.
" It is concluded thus: "Accordingly, it is now generally considered that the power of eminent domain is not a property right, or an exercise by the state of an ultimate ownership in the soil, but that it is based upon the sovereignty of the state.
As the sovereign power of the state is broad enough to cover the enactment of any law affecting persons or property within its jurisdiction which is not prohibited by some clause of the Constitution of the United States, and as the taking of property within the jurisdiction of a state for the public use upon payment of compensation is not prohibited by the constitution of the United States, it necessarily follows that it is within the sovereign power of a state, and it needs no additional justification.
" Cooley in his treatise on the Constitutional Limitations Chapter XV expressed the same view at page 524 of the book in these words: ".
More accurately, it is the rightful authority which must rest in every sovereignty to control and regulate those rights of a public nature which pertain to its citizens in common and to appropriate and control individual property for the public benefit, as the public safety, convenience or necessity may demand." In Charanjit Lal Chowdhury vs The Union of India and others; , , Mukherjea, J. as the learned Chief Justice then was, while examining the scope and ambit of Article 31 of the Constitution observed as follows: "It is a right inherent in every sovereign to take and appropriate private property belonging to individual citizens for public use.
This right, which is described as eminent domain in American law, is like the power of taxation, and offspring of political necessity, and it is supposed to be based upon an implied reservation by Government that private property acquired by its citizens under its pro 371 tection may be taken or its use controlled for public benefit irrespective of the wishes of the owner.
" This Court in the State of Karnataka and another etc.
vs Ranganatha Reddy and another etc.
; , held that the power of acquisition could be exercised both in respect of immovable and movable properties.
While conceding the power of acquisition of coffee in exercise of eminent domain, the scheme contemplated under the Act was not an exercise of eminent domain power.
The Act was to regulate the development of coffee industry in the country.
The object was not to acquire coffee grown and vest the same in the Board.
The Board is only an instrument to implement the Act.
The High Court in its judgment has rightly observed that the Board has been chosen as the instrumentality for the administration of the Act.
The role of the Board of this type has been noted in three Australian decisions which must be taken note of.
It is appropriate at this stage to refer to the decision of the Australian High Court, in Peanuts Board vs The Rockhampton Harbour Board, (supra).
The question posed before the High Court was in relation to Section 92 of the Constitution Act of Commonwealth of Australia and the decision is instructive, though not in point.
Rich, J. Observed at pages 275 to 277 of the report as follows: "It therefore remains only to consider whether the operative instruments affecting to deal with peanuts do or do not interfere with the freedom of inter State trade.
This should be done weighing compulsory acquisition as a matter perhaps characterizing the enactments, but not of necessity determining their effect.
The feature which at once challenges attention is that these instruments provide a means of marketing.
They are concerned with establishing a compulsory pool through which growers producing peanuts for sale must dispose of their product for distribution and receive their reward.
The pith and substance of the enactments is the establishment of collective sale and distribution of the proceeds of the total crop and the concomitant abolition of the grower 's freedom to dispose of his product voluntarily in the course of trade and commerce, whether foreign, inter State of intra State.
Section 15 of the Act of 1926 provides that "all the commodity" shall be 372 delivered by the growers to the marketing board, and that "all the commodity" so delivered shall be deemed to have been delivered to the board for sale by the board, "who shall account to the growers thereof for the proceeds thereof after making all lawful deductions therefrom for expenses and outgoings and deductions of all kinds in consequence of such delivery and sale or otherwise under these Acts" (sec.
15(1), (2), as modified by the order in Council).
Sub section 3 of section 15 penalizes the sale or delivery of any of the "commodity" to, or the purchase or the receipt of any of the "commodity" from, any person except the board.
These provisions operate even although the Governor in Council does not resort to compulsory acquisition.
It was said by Mr. Mitchell that the provisions authorizing the borrowing of money constituted the chief purpose of the compulsory acquisition.
If this means that the control of the marketing of peanuts is a subordinate or consequential purpose of the instruments, I cannot agree.
The ability to borrow upon the whole crop may afford an advantage, if not an incentive, in the concentration of the "commodity" in the hands of one marketing authority.
But the weight attached to supposed advantages arising from the policy adopted in these enactments is not material.
What is material is whether the scope and object of the enactments as gathered from their contents are to deal with trade and commerce including inter State trade and commerce.
In examining this question one cannot fail to observe that compulsory acquisition is resorted to as a measure towards ensuring that the whole crop grown in Queensland is available for collective marketing by the central authority.
The case is not one in which a State seeks to acquire the total production of something it requires for itself and its citizens.
It is interposing in the course of trade in the "commodity" an organization established for the purpose of carrying out one of the functions of trade.
In my opinion the enactment controls directly the commercial dealing in Peanuts by the grower and aims at, and would, apart from section 92 accomplish, the complete destruction of his freedom of commercial disposition of his product.
Part of this freedom is guaranteed by section 92.
Accordingly the Primary Producers ' organization and Marketing Act 1926 30 and the order in Council thereunder are ineffectual to prevent the grower of peanuts from disposing 373 of them in inter State trade and commerce and the appellant Board had no title to the peanuts the subject matter of this action.
" In Milk Board (New South Wales) vs Metropolitan Cream Pty. Ltd., ; , Chief Justice Latham at page 131 of the report observed as follows: R "It is true that the decision in the Peanut Board Case ; was approved in James vs The Commonwealth, ; , but it is important to consider carefully the precise words in which this approval was expressed.
They were as follows: "The producers of the peanuts, it was held, were prevented by the Act from engaging in inter State and other trade in the commodity.
The Act embodied, so the majority of the court held, a compulsory marketing scheme, entirely restrictive of any freedom of action on the part of the producers; it involved a compulsory regulation and control of all trade, domestic, inter State and foreign; on the basis of that view, the principles laid down by this board were applied by the Court" Justice McTiernan observed at page 158 of the report as follows: "It is clear that the Milk Act does not profess to expropriate in order to hinder or burden the passing of milk, and the other products which the word 'milk ' is expressed to include, from other States; and there is no ground for the contention that any such burden or hindrance is imposed under the disguise of expropriation.
The Act replaces an individualist economy by a collectivist one for the distribution of milk within the area containing the most densely populated part of the State; and all that can be presumed is that the substitution was deemed by the legislature to be an expedient one for reasons only of health, hygiene, efficiency and the economic benefit of farmers in the milk producing districts.
I agree, therefore, that the operation of section 26 is not inconsistent with section 92 of the Constitution.
" The aforesaid observations are most apposite.
In the light aforesaid along with the provisions of section 17 and section 25 of the 374 Act, it cannot be said in the Act, there is any compulsory acquisition.
We accept the submission of the learned Additional Solicitor General that it is not necessary that every member of the public should benefit from property that is compulsorily acquired.
But in essence the scheme envisaged in sale and not compulsory acquisition.
It has also to be borne in mind that the term 'sale ' and 'purchase ' have been used in some of the provisions and that is indicative that no compulsory acquisition was intended.
Section 34 of the Act reads as follows: " 34(1) The Board shall at such times as it thinks fit make to registered owners who have delivered coffee for inclusion in the surplus pool such payments out of the Pool funds as it may think proper.
(2) The sum of all payments made under sub section ( 1) to any one registered owner shall bear to the sum of the payments made to all registered owners the same proportion as the value of coffee delivered by him out of the year 's crop to the surplus pool bears to the value of all coffee delivered to the surplus pool out of that year 's crop.
" The High Court has referred to the provisions of section 34(2) of the Act and observed that the said provisions ensure periodical payments of price to the growers.
The Rules provide for advancing loans to the growers.
Without a shadow of doubt these elements indicate, according to the High Court, that in the compulsory sale of coffee, there was an element of consensuality.
We are in agreement that there is consensuality in the scheme of the section.
The High Court has referred to section 25(2) of the and observed that the power conferred by section 25(2) of the must be read subject to the very requirement of that and all other provisions of the Act.
When a grower sells coffee that has become totally unfit for human consumption for one or the other valid reason, such a grower cannot compel the Board to purchase such coffee on the ground that it was coffee and thus endanger public safety and also pay its value or price.
In the very nature of things, these things cannot be foreseen or enumerated exhaustively.
The High Court was of the view that if a grower delivered coffee to the Board, the extinguished his title and absolutely vested the same in the Board, however, preserving 375 his right for payment of its value or its price in accordance with the provisions of that Act.
According to the High Court the amount paid by the Board to the grower under the Act is the value or price of coffee in conformity with the detailed accounting done thereto under the .
The High Court was right.
The High Court went on to observe that the amount paid to the grower was neither compensation nor dividend.
The payment of price to the grower is an important element to determine the consensuality in the sale and the sale itself is under section 4(1) of the .
Therefore, the High Court was of the view that neither section 25(2) read with section 17 nor the provisions for payment of compensation indicate that coffee becomes the property of the Coffee Board not by consent but by the operation of law.
The levy of duties of excise and customs under sections 11 and 12 of the are inconsistent with the concept of compulsory acquisition.
Section 13(4) of the clearly fixes the liability for payment of duty of excise on the registered owner of the estate producing coffee.
The Board is required to deduct the amount of duty payable by such owner from the payment to the grower under section 34 of the Act.
The duty payable by the grower is a first charge on such Pool payment becoming due to the grower from the Board.
Section 11 of the Act provides for levy of duty of customs on coffee exported out of India.
This duty is payable to the Customs authorities at the time of actual export.
The levy and collection of this duty is not unrelated to the delivery of the coffee by the growers to the Board or the pool payments made by the Board to the growers.
The duty of excise as also the duty of customs are duties levied by Parliament in exercise of its powers of taxation.
It is not a levy imposed by the Board.
It is a fact that the revenue realised from the levy of these duties form part of the Consolidated Fund of India and can be utilised for any purpose.
It may be utilised for the purpose of the only if Parliament by appropriation made by law in this regard so provides.
The true principle or basis in Vishnu Agencies case applies to this case.
Offer and acceptance need not always be in an elementary form, nor does the law of contract or of sale of goods require that consent to a contract must be express.
Offer and acceptance can be spelt out from the conduct of the parties which cover not only their acts but omissions as well.
The limitations imposed by the Control order on the normal right of the dealers and consumers to supply and obtain goods, the obligations imposed on the parties and the penalties prescribed by the order do not militate against the position that eventually, the parties must be deemed to have completed the transaction under an agreement by 376 which one party binds itself to supply the stated quantity of goods to the other at a price not higher than the notified price and the other party consents to accept the goods on the terms and conditions mentioned in the permit or the order of allotment issued in its favour by the concerned authority.
A contract whether express or implied between the parties for the transfer of the property in the goods for a price paid or promised is an essential requirement for a 'sale '.
In the absence of a contract whether express or implied, it is true, there cannot be any sale in the eyes of law.
However, as we see the position and the scheme of the Act, in the instant case, there was contract as contemplated between the growers and the Coffee Board.
This Court applied in Vishnu Agencies 's case (supra) the consensual test laid down in the earlier decision of this Court in the State of Madras vs Gannon Dunkerley, ; in this regard.
In law there cannot be a sale whether or not compulsory, in the absence of a contract express or implied.
The position of the Coffee Board so far as sale is concerned is explained by the Madras High Court very lucidly in The Indian Coffee Board, Batlagundu vs The State of Madras (supra), where the High Court expressed the view that the Indian Coffee Board which derived its existence from the Coffee Market Expansion Act is a dealer within the meaning of section 2(b) of the Madras General Sales Tax Act, 1939, and is therefore, liable to sales tax on its turnover.
The High Court held that the Board was not a constituted representative of the producer and it did not hold the goods on behalf of the producer.
After the goods enter the pool after delivery, they become the absolute property of the Board and the producer, a registered owner, has no right or claim to the goods except to a share in the sale proceeds after the goods are sold in accordance with the provisions of the Act.
It was said by the learned Additional Solicitor General that the cultivation of coffee in India was over a century old and numerous plantations existed long prior to the enactment of the .
There was no act of volition on the part of the growers in taking to coffee cultivation and subjecting themselves to the provisions of the Act by taking up such cultivation.
The cultivation of coffee can be carried on only in certain types of soil and in high elevations.
The land suited for coffee cultivation cannot be used for growing other crops on a similar scale.
Coffee is a perennial crop.
The growers have no choice in growing coffee one year and then changing to a different crop in the following year.
Coffee plants have a life ranging from 30 to 70 years, the average life of the plant being 40 years.
Coffee estates require 377 constant attention and expenses have to be incurred for manuring, cultural operations, application of pesticides, etc.
at regular intervals.
Removal of old and diseased plants and replanting them with superior disease resistant varieties is also necessary and is done each year.
The coffee grower has thus no choice at all continuing to be a coffee cultivator, it was argued.
The cultivation of coffee is not in any way comparable to the cultivation of sugarcane, the cultivation of which can be discontinued at will.
Such practical difficulties, however, do not in essence make any difference.
Because coffee is grown on the estate, the owner of the land can be presumed to have consented to surrender his produce to the Board it was submitted.
But the surrender is thus clearly an act of volition.
The planting of the seeds of a coffee plant by a grower can be regarded as his act of volition in respect of the surrender to the Board of the coffee yielded by the plant.
The coffee growers being agriculturists are not dealers and therefore are not liable to pay any sales tax or purchase tax, it was submitted.
The demand for purchase tax is in effect a demand on the growers who were exempt from such levy, as the monies required for paying the tax if the same is lawful has necessarily to come out of the monies otherwise payable to the growers.
The object of the pool marketing system is not to deprive the growers of a fair compensation for their produce by making them suffer a tax which they would not otherwise be required to suffer.
An analysis of the different provisions of the makes it clear that there was no sale to attract exigibility to duty, it was submitted.
We are unable to accept these submissions.
Section 6 of the Karnataka Sales Tax Act, 1957 meets the situation created by such circumstances.
This was examined by this Court in State of Tamil Nadu vs N.K. Kamaleshwara; , which examined section 7A of Tamil Nadu General Sales Tax Act, 1959 which was in pari materia with section 6 of the Karnataka Sales Tax Act.
In that view of the matter section 6 of the Karnataka Act would he attracted The alternative submission of the appellant was that the Coffee Board was a trustee or agent of the growers.
We are unable to accept this submission either.
There is no trust created in the scheme of the Act in the Coffee Board; it is a statutory obligation imposed on the Coffee Board and does not make it a trustee in any event.
It is also not possible to accept the submission that the will not be applicable to any sale by the Coffee Board because it was an 378 export sale by the Coffee Board.
In Consolidated Coffee Ltd. & Another vs Bangalore etc.
, (supra) it has been held that there must be a prior agreement at the time when the transaction of sale takes place.
No such prior agreement existed in this case.
In New India Sugar Mills Ltd. vs Commissioner of Sales tax Bihar (supra), Hidayatullah, J. as the Chief Justice then was, observed that so long as the parties trade under controls at fixed price and accept these as any other law of the realm because they must be deemed to have contracted at a fixed price both sides having or deemed to have agreed to such price.
Consent under the law of contract need not be expressed, it can be implied.
This is the position under the scheme of the .
It has to be emphasised like the Vishnu Agencies 's case a person for all practical purposes is free to become or not to become a grower of coffee.
So it is also covered by the ratio of Vishnu Agencies Pvt. Ltd. In the aforesaid view of the matter, we are of the opinion that the imposition of tax in a manner done by the Sales tax Authorities which had been upheld by the High Court is correct and the High Court was right.
The appeals fail and are dismissed.
There, will, however, be no order as to costs Civil Writ Petition No. 358 of 1986 under Article 32 of the Constitution of India is dismissed.
Writ Petition No. 36 of 1986, we are of the opinion that we cannot go into in the contentions in this petition.
The rights and obligations of the parties, inter se between the petitioners and the Coffee Board may be agitated in appropriate proceedings.
Writ Petition No. 37 of 1986.
This writ petition is dismissed without prejudice to the rights of the petitioner to agitate the question of liability of the petitioner, vis a vis, Coffee Board in respect of the sales tax due and payable on the transactions between the parties in appropriate proceedings.
Civil Writ Petition No. 39 of 1986.
There will be no order in this petition.
But it is made clear that this is without prejudice to the right of the parties taking appropriate proceedings if necessary for determination of the liabilities inter se between the petitioners and the Coffee Board for the amount of sales tax payable.
Parties in these writ petitions will pay and bear their own costs.
Interim orders, if any, are all vacated. | The appellant Coffee Board filed writ petitions in the High Court praying for a declaration that the mandatory delivery of the Coffee under section 25(i) of the , was not sale and that section 2(t) of the Karnataka Sales Tax Act, 1957 required to be struck down if the same encompassed compulsory acquisition also, and challenging the show cause notice, proposing to re open the tax assessment and the pre assessment notice proposing to assess the Board to purchase tax on the Coffee transferred from Karnataka to outside the State.
The Coffee Board has also filed in the High Court writ petitions, challenging the assessments and the demands for the purchase tax.
The appellant Coffee Board had contended that the compulsory delivery of Coffee under the extinguishing all the marketing rights of the growers was 'compulsory acquisition ' and not sale or purchase to attract levy of purchase tax and that the appellant was only a 'trustee ' or agent of the growers not exigible to purchase tax and that all the export sales were in the course of export immune to tax under Article 286 of the Constitution.
It was held by the High Court that an element of consensuality subsisted even in compulsory sales governed by law and once there was an element of consensuality even though minimal, that would be sale or purchase for purposes of Sale of Goods Act and the same would be exigible to sales or purchase tax under the relevant Sales Tax law of the country.
On an analysis of all the provisions of the in general and sections 17 and 25 in particular, the High Court held that on the true principles of compulsory acquisition or eminent domain, it was difficult to hold that on compulsory delivery by growers to the Board, there would be compulsory acquisition of coffee by the Coffee Board.
The High Court dismissed all the writ petitions by a common judgment.
The Coffee Board filed appeals in this Court by 349 certificate against the decision of the High Court.
The writ petitions filed in this Court were for the determination of the rights, obligations and liability between the petitioners and the Coffee Board in respect of the sales tax due and payable on the transactions between the parties.
Dismissing the appeals and the Writ Petitions Nos. 358 and 37 of 1986 and disposing of the Writ Petitions Nos. 36 and 39 of 1986, the Court.
^ HELD: The question involved in these appeals and the writ petitions was the exigibility of tax on sale, if any, by the growers of the coffee to the Coffee Board.
Basically, it must depend upon what is sale in the general context as also in the context of the relevant provisions of the Karnataka Sales Tax Act 1957 as amended from time to time, and the .
These, however, must be examined in the context of general law, namely, the and the concept of sale in general.
[358F G] Coffee Board is a 'dealer ' registered as such under the and the Sales Tax Acts of all the States in which it holds auctions/maintains depots runs coffee houses.
It collects and remits sales tax on all the coffee sold by it to the State in which the sale takes place.
It transfers coffee from one State to another.
[360B,E] This Court (Bench of Five Judges) in the case of State of Kerala vs Bhavani Tea Produce Co., ; , which arose under the Madras Plantations Agricultural Income Tax Act, held that when growers delivered coffee to the Board, all their rights therein were extinguished and the Coffee vested in the Board.
The Court, however did not hold that there was a taxable 'sale ' by the grower to the Board in the year in question.
The Court in this case was bound by the clear ratio of that decision and it could not by pass the same.
That decision concludes all the issues in this case.
Several questions were canvassed in these appeals in view of the decision of the High Court, and all the questions were answered by this Court in the Bhavani Tea Produce Co. 's case (supra) against the appellant.
[360F G; 364B] All the four essential elements of sale (1) parties competent of contract, (2) mutual consent, though minimal, by growing coffee under the conditions imposed by the (The Act), (3) transfer of property in the goods and (4) payment of price though deferred were present in the transaction in question.
As regards the provision under section 26(2) empowering the Coffee Board to purchase additional 350 coffee not delivered for inclusion in the surplus pool, it is only a supplementary provision enabling the Coffee Board to have a second avenue of purchase, the first avenue being the right to purchase coffee under a compulsory delivery system formulated under section 25(1) of the Act.
The scheme of the Act is to provide for a single channel for sale of coffee grown in the registered estates.
The Act directs the entire coffee produced except the quantity allotted for internal sale quota, if any, to be sold to the Coffee Board through the modality of compulsory delivery and imposes a corresponding obligation on the Coffee Board to compulsorily purchase the coffee delivered to the pool, except (1) where the coffee delivered is found to be unfit for human consumption, and (2) where the coffee estate is situated in a far off and remote place or the coffee grown in an estate is so negligible as to make the sale of coffee through compulsory delivery an arduous task and an uneconomical provision.
[367E H; 368A B] In the nature of transactions contemplated under the Act, mutual assent either express or implied is not totally absent in this case in the transactions under the Act.
Coffee growers have a volition or option, though minimal or nominal to enter into the coffee growing trade.
If any one decides to grow coffee, he must transact in terms of the regulation imposed for the benefit of the coffee growing industry.
Section 25 of the Act provides the Board with the right to reject coffee if it is not upto the standard.
Value to be paid as contemplated by the Act is the price of the coffee.
There is no time fixed for delivery of coffee either to the Board or the curer.
These indicate consensuality not totally absent in the transaction.
[368C E] The scheme contemplated under the Act was not an exercise of eminent domain power.
The Act was to regulate the development of coffee industry in the country.
The object was not to acquire coffee grown and vest the same in the Coffee Board.
The Board is only an instrument to implement the Act.
The High Court had rightly observed that the Board has been chosen as the instrumentality for the administration of the Act.
It cannot be said in the Act, there is any compulsory acquisition.
In essence, the scheme envisages sale and not compulsory acquisition.
The terms 'sale ' and 'purchase ' have been used in some of the provisions and that is indicative that no compulsory acquisition was intended.
The levy of duties of excise and customs under sections 11 and 12 of the are inconsistent with the concept of compulsory acquisition.
Section 13(4) of the clearly fixes the liability for 351 payment of duty of excise on the registered owner of the estate producing coffee.
The Board is required to deduct the amount of duty payable by such owner from the payment to the grower under section 34 of the Act.
The duty payable by the grower is a first charge on such pool payment becoming due to the grower from the Board.
Section 11 of the Act provides for levy of duty of customs on coffee exported out of India.
This duty is payable to the Customs Authorities at the time of actual export.
The levy and collection of this duty are not unrelated to the delivery of coffee by the growers to the Board of the payments made by the Board to the growers.
The duty of excise as also the duty of customs are duties levied by Parliament.
It is not a levy imposed by the Board.
The revenue realised from levy of these duties forms part of the Consolidated Fund of India, which may be utilised for the purpose of the only if the Parliament by law so provides.
The true principle or basis in Vishnu Agencies (Pvt.) Ltd. vs Commercial Tax officer and others, etc.
; , , applies to this case.
Offer and acceptance need not always be in an elementary form, nor does the law of contract or sale of goods require that consent to a contract must be express.
Offer and acceptance can be spelt out from the conduct of the parties which cover not only their acts but omissions as well.
The limitations imposed by the Control order on the normal right of the dealers and consumers to supply and obtain goods, the obligation imposed on the parties and the penalties prescribed by the order do not militate against the position that eventually, the parties must be deemed to have completed the transaction under an agreement by which one party binds itself to supply the stated quantity of goods to the other at a price not higher than the notified price and the other party consents to accept the goods on the terms and conditions mentioned in the permit or the order of allotment issued in its favour by the concerned authority.
[375C H; 376A B] A contract, express or implied, for the transfer of the property in the goods for a price paid or promised is an essential requirement for a 'sale '.
In the absence of a contract, express or implied, there cannot be any sale in law; however, in this case, as the scheme of the Act is, there was contract contemplated between the growers and the Coffee Board.
In law, there cannot be a sale whether or not compulsory in the absence of a contract express or implied.
[376B C] The imposition of tax in the manner done by the Sales Tax Authorities upheld by the High Court was correct and the High Court was right.
The appeals failed.
[378D] 352 Civil Writ Petition No. 358 of 1986 was dismissed.
Writ Petition No. 36 of 1986, the Court could not go into the contentions in this petition.
The rights and obligations of the parties inter se between the petitioners and the Coffee Board might be agitated in appropriate proceedings.
Writ Petition 37 of 1986 was dismissed without prejudice to the rights of the petitioners to agitate the question of liability of the petitioner vis a vis the Coffee Board in respect of the Sales Tax due and payable on the transactions between the parties in appropriate proceedings.
In Civil Writ Petition No. 39 of 1986, the Court passed no order; this was without prejudice to the right of the parties taking appropriate proceedings if necessary for the determination of the liabilities inter se between the petitioners and the Coffee Board for the amount of the Sales Tax payable.
[378E G] Indian Coffee Board vs State of Madras, 5 S.T.C. 292; C.E.B. Draper & Sons Ltd. vs Edward Turner & Son Ltd., ; State of Kerala vs Bhavani Tea Produce Co., ; ; Consolidated Coffee Ltd. & Anr.
vs Coffee Board, Bangalore, etc.
; , ; Peanuts Board vs The Rockhampton Harbour Board, 48 Commonwealth Law Reports 266; Vishnu Agencies (Pvt.) Ltd. etc.
vs Commercial Tax officer and others etc.
; , ; Indian Steel and Wire Products Ltd., Andhra Sugar Ltd. and Karam Chand Thapar, ; ; State of Madras vs Gannon Dunkerley & Co. Ltd., ; ; New India Sugar Mills vs Commissioner of Sales Tax, Bihar, [ 19631 Suppl.
2 S.C.R. 459; Charanjit Lal Choudhury vs The Union of India & Ors., ; ; State of Karnataka and another etc.
vs Ranganatha Reddy and Anr.
; , ; Milk Board (New South Wales) vs Metropolitan Cream Pty. Ltd., ; and State of Tamil Nadu vs N. K. Kamaleshwara, 119761 1 S.C.R. 38, referred to. |
on (CRL.) No. 1061 of 1982.
(Under Article 32 of the Constitution of India).
M.A. Krishna Moorthy, A.S. Pundir, Din Dayal Sharma, Ms. Sangeeta Aggarwal, C.V. Subba Rao and Gopal Subramaniam for the appearing parties.
The following Order of the Court was delivered: Pursuant to our order of May 10, 1991, this matter was called on 11th July, 1991, when parties and both the Commis sioners were heard.
The report from the Executive Chairman of the U.P. State Legal Aid and Advice Board has been re ceived and looked into.
The proceeding has been pending in this Court for almost nine years.
In spite of all possible orders and directions made from time to time no substantial progress has yet been made.
The land records have got to be prepared; the forest land has to be identified and final action under the Forest Act has to be taken.
The exercise involved in this process is undoubtedly massive but that by itself would not justify a protracted proceeding.
When we made our order in May, 1991, we had a feeling that before the rains started there would be substantial progress.
The rainy season has come though rains are belat ed.
In these two months, however, there has been no progress.
Mr. R.P. Pandey, one of the Commissioners has been staying at Allahabad and he does not find it convenient to shift to the site.
As we indicated earlier, the matter has reached a stage where presence of all the officers and the Commissioners at the site has become almost indispensable Mr. Pandey has informed the Court that he would find it difficult to shift to the site.
We do not think much of his services can be utilised if he is allowed to stay at Allaha bad.
It would, therefore, be 404 necessary to substitute him by appointing some other judi cial officer as Commissioner.
Mr. Pandey had done good work during the period he was supervising the process.
We would suggest to the Secretary to the Commission appointed by us to make a report to us as to in what way Mr. Pandey can be compensated for the work done.
In place of Mr. R .P.
Pandey we direct Shri Prem Singh, retired District Judge of the State to be appointed as one of the Commissioners.
The Registry shall cake steps to intimate him of the assignment at his Varanasi address.
At the hearing of the matter, on 11th July grievance was made that several directions out of the order of 10th May, 1991 had not been complied with.
Mr. Yogeshwar Prasad, Senior Advocate for the State of Uttar Pradesh assured us in Court that immediate steps would be taken to comply with all the directions excepting the requirement of depositing of Rs.20 lakhs with the Secretary of the Commission.
We have considered his stand in regard to the direction for deposit ing Rs.20 lakhs and are prepared to modify the amount of Rs.20 lakhs to Rs.5 lakhs in view of the assurance that more of funds can come on requisition without loss of time.
That amount may be kept in deposit with the Secretary in the imprest account within two weeks hence.
The State of Uttar Pradesh shall file an affidavit that all the directions made on 10th May as modified now have been complied with within three weeks from today in the Registry of this Court.
Some time back, the Chief Secretary had set up a small Committee at Lucknow for monitoring the work.
We suggest to the Chief Secretary that he may revive the Committee which on account of the intervening disturbances of law and order followed by the general elections had perhaps been abandoned so that coordinated activity may be possible.
We request Mr. Justice Loomba, Executive Chairman of U.P. State Legal Aid and Advice Board to continue to super vise the work which he has been doing already so that the monitoring at the spot can 'appropriately be cross checked He is requested to send monthly reports to the Court.
The matter may be placed again five weeks hence.
Petition disposed of with interim directions. | Under Section 20 of the Forest Act, 1927 certain areas were declared as reserve forest.
On behalf of the inhabi tants of the areas, the petitioner filed the present Writ Petition challenging their eviction from the said areas.
From time to time this Court had been passing interim orders and directions.
This Court also appointed Commissioners for the purpose of preparation of land records, identification of forest land and the final action to be taken under the Forest Act.
Reviewing the progress made so far and passing interim directions, this Court, HELD: 1.
The exercise involved in the process of prepar ing the records, identification of forest land and final action under the Forest Act, is undoubtedly massive but that by itself would not justify a protracted proceeding.
[403E] 2.
Mr. R.P. Pandey, one of the Commissioners has been staying at Allahabad and he does not find it convenient to shift to the site.
The matter has reached a stage where presence of all the officers and the Commissioners at the site has become almost indispensable.
Not much of his serv ices can be utilised if he is allowed to stay at Allahabad.
It would, therefore, be necessary to substitute him by appointing some other judicial officer as Commissioner.
In his place, Shri Prem Singh, retired District Judge would be appointed as one of the Commissioners.
The Registry shall take steps to intimate him of the assignment at his V arana si address.
[403G H; 404A B] 3.
With regard to the direction for depositing Rs.20 lakhs it is modified as Rs.5 lakhs in view of the assurance that more funds can come on requisition without loss of time.
[404D] 403 4.
The Chief Secretary may revive the Committee set up to monitor the work.
[404E F] 5.
The Executive Chairman of U.P. State Legal Aid and Advice Board would continue to supervise the work and send monthly reports to the Court.
[404F G] |
Civil Appeal No. 5047 (NT) of 1985.
From the Judgment and Order dated 17.7.
1985 of the Allahabad High Court in Sales Tax Revision No. of 1985.
Madan Lokur for the Appellant.
Ashok K. Srivastava for the Respondent.
M/s. D.H. Brothers Pvt. Ltd., a registered dealer under the U.P. Sales Tax Act, is engaged in the sale of machinery including sugarcane crushers.
After coming into force of the Uttar Pradesh Sales Tax Act, 1948 (hereinafter called 'the Act ') the State Government issued a notification dated June 7, 1948 exempting agricultural implements from the levy of sales tax.
Thereafter fresh notifications were issued from the time to time.
The relevant notification dated November 14,1980 enumerated the "Agricultural implements" as under: "Agricultural implements" worked by human or animal power, including Khurpi, Dibbler, Spade, Hansla (Sickle) Garden Knife, Axe, Gandasa, Chaff Cutters, Shears, Seca teurs, Rake, Shovel, Ploughs, Water lifting leather buckets (Pur and Mhot), Rahat and persian whell, Chain Pump, Harrows, Hoes, Cultivators, Seed Drills, Threshers, Shellers, Winnowing fans, Paddy weeders, Gardenfork, Lopper), Belcha, Bill Hook (Double edge), Kudali,Fork, garden Hatchet, Bill Hook (Single edge), Hay Bailer, Bund formers, Scrappers, Levellers or Levelling Karahas, Yokes, crop yield Judginghoops, Hand sprayers Hand dust ers, Animal driven vehicles including carts having pneumatic tyre wheels, crow bars, sugarcane Planters and accessories, attach ments and spare parts of these agricultural implements".
The assessee invoked the jurisdiction of Commissioner, Sales Tax, Uttar Pradesh under Section 35 of the Act claim ing that the Kohlu meant for extracting juice from sugarcane was an agricultural implement within the above quoted noti fication and as such was exempt from levy of Sales Tax.
The Commissioner by his order dated December 31, 1983 decided the question against the assessee.
The assessee filed appeal against the said order before the Sales Tax Tribunal.
Luc know Bench, under Section 10 of the Act.
The Tribunal upheld the findings of the Commissioner and dismissed the appeal.
Thereafter the assessee preferred a revision petition under Section 11 of the Act before the Allahabad.
High Court.
The High Court relying on its earlier decision in Bharat Engi neering and Foundry Works vs 426 The U.P. Government, [1963] 14 S.T.C. 262 dismissed the revision petition.
In that case the question for considera tion before the High Court was "whether cane crushers are agricultural implements within the meaning of the words 'agricultural implements ' as mentioned in the Government Notification. . and hence exempt from U.P. sales tax.
" The question was answered in the negative on the following reasoning: "Cane crushers and boiling pans are used only in the manufacture of gur from sugarcane.
Sugarcane is an agricultural produce and the process which results in the production of sugarcane is undoubtedly agriculture, but the production of gur from sugarcane is a manufac turing process and not an agricultural proc ess.
The agricultural process comes to an end with the production of sugarcane and when gur is subsequently being prepared it is manufac turing process that commences.
Merely because sugarcane is an agricultural produce anything that is done to it after it is product is not necessarily a continuation of the agricultural process.
It cannot be doubted that agricultur al produce can the subjected to a manufactur ing process; merely because gut is produced out of sugarcane which is an agricultural produce, the process of preparing gut does not become an agricultural process. .
An agricultural implement is an implement that is used in agriculture; any implement that is used after the agricultural process comes to an end and a manufacturing process commences, is not an agricultural implement.
" The High Court in Bharat Engineering case relied upon the following observations of this Court in Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, "Agriculture is the basic idea underlying the expressions 'agricultural purposes ' and 'agricultural operations ' and it is pertinent therefore to enquire what is the connotation of the term 'agriculture '.
As we have noted above, the primary sense in which the term agriculture is understood is agar field and cultracultivation, i.e., the cultivation of the field, and if the term is understood only in that sense agriculture would be restricted only to cultivation of the 427 land in the strict sense of the term meaning thereby, tilling of the land, sowing of the seeds, planting and similar operations on the land.
They would be the basic operations and would require the expenditure of human skill and labour upon the land itself.
There are however other operations which have got to be resorted to by the agriculturist and which are absolutely necessary for the purpose of effec tively raising the produce from the land.
They are operations to be performed after the produce sprouts from the land, e.g., weeding, digging the soil around the growth, removal of undesirable undergrowths and all operations which foster the growth and preserve the same not only from insects and pests but also from depradation from outside, tending, pruning, cutting, harvesting, and rendering the produce fit for the market.
The latter would all be agricultural operations when taken in conjunc tion with the basic operations above de scribed, and it would be futile to urge that they are not agricultural operations at all. . " It is clear from the above quoted observations of this Court that the agricultural process comes to an end when the crop is harvested and is brought home for marketing or for further processing.
In the present case the agricultural process finishes when sugarcane is harvested.
Preparation of gur from sugarcane is not the continuation of the agricul tural process.
While giving meaning to an item in a taxing statute the Courts should give it a meaning as intended by the framers of the statute by looking at the various items mentioned in a particular group.
The items in one group should be consid ered in a genderic sense.
The notification dated November 14, 1980 includes various items under the head "agricultural implements".
It is no doubt correct that the said definition cannot be confined to the various implements specifically mentioned therein.
The definition being inclusive it has a wider import and any other implement which answers the description of an agricultural implement can be included in the definition.
A bare reading of the notification, however, shows that all the implements mentioned by name after the word "including. . "are by and large those which are used for cultivation of land and other operations which foster the growth and preserve the agricultural produce.
None of these implements can be worked after the agricultur al process in respect of a crop comes to an end.
Therefore the intention of the framers of the 428 notification could only be to limit the general words in the notification to the implements of the same kind as are specified therein.
We are, therefore, of the view that on the plain reading of the notification the sugarcane crushers do not come within the definition of agricultural imple ments.
It has been brought to our notice that from 1985 onwards the State Government has specifically exempted sugarcane crushers from the levy of sales tax.
We dismiss the appeal with no order as to costs.
G.N. Appeal dis missed. | The appellant, a registered dealer under U.P. Sales Tax Act, 1948 has been selling machinery including sugarcane crusher.
The State Government was issuing Notifications from time to time exempting agricultural implements from the levy of sales tax.
The State Government by its Notification dated 14.11.1980 amended the list and enumerated agricultural implements.
Since sugarcane crusher (Kohlu) was not included therein, the appellant claimed before the Sales tax Commis sioner that the Kohlu meant for extracting juice from sugar cane was an agricultural implement and as such was exempt from levy of sales tax.
Since the Commissioner negatived his claim, the appellant preferred an appeal before the Sales Tax Tribunal.
The Tribunal having upheld the findings of the Commis sioner, the appellant filed a revision petition before the High Court.
Relying on its earlier decision, the High Court dismissed the revision petition.
Aggrieved by the High Court 's decision, the appellant has preferred the present appeal.
Dismissing the appeal, this Court, HELD: 1.
The agricultural process comes to an end when the crop is harvested and is brought home for marketing or for further processing.
Preparation of gur from Sugarcane is not the continuation of the agricultural process.
[427D E] 424 Bharat Engineering and Foundry Works vs The U.P. Govern ment, [1963] 14 S.T.C. 262 and Commissioner of Income tax, West Bengal, Calcutta vs Raja Benoy Kumar Sahas Roy, , relied on.
While giving meaning to an item in a taxing statue the Courts should give it a meaning as intended by the framers of the statute by looking at the various items mentioned in a particular group.
The items in one group should be considered in a generic sense.
[427F] 3.
In the instant case the notification dated November 14, 1980 includes various items under the head "agricultural implements".
The said definition cannot be confined to the various implements specifically mentioned therein.
The definition being inclusive it has a wider import and any other implement which answers the description of an agricul tural implement can be included in the definition.
A bare reading of the notification shows that all the implements mentioned by the name after the word "including. . "are by and large those which are used for cultivation of land and other operations which foster the growth and preserve the agricultural produce.
None of these implements can be worked after the agricultural process in respect of a crop comes to an end.
Therefore the intention of the framers of the notification could only be to limit the general words in the notification to the implements of the same kind as are specified therein.
As such sugarcane crushers do not come within the definition of agricultural implements.
[427F H; 428A B] |
Appeals Nos. 47 and 48 of 1961.
Appeals by special leave from the judgment and decree dated August 5, 1957, of the Bombay High Court in Appeal No. 1085 of 1954 with second Appeal No. 1086 of 1954.
G.S. Pathak and Naunit Lal, for the appellant.
I. N. Shroff, for respondent No. 1 M.S.K. Sastri and R.H. Dhebar, for respondent No. 2.
December 10, 1963.
The Judgment of the Court was delivered by MUDHOLKAR J.
This judgment will also govern C.A. No. 48 of 1961.
Both the appeals are by special leave from the judgment of the Bombay High Court in second appeal disposing of two appeals which arise out of two separate suits instituted by the appelant, the Borough Municipality of Bhusawal, against 907 the Bhusawal Electricity Co. Ltd., respondent No. 1 before us, to which suits the State of Bombay was later added as a defendant.
In each of the two suits the appellant had claimed refund of two sums of money paid by them to the respondent No. 1 under protest as electricity charges to which the respondent No. 1 claimed to be entitled by virtue of an order made by the Government of Bombay under the Bombay Electricity Supply (Licensed Undertakings War Costs) Order, 1944 (herein referred as Surcharge Order ).
The appellant succeeded in both the suits in the trial court as well as the District Court.
In second appeal, however, the High Court set aside the decrees passed by the trial court and dismissed the two suits.
While doing so, the High Court admitted on record certain documents by way of additional evidence and the only contentions raised before us by Mr. G.S. Pathak for the appellant are firstly that the High Court is incompetent in second appeal to admit additional evidence on record in asmuch as O. XLI, r. 27, Code of Civil Procedure is inapplicable to a second appeal.
Secondly, the provisions of O. XLI, r. 27 cannot be used to fill up the lacuna in the evidence left by a party.
We may incidentally mention that when the High Court, by its order dated April 30, 1958, decided to admit additional evidence on record, no objection was raised on behalf of the appellant before us.
It seems to us to be wholly unnecessary to decide in this case whether the High Court has the power to admit additional evidence in second appeal and also whether even if it has that power it was right in admitting the evidence in the circumstances of this case.
Basing itself on a particular interpretation of the agreements regarding payment of electric charges with respondent No. 1, the appellant claimed refund on the ground that it was not liable to pay the surcharge payable under the Surcharge Order, 1944 in respect of electrical energy consumed by it.
The substantial defence of the respondent No. 1 was that the dispute between it and the municipality was 908 decided by the Government of Bombay and that under the second proviso to cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and the respondent No. 1.The relevant provisions read thus: Clause 5: "Upon the rate of the War Costs Surcharge being fixed by the Provincial Government from time to time in accordance with this order, it shall not be lawful for the licensee or sanction holder concerned to supply energy at other than charges surcharged at the rate for the time being so fixed:" * * * * Second proviso: "Provided further that no War Costs Surcharge shall be effective upon the charges for the supply of energy under any contract entrered into after the 1st May, 1942, unless such contract provides for the same charges for energy as have been contained in similar previous contracts for similar supply by the licensee or sanction holder concerned (as to which in the event of dispute by any party interested, the decision of the Provincial Government shall be final) or unless and to such extent as such application may be expressly ordered by the Provincial Government.
" It is not disputed before us by Mr. Pathak that the decision of the Government upon the dispute is final and binding on the parties.
But, according to him, it was not established by the evidence led in the trial Court that the dispute between the parties had at all been referred to the Government and that a certain communication sent by the Government to the parties, exhibit 68 dated May 22, 1946 relied upon by the respondent No. 1, contains nothing but the opinion of the Government.
Mr. Pathak further urged that the proviso referred to by us purports to constitute the Govern 909 ment into an arbitrator and, therefore, there had to be a reference to the arbitrator by both the parties to the dispute under the provisions of the .
This latter point, however, had not been taken in the courts below nor is it found in the statement of the case.
We have, therefore, not permitted Mr. Pathak to rely upon it before us.
The communication of May 22, 1946 relied upon by the first respondent runs thus: "No. 6404/36 E1(1).
Public Works Department, Bombay Castel, 22nd May, 1946.
From The Secretary to the Government of Bombay Public Works Department (Irrigation).
TO The President, The Borough Municipality, Bhusawal.
Subject: War Costs Surcharge.
Dear sir, With reference to the correspondence ending with Government letter No. 6404/36, dated the 10th May, 1946 on the subject mentioned above, I am to inform you that Government has fully considered your case under the second proviso to clause 5 of the Bombay Electricity Supply (Licensed Undertakings War Costs) Order, 1944, and has decided that you should pay the surcharge to the Bhusawal Electricity Co. Ltd., at the rate of 15 % fixed in Government Order No. 6331/36 (IV) dated the 15th August, 1944, unless the Company raised its rate of supply of energy for street lighting to more than 4 annas per unit.
Yours faithfully, Sd/ D.N. Daruwala.
for Secretary to the Govt.
of Bombay.
Copy forwarded for information to: Public works Department, the Electrical Engineer to the 910 Government with reference to his No. LRM.57/ 5260, dated the 8th March, 1946.
The Account ant General, Bombay with reference to his No. O.A. 2888, dated the 2nd February 1946.
Messrs The Bhusawat Electricity Co. Ltd., Bombay with reference to correspondence ending with Government letter No. 6404/36 El.
(i) dated the 17th May 1946.
CC to E.E. Bhusawal for information sent on 25th May 1946.
" It is obvious from this communication that both the parties, that is, the appellant as well as the respondent No. 1 had stated their respective cases before the Government.
There was no occasion for them to do so unless they were both purporting to act under the second proviso to cl. 5 of the Order of 1944.
After consideration of the cases of both the parties the Government has stated in the aforesaid communi cation that it had decided that the municipality should pay to the Electricity Company surcharge at the rate of 15% fixed in a certain Government Order unless the Company raised its rate for the supply of energy for street lighting to more than four annas per unit.
There is no reason to think that what is on the face of it a decision is nothing but an opinion because if there were anything in the correspondence to which a reference is made in that letter as well as in the endorsement at the bottom which went to show that the appellant did not purport to refer any dispute to the Government, it was for the appellant to produce that correspondence.
Its omission to do so must be construed against it.
Then Mr. Pathak said that under the Surcharge Order itself the dispute had to be referred by both the parties and not by only one of them.
This contention is, however, untenable in view of the clear language of the proviso which says: "In the event of dispute by any party interested" the decision of the Provincial Government shall be final.
There is, therefore, no substance in the contention.
In our opinion the trial court and the District Court had wholly misconstrued this document which is not merely of evident 911 iary value but is one upon which the claim of the respondent No. 1 for the surcharge is based.
Misconstruction of such a document would thus be an error of law and the High Court in second appeal would be entitled to correct it.
This is what in fact has been done.
There is no substance in the appeals which are dismissed with costs.
Appeals dismissed. | The Municipality filed two suits to claim refund of two sum of money paid by them to the respondent No. 1 under protest a, electricity charges.
The defence of the respondent No. 1 was that the dispute between it and the municipality was decided by the Government of Bombay and that under the second proviso to cl. 5 of the Surcharge Order, 1944 the decision of the Government was final and binding both on the appellant and the respondent No. 1.
The decision of the Government was communicates to the parties by the letter dated May 22, 1946.
The appellant succeeded in both the suits in the trial court as well as the District 906 Court.
In second appeal, the High Court dismissed the two units.
Hence this appeal.
Held: (i) The Municipality was not entitled to claim fund because the dispute between the parties had been decided by the Government under the second proviso to cl. 5 of the Surcharge order, 1944.
The decision of the Government was final and binding on the parties.
(ii) The communication dated May 22,1946 sent by the Govern ment to both the parties was a final decision under the second proviso to cl. 5 of the Surcharge Order, 1944.
There is no reason to think that the communication contains nothing but the opinion of the Government.
(iii) The second proviso to cl.
5 of the Surcharge Order does not require that the dispute has to be referred by both the parties.
Such a dispute can be referred by one of the parties as clear from the language of the proviso which says "in the event of dispute by any party interested" the decision of the provincial Government shall be final.
(iv) The Trial Court and the District Court had wholly mis construed the document dated May 22, 1946 which is not merely of evidentiary value but is one upon which the claim of the respondent No. 1 for the surcharge is based.
Misconstruction of such document would thus be an error of law and the High Court in second appeal would be entitled to correct it. |
vil Appeal No. 3 165 of 1991.
From the Judgment and Order dated 9.8.90 of the Rajas than High Court in W.P. No. 2009/90.
V.A. Bobde, and Mrs. Rani Chhabra for the Appellant.
504 Satish Kr.
Jain and Mrs. Pratibha Jain for the Respondents.
The Judgment of the Court was delivered by SINGH, J.
Special leave granted.
This appeal is directed against the judgment and order of the High Court of Rajasthan dated 9.8.
1990 dismissing the appellant 's writ petition made under Article 226 of the Constitution challenging the scheme for nationalisation of the route in dispute.
The appellant holds a Stage Carriage Permit for plying his vehicle on the Kota Khanpur route, which overlaps a portion of the KotaSangod route.
The Rajasthan State Road Transport Corporation, Jaipur issued a Notification on 11.10.
1979 proposing a scheme under Section 68 C of the (hereinafter referred to as the 'old Act ') for the exclusive operation of the vehicles of the State Road Transport Corporation on the Kota Sangod route.
The existing operators as well as the affected opera tors of the route filed their objections before the hearing authority appointed by the State Government of Rajasthan.
The hearing authority after considering those objections approved the scheme under Section 68 D (2) of the old Act by its order dated 30.11.
1984 and submitted the papers to the State Government for the issue of Notification under Section 68 D (3).
Before the State Government could issue Notifica tion under Section 68 1) (3) of the old Act, the appellant and other affected operators made representation to the Minister for Transport for affording them a fresh opportuni ty of hearing.
As a result of which no final Notification under Section 68 D (3) could be issued.
Meanwhile, the (hereinafter referred to as the new Act) was enforced with effect from 1.7. 1989 and the old Act was repealed.
The appellant thereupon filed a writ petition before the High Court under Article 226 of the Constitution for the issue of Mandamus restraining the State Government from issuing the final Notification, mainly on the ground that on the enforcement of the new Act, the Notification dated 11.
1979 issued under Section 68 C of the old Act had lapsed on account of delay in finalisation of the same.
A similar writ petition had been filed earlier in respect of Kishangarh Sarwad route by one Sardar Mohd. on similar grounds.
A learned single Judge of the High Court dismissed that writ petition holding that the draft scheme under the old Act was saved by the new Act and the same could legally be finalised under the provisions of the new Act.
Sardar Mohd. filed a Letters Patent Appeal against the judgment of the learned single Judge.
A 505 Division Bench of the High Court disposed of the Letters Patent Appeal of Sardar Mohd. as well as the various writ petitions including that of the appellant by a common order dated 9.8.
1990 impugned in the present appeal.
After the impugned judgment of the High Court, the State Government approved the Scheme as proposed under 68 C of the old Act.
Final notification approving this Scheme was pub lished in the Official Gazette on 29.8.1990 u/s 100(3) of the new Act, as a result of which the Kota Sangod route has become a notified route, consequently the appellant has no right to ply his vehicle on the overlapping portion of that route.
Learned counsel for the appellant urged that since there was undue delay of 11 years in issuing the final Notifica tion, the scheme as proposed under Section 68 C of the old Act should be deemed to have lapsed and the State Government had no authority or jurisdiction to finalise the same or to issue Notification under Section 100(3) of the new Act.
He placed reliance on a number of decisions of this Court in support of his contention that unreasonable delay in fina lising a scheme proposed under Section 68 C of the old Act rendered the same illegal.
He referred to the decisions of this Court in Yogeshwar Jaiswal etc.
vs State Transport Appellate Tribunal & Ors., AIR 1985 SC 5 16; Onkar Singh & Ors.
vs Regional Transport Authority, Agra & Ors., ; ; Devki Nandan vs State of Rajasthan & Ors., and Srichand vs Government of U.P., [1985] 4 SCC 169.
No doubt in these decisions the Court quashed the schemes proposed under Section 68 C of the old Act on the ground of inordinate delay for which there was no valid explanation.
In the instant case, the proposed scheme had been approved by the hearing authority under Section 68 D (2) of the old Act in 1984 within five years of the proposal of the scheme but when the matter was placed before the State Government for issue of final Notification Under Section 68 D (3) of the old Act, the appellant and other affected operators approached the Minister for Transport and stalled the issue of final Notification as a result of which delay was caused.
The appellant was himself responsible for the delay therefore he is not entitled to complain of the delay.
Moreover this Court has not ruled in the aforesaid decisions, or in any other decision that delay would auto matically render the scheme illegal.
Since under the old Act no time frame was prescribed for finalising a scheme penal consequences could not ensue.
Under the old Act a scheme proposed u/s 68 could continue to remain in force till it was quashed.
Since the scheme proposed on 11.10.1979 had not been 506 quashed by any Court, the same continued to be in force on the date of commencement of the new Act.
In the absence of any provision in the old Act rendering the scheme ineffec tive on the ground of delay, the scheme proposed u/s 68 C of the old Act could not lapse ipso facto.
Moreover, now the State Government has already issued final Notification under Section 100(3) of the new Act on 29.8.
1990, as a result of which the route has been notified.
In this view ratio of the aforesaid decisions of the Court are not applicable to the instant case at this stage.
Learned counsel for the appellant urged that under Section 100(4) of the new Act, if a draft scheme is not finalised and the final notification is not issued within one year from the date of the publication of the proposed scheme, the same would lapse.
Since in the instant case the draft scheme dated 11.10.1979 was not finalised under Sec tion 100(3) of the new Act the same had lapsed after one year from the date of the notification issued u/s 68 C of the old Act.
In order to appreciate this contention it is necessary to consider the relevant provisions of the new Act.
Chapter VI of the new Act contains special provisions relating to State Transport Undertakings.
Section 99 confers power on the State Government to propose a scheme for oper ating the vehicles of the State Transport Undertakings to the exclusion of other persons.
The proposed scheme is published in the Gazette.
Section 100 which provides for filing of the objections before the State Government and the issue of final notification, is as under: "100.
Objection to the proposal (1) on the publication of any proposal regard ing a scheme in the Official Gazette and in not less than one newspaper in the regional language circulating in the area or route which is to be covered by such proposal any person may, within thirty days from the date of its publication in the Official Gazette, file objections to it before the State Govern ment.
(2) The State Government may, after consider ing the objections and after giving an oppor tunity to the objector or his representatives and the representatives of the State Transport Undertaking to be heard in the matter, if they so desire, approve or modify such proposal.
(3) The scheme relating to the proposal as approved or 507 modified under sub section (2) shall be pub lished in the Official Gazette by the State Government making such scheme and in not less than one newspaper in the regional language circulating in the area or route covered by such scheme and the same shall thereupon become final on the date of its publication in the Official Gazette and shall be called the approved scheme and the area or route to which it relates shall be called the notified area or notified route: Provided that no such scheme which relates to any interState route shall be deemed to be an approved scheme unless it has the previous approval of the Central Government.
(4) Notwithstanding anything contained in this section, where a scheme is not published as an approved scheme under sub section (3) in the Official Gazette within a period of one year from the date of publication of the proposal regarding the scheme in the Official Gazette under sub section (1), the proposal shall be deemed to have lapsed.
Section 100 provides for filing of objections before the State Government within 30 days from the date of the publi cation of the proposed scheme in the Official Gazette.
Under sub section (2) the State Government may approve or modify the proposed scheme after considering the objections and hearing the objectors.
Under sub section (3) the State Government is required to publish the approved scheme in the Official Gazette and also in one newspaper.
On the publica tion of the approved scheme in the Official Gazette, the area or route to which it relates shall be called the noti fied area or notified route.
Sub section (4) lays down that if a scheme is not published as an approved scheme in the Gazette within one year from the date of publication of the proposed scheme in the Official Gazette, the proposed scheme shall be deemed to have lapsed.
Sub section (4) in our opinion prescribes a period of limitation during which the State Government should hear and consider the objections of the objectors and finalise the scheme and publish the same in the Official Gazette and on its failure to do so with in that period, penal consequences would ensue as a result of which the scheme itself shall stand lapsed.
The object and purpose of Section 100(4) is to avoid delay in finalising a scheme.
The Parliament was aware that under the old Act schemes were not 508 finalised for long years as a result of which public inter est suffered, therefore, it prescribed a time frame for the approval and publication of schemes.
The provisions of Section 100 are applicable to the schemes proposed under the new Act.
The question is whether it would apply to a scheme proposed under Section 68 C of the old Act.
The Legislature was conscious that a number of schemes proposed under the old Act were pending approval on the date of the commencement of the Act, it therefore made a provision for saving those schemes by enacting Section 2 17 of the Act, which is as under: "217.
Repeal and savings (1) The Motor Vehi cles Act, 1939 (4 of 1939) and any law corre sponding to that Act in force in any State immediately before the commencement of this Act in that State (hereinafter in this Section referred to as the repealed enactments) are hereby repealed.
(2) Notwithstanding the repeal by sub section (1) of the repealed enactments (a) any notification, rule, regula tion, order or notice issued, or any appoint ment or declaration made or exemption granted, or any confiscation made, or any penalty or fine imposed, any forfeiture cancellation or any other thing done, or any other action taken under the repealed enactments, and in force immediately before such commencement shall, so far as it is not inconsistent with the provisions of this Act, be deemed to have been issued, made, granted, done or taken under the corresponding provision of this Act; . . . . . . . . . . . . . (e) any scheme made under section 68 C of the (4 of 1939) or under the corresponding law, if any, in force in any State and pending immediately before the commencement of this Act shall be disposed of in accordance with the provisions of section 100 of this Act; (f) the permits issued under sub section (I A) of section 68 F of the (4 of 1939), or under 509 the corresponding provisions, if any, in force in any State immediately before the commence ment of this Act shall continue to remain in force until the approved scheme under Chapter VI of this Act is published. . . . . .
Under sub section (1) the old Act has been repealed but under subsection (2) inspite of repeal the Parliament has made provisions for saving the schemes proposed under Sec tion 68 C of the old Act.
Clause (e) of Section 217 (2) of the new Act provides that notwithstanding the repeal of the old Act a scheme proposed under Section 68 C of the old Act, if pending immediately before the commencement of the Act shall be finalised in accordance with the provisions of Section 100 of the new Act.
The Legislative intent is clear that the.
schemes proposed under Section 68 C. of the old Act pending on the date of the commencement of the new Act should not lapse instead those schemes should be finalised in accordance with the provisions of Section 100 of the new Act.
The pending schemes were therefore saved and the same were to be finalised within one year as contemplated by Section 100 (4) of the new Act.
Section 100 (4) lays down that if the proposed scheme is not finalised within one year from the date of its publication in the Official Gazette, it shall be deemed to have lapsed but that applies to a scheme proposed under the new Act and not to a scheme proposed under Section 68 C of the old Act.
If the period of one year from the date of the publication of the proposed scheme is applied to the pending schemes under Section 68 C of the old Act, the purpose and object of saving the old schemes under Clause (e) of Section 2 17 (2) of the new Act would be frustrated.
Learned counsel for the appellant urged that since Section 17(2)(e) provides for the finalisation of a pending scheme published under the old Act in accordance with the provi sions of Section 100 of the new Act, the period of limita tion of one year prescribed under sub section (4) of that section would also apply.
He further urged that since period of one year had already expired from the date of the publi cation of the scheme under Section 68 C of old Act, the scheme automatically lapsed and the same could not be final ly published under Section 100 of the Act.
If the appellant 's contention is accepted the schemes published under Section 68 C of the old Act would lapse after the expiry of the period of one year from the date of the publication of the scheme in 510 the Official Gazette in accordance with the provisions of the old Act.
On the other hand we find that Section 2 17(2)(e) permits finalisation of a scheme published under Section 68 C of the old Act if the same was pending on the date of the commencement of the new Act.
The old Act did.
not provide any period of limitation consequently a number of schemes published under Section 68 C of the old Act were pending on the date of commencement of the new Act although a period of one year had already expired.
If the Parliament intended to apply the limitation of period of one year to the pending schemes published under Section 68 C of the old Act, the new Act could have made provisions to that effect.
On the contrary Section 217(2)(e) has been enacted to save the schemes published under Section 68 C of the old Act which were pending on the date of the commencement of the Act with a further direction that the same shall be fina lised in accordance with Section 100 of the Act.
Sub section (4) of Section 100 provides that where a scheme is not published as approved under sub section (3) within period of one year from the date of publication of the proposal in the Official Gazette under sub section (1), the proposal shall be deemed to have lapsed.
A scheme published under Section 68 C of the old Act pending on the date of commencement of the Act could not be a scheme proposed under sub section (1) of Section 100, therefore, the rigour of period of one year as applicable to a scheme proposed under sub section (1) of Section 100 could not apply to a scheme under Section 68 C pending on the date of commencement of the Act.
It was not meant that a scheme u/s 68 C of the old Act pending on the date of commencement of the new Act may be approved or finalised with leisure without any time limit.
There appears to be some apparent conflict between Section 100(4) and Section 217(2)(e) of the Act.
While Section 217(2)(e) permits finalisation of a scheme in ac cordance with Section 100 of the new Act sub section (4) of Section 100 lays down that a scheme if not finalised within a period of one year shall be deemed to have lapsed.
If the appellant 's contention is accepted then Section 217(2)(e) will become nugatory and no scheme published under Section 68 C of the old Act could be finalised under the new Act.
On the other hand if the period of one year as prescribed under Section 100(4) is not computed from the date of publication of the scheme under Section 68 C of the old Act and instead the period of one year is computed from the date of com mencement of the Act both the provisions could be given full effect.
It is settled principle of interpretation that where there appears 511 to be inconsistency in two sections of the same Act, the principle of harmonious construction should be followed in avoiding a head on clash.
It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other.
The provisions of one section of stat ute cannot be used to defeat those of another unless it is impossible to reconcile the same.
In Venkataramana Devaru vs State of Mysore, AIR 1958 SC 225 at p. 268, this Court observed: "The rule of construction is well settled that when there are in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted that, if possi ble, effect should be given to both.
This is what.
is known as the rule of harmonious construction.
" The essence of harmonious construction is to give effect to both the provisions.
Bearing these principles in mind it is legitimate.
to hold that Section 100(4) prescribed period of limitation of one year in respect the scheme proposed under the provisions of the new Act, while in they case of a scheme under Section 68 C of the old Act, pending on the date of enforcement of the new Act, namely, 1.7. 1989, the period one year as prescribed under Section 100(4) should be computed from the date of commencement of the new Act.
This interpretation would give full effect to both the Sections Section 100(4) and Section 2 17(2)(e) of the new Act.
Learned counsel for the appellant placed reliance on a Division Bench decision of the Allahabad High Court in Santosh Kumar & Ors.
vs Regional Transport Authority, CMWP No. 2 1773/89, decided on 16th March, 1990.
In that case a Division Bench of Allahabad High Court held that a draft scheme under Section 68 C of the old Act published in 1986 shall be deemed to have lapsed on the date of the enforce ment of the new Act in view of the absolute prohibition contained in Section 100(43 of the new Act against the continuance of any scheme after one year.
We have gone through the judgment of the Division Bench carefully but in our opinion the view taken by the High Court of Allahabad is unsustainable in law.
The learned Judges constituting the Bench failed to notice the legislative intendment under Section 217(4)(e) of the new Act which kept alive the scheme published under Section 68 C of the old Act for the purposes of being finalised under the new Act.
We are therefore clearly of the opinion that the view taken by the Allahabad High Court is incorrect.
In the instant ease, the appellant had filed a writ petition in May, 512 1990 and obtained an interim order from the High Court restraining the State Government from publishing the final Notification under Section 100(3) of the new Act.
The State Government published the final notification under Section 100(3) of the new Act on 29.8.
1990 after the dismissal of the writ petition by the Division Bench of the High Court.
The period of one year with regard to the pending scheme expired on 1.7.1990 but since the appellant had obtained stay order from the High Court, the State Government could not publish final notification.
Explanation to Section 100(4) of the new Act lays down that in computing the period of one year any period during which the publication of the approved scheme under Section 100 is held up on account of any stay or order of any court, shall be excluded.
On the application of the Explanation the period during which the appellant had obtained stay order against the State Govern ment is liable to be excluded in computing the period of one year.
Admittedly in the instant case stay order passed by the High Court remained in force from May to 9th August, 1990.
On the exclusion of that period the final notification issued by the State Government under Section 100(3) of the new Act on 29.8.1990 was well within the prescribed period.
In view of the above discussion, we are of the opinion that the High Court rightly dismissed the appellant 's writ petition.
The appeal fails and is accordingly dismissed with costs.
V.P.R. Appeal dismissed. | The appellant held a Stage Carriage Permit for plying his vehicle on the Kota Khanpur route, which overlaps a portion of the KotaSangod route.
The State Road Transport Corporation vide Notification dated 11.10.1979 proposed a scheme under Section 68 C of the for the exclusive operation of its vehicles on the Kota Sangod route.
The affected operators of the route, including the appellant, filed their objections against the scheme before the authority appointed by the State Government which ap proved the scheme.
Before the State Government could issue the final Noti fication under Section 68 D(3) of the old Act, the appellant and other affected operators made representation to the Minister for Transport for affording them a fresh opportuni ty of hearing.
501 Meanwhile, the was enforced with effect from 1.7.1989 repealing the old Act.
The appellant, thereupon, filed a writ petition before the High Court for restraining the State Government from issuing the final Notification on the ground that on the enforcement of the new Act, the Notification dated 11.10.1979 issued under Section 68 C of the old Act had lapsed on account of delay in finalisation of the same.
A similar writ petition had been filed earlier in re spect of Kishangarh Sarwad route by one affected party, on similar grounds.
A learned Single Judge of the High Court dismissed that writ petition holding that the draft scheme under the old Act was saved by the new Act and the same could legally be finalised under the provisions of the new Act.
When he filed a Letters Patent Appeal, the Division Bench dismissed the Appeal as well as the various writ petitions including that of the appellant by a common order, against which the present appeal was made.
After the judgment of the High Court, the final notifi cation was published in the Official Gazette on 29.8.1990 section 100(3) of the new Act.
The appellant, contended before the Court that since there was undue delay of 11 years in issuing the final Notification, the scheme as proposed under Section 68 C of the old Act should be deemed to have lapsed and the State Government had no authority or jurisdiction to finalise the same or to issue Notification under Section 100(3) of the new Act; that since the draft scheme dated 11.10.1979 was not finalised under Section 100(3) of the new Act, the same had lapsed after one year from the date of the notification issued section 68 C of the old Act; and that since period of one year had already expired from the date of the publica tion of the scheme under Section 68 C of old Act, the scheme automatically lapsed and the same could not be finally published under Section 100 of the new Act.
Dismissing the appeal this Court, HELD: 1.1.
The object and purpose of Section 100(4) is to avoid delay in finalising a scheme.
The Parliament was aware that under the old Act schemes were not finalised for long years as a result of which public interest suffered, therefore, it prescribed a time frame for the approval and publication of schemes.
Sub section (4) prescribes a period of limitation during which the State Government should hear 502 and consider the objections of the objectors and finalise the scheme and publish the same in the Official Gazette and on its failure to do so within that period, penal conse quences would ensue as a result of which the scheme itself shall stand lapsed.
[507H 508A, 507F G] 1.2.
The Legislative intent is clear that the schemes proposed under Section 68 C of the old Act pending on the date of the commencement of the new Act should not lapse instead those schemes should be finalised in accordance with the provisions of Section 100 of the new Act.
The pending schemes were therefore saved and the same were to be fina lised within one year as contemplated by Section 100(4) of the new Act.
[509C D] 1.3.
Section 217(2)(e) has been enacted to save the schemes published under Section 68 C of the old Act which were pending on the date of the commencement of the Act with a further direction that the same shall be finalised in accordance with Section 100 of the Act.
[510C ] 1.4.
If the period of one year from the date of the publication of proposed scheme is applied to the pending schemes under Section 68 C of the old Act, the purpose and object of saving the old schemes under Clause (e) of Section 217(2) of the new Act would be frustrated.
[509E F] 2.1.
While Section 217(2)(e) permits finalisation of a scheme in accordance with Section 100 of the new Act, sub section (4) of Section 100 lays down that a scheme if not finalised within a period of one year shall be deemed to have lapsed.
If the period of one year as prescribed under Section 100(4) is not computed from the date of publication of the scheme under Section 68 C of the old Act and instead the period of one year is computed from the date of com mencement of the Act, both the provisions could be given full effect.
[510F H] 2.2.
While in the case of a scheme under Section 68 C of the old Act, pending on the date of enforcement of the new Act, namely, 1.7.1989, the period of one year as prescribed under Section 100(4) should be computed from the date of commencement of the new Act.
[511D E] 2.3.
The appellant was himself responsible for the delay therefore he is not entitled to complain for the delay.
Delay would not automatically render the scheme illegal.
[500G] 2.4.
Since under the old Act no time frame was pre scribed for finalising a scheme penal consequences could not ensue.
Under the old 503 Act a scheme proposed section 68 could continue to remain in force till it was quashed.
[505G H] 2.5.
Since the scheme proposed on 11.10.1979 had not been quashed by any Court, the same continued to be in force on the date of commencement of the new Act.
In the absence of any provision in the old Act rendering the scheme inef fective on the ground of delay, the scheme proposed section 68 C of the old Act could not lapse ipso facto.
[505H 506A] 2.6.
In the instant case stay order passed by the High Court remained in force from May to 9th August, 1990.
On the exclusion of that period the final Notification issued by the State Government under Section 100(3) of the new Act on 29.8.1990 was well within the prescribed period.
[512C D] Yogeshwar Jaiswal etc.
vs State Transport Appellate Tribunal & Ors., AIR 1985 SC 516; Onkar Singh & Ors.
vs Regional Transport Authority, Agra & Ors., ; ; Devki Nandan vs State of Rajasthan & Ors., and Srichand vs Government of U.P., [1985] 4 SCC 169, distinguished.
Santosh Kumar & Ors.
vs Regional Transport Authority, CMWP No. 21773/89, decided on 16th March, 1990, over ruled.
Where there appears to be inconsistency in two sec tions of the same Act, the principle of harmonious construc tion should be followed in avoiding a head on clash.
It should not be lightly assumed that what the Parliament has given with one hand, it took away with the other.
The provi sions of one section of statute cannot be used to defeat those of another unless it is impossible to reconcile the same.
The essence of harmonious construction is to give effect to both the provisions.
Venkataramana Devaru vs State of Mysore, AIR 1958 'SC 225 at p. 268. Followed. |
vil Appeal No. 2 145 of 1988.
From the Judgment and Order dated 3.5.
1988 of the Allahabad High COurt in C.M.W.P. No. 13143 of 1985 Avadh Behari Rohatgi section Markandeya, G. Seshagiri Rao and Ms. C. Markandeya for the appellant.
Ms., Shobha Dikshit, Pankaj Kalra, Ejaz Maqbool, Dileep Tandon, J.M. Khanna and S.K. Jain for the Respondents.
The following Order of the COurt was delivered: This appeal by special leave is against the order of the Allahabad High Court.
The subject matter of dispUte is in regard to 11 lady teachers of Saghir Fatima Mohammadia Girls Inter College, Agra.
This is claimed to be a minority insti tution but fully financed from the State resources.
By interlocutory orders made from time to time the real litigative part of has already been attended to,.
We would refer to our order of 2nd May, 1991 where this court ob served "We are happy to find that pursuant to our order made earlier in this case Smt.
Kamla 561 Mehra, Smt.
Saran Kumari Gaur and Swaliha Begum have been given postings and they have already reported to duty.
So far as petitioners Km.
Asifa Rizvi, Km.
Sayyada Rizwani and Shafiqa Begum are concerned, Ms. Dikshit points out that though there is some possibility of adjusting them in other institutions it is a time taking process inasmuch as under the scheme government have no power to impose teachers from out side on the administration of the institutions.
We think it appropriate in the interest;of justice to require the Director of Secondary Education to require such of the colleges where appropriate vacancies are available to adjust these three teachers.
To so adjust them the institu tions shall take our present order as a direction to adjust them and as and when called by the Director of Secondary Education it shall be implemented.
Failure to comply shall be teated as violation of our direction.
So far as Smt.
Sudha Dixit is concerned, we gather from the representation made at the Bar ' that a vacancy in the spe ciality is about to arise in the coming month.
If that be so, Ms. Dikshit has agreed to see that she is so posted.
As far as two remaining teachers are concerned, they do not agree to go out of the institution and Ms. Dikshit points out that in their subjects there is no vacancy.
In these circumstances, they have choice to wait indefinitely till vacancy occurs without.claiming salary till employment.
If this is not acceptable to them the order of termination already made shall be taken as final and conclusive and their petition shall standdismissed.
" We are told that the vacancy which was contemplated in regard to Smt.
Sudha Dixit has not worked out for her.
She had been offered a posting in Mathura, away from.
the insti tution where she had been working and she did not choose to go there.
Mr. Markandeya appearing for her, however, does not agree with this statement made by others and says that she volunteered to go but was informed that the institution had not taken a decision to keep her and she was.
to be intimated as and when a decision was taken.
No intimation has been received by her as yet.
Out of the two remaining teachers referred to in our order dated 2nd May, 1991, it appears that one has already been absorbed in Aligarh and the.
remaining teacher, Khaliq Jahan, is holding a lower post for the time being and Ms. Dikshit has told us that she has already 562 suggested to the Government that as and when a vacancy arises she should be accommodated in a post according to her entitlement So far as Smt.
Sudha Dixit is concerned, we think 'a situation has now arisen where the Director must implement our order.
We had clothed him with adequate powers by our order of 2nd May, 199 1 and he must under that authority 'proceed to enforce his order.
The Director should provide employment to Smt.
Sudha Dixit in terms of the assignment made and the institution where she has been directed to join should accept the teacher.
Beyond that we do not intend to say anything at this stage.
This leaves the only, remaining question to be dealt.
with, i.e., as to how the period during which the seven of the teachers who have been absorbed in that very institution should be dealt with.
It is said that during this gap period of seven years another set of teachers had been working who are represented before us by Mr. Kalra in these proceedings, It is the submission of the appellants that the seven teach ers who are substituted did not possess the requisite quali fication and reliance is placed on Section 16(FF) of the Act to support the submission that they are not entitled to salary for the work done.
SimultaneouSly the seven ' teachers have contended through their counsel that they had been visiting the institution everyday and had been leaving their attendance with the appropriate authority, therefore, they should be entitled to salary.
This is not a proceeding in ,which we have to decide who has to be paid the salary.
But as things stand one set of teachers have actually worked while the other set for reasons which are germane to appropriate management has not, We are told that teachers had gone on strike and when they were called back to duty a group of teachers including the seven did not return within time and that led to appointment of alternate teachers.
We must point out that this again is not an appropriate matter to be decided by us.
We are, however, satisfied from the material placed before us that the 11 teachers who are represented by Mr. Kalra did work during the period.
It may not be appropriate, to hold that they are not entitled to remuneration for the work done.
The institution had admittedly not received any benefit.of service during the relevant period from the seven teachers on the appellants ' side.
On the principle that when work is not done remuneration is not to be paid, we dispose of the present appeal without giving any direction for payment to them.
If they are entitled to salary, it is open to them to take appropriate proceeding to claim the same, 563 We do not finally close their claim against the ' State of the institution.
But so far as teachers represented by Mr. Kalra are concerned, if they have not been paid, they should be disbursed the salary due to them.
There is some contest as to whether they are qualified or not.
On the basis of the facts on record we are of the view that they appear to be qualified and that question should not be reopened.
We draw support for our view for non payment to the appellants from our ' interim order of 7th February, 1990.
In regard to two teachers who were prepared to wait to take their chance, we indicated that they would not be paid any remuneration.
Seven teachers who have now been provided jobs under our orders and those who were waiting to take their chance should be equated for the common period of no work.
We, are, however, of the view that seven teachers who have got employment should be given their seniority for the period they were out of employment.
We accordingly require the Director of Public, Instruction to take our order into account and given them credit for seniority for the period they were out of employment on the deemed situation that they had worked, Our doing so, we again repeat, would not entitle them to salary unless they are otherwise entitled to.
This disposes of the appeal.
We are sorry that we entertained an appeal of this type by special leave and got dragged into a dispute which should not have been brought upto this court.
G.N. Appeal disposed of. | The appellants, teachers in a minority institution fully financed by State, went on a strike and when they were called hack to duty, they did not return within time, lead ing to appointment of alternate teachers.
They approached the High Court for their absorption.
The High Court having dismissed the matter, the aggrieved teachers have preferred the present appeal by special leave.
By interim orders, this Court has already directed the absorption of the teachers in different institutions.
Seven teachers have been absorbed in the very same institution.
It was contended on behalf of the seven teachers that they should be paid salary for the period of gap before their absorption and that their senior ity should be maintained.
The alternate teachers who worked in the interregunum contended that they should be paid salary for the period they worked.
Disposing the appeal, this Court, HELD 1.
One set of teachers have actually worked while the other set has not.
The teachers had gone on strike and when they were called hack to duty a group of teachers including the seven did not return within time and that.
led to appointment of alternate teachers.
It is clear from the material on record that the alternate teachers did work during the period.
It may not be appropriate to hold that they are not entitled to remuneration for the work done.
However, the institution has admittedly not received any benefit of service during the relevant period from the other set viz. the seven teachers who were absorbed later.
On the principle that.
when work is not done remuneration is not to be paid, no direction is given for payment.
If they are entitled to salary, it is open to them to take appropriate proceeding to claim the same.
It does not 560 finally close their clam against the State or the institu tion.
The alternate teachers who have worked and if they have not been paid, they should be disbursed the salary due to them.
Then iS some contest as to whether they are quali fied or not.
On the basis of the facts on record the teach ers appear to be qualified and that question should not be reopened.
In regard to two teachers Who were prepared to walt to take their chance, they would not be paid any remu neration.
Seven teachers who have now been provided jobs under the orders of this Court and those who were waiting to take their Chance should be equated for the common period of no Work [562F H, 563A C] 2.
However, the seven teachers who have got absorption should be given their seniority for the period they were out of employment.
The Director of Public Instruction is re quired to take this order into account and given them credit for seniority for the period they were out of employment on the deemed situation.
that they had worked.
This would not entitle them to salary unless they are otherwise entitled to the same.
[563D] |
vil Appeal No. 1106 (NT) of 1976.
From the Judgment and Order dated 22nd/23rd January 1976 of the Gujarat High Court in Income Tax Ref.
No. 122 of 1974.
Joseph Vellappilly, K.J. John and Ms. Deepa Dikshit for the Appellant.
S.C. Manchanda, Ranvir Chandra and Ms. A. Subhashini for the Respondent.
J. The appellant/Company, hereinafter referred to as the assessee, carries on.
the business of manufacture and sale of art silk cloth.
In the year 1957, it purchased machinery worth Rs.2,81,741 and gave it on hire to M/s. Jasmine Mills Pvt. Ltd., Bombay at an annual rent of Rs.33,900.
On August 11, 1966, a fire broke out in the premises of M/s. Jasmine Mills causing extensive damage tO the machinery installed in their premises including the machinery hired by them from the assessee.
The machinery belonging to the assessee became useless for any, further use on account of the damage.
M/s. Jasmine Mills had insured along with its own machinery, the assessee 's machinery as well, and on a settlement of the insurance claim, M/s. Jasmine Mills received a certain amount out of which it paid a sum of Rs.6,32,533 to the assessee on account of the destruction of its machinery.
The difference between the actual cost of the machinery and its written down value worked out to Rs.2,62,781.
The assessee in its income tax return for the assessment year 1967 68 (relevant accounting year being 'the year ending on 31st August, 1966) showed the said amount as profit chargeable to tax under Section 41(2) of the Income Tax Act (hereinafter referred to as the "Act") The IncomeTax Officer, however, subjected to tax also the additional amount of Rs.3,50,792 being the difference be tween the amount of Rs.6,32,533 received on account of the insurance claim and the original 'cost of the machinery, i.e., Rs.2,81,741, treating the same as capital gains chargeable under Section 45 of the Act.
The contention ad vanced by the assessee that the capital gains tax was not attracted to the amount received on account of the insurance claim since there was no transfer.
582 of capital asset as was contemplated by Section 45 read with Section 2(47) of the Act, was negatived by the Income Tax Officer.
The assessee appealed against the order to the Appellate Assistant Commissioner who also negatived the said conten tion of the appellant and" dismissed the appeal.
The asses see 's contention was, however; upheld in the appeal before the Income Tax Appellate Tribunal, the Tribunal holding that: the amount was not received on account of a transfer of the capital asset but on account of the damage to it and that.
Section 45 was attracted only when there was a trans fer of the capital asset.
Being aggrieved, the Revenue applied for reference of the case to the High Court on the,following two questions: (i) whether on the facts and in the circum stances of the case the transfer was justified in law in holding that there Was no transfer of capital asset by the assessee within the meaning Of Section 2(47) of the Act? (ii) whether on the facts and in the circum stances of the case the sum of Rs.3,50,792 being the excess of the cost of the machinery received from M/s. Jasmine Mills Pvt. Ltd. was chargeable to tax as Capital gains under Section 45 of the Act? The High Court answered the first question in the negative, and consequently the second question in the affirmative.
i.e., both questions in favour of the Revenue and against the assessee.
This appeal has been filed by the assessee on a certifi cate granted by the.
High Court.
The short question that falls for our 'consideration is whether the money received towards the insurance claim on account of the damage to or destruction of the capital asset is so received on account of the transfer of the asset within the meaning of Section 45 of the Act and is.
, there fore, chargeable to the capital gains tax under the 'said section.
It would be convenient to reproduce here the provisions of Section 45 of the Act as they stood at the relevant time: "45.
Capital gains Any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in sections 53 and 54, be chargeable to income tax under the head 'capital gains ', and shall 583 be deemed to be the income of the previous year in which the transfer took place".
Emphasis supplied, Section 2(47) of the Act which defined transfer at the relevant time read ' as fol lows: "2.
Definitions In this Act, unless the context otherwise requires,. . . . . (47) 'transfer ', in relation to a capital asset, includes the, sale, exchange or relin quishment of the asset or the extinguishment of any rights therein or the compulsory acqui sition thereof under any law.
" A reading of the two sections makes it abundantly clear that the profits or gains which are amenable to Section 45 must arise from the transfer of the capital asset which is effected in the previous year.
The transfer may be brought about by any of the modes of transfer which include ,sale, exchange, relinquishment of the asset or the extinguishment of 'the rights therein, or the compulsory acquisition of the asset under any law.
It may be 'of the asset itself or of any rights in it.
It may further be the result of a volun tary act or a compulsory operation.
Whatever the mode by which it is brought about, the existence of the asset during the process of transfer is a pre condition.
Unless the asset exists in fact, there cannot be a transfer of it.
When an asset is destroyed there is no question of transferring it to others The destruction or loss of the asset, no doubt, brings about the destruction of the right of the owner or possessor of the asset, in it.
But it is nOt On account of transfer.
It is on account of the disappear ance of the asset.
The extinguishment of right in the asset on account of extinguishment of the asset.
itself is not a transfer of the right but its destruction.
By no stretch of imagination, the destruction of the right on account of the destruction of the asset can be equated with ' the extin guishment of right on account of its transfer.
Section 45 speaks about capital, gains arising out of "transfer" of asset and not on account of "extinguishment of right".
by itself.
The capital gains is attracted by transfer and not merely by extinguishment of right howsoever brought about.
The transfer may be effected by various modes and one of the modes is the extinguishment of right on transfer of the asset itself for on account of the transfer of the right or rights in 584 The extinguishment of right or rights must in any case be on account of its or their transfer in order to attract the provisions of Section 45.
If is not, and is on ' account of the destruction or loss of the asset, as in the present case, it is not a transfer and does not attract the provi sions of Section 45 which relate to.
transfer and not1 to mere extinguishment of right but to one by transfer.
Hence an extinguishment of right not brought about by transfer is outside the purview of Section 45.
The High Court erred in ignoring the basic postulate that Section 45 does not relate to extinguishment of right but to transfer.
Having concentrated its attention on the words "extinguishment of right" rather than on "transfer", the High Court, with respect, misdirected itself and proceeded on the basis that every extinguishment of right whether by way of transfer or not, is attracted by Section 45. 5.
Transfer presumes both the existence of the asset and of the transferee to whom it is transferred.
In the case of the damage, partial or complete, or destruction or loss of the property, there is no transfer of it in favour of a third party.
The money received under the insurance policy in such cases is by way of indemnity or compensation for the damage, loss or destruction of the property.
It is not in consideration of the transfer of the property or the trans fer of any right in it in favour of the insurance company.
It is by virtue of the contract of insurance or of indemni ty, and in terms of the conditions of the contract.
Under an insurance contract,, the assured cannot claim more amount than the sum insured.
The sum insured is the maximum liabil ity of the insurer and the assured secures it by paying his premium which is accordingly fixed. 'Even within ' the. maximum limit, the insured cannot recover more than What he establishes to be his actual loss, whatever may be his estimates of the loss that he was likely to bear and whatev er the premium he may have paid calculated on the basis of the said estimate.
The fact that while paying for the total loss of or damage to the property, the insurance company takes over such property or whatever is left of it, does not change the nature of the insurance claim which is indemnity or compen sation for the loss.
The payment of insurance claim is not in consideration of the property taken over by the insurance company, for one is not consideration for the other.
It is incOrrect ' to argue that the insurance claim is the value of the damaged property The claim is assessed on the basis of the damage sustained by the property or the amount necessary to restore it to its original condition.
It is not a consid eration for the damaged property.
In the present case, the insurance was on reinstatement.
basis which meant that the 585 property was to be restored to the Condition in which it was, before the fire.
The insurance company paid the amount for the restoration of the 'machinery which had to be on the basis of its value at the time of the fire.
The machinery in question was purchased in the year 1957 and the fire broke out.
on August 11, 1966.
Although nothing has come On record on the point, taking into consideration the 'ordinary course of events, it is legitimate to presume that the cost of machinery had gone up during the intervening period and the assured and, therefore, the assessee, was entitled to recov er on the basis of the increased value of the machinery (refer to Halsbury 's Laws of England, Fourth edition, Vol. 25 under the heading insurance, in para 654). ' 6.
It is true that the definition of "transfer" in Section 2(47) of the Act is inclusive, and therefore, ex tends to events and transactions which may not otherwise be "transfer" according to its ordinary, popular and natural sense.
It is this aspect of the definition which has weighed with the High Court and, therefore '; the 'High Court has argued that if the ' words "extinguishment of any rights therein" are substituted for the 'word "transfer" in Section 45, the claim or compensation received from the insurance company would be attracted by the said section.
The High Court has, however, missed the fact that the definition also mentions such transactions as sale, exchange etc.
to which the word "transfer" would properly apply ' in its popular and natural import.
Since those associated ' words and expres sions imply the existence of the asset and of the transfer ee, according to the rule of noscitur a sociis, the expres sion ' 'extinguishment of any rights therein" would take colour from the said associated words and expressions, and will have to be restricted t6 the sense analogous to them.
If the legislature intended to extend the definition to any extinguishment of right, it would not have included the obvious instances of transfer, viz., sale, exchange etc.
, Hence the expression "extinguishment of any rights therein".
will have to be confined to the 'extinguishment of rights on account of transfer and cannot be extended 'to mean any extinguishment of right independent of or otherwise than on account of transfer.
The High Court, as stated earlier, read the expres sion "extinguishment of any rights" in the assets as any extinguishment of right whether it resulted in or was on account of transfer.
For the reasons which we have discussed earlier we find that approach is not correct.
For the same reasons, we are unable to accept the reasoning of the High Court that for "transfer" within the meaning of Section 45 the asset need not exist.
We are afraid that the High Court 's reliance on Commissioner of Income Tax vs R.M. Amin, 586 Gujarat to hold that for the. transfer contemplated by Section 45, the asset need not exist is not well merited.
There, the High Court was concerned with a chose in action, viz., the shares, and the amount received by the assessee shareholder on liquidation of the company representing his share in the assets of the company.
The Court there had pointed out that the extinguishment of right of the asses seeshareholder in his share which was an incorporeal proper ty had come about on account of receipt by ' him of the amount representing the value of the shares.
The amount received by the assessee shareholder does not represent any consideration received by him as a result of the extinguishment of his rights in 'the shares.
The share merely represents the right to receive money on distribution of the net assets of the company in liquidation and it is by satisfaction of that right, that the right is extinguished when such monies are received by the shareholder.
The con sideration presumes quid pro quo and, therefore, transfer of the property or.
of the rights in the property, whether the property is corporeal or incorporeal.
When the assets, themselves are being distributed, it is correct,to say that to the extent of distribution, they are wiped out.
It is in that sense that the assets do not exist to the extent that they are distributed.
When the company 's assets are thus distributed, is a sense the assets which are converted into money and which, therefore, exist in the form of money are transferred from the liquidator to the share holder.
His rights in the assets come to an end when he receives his liquidated share of the asset.
In such a case the assets do exist though in the converted form, viz., cash and what is transferred is also the converted form of the asset.
With respect, therefore,"it is not correct to say that in such cases the capital asset does not exist and does not change hand as capital asset.
That the receipt of his share in the asset brings about automatically the extin guishment of the shareholder 's rights in the asset cannot, however, be gainsaid.
The decision of the Gujarat High Court in R.M. Amin 's case (supra) was appealed against and this Court while approving ' the ratio of the said decision fur ther explained the nature of the 'money received by a share holder on the ' liquidation of a company.
This Court reiter ating its earlier view in the case of Commissioner Of In come tax vs Madurai Mills Co. Ltd., , held that the act of the liquidator in distributing the assets of the company does not result in the creation of new rights.
It merely recognises the legal rights which were in exist ence prior to the distribution.
The shareholder receives money in recognition and satisfaction of his 587 right and not by operation of any transaction which amounts to sale, exchange, relinquishment of asset or extinguishment of any of his rights in such asset.
So also when a partner retires from the partnership what he receives is his share in the partnership which is worked out and realised.
It does not represent consideration received ' by 'him as a result of the extinguishment of his interest in the partnership assets.
He has no share in any particular asset of the firm.
Therefore, there is no trans fer of interest in any particular asset of the firm on account of the receipt of his share by a retired partner.
As held in Commissioner of Income tax vs Mohanbhai Pamabhai, no part of the amount received by the assessee as a retired partner is assessable to capi tal gains tax under Section 45. 9.
The High Court has explained these two decisions by giving.
reasons which do not appeal to us.
The COurt has tried to distinguish them from the facts of the present Case pointing out, firstly, t, hat there was no foundation either in law or in fact to believe that the amount which the assessee received from M/s. Jasmine 'Mills was paid to it in satisfaction or in working out of its right, if any, to recover damages under law or contract for the loss or dam age ' caused ' to the machinery.
We do not see any difficulty in holding that it was an amount received by the assessee as damages on account of the loss of its machinery.
It is difficult to describe it otherwise.
The second reason given by the High Court is, with 'respect, equally fragile.
It is held that the alleged right, if any, of the assessee t9 recover damages was not an absolute statutory right but one which was subject to a contract to the contrary and even if there was no such contract, it was merely an inchoate or contingent right in respect of which some investigation or legal proceeding and settlement or adjudication would be necessary for its ' satisfaction or fulfilment.
We do not agree with this reasoning as well.
The facts clearly show that M/s. Jasmine Mills as a bailee had insured the machin ery hired from the assessee, since it was liable to make good the loss of the machinery to the assessee.
This is implied under a contract of bailment unless it is provided to the contrary.
M/s. jasmine Mills further admittedly paid the insurance amount pro rata to the assessee.
In the cir cumstances, we are unable to appreciate the distinction sought to be made by the High Court.
We are also unable to see how it would make any difference to the point involved in the present case whether the Jasmine Mills had insured the assessee 's machinery as bailees or as agents of the assessee.
588 There is further no dispute that the insurance policy con tained the reinstatement clause requiring the in surer to pay the cost of the machinery as on the date of the fire.
As we have pointed out earlier, in an insurance policy with the reinstatement clause, the insurer is bound to pay the cost of the insured property as on the date of the destruction or loss, and it matters very little if the amount so paid by the insurance company is invested for purchasing the de stroyed asset or for any other purpose.
In the circumstances, for the purposes of answering the question in hand, it was not necessary to inquire whether the amount received by the assessee was spent in replacement of the machinery or not.
For the reasons given above, the decision of,the Allahabad High Court in Commissioner of Income tax vs J.K. Cotton Spinning& Weaving Mills Co. Ltd., which proceeds on the same reasoning as the impugned judg ment is also not a good law.
InStead, we approve of the conclusion reached by the Madras High Court in C. Leo Macho do vs Commissioner of Income tax, for the reasons given by us above; 12.
In the result, the ' appeal succeeds and the impugned decision is set aside.
In the circumstances of the case, however, there will be no order as to costs.
R.P, Appeal al lowed. | The appellant company purchased machinery worth Rs.2,81,741 in the year 1957 and gave it on hire to another company which insured the machinery.
In the year 1966, a fire broke out in the lendee company causing extensive damage to the machinery of the appellant.
On a settlement of the insurance claim the lendee company paid to the appellant a sum of Rs.6,32,533 on account of the destruction of its machinery.
The difference between the actual cost of the machinery and its written down value worked out to Rs.2,62,781 which the appellant (the asses I see) showed in its income tax return for the relevant year as profit chargeable to tax under section 41(2) of the Income Tax Act.
The lncomeTax Officer subjected to tax also the additional amount of Rs.3,50,792 the difference between the amount of insurance claim and the original cost of the machinery treating the same as capital gains chargeable under section 45 of the Act, and rejected the case of the appellant that the capital gains tax was not attracted to the amount received on account of the insurance claim since there was no transfer of capital asset as was contemplated by section 45 read with section 2(47) of the Act.
The appeal of the assessee was dismissed by the Appel late Assistant Commissioner, but its claim was accepted by the Income Tax Appellate Tribunal which held that the amount was not received on account of transfer of the capital asset but on account of damage to it and that section 45 was attracted only when there was a transfer of the capital asset.
The reference at the instance of the revenue was an swered by the High Court against the assessee.
Aggrieved the assessee filed the appeal before this Court on a certificate granted by the High Court.
On the question: whether the money received towards the insurance claim on account of the damage to. or destruction of the capital 578 asset was so received on account of the transfer of the asset within the meaning of section 45 of the Act and was, there fore, chargeable to the capital gains tax under the said section, Allowing the appeal, this Court, HELD: 1.1 The money received under the insurance policy is by way of indemnity or compensation for the damage, loss or destruction of the property.
It is not in consideration of the transfer of the property for the transfer of any right in it in favour of the insurance company.
It as by virtue of the contract of insurance or of indemnity, and in terms of the conditions of the contract.
[584C D] 1.2 In the case of damage, partial or complete, or destruction for loss of property there is no transfer of it in favour of a third party.
The fact that while paying for the total loss of or damage to the property, the insurance company takes over such property or whatever is left of it, does not change the nature of the insurance claim which is indemnity or compensation for the loss.
The payment of insurance claim is not in consideration of the property taken over by the insurance company, for.
one is not consid eration for the other.
The insurance claim is not the value of the damaged property.
The claim is assessed on the basis of the damage sustained by the property or the amount neces sary to restore it to its original conditions.
It is not a consideration for the damaged property.
[584C, F G] 1.3 In the instant case, the amount received by the assessee was the one received by it as damages on account of the loss of its machinery.
The lendee company, as a bailee, had insured the machinery hired from the assessee, since it was liable to make good the loss of the machinery to the assessee.
This was implied under a contract of bailment unless it was provided to the contrary.
The lendee company paid the insurance amount pro rata to the assessee.
[587D G] 1.4 The insurance was on reinstatement basis which meant that the property was to be restored to the condition in which it was, before the fire.
The insurance company paid the amount for the restoration of the machinery which had to be on the basis of its value at the time of the fire.
The machinery in question was purchased in the year 1957 and the fire broke ' out on.
August 11, 1966.
Taking into considera tion the ordinary course of events, it was legitimate to presume that the cast of machinery had gone up during the intervening period and the assured and, therefore, the assessee, was entitled to recover on the basis of the 579 increased value of the machinery.
[584H; 585A B] Halsbury 's Laws,of England, Fourth Edition, Vol.
25, re ferred to.
2.1 The capital gains is attracted by transfer and not merely by extinguishment of right howsoever brought about.
The transfer may be effected by various modes and one of the modes is the extinguishment of right on transfer of the asset itself or on account of the transfer of the right or rights in it.
The extinguishment of right or rights must in any case be on account of its or their transfer in order to attract the provisions of Section 45 which speaks about capital gains arising out of "transfer" of asset and not on account of "extinguishment of right" by itself.
[583G H; 584A] If extinguishment of right or rights is not due to transfer and is on account of the destruction or loss of the asset, it is not a transfer and does not attract the provi sions of section 45 which relate to transfer and not to mere extinguishment of right but to one by transfer.
Hence an extinguishment of right not brought about by transfer is outside the purview ors.
[584A B] Whatever the mode by which a transfer is brought about, the existence of the asset during the process of transfer is a pre condition.
Unless the asset exists in fact, there cannot be a transfer of it.
[583E] Transfer presumes both the existence of the asset and of the transferee to whom it is transferred.
[584C] 2.2 When an asset is destroyed there is no question of transferring it to others.
The destruction or loss of the asset, no doubt, brings.
about the destruction of the right of the owner or possessor of the asset, in it.
But it is not on account of transfer.
It is on account of the disappear ance of the asset.
The extinguishment of right in the asset on account of extinguishment of asset itself is not a trans fer of the right but its destruction.
By no stretch of imagination, the destruction of the right on account of the destruction of the asset can be equated with the extinguish ment of right on account of its transfer.
[583E G] 3.1 Although the definition of "transfer" in Section 2(47) of the Act is inclusive, and, therefore, extends to events and transactions which may not otherwise be "trans fer" according to its ordinary, popular and natural sense, yet it also mentions such transactions as 580 sale, exchange etc.
to which the word "transfer" would properly apply in its popular and natural import.
Since those associated words and expressions imply the existence of the asset and of the transferee, according to the rule of noscitur a sociis, the expression "extinguishment of any rights therein" would take colour from the said associated words and expressions, and will have to be restricted to the sense analogous to them.
[585C E] If the legislature intended to extend the definition to any extinguishment of right, it would not have included the obvious instances of transfer, viz. sale, exchange etc.
Hence the expression "extinguishment of any rights therein" will have to be confined to the extinguishment of rights on account of transfer and cannot be extended to mean any extinguishment of right independent of or otherwise than on account of transfer.
[585E F] 3.2 The High Court, was not correct in reading the expression " 'extinguishment of any rights" in the assets as any extinguishment of right whether it resulted in or was on account of transfer nor was it right in assuming that for "transfer" within the meaning of Section 45 the asset need not exist.
It erred in ignoring the basic postulate that Section 45 does not relate to extinguishment of right but to transfer.
Having concentrated its attention on the words "extinguishment of right" rather than on "transfer", the High Court, misdirected itself and proceeded on the basis that every extinguishment of right whether by way of trans fer or not, is attracted by Section 45.
[585F G; 584B] Commissioner of Income Tax vs Madurai Mills Co. Ltd., and Commissioner of Income Tax vs Mohanbhai Pamabhai, , referred to.
Whether the lendee company had insured assessee 's machinery as bailees or as agents of the assessee would make no difference.
The insurance policy contained the ' rein statement clause requiring the insurer to pay the cost of the machinery as on the date of the fire.
[587G H; 588A] 5.
In an insurance policy with the reinstatement clause, the insurer is bound to pay the cost of the insured property as on the date of destruction of loss, and it matters very little if the amount so paid by the insurance company is invested for purchasing the destroyed asset or for any other purpose.
[588A B] C. Leo Macho do vs Commissioner of Income Tax, , approved.
581 Income tax Commissioner vs
J.K. Cotton Spinning & Weaving Mills Co. Ltd., , disapproved. |
: Criminal Appeal No. 7 of 1979.
From the Judgment and Order dated 13.2.1978 of the Andhra Pradesh High Court in Criminal Appeal No. 812 of 1976 and 807 of 1977.
K. MadhaVa Reddy, TVSN.Chari, Narashima P.V.P.L. and Ms. M. Gupta for the Appellant.
R.K. Garg, T. Rama Mohan Raj, N.M. popli and V.J. Fran cis for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Ram Subba Reddy, an advocate, politician ' (an ex MLA) cum trade unionist was done to death when he was sleeping on the terrace of his house in Proddatur, District Cuddapah, on the night 'between 14th and 15th April, 1975.
The incident in question occurred at about 3.30 a.m. in which, apart from the deceased Ram Subba Reddy having re ceived fatal blows by lethal weapons, his daughter PW 1 Krishnaveni, aged about 24 years, received injuries when she attempted to 'go to help her father.
As many as 19 persons were put up for trial before the learned Additional Sessions Judge, Cuddapah on different charges.
Original accused Nos. 1 and 7 to 19 were charged for criminal conspiracy under section 120B; original accused Nos. 1 to 6, 12 and 13 were charged for rioting with deadly weapons under section 148; original accused No. 16 was charged under section 147 along with original accused Nos.
1 to 6, 12 and 13; original accused Nos. 1 to 6, 12 and 13 were also charged for murder under section 302; the said accused alongwith original accused No. 16 were also charged under section 302/149; original accused No. 5 was charged under section 324 and he as well as original accused Nos. 1 to 604 4, 6, 12, 13 and 16 were charged under Section 324/149, I.P.C. To bring home the charges against them the prosecu tion mainly relied on the testimony of PW 1 Krishnaveni, PW 2 Venkata Subbamma, widow of the deceased, PW 3, Venkat Rami Reddy and PW 4 Kasireddy sambasiva Reddy, both of whom it is claimed were sleeping on the ground floor of the house of the deceased and PW 5 Annapu Reddy Venkata Subba Reddy, a neighbour who arrived at the scene of incident on hearing the commotion and who at the instance of PW 1 lodged the FIR Exh.
P 56 at about 4.30 a.m.
The learned Additional Sessions Judge accepted the evidence of PWs 1, 2, 3 and 5, PW 4 having turned hostile, and convicted original accused Nos. 1 and 3 under section 148 and section 302 and 324 with the aid of section 149, I.P.C. and original accused ' No. 5 under sections 148, 302 and 324, I.P.C., substantively.
All the three of them were sentenced to life imprisonment for mur dering Ram Subba Reddy and to rigorous imprisionment for 3 years under section 148, I.P.C. No separate sentence was imposed for causing injuries to PW 1.
The rest were acquit ted of all the charges levelled against them.
No appeal was preferred to the High Court against their acquittal but the three convicted accused preferred an appeal to the High Court challenging their conviction while the State appealed for enhancement of the sentence of accused No. 1 from life imprisonment to capital punishment.
The High Court doubted the testimony of PWs 1, 2, 3 and 5 and their capacity to identify the assailants and, therefore, acquitted them of all the charges levelled against them.
Consequently the State 's appeal for enhancement of accused No. 1 's sentence also failed.
While the State has preferred this appeal against the order of acquittal or ' original accused Nos. 1, 3 and 5, no appeal has been preferred against the dismissal of he State 's appeal for enhancement of the accused No. 1 's sentence.
A few facts leading to this appeal may be noticed.
The deceased was a practising lawyer and a congressman.
He was member of the Legislative Assembly during the 1967 ,1972 term.
He had his own house in which he resided.
AcCused No. 1, a medical practitioner, was a trade union activist be longing to the Communist party of India (Marxist Leninist group) and weilded considerable influence among the working classes.
Accused No. 2 was a lower division clerk in the judicial department, District Cuddapah, but was on cave at the material time.
He was a close associate of accused No. 1.
Accused Nos. 3 and 5 were employees of Andhra Cotton Mills, Proddatur, while accused Nos. 4 and 6 were employees of International Packaging Company, Proddatur, and took part in trade union activities.
In the first quarter of 1974 the workers of the International Packaging Com .
605 pany had served the management with a charter of demands and accused No. 1, who was the President of the Union had served the management with a strike notice on the ' failure of the negotiations which the management countered by declaring a lock out.
Thereafter PW 21 Jutura Ramaniah partner of the company was assaulted on the night of March 30, 1974 for which a case was registered against accused No. 1 and his companions.
The deceased who was a lawyer for the company is stated to have advised accused No. 1 not to resort to vio lence for settlement of such industrial disputes.
As the deceased was representing the company the relations between the deceased and accused No. 1 which were cordial were soured and the latter stopped visiting the former.
In the month of November 1974, on the advise of the deceased, the management brought workers from Bangalore and started the factory.
However the workers ' union could prevail upon those workers not to report for.
work and the unit again same to a standstill within about ten days of commencement.
The dis pute was referred to the arbitration Of three persons but they could not resolve it on account of the uncompromising attitude of the workers led by accused No. 1.
While this unrest continued trouble started brewing with the transport workers union of which accused No. 1 was the President striking work.
Here too the management was repre sented by the deceased.
The atmosphere in the township was surcharged and tense.
With the intervention of the State Minister the dispute between the transport workers and the owners was settled but so far as the International PaCkaging Company is concerned its employees did not participate in the meeting called by the Minister.
A warrant for the deten tion of accused NO. 1 under MISA was issued on February 14, 1975 but the same could not be executed as he went under ground.
On the advice of the Minister the management unilat erally opened the factory w.e.f. March 19, 1975.
The de ceased had throughout taken a very active interest in ensur ing the starting of the factory notwithstanding the stand taken by the union.
The union had also complained about the unilateral imposition of certain conditions on the ' workmen but to no avail.
The workers began to report for work though the union was not reconciled.
On the other hand since the warrant for accused No. 1 's arrest could not be executed a warrant for the attachment of his properties was issued on April 9, 1975.
PW 11 M. Sajjana, Assistant Station Master, Cuddapah, had started an INTUC branch at Cuddapah sometime ' in Decem ber, 1973.
Under its banner a youth conference was organised on January 26, 606 1975.
PW H presided.
over that conference and a decision was taken explore the possibility of starting an INTUC branch at Proddatur with the help of the deceased.
Pursuant thereto PW 11 and others visited Proddatur on March 27, 1975 to discuss the matter with the deceased.
The deceased promised all possible help and agreed to provide space for the office of INTUC in his own office.
Ultimately to counter the militant activities of accused No. 1 who was in control of most of the labour unions in the town a decision was taken to start an INTUC branch in Proddatur w.e.f. April 19,1975.
Pamphlets were issued in this behalf soliciting the co operation ,of workers and others.
This was the last straw on the camel 's back.
The physical condition of the. place.
of occurrence may be noticed to.
appreciate the ocular evidence.
The house faced southward and lay along a public road with open space in the front covered by a.compound,wall in the front with no such wall on the remaining three sides.
In the front was a verandah and thereafter came the drawing room in which was installed a telephone.
Further to the north was.
a room and beyond that was a hall.
Then came another covered verandah with a tin sheet sloping roof at a height of about 7 feet from the ground level.
This was the ground floor accommoda tion.
The staircase.leading ' to the terrace was situate in the hall.
This staircase opened in a room leading to the open terrace.
This terrace room had an asbestos 'sheet projection whereunder there was an electric bulb.
The ter race had a parapet wall all round of the height of about 3 feet.
On the south west side of the terrace room along.
the parapet wall there existed a 24 feet long pial of the.
height of 20 inches and width of 18 inches.
A window in the western wall had a cement shade 4 feet x 2 feet in size, Adjacent to.
that window was a telephone pole hardly five feet away from the wall with the upper end hardly 6 1/2 inches from the cement shade.
The prosecution case is that this telephone pole was used by the assailants to launch the attack on the deceased.
The family of the deceased comprised of his wife PW 2, two daughters, one of whom was married and lived with her husband and, the other PW 1 was a medical student, and three sons none of whom was in town on that day.
Pw. 1 was study ing in the third year at Kakinada and had come home as the college was closed from April 12 to April 20, 1975.
PW 1 deposed that on the date of the incident after dinner she and her parents chit chatted for sometime and thereafter her father went to the terrace as it Was summer and retired for the night.
She continued to talk with her mother and in the meantime PWs 3 and 4 arrived.
They carried their beddings to the verandah and slept 607 there.
PW 3 used to sleep at their house since the last couples of years whereas PW 4 came there occasionally.
After they left for the verandah the witness closed the 'ground floor door to the house, carried an anatomy book and went to the terrace to sleep.
She read in the terrace light which was under the asbestos projection and then went to bed on the cot laid for her keeping the light on as was the usual practice.
Her mother did not sleep on the terrace as she was not allowed to climb the stairs since she had recently undergone an operation.
Her father was sleeping on the bed laid on the floor wearing a banian.
A hurricane lantern was also kept lighted on account of frequent power failures.
At about 3.30 a.m. she woke up hearing the cries of her father and saw accused No. 1 and 6 or 7 others stabbing her father with daggers.
She raised an alarm and tried to go to the rescue of her father but she was prevented by three of them from getting up.
According to her accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot.
Thereafter accused No. 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sustained injuries on her left index finger, thumb and palm region extending to another finger.
Till the assailants had finished with her father she was pinned down to her bed and thereafter the assailants went to the west, climbed the parapet wall and went down the terrace.
She then ran down crying that accused No. 1, whom she knew since quite sometime, and his companions had killed her father.
She woke up her mother and informed her of what had hap pened.
On hearing a knock on the main entrance to the house, she opened the door and found PWs 3 and 4 holding a torch.
On inquiry she told them that accused No. 1 and his compan ions had killed her father and she too was injured.
She learnt from them that they had seen accused No. 1 and 4 or 5 others slide down the telephone pole situated to the west of the house.
She then tried to contact the police on phone but found that the same was disconnected.
Since PW 5 a neighbour was there she requested him to go tO the police station and fetch the police.
On receipt of information a Sub Inspector of police and a few constables arrived by about 5.00 or 5.30 a.m. to whom she narrated the incident whereupon her state ment was recorded which has been introduced on record as Exh.
The Sub Inspector held the inquest on the dead body between 7.00 and 10.30 a.m., drew up a panchnama of the scene of occurrence, attached the anatomy text book and other blood stained articles from the terrace, including the electric bulb from the socket of the electric holder on the terrace, At the identification parade held later she identi fied accused Nos. 3 and 5 as the companions of accused No. 1.
In cross examination she ' denied the suggestion that accused Nos. 3 and 5 were shown to her while they were in the sub jail before 608 she was asked to identify them.
It transpires from her cross examination that the defence case was that she had not slept on the terrace, that the cut injuries on her left hand were self inflicted and that she was falsely implicating accused Nos. 3 and 5 as they had supported her rival Padma in a college election when she was in the B.Sc.
class.
It was also suggested that photographs of accused.
Nos. 3 and 5 were shown to her from a group photo obtained from A.C. Mills Union Office.
It may be mentioned that the suggestions made to this witness in regard to the identity of accused Nos. 3 and 5 are self contradictory in the sense that if the suggestion that she was falsely involving these two accused because they had helped Padma who contested the election against her is correct it would follow that they were known to her since long in which case there would be no need to point them out to her while they were in the sub jail or to show their photographs to her.
Suffice it to say that.
nothing very striking, except minor contradictions, has been elicited in her cross examination which would shake her credibility.
PW 2, her mother, corroborates her say in regard to the incident and the involvement of accused No. 1.
PW 3 has deposed that since he and PW 4 anticipated danger to the life of the deceased on account of the dis turbed management labour relationship they slept at the house of the deceased.
PW 3 states that he saw eight persons sliding down the telephone pole.
Amongst them were accused Nos. 1 to 5 and S.V. Subbarayadu whom he identified as accused No. 6.
PW 4 has stated that on the date of the incident he had heard about the murder when he was at his residence at about 4.30 a.m.
He was treated as hostile and was allowed to be cross examined by.
the prosecution.
PW 5, whose house was only about 100 yards away, deposed that when he was sleeping on his terrace he heard cries at about 3.30 a.m. and went to the house of the deceased.
PWs 1 to 4 were present there alongwith other.
neighbours.
PWs 1 and 2 were.weeping while PWs 3 and 4 were trying to console them.
PW 1 asked him to inform the police that her father was murdered.
He then went and informed the police about the incident and returned with the police to the scene of of fence.
Thus the evidence of this witness also corroborates PW 1.
The inquest was!held between 7.00 and 10.30 ' a.m.
The statements of PWs 1 to 5 were also recorded and certain articles were attached from the terrace.
These included blood stained bed sheets, pillows, towel, shawl, shrit, etc., and Cunningham 's text book on.
human anatomy which PW 1 was reading before going to bed.
The telephone connection was found snapped and there were drops of blood from.
the place where the dead body was found till the drawing room down stairs where the telephone was: installed which.
corrobo 609 rated the story of PW 1.
The banian worn by the deceased, was blood stained and had cuts corresponding to injuries found on.
the chest of the deceased.
Several other articles found on the person.
of the deceased were blood stained.
There were as many as 33 injuries on the person of the deceased which is clearly indicative of the involvement of a group of persons in the killing.
This stands corroborated by the post mortem report.
On the cot which was occupied by PW 1 there were blood drops on the bed, bed cover and bed sheet.
The reports of the Chemical Analyser and Serologist, Exhs.
P 18 and P 19. show that all the articles were stained with human blood.
A lantern was burning nearby and the electric light on the terrace was also on.
This inquest panchnama Exh.
P 6 leaves no room for doubt that the inci dent occurred on the terrace portion of the residence of the deceased.
PW 1 was medically examined by the medical officer PW 13 on the same day at about 11.45 a.m. She had incised wounds on the left index finger 1/2" x 1/4", on the left hand below tile wrist 1" x 118" x 1/8", on the middle of the left palm 1" x 1/8" x 1/8" and on the little finger of left hand 1/2" x 1/8" x 1/8".
This would indicate that she received these injuries while trying to ward off the blows.
Identification parades were held on May 23, 1975.
In the first one accused Nos. 7, 10 and 11 were made to stand with non suspects, in the second parade accused Nos. 12, 13 and 16 were made to take their positions along with several others and in the last parade accused Nos.17, 18 and 19 were concerned.
PW 1 could not identify any one from amongst the said accused persons in all the three parades.
Out of the three parades PW 3 identified all the three accused of the second parade.
In the evening an identification ' parade was held concerning accused Nos.
2 to 6 and 9.
PW 1 could iden tify. 'accUsed Nos. 3 and 5 while PW 3 could not identify any of them.
The defence of all the accused was of total 'denial and false involvement.
In fact accused No. 1 contended that.he was out of station from May 13, 1975 and learnt of the murder on his return to Proddatur.
When he learnt of his false involvement he surrendered before the Court.
Accused Nos. 12, 13 and 16contended that they were shown to PW 3 before the identification parade while accused Nos. 3 and 5 pleaded that the police had taken a group photograph in which they figured from the union office and had shown it to PW Accused Nos. 7, 11, 14, 15, 17 and 19 were not examined under section 313 of the Criminal Procedure Code as no evidence incriminating them was tendered on record.
No defence witness came to be examined.
610 The learned Additional Sessions Judge, Cuddapah, came to the conclusion that the prosecution had failed to establish the charge of criminal conspiracy under section 120B, I.P.C. He came to the conclusion that the evidence on record, however, indicated that accused Nos. 1 to 6 had a direct and strong motive to kill the deceased and the likelihood of the others having shared their feelings could not be ruled out altogether.
The direct testimony of PWs 1 to 5 and the other circumstantial evidence adverted to earlier established beyond any manner of doubt that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased.
The learned Judge held that intimation of the incident was given to the police without loss of time and PW 1 had lodged her complaint by about 6.00 a.m. when the police came to the scene of occurrence alongwith PW 5 who had gone to call them.
The suggestion that injuries found on the person of PW 1 were selfinflicted or that PW 2 was giving false evidence as she was promised financial help to the tune of Rs. 1,50,000 were brushed aside by the learned Judge as totally imaginary ,and unfounded.
The learned Judge, however, did not treat PW 1 's complaint EXh.
P 1 as admissible in evi dence as he came to the conclusion that it was hit by sec tion 162 of the Code since information regarding the inci dent had reached the police station through PW 5.
The learned trial Judge, therefore, accepted the evidence of PWs 1, 2, 3 and 5 as reliable and convicted them as stated earlier while acquitting their companions.
The said three convicted accused preferred an appeal, being Criminal Appeal No. 812 of 1976, in the High Court.
,State also preferred an appeal for awarding capital punish ment to accused No. 1, being Criminal Appeal No. 807 of 1976.
The State 's appeal came to be dismissed and that is where the matter rests.
However, the appeal by the convicted accused came to be allowed and the appellants were acquit ted.
It is against the said order of acquittal that the State has approached this Court by way of special leave.
It would, therefore, be proper to ascertain the grounds on which the impugned order of the High Court is founded.
The High Court came to the conclusion that the complaint of PW 1 was not recorded at the time it purports to have been for if it were so it would not have reached the con cerned Magistrate as late as 1.40 p.m.
In that case even the inquest report Exh.
P 6 would not have been delayed till 10.55 p.m.
The explanation for the delay found in Exh.
P 25 cannot be accepted at its face value.
The evidence of PW 1 is tainted, in that, although she knew accused No. 1 as he visited her father quite often the rest of the assailants were total strangers and yet 611 the names of accused Nos. 2 and 4 appear in her statement Exh.
P 1 which goes to show that she was tutored into giving their names.
That according to the High Court raises a serious doubt regarding her trustworthiness.
On the question of identity of accused Nos. 3 and 5, the High Court points out that even before the identification parade she had told the Magistrate that she would be able to identify only two persons and later pointed an accusing finger at accused Nos. 3 and 5 at the identification parade.
This, says the High Court, reinforces the defence version that she was shown the group photo before she was called to identify the accused persons.
The identification parade was delayed upto May 23, 1975 as till then the photograph was not secured by the police.
In the circumstances the High Court did not find the evidence of PW 1 regarding the identity of accused Nos. 3 and 5 acceptable.
The High Court also held that the injuries on the left hand of PW 1 were in all probability self in flicted, more so because she is not a left hander.
So also the absence of blood stains on the bed lying on the floor of the terrace casts a serious doubt regarding her version of the incident.
The High Court found the prosecution story that the electric light as well as the kerosene lamp were kept on throughout the night rather unusual.
In this view of the evidence, the High Court did not consider PW 1 a truth ful witness.
As regards PW 3 the High Court found his ver sion that he slept at the residence of the deceased since sometime unacceptable.
It also noticed that PW 3 claimed to know accused Nos. 1 to 6 by their names and he gave out those names to the police and yet he could not identify any of them at the test identification parade.
For this reason the High Court did not place reliance on his evidence.
The High Court, therefore, found the evidence led by the prose cution untrustworthy and acquitted the accused/appellants.
Hence the present appeal.
Mr. Madhav Reddy, the learned counsel for the appellant State contended that the presence of PW 1 at the time of the incident was not only deposed to by PWs 2 and 3 but also by PW 5.
The presence of PW 3 at the house at about 4.30 a.m. is deposed to even by the hostile witness PW 4.
He, therefore, submitted that the presence of PWs 1 to 5 is clearly established and is reinforced by the evidence of PW 13, the medicalman, who examined PW 1 at the Government Hospital at about 11.45 a.m. on the same day.
The Sub In spector PW 24 also deposes that PW 5 had told him that PW 1 had sent him to report the murderous assault on her father.
He submitted that once the presence of PWs 1 and 3 was established there was no reason to doubt their testimony merely because PW 3 was honest enough not to falsely involve any one by pointing an accusing finger at the identification 612 parade.
He submitted that even PW 1 was honest enough to identify only two persons, namely, accused Nos. 3 and 5, Whom she had an occasion, to see near her cot on the ter race.
To reject her evidence as regards the identity of these two accused on the specious plea that their photo graphs were shown to her '.
before the identification parade would be, to say the least, unjust.
If she could be shown the photograph why not PW 3 also! He also submitted that it was preposterous to hold that the injuries found on the left hand of PW 1 were self inflicted.
The absence of blood on the bed sheet of the bed on the floor of the terrace clearly explained that the deceased must have rolled onto the ter race floor where the presence of blood was noticed.
He, therefore, submitted that the High Court had reversed the well reasoned judgment of the. trial court on totally imagi nary grounds which had resulted in grave miscarriage of justice.
Mr. R.K.Garg, learned counsel for the respondents/ac cused, submitted that this Court should not interfere with the decision of the High Court ' unless it ' finds the view taken by the High Court as perverse and wholly improper, resulting in miscarriage of justice.
In support he cited State of Jammu & Kashmir vs Hazara Singh & Anr., [1980] Supp, SCC 641.
He also submitted that the investigating agency had shown extra zealousness as the deceased was a prominent lawyer and an ex MLA.
Supporting the view of the ' High Court he urged that the presence of PW 1 was highly doubtful and in any case it would be risky to rely on her interested testimony regarding the identity of accused Nos. 3 and 5.
The 'absence of blood on the bed shows that the same was planted after the event to concoct the story that PW 1 ' was sleeping on the cot and not downstairs with her mother PW 2 who ' had recently undergone an operation. ' Once the evidence of PW 1 is excluded there is no direct testimony since PW 3 had not identified any of the accused at the identification parades.
In short he supported the judgment of the High Court and prayed that we should not interfere in exercise of our extra ordinary powers under Article 136 of the Constitution.
The motive for the commission of the crime was the indus trial unrest occasioned on account of the strike by the workers of the International Packaging 'Company and later by the transport workers.
Indisputably accused No.1 commanded considerable clout over the employees of various industrial units such as the International Packaging Company, Andhra Cotton Mills and the transport industry in Proddatur.
Accused No. 1 was championing the cause of the workmen during the.
prolonged agitation and strike by the workers of the Inter 613 national Packaging Company and also spearheaded the agita tion by the transport workers.
The deceased was the lawyer for the managements and was considered the main obstacle, in the realisation of the workers* demands.
There was, there fore, animosity between the deceased and accused No. 1.
This is more than clear from the oral evidence of PWs 2.3.4, 10.
11.21 to 23 and from the documentary evidence tendered as Exhs.
P 2 to P 5.
P 30 to P 37 and P 40 to P 55.
In view of this overwhelming documentary evidence which corroborates the ocular evidence of the aforesaid prosecution witnesses, it is established beyond any manner of doubt that the rival ry between the trade unions headed by accused No. 1 and the managements.
advised by the deceased had assumed ugly.
proportions.
The starting of the INTUC branch at Proddatur with the active participation of the deceased was perhaps the last straw on the camel 's back which worsened the rela tions between accused No. 1 and the deceased.
This is the motive according tO the prosecution for the crime in ques tion.
But as has often been commented bitter animosity can be a double edged Weapon which may be instrumental for deliberate false involvement or for the witnesses wrongly inferring and strongly believing (without having actually witnessed it) that the crime must have been committed by the rival group.
This possibility has to be kept in mind while evaluating the prosection evidence regarding the involvement of accused No. 1 and his companions in the commission of the crime.
There is no dispute regarding the description of the residential house of the deceased and the location of the telephone pole to the west thereof.
It is not disputed that the said pole could be conveniently used for slidding down from the terrace.
So also the fact that the telephone con nection was snapped is not put in issue.
The fact that the incident occurred on the terrace is not disputed but the fact that the deceased was sleeping on the floor and PW 1 was sleeping on the cot is disputed.
It was suggested in the course of cross examination of the prosecution witnesses that the deceased alone was sleeping on the cot on the terrace and PW 1 was in fact not in town and even if she was in town she must have been sleeping with PW 2.
Lastly the fact that the deceased died a homicidal death on receipt of as many as 33 injuries is not disputed The find of human blood on the various articles attached by the police, i.e. those worn by the deceased as well as PW 1 and those found lying on the terrace, is clearly established by the reports Exhs.
P 18 and P 19 which have not been questioned.
It is in this background that we must consider if the High Court has commit.
ted any grave error requiring interference under Article 136 of the Constitution.
614 On the question of presence of PW 1 in Proddatur on the date of the incident, apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary evidence in the form of the entry Exh.
56 recorded by PW 24 in the general diary on April 15, 1975 at about 4.30 a.m.
That entry was made on the information supplied by PW 5.
It is clearly stated therein by PW 5 that he had been told by PW 1 that her father was murdered at his residence.
It was on receipt of this infor mation that the police went to the house of the deceased, drew up the inquest report and recorded the statements of those present there including PW I. The presence of PW 1 is, therefore, clearly established by this document prepared within an hour from the time of the incident.
This contempo raneous document corroborates the oral evidence of the aforesaid witnesses.
She was examined by the medical officer PW 13 on the same day at about 11.45 a.m.
In addition there to, the find of the Anatomy book and slippers on the ter race, also lends assurance to the prosecution evidence in this behalf.
Therefore, even if it is assumed that the time of recording her statement ' Exh.
P 1 is not correctly re corded, her presence at the scene of offence at the material time is established beyond a shadow of doubt.
Accused No. 1 was a friend Of the deceased till they fell out.
He was a regular visitor to the house of the deceased and, therefore, PW 1 knew him quite intimately.
She has frankly admitted that others were strangers but she was able to identify accused Nos. 3 and 5 because she had an opportunity to see them from close quarters when they were near her cot.
The existence of a cot and a bed on the ter race is indicative of the fact that two persons were sleep ing on the terrace.
There were only three family members present on the date of the occurrence, one of whom was PW 2 who had undergone surgery only recently and was advised not to climb the stairs.
It is, therefore, obvious that the deceased and PW 1 slept on the terrace.
The submission that the bed on the floor was planted is based on the fact that there was no blood on the bed sheet of that bed.
But this submission overlooks the existence of blood drops nearabout the bed.
The dead body of the victim was also found lying on the terrace floor nearby.
The High Court relied on the photograph Exh.
D 4 for holding that the bed was fresh and unused.
But as is apparent from the, crossexamination of PW 24 that the said photograph shows "the bed sheet spread over the bed on the cot is tucked beneath the bed".
Thus the said photograph is not of the bed on the floor.
The High Court seems to have misread the evidence.
Secondly, it is clear that the dead body was lying at some distance from the bed suggesting that the deceased had rolled over during the night or in the course of the attack.
The 615 other articles lying nearby e.g towel, shawl, etc.
were blood stained and there Were fresh drops of blood between the dead body and the western waif leading to the telephone pole.
Since there were Only three family members one of whom, PW 2, had undergone an operation in the recent past, it is difficult to understand how PW 1 alone could shift the dead body of her father from the cot to the place where it was found to concoct evidence against the accused.
It is too much to attribute such intelligence to PW 1 or for that matter PW 3 also.
If the dead body which was bleeding had in fact been shifted there would have been blood drops from the cot to the place where it was found.
Besides, where was the time for the entire exercise? PW 5 was sent to call the police and he had returned with the police after his report was entered in the general diary at 4. 30 a.m. It.
there fore, seems difficult to believe that the bed on the floor was planted to support the prosecution version that PW 1 slept on the terrace that night.
The medical officer PW 13 found four incised wounds on the left hand of PW 1, possible by a sharp cutting weapon like a dagger or knife.
These injuries were indeed minor in nature.
The High Court has concluded that the possibility of these injuries being self inflicted cannot be ruled out, PW 1 says she received these injuries in the process of warding off the blows aimed at her.
PW 13 also deposes that these injuries could have been received while trying to ward off the blows on her.
Thus the medical evidence supports her say.
However, in crossexamination he stated that all the four injuries were cut injuries and not stab wounds.
In response to a suggestion made in cross examination he stated that the possibility of the injuries being self inflicted was not an impossibility.
Merely from this suggestion and PW 1 not being a left hander the High Court concluded that the possibility of the injuries being self inflicted could not be ruled out.
With respect, the High Court failed to realise that when an injury is on an accessible part of, the body which the individual can himself reach, such any injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction 'of the injury or such other factors show otherwise.
But merely because the medical officer says that they could be selfin flicted, there is no reason.
to jump to such a conclusion unless ' circumstances establish such a possibility.
In the present case there was hardly any opportunity to self in flict them.
Her not being a left hander should make no difference because she is bound to.
use that hand to ward off the blows if her assailant is on that side of her bed.
We, therefore, feel that the High Court was not justified in concluding that PW 1 had self inflicted the wounds found on her left hand.
With 616 respect, this conclusion of the High Court is, to say the least, wholly conjectural and totally against the weight Of evidence on record.
The delay in Sending the FIR Exh.
P 1 to the Magistrate has been seriously commented upon by the High Court while rejecting the explanation given in Exh.
This comment has lost its significance as the said document has not.been admitted in evidence by both 'the courts below on the ground that it is hit by section 162 of the Code.
We would have examined the explanation if that document.
had formed part of the record. ' Any way that cannot impinge On the credibil ity of PW 1 if her evidence is otherwise acceptable, which we find it is '.
On the question of identity it is clear from the evi dence of PW 1 that accused No. 1 was known to her quite well Since before the incident.
She could, therefore, have no difficulty in identifying him even in poor light.
Immediate ly after the accused fled she ran down and informed her mother that accused.
No. 1 and his companions had killed her father.
Since PW 1 had not disclosed the name of accused No. 1 as one of the assailants to PW 5, the latter did not speak about him to the police and hence his name does not appear in the FIR recorded at 4.30 a.m.
Accused No. 1 pleaded an alibi: which he miserably failed to probabilise.
The absence of names of assailants in the general diary entry made on the basis Of information supplied by PW 5 at the behest of PW 1 has weighed considerably in the High Court doubting the version regarding the involvement of accused No. 1 in the commission of the crime.
It must, however, be realised that PW 1 had disclosed the name of accused No. 1 at the earliest point of time when the complaint Exh.
P I and the inquest report Exh.
P 6 were recorded.
It must also be realised that,PW 1 was under terrible strain at that time.
Not only had this young girl lost her father in a ghastly assault, she had also to look after her ailing mother: and console her.
She frantically tried to inform the police on telephone but found the instrument dead with the wires snapped.
therefore, asked this young boy aged 'about 16 years, PW 5, to go to the police station and fetch the police.
There was hardly any time to give details of the incident.
Under the circUmstances the absence of the name of accused 'No. 1 as One of the assailants in the entry made in the general diary at the instance of PW 5 is quite understandable.
Once it is accepted that PW 1 had slept on the terrace and had sus tained the injuries in the incident, her evidence regarding the identity of accused No. 1 who was quite well known to her cannot be doubted. 'We are, therefore, of the view that the High Court was not justified in disturbing the view taken by the trial court in this behalf.
617 That takes us to the question of the involvement of accused Nos. 3 and 5.
The evidence of PW 1 is that when she heard the cries of her father she woke up and saw accused No. 1 and six or seven others belabouring him.
This means that she did not know and could not identify the companions of accused No. 1.
However, when she tried to raise an alarm three of the assailants approched her and pinned her down to the bed, and one of them threatended to stab her.
He did carry out his threat as is evident from the injuries sus tained by her.
She Was able to identify two of them 'at the identification parade held on May 23, 1975.
This is proved through the 'evidence of PW 14 who conducted the test iden tification parades Now accused Nos. 3 and 5 had surrendered before the court on May 13, 1975.
PW 14 received the requi sition for arranging a test identification parade on May 17, 1975.
The identification parade was actually held on May 23, 1975.
There ' is no valid explanation tendered by the prose cution for the delay in holding the.
identification parades.
The defence has suggested in the cross examination of PW 1 and PW 25 that in the meantime the accused who were in custody were shown to the witnesses and the police had secured a group photograph in which accused Nos. 3 and 5 figured to facilitate their identification.
The High Court was, however, reluctant to place absolute reliance On the evidence of PW 1 regarding the identity of accused Nos. 3 and 5.
In the absence of a ,valid explanation for the delay we do not think that this approach of the High Court can be said to be manifestly wrong to call for our intervention. ' In the result this appeal is partly allowed insofar as it relates to original accused No. 1 i.e., respondent No. 1 before us.
The High Court 's order acquitting him is set aside.
The appeal is, ' however, dismissed so far as original accused Nos. 3 and 5 i.e., respondent Nos. 2 and 3 before us are concerned We restore the order of conviction and sen tence of original accused NO.
1 respondent No. 1 recorded by the learned Additional Sessions Judge, Cuddapah for his involvement in the crime with several other unknown persons.
We, however, give the benefit of doubt to original accused Nos. 3 and 5, i.e, respondent Nos. 2 and 3 and confirm the order of their acquittal recorded by tire High Court.
The original accused No. 1 respondent No. 1 will submit to his bail forthwith The bail bonds in respect of other two respondents will stand cancelled. | One Ram Subba Reddy, an advocate, politician and a tradeunionist, was murdered on the night between 14th and 15th April, 1975, at his house in Proddatur, when the de ceased is stated to have received fatal blows by lethal weapons whilst his daughter (PW 1), sleeping nearby received injuries when she attempted to go to help her father.
Ac cording to the prosecution, Accused No. 1 (Respondent No. 1), was a friend and a regular visitor to the house of the deceased, till they fell out on account of trade union activities.
Accused No. 1 was the President of the workmen 's unions of Andhra Cotton Mills, Proddatur, International Packaging Company, Proddotur and Transport Workers, espous ing the cause of workmen and directing their union activi ties while the deceased, a practising Advocate represented the managements of these companies and tendered legal advice to them in connection with the various labour problems arising in those companies.
The deceased who was a lawyer for the companies had advised the accused No. 1 not to resort to violence for settlement of industrial disputes.
The fact that infuriated accused No. ' 1 further was the help which the deceased agreed to provide to PW 11 for setting up an office of INTUC in his own office.
This was intended to counter the militant activities of Accused 1 who was in control of most of the labour unions in the town.
According to the prosecution at about 3.30 a.m. on the day of occurrence, PW 1 who was sleeping on the terrace of the house nearby her father, woke up bearing the cries of her father ans saw accused 1 with 6 or 7 others stabbing her father with daggers.
She raised an alarm and tried to go to rescue her father but she was prevented by three of them from getting up; accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot.
Thereafter accused 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sus tained injuries on her left index finger, 601 thumb and palm extending to another finger.
After the as sailants left, she got down and informed her mother PW 2 about the incident; she opened the door to PWs 3 and 4, who were sleeping outside.
She sent a message to the police through PW S, her neighbour, as telephone lines were cut.
The police took up investigation and 19 persons including the respondents were put up for trial before the Additional Sessions Judge, Cuddapah on different charges e.g. criminal conspiracy, rioting and murder, etc.
The learned trial judge came to ie conclusion that the prosecution had failed to establish the Charge of criminal conspiracy under Section 120B, I.P.C. It accepted the testimony of PWs 1to 5 and held (i) that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased; (ii) the injuries borne on the fingers of PW 1 were not self inflicted as suggested by defence and (iii) that the intimation of the incident was the police without loss of time.
Accordingly the trial Judge convicted Accused Nos. 1 and 3 under Sections 148 and 302 and Sec. 324 with the aid of Section 149, I.P.C. and accused No. S under Section: 148, 302 and 324, I.P.C. and sentenced all the three to life imprisonment for murdering Ram Subba Reddy and to rigorous imprisonment for 3 years under section 148, IPC.
The other 16 accused were acquitted.
The convicted persons appealed to the High Court and the State filed an application for enhancement of the sentence imposed on Accused No. 1 to capital punishment.
The High Court allowed the appeal by the convicted persons and acquitted them.
Hence this appeal by the State against the order of acquit tal, by special leave.
The High Court bold that the evidence of PW 1 is tainted in that the names of accused 2 and 4 who were strangers to her figure in her statement Exh.
P 1 and further her statement regarding identity of Accused 3 and S was unacceptable.
The High Court therefore found the evi dence led by the prosecution untrustworthy.
and thus acquit ted the accused appellants before it.
Partly allowing the appeal, this Court, HELD: On the question of presence of PW 1 in Proddatur on the date of the incident, apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary evidence in the form of the entry exhibit S6 recorded by PW 24 in the general diary on April 15, 1975 at about 4 30 a.m.
That entry was made on the information supplied by PW 5.
It is clearly stated therein by PW S that he had been told by PW 1 that her father was murdered at his residence.
It was on receipt of this information that the police went to the house of the deceased, drew up the inquest report and recorded the state ments of those present there including PW 1.
The presence of PW 1 is, therefore clearly established 602 by this document prepared within an hour from the time of the incident.
This contemperaneous document corroborates the oral evidence of the aforesaid witnesses.
[614A.C] The High Court failed to realise that when an injury is on an accessible part of the body, which the individual can himself reach, such an injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction of the injury or such other factors show otherwise.
But merely because the medical officer says that they could be self inflicted, there is no reason to jump to such a conclusion unless.
circumstances establish such a possibility.
In the present case there was hardly any opportunity to self inflict them.
Her not being a left hander should make no difference because she is bound to use that hand to ward off the blows if her assailant is on that side of her bed.
The High Court was not justified in con cluding that PW 1 had self inflicted the wounds found on her left hand.
This conclusion of the High Court is, to say the least, wholly conjectural and totally against the weight of evidence on record.
[615F 616A] Once it is accepted that PW 1 had slept on the terrace and had sustained the injuries in the incident, her evidence regarding the identity of accused No. 1 who was quite well known to her cannot be doubted.
[616G] The evidence of PW1 is that when she heard the cries of her father she woke up and saw accused No. 1 and six or seven others belabouring him.
This means that she did not know and could not identify the companions of accused No. 1.
However, when she tried to raise an alarm three of the assailants approached her and pinned her down to the bed, and one of them threatened to stab her.
He did carry out his threat as is evidenced from the injuries sustained by her.
She was able to identify two of them at the identification parade held on May 23, 1975.
This is proved through the evidence of PW 14 who conducted the test identification parades.
Now accused Nos. 3 and S had surrendered before the Court on May 13, 1975.
PW 14 received the requisition for arranging a test identification parade on May 17, 1975.the identification parade was actually held on May 23, 1975 There is no valid explanation tendered by the prosecution for the delay in holding the identification parades.
The High Court was reluctant to place absolute reliance on the evidence of PW 1 regarding the identity of accused Nos. 3 and 5.
In the absence of a valid explanation for the delay, the Court did not think that this approach of the High Court can be said to be manifestly wrong to call for intervention.
[617A E] 603 The Court, in the result, partly allowed the appeal in so far as it related to original Accused No. 1 respondent No. 1 set aside the High Court 's order acquitting him and restored the order of trial Judge convicting and sentencing him.
The Court affirmed the High Court 's order of acquittal passed in respect of other accused, giving them the benefit of doubt.
[617E G] State of Jammu and Kashmir vs Hazara Singh & Anr., , referred to. |
ivil Appeal No. 3447 of 1990.
From the Judgment and Order dated 26.4.1990 of the Madhya Pradesh High Court in Misc.
Petition No. 4059 of 1989.
Rajinder Sachar, Vijay Gupta, Vivek Gambhir, S.K. Gamb hir and Surinder Karnail for the Appellant.
B.S. Banthia, S.S. Khanduja and S.K. Agnihotri for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Getting an admission into a professional course has become so difficult and competitive of late that litigation instituted by disappointed candidates has become a regular feature.
431 This appeal, arising out of such a context, throws up for consideration certain aspects which call for a difficult exercise in balancing equities.
We, therefore, proceed to discuss the facts and issues at some length.
The appellant Dr. Ku.
Nilolaf Insaf and respondent No. 4, Dr. Devraj Jain, were competitors for a single seat in the Master 's Degree (M.D.) course in Radiology at Gandhi Medical College, Bhopal.
The appellant got admission to this seat in preference to Dr. Jain because she had obtained average marks of 59.60 per cent in the examinations of the M.B.B.S. course whereas Dr. Jain had obtained only 58.50 per cent.
Dr. Jain successfully challenged the admission granted to the appellant in preference to himself in a writ petition in the Madhya Pradesh High Court.
Dr. Insaf, who has for feited her admission in consequence of the judgment of the High Court, has filed the present appeal.
In order to appreciate the circumstances in which the admission granted to the appellant was quashed by the High Court, though she had admittedly got a higher percentage of marks than Dr. Jain, it is necessary to set out a few fur ther facts.
Dr. Jain and Dr. Insaf both completed their M.B.B.S. course in the years 1983 87.
However, while Dr. Jain had been admitted into and completed that course in the Gandhi Medical College, Bhopal, the appellant had initially joined her M.B.B.S. course in the M.S. Ramayya Medical College, Bangalore, wrote the first examination and complet ed the first year of the M.B.B.S. course there.
Thereafter, in August 1984, she made an application for her transfer to the Gandhi Medical College, Bhopal.
Her request was granted by the Gandhi Medical College with the approval of the State of Madhya Pradesh and with "no objection" from the Ramayya Medical College.
Thereafter she sat in the second and third examinations pertaining to the MBBS degree along with Dr. Jain and completed her MBBS course along with Dr. Jain in 1987 from the Gandhi Medical College, Bhopal.
Thereafter, both of them cleared their internship of one year and also joined a house job in Radiology in the same college and completed the same in August 1989.
It was at this stage that both of them applied for being admitted to the M.D. course with the result already set out.
As already mentioned, it is not in dispute that, if the total number of marks obtained by the two contestants in all the examinations of the M.B.B.S. degree are taken and re duced to an "effective" percentage and a common maximum as per the rules, Dr. Nilofar does get a higher percentage of marks than the respondent.
In fact, we 432 find from the papers filed before us that another candidate, Dr. Km.
Indu Fotedar, had obtained a percentage of 59.04 which was also higher than the percentage obtained by Dr. Jain.
However, she is no longer in the race for a seat in M.D. (Radiology) as she appears to have joined the M.D. course in medicine that was offered to her.
Thus it was that the Radiology seat went to Dr. Insaf.
Dr. Jain 's challenge to the admission granted to the appellant cannot be a direct one as the latter had clearly secured higher percentage of marks than himself in the M.B.B.S. examinations.
He, therefore, attacks her candida ture for the M.D. course on other grounds which may be described as collateral or indirect.
According to him, the transfer of the appellant from the Bangalore Medical College to the Bhopal Medical College was itself invalid and he urges that, since the very admission of the appellant to the M.B.B.S. degree in the Bhopal College was invalid, she could not at all have been considered for admission to the M.D. course which was available only to the institutional candi dates.
The grounds on which the transfer of the appellant from Bangalore to Bhopal is challenged by Dr. Jain are: (a) The appellant had appeared in the pre medical test for admission to medical colleges in Madhya Pradesh.
It is not known whether she passed the test or did not get a sufficiently high rank but the fact is that she did not get admission in any of the medical colleges in Madhya Pradesh.
To overcome this difficulty, she joined the Bangalore Medical College (the admission to which did not perhaps require qualification in a pre medical examination) by paying a capitation fee.
She has thus circum vented the requirement of a pre medical test by getting admitted first at Bangalore and then getting a transfer to Bhopal; (b) According to the rules, no transfer of a candidate to a medical college in Madhya Pradesh was permissible to students of medical colleges outside the State who had secured admission in a college after paying a capita tion fee, development fee or 'donation in any form.
As the appellant had obtained admission in the Bangalore college by paying a capita tion fee, her application for transfer to the Bhopal Medical College could not and ought not to have been entertained; (c) The rules also require, where a person makes an application for a transfer to a medical college in Madhya Pradesh, that the application should state the grounds on which he got admission 433 in a medical college of another State and whether he had appeared for a pre medical test or similar examination of.
that State.
The appellant 's application for transfer did not contain any reference to this crucial aspect which was fundamental to a valid transfer to the college in Madhya Pradesh; (d) Even assuming that the transfer itself was not bad, a comparison between the marks ob tained by the appellant and those obtained by the respondent was not a fair or proper one.
The appellant had appeared for one examination at Bangalore and two examinations at Bhopal whereas Dr. Jain had appeared for all the three examinations at Bhopal/At Bangalore, for the first year, the appellant had three papers whereas in the Bhopal college there were only two papers in the first year.
Having regard to the disparity in the syllabus, the subjects for the examination, the standards of valua tion and quality of teaching the comparison between himself and the appellant was not valid.
If at all a comparison had to be made, it should have been made by excluding the marks got by both in the first examination and taking into account Only the marks obtained by them in the other two examinations which were common to both.
The above contentions found favour with the High Court quashed the admission of the appellant and directed Dr. Jain to be admitted to that seat.
Hence the present appeal.
In our opinion, contentions (a) and (d) cannot stand by themselves and rest, for their validity, on contentions (b) and (c).
While it is true that the appellant does not appear to have qualified in the premedical test for admission to colleges in Madhya Pradesh, it cannot be said that she has circumvented the rules by first getting admitted to the Bangalore college and then seeking a transfer to Bhopal; that course, if permissible under the rules, was unobjec tionable.
So also, the last contention by itself has no force.
It is well known that, in these competitive days, students are not able to get admission, in the first in stance, in an institution at their own place and have, very often, to seek admission elsewhere initially and then try to get a transfer back.
This is also envisaged by the rules which permit the transfer of a student only after the first year course is completed.
In such cases, if a valid transfer is made, the position is as if the candidate has completed the course in the second place and the rules (the validity of which are not in issue) permit a comparison of the aver age of marks obtained by the candidates in all the examina tions after reducing them as a 434 percentage of a uniform maximum.
There can, therefore, be no doubt that such transfers and comparisons can be valid and permissible.
The real question, therefore, is whether there has been a valid transfer on the facts of the present case.
An annexure has been filed before us it was also before the High Court which purports to set out the "rules for transfer of the students from other medical colleges to Madhya Pradesh State medical colleges".
Though the High Court and the parties before it proceeded on the basis that these were "rules" governing transfer, there has been some controversy before us on this to which we shall advert later.
The following rules are relevant for our present purpose: 1.
The applications from students for transfer from Medical Colleges outside the State and studying in 1st M.B.B.S. (Pre Clinical block) will not be considered.
Applications of those candidates who have cleared the 1st M.B.B.S. examination of the university in Anatomy & Physiology (including Biochemistry) and are studying in higher classes will be considered provided the Col lege in which he was studying was a Medical Council of India approved College.
Applications of only those will be consid ered who satisfy the following conditions in accordance with the premedical examination rules of Madhya Pradesh (a) possessed minimum qualification for ap pearing in the pre medical examination at the time of admission.
(b) is a bona fide resident of Madhya Pradesh as per rules of Pre medical Examination of M.P. (c) was within the prescribed age limit as per rules of Premedical Examination of Madhya Pradesh at the time of admission.
Government would consider relaxation of rules in respect of those candidates who are married to a Government Servant employed in the Madhya Pradesh State.
Applications of those candidates for trans fer from 435 Medical Colleges outside the State will not be considered who have secured admission in a College after paying capitation, development fee or donation in any form.
Application should also state the grounds on which he got admission in a Medical College of another State and whether he had appeared for pre medical test or similar examination of that State. 9.
The appellant will submit a 'No Objec tion ' Certificate of the concerned Medical College and the University where he was study ing before his transfer.
The applicant will submit his applications with all the required information first to the Dean, Medical College where he wants to be transferred and the application will then be routed through the Chairman, Pre Medical Examination Board to Government for final orders.
On the basis of these rules, the objec tions to the transfer raised on behalf of Dr. Jain may now be considered: (a) A submission was made that the Bangalore college is not an approved medical college (vide rule 2 above) but this is not substanti ated.
The document relied upon in support of this contention is only a list of medical colleges in India published by the Health Ministry of the Central Government.
There is no mention in it that only these colleges and none else have been approved by the All India Medical Council.
Also, the list does not bear a date.
It appears to be an old one and does not refer to any college recognised after 1979.
There is nothing to show that the Banga lore medical college was established before that.
That apart, it appears that the Banga lore college is affiliated to the Bangalore University, and there is no reason to believe that it was not an approved medical college.
(b) The objection that the transfer is bad because the appellant had not qualified in a pre medical test, conducted either in Madhya Pradesh or in Bangalore, does not appear to be well founded.
While the rules no doubt contain a reference to premedical tests, rules 3, 5 and 13 make it clear that the passing of a pre medical test is not a pre requisite for a transfer.
No doubt rule 4 requires that the application for transfer should say whether the applicant had appeared for a pre medical or similar 436 test in the State from which a transfer is sought.
The omission of the appellant in the present case to mention this in her applica tion may be a defect but, in the absence of any clear rule to the effect that a pass in a pre medical test is an essential condition for transfer, it cannot be treated as a vital defect vitiating the transfer.
(c) There is, however, force in the contention that the transfer in the present case was violative of the first part of rule 4.
This clearly precludes the consideration of an application for transfer from a person who had gained admission to a medical college on payment of a capitation fee, development fee or donation.
Neither the appellant nor the State contradicted Dr. Jain 's averment in the writ petition that the appellant had secured admission in the Bangalore college only on the basis of such payment.
There is, therefore, an infringement of rule 4 atleast in part and we shall proceed to consider the effect of the same.
But before we proceed to do so, we should like to digress a little to make some general observations.
From the facts stated earlier, it is not clear how, in the face of the specific provisions contained in the rules, the appellant 's transfer was considered and sanctioned, particularly when the application had to be scrutinised by a number of authorities: the Bhopal medical college, the Chairman of the Pre medical Board referred to in rule 13, the University of Bhopal and the State Government.
It is difficult to believe that they were not conscious that the limitations imposed by the rules operated in this case.
The application of the appellant (a copy of which has been placed before us) contained a bare and simple request for transfer and nothing more and the authorities did not even care to call for the details required under the rules before taking a decision.
The respondent has alleged that this was done by reason of the influence exerted by the appellant 's father but this is not substantiated.
All that has been brought out is that the appellant is a resident of Bhopal and her father is a doctor practising at Bhopal.
In the circumstances we think that the authorities must have acted bona fide on considerations of sympathy towards, and the hardship of, the appellant in pursuing her course of study for a number of years at distant Bangalore.
They must have thought that their decision would only help the appellant and harm no one.
But the facts of the present case show how even well meant decisions, which seem innocuous at the time they are taken, can rebound in the long run and affect the interests of others in manner that could not have been even conceived of earlier.
It is, 437 therefore, necessary to emphasise that, in matters of this type, the authorities should carefully and strictly apply the relevant rules.
Now reverting to the question as to the impact of this infringement of the rules on the situation in the present case, Sri Sachar, appearing for the appellant, puts forward two aspects for consideration.
In the first place, he sub mits that the rules relied upon for the respondent are merely internal guidelines or instructions not having the force of law and that a deviation therefrom here or there would not affect the validity of the order accepting the application for transfer.
Sri Sachar may be right in saying this but unfortunately, both parties and the High Court have proceeded on the basis that there were "rules" i.e. some instruments having statutory force.
No material has been placed before us either to support or repel this assumption and so we will not be justified in treating them to be otherwise.
However, we think that, even if they are viewed as "rules" they should not be treated as rigid, inflexible and mandatory, having in mind the context and purpose in which they are made.
These are rules setting out circum stances in which the application for transfer will be grant ed and deal with a matter primarily concerning the applicant and the authorities.
The validity of an order for transfer may be challenged contemporaneously by a third party whose claim for admission or transfer is superseded by such order but cannot be al lowed to be challenged by a third party because he finds, in retrospect, at a future point of time, that it has affected his interests as a result of subsequent events.
We would, therefore, hold that the order of the State of Madhya Pra desh permitting the transfer of the appellant cannot be struck down as void.
There has been some irregularity but, in the circumstances in which it was passed, it was one within the competence of the State Government.
The second answer, furnished on behalf of the appellant to Dr. Jain 's challenge is that Dr. Jain was aware, even as early as 1987, that in the order of merit of M.B.B.S. candi dates the appellant ranked higher than the respondent.
Apart from the fact that this was just a matter of arithmetic, an "order of merit" had indeed been published by the University at the time the medical graduates of 1987 were being consid ered for house jobs.
Reference is made in this context to a chart entitled "Merit list for the selection of House Offi cers, Gandhi Medical College, Bhopal, for the year 1988" placed at p. 68 of the paper book before us This list is incomplete but it contains the names, in order of merit, of 58 students who had completed M.B.B.S. in 1987 438 who had, apparently, applied for house jobs in the college.
It sets out their aggregate marks in the M.B.B.S. examina tions with certain adjustments and also the effective per centage thereof.
The appellant 's percentage is shown as 59.60 and his rank as 37; Dr. Indu Fotedar is at 44 with a percentage of 59.04; and Dr. Jain is No. 49 with a percent age of 58.50 Sri Sachar invites our attention to the "Rules for Postgraduation (M.D./M.S. course) in clinical, para clinical and nonclinical disciplines, in medical colleges in Madhya Pradesh".
These rules provide a scheme whereby (a) the marks obtained by candidates in the M.B.B.S. examina tions (sometimes at different colleges and universities which have different maxima for the examinations) are to be standardised to a common maximum; (b) adjusted by giving certain penalty marks (for example, where a candidate has made extra attempts in any examination) and bonus marks (where he has some special distinctions in academics or extra curricular activities: for example, distinction in a subject or National Cadet Corps certificates); and (c) determining the "effective marks" and their percentage.
The process of selection of merit candidates for the post gradu ate course is outlined in rules 8.1 to 8.3.
They read thus: "8.1 Merit candidates in clinical subjects shall be selected from out of those who are completing their house jobs within that ca lender year.
8.2 Candidates under 8.1 shall be selected by the Dean of the Medical College, strictly on the basis of merit from amongst the students passing from that college, on the recommenda tion of the college and Hospital Council or the P.G. Committee of the college. 8.3 The merit list of candidates under 8.1 and 8.2 would be prepared by each Dean of the College every year and notified on the College Notice Board.
Any objection or representation received within 10 days of notification would be considered by the Dean of the College who shall make modifications, if necessary, after placing the objection or representation before the College and Hospital Council or P.G. Committee.
" On the strength of these rules, Sri Sachar contends that the respondent, not having preferred objections to the merit list referred to earlier, is now estopped from challenging the merit list.
439 We find that there is a good deal of confusion about the relevant facts in this regard.
In the High Court, the re spondent 's case was that he had duly filed his objections to the merit list of 1989 in July 1989 and well within time.
The list that is relied upon by him is a list published by the Dean which bears the heading "Particulars of the candi dates who have applied for registration in M.D. Radiology for the year 1989" placed at page 49 of the paper book.
It contains 9 names (including Drs.
Insaf, Jain and Fotedar) and the details of their period of study and internship.
The last two columns are headed "Effective Marks" and "Effective Percentage".
They are not, however, arranged in order of merit but are arranged on a different basis.
The first four names are of candidates who had applied for the M.D. course in Radiology, whereas the others had applied also for admis sion to M.D. courses in other subjects.
It is on the basis of this list apparently, that the selections were made and, in his petition for special leave before us, the appellant also admitted this position.
Sri Sachar, however, contends, that the earlier list produced by him (p. 68) is the merit list referred to in the rules and not this one which does not even purport to be a "merit list".
The merit list of 1988 (p. 68) was clearly one prepared in the context of selection for house jobs in 1988.
The rules regulating admissions for that purpose have not been placed before us.
We can only guess from the contents and columns in the list that they apparently run on the same lines as the rules for admission for M.D.
If this be treated as the merit list referred to in rule 8.3, of the relevant rules, Dr. Jain is clearly precluded from challenging it after one year.
But rule 8.3 refers to merit list for selec tion of candidates for the diploma course being published every year.
None of the parties including the college au thorities have been able to clarify whether (apart from the list at p. 49 of the paper book) any "merit list" for the year 1989 in respect of admission to M.D. courses, on the pattern of the list at p. 68, had at all been published by the Dean of the college.
In this context, we should ' point out that the list earlier published (p. 68) contained all the relevant details for preparation of such a merit list.
There is nothing before us to show that the procedure for adjustment, standardisation and averaging were not the same for preparing a merit list for selection of house officers as for the selection of candidates to the M.D. courses outlined in rule 8.5 (and this appears to be so from the adjustment columns in the list at p. 68).
The only differ ence is that this list is restricted only to the nine candi dates seeking admission to the M.D. course in radiology.
Apparently, having regard to the small number of applicants for the course in question, the authorities merely.
440 prepared a short list containing the relevant extracts regarding effective marks and percentage from the earlier list without calling it a merit list and made the selec tions.
In the circumstances, we think that there can be no practical or legal difficulty in treating the list at p. 49 as the relevant merit list for the present purpose.
Learned counsel for Dr. Jain is, therefore, correct in saying that, in this view, he could and did lodge his objections within the time specified in rule 8.3 and he cannot be precluded from contesting the correctness or validity of the list on the grounds of delay.
On strictly legal considerations, therefore, the respondent cannot be shut out from raising his objections at this stage.
But, it seems to us, questions of this nature cannot be decided on considerations of pure law.
Granting that it is open to Dr. Jain to challenge the merit list, one has to examine whether there are any limits to the scope of such challenge on grounds, if not of law, of justice and equity.
Of course, he can challenge the correctness of the order of merit, he can challenge any errors in the marks taken into account or the adjustments made thereto, and he can even challenge the eligibility of any of the candidates for consideration.
But there are abvious limitations to such challenge.
For example, it would seem difficult to say that one can challenge the correctness of the marks that one of the other candidates has obtained in the examinations and call for the revaluation of some or all of his papers or to permit a contention that one of the candidates has not been properly awarded the M.B.B.S. degree and that, therefore, his application should be ignored.
Their having obtained the marks noted in the list or a degree of a university or secured a transfer are actual events that have happened.
There may have been some irregularity at some earlier stage but it does not go to the root of the matter so as to render the qualification void abinitio capable of being ignored, without anything more, at any time for any purpose.
The position may be different where a person is claiming under a bogus degree.
The appellant has obtained the degree after a regular course; the only grievance is that she should not have been permitted to do part of it in a particular col lege.
The legality or validity of such qualifications must be directly challenged and got set aside in independent proceedings.
To permit a collateral attack on them in other proceedings, as here, will be beset with problems and com plications of a far reaching magnitude.
For obvious reasons, limitations have to be imposed on the grounds available for such challenge.
The need for such circumspection will be better appreciated if another situation of a similar nature is considered.
Suppose the competition between the two present contestants had arisen, 441 not, as it has, just two years after the M.B.B.S. degree, but, say, fifteen years later, when they both apply for a post in a hospital or Government open to M.B.B.S. graduates.
If, in that situation, it should be contended for Dr. Jain that the appellant cannot be considered for the post because her transfer to the Bhopal medical college was bad and, consequently, that the M.B.B.S degree obtained by her was not valid, we think the answer to the contention must pat ently be in the negative.
The need to avoid disturbing settled issues which affect the life and career of an indi vidual after a lapse of time or after the interposition of further events, as a result of which he has rightly de veloped a sense of security, has been emphasised by this Court in Mudgal vs Singh, 1 relying on the earlier decisions in Makashi vs Menon, ; and Malcolm Lawrence Cecil D 'Souza vs Union, [1975] Supp SCR 409.
What should be a reasonable period beyond which, or the intervening developments because of which, such challenge cannot be permitted must depend on the facts and circum stances of each case.
In the present case, there are valid considerations why Dr. Jain should not be allowed to challenge the merit list at this point of time.
We have referred earlier to the plea of Dr. Jain that he has challenged the merit list of 1989 within the period of time mentioned in the rules.
Technical ly, he is right, as we have already held.
But if we look at the position more closely, we find that the precedence of the appellant over Dr. Jain crystallised as soon as the M.B.B.S. results were published.
We do not know whether any merit list of the results of the examination were published or not at that time but it cannot be that Dr. Jain was not aware that the appellant had got higher percentage of marks than himself.
At any rate, this became clear when the merit list was published for the house jobs in August 1988.
It is true that the place accorded to the appellant in that list did not prejudice Dr. Jain in his selection for the house job.
Still, the rules of the university make it clear that the aggregate and average marks in the M.B.B.S. course would also be material for admission to the M.D. course.
The merit list of 1989 is nothing but a reproduction of the merit list of 1988 confined to a narrower group of students of the same batch.
The latter did show the appellant to have obtained more marks than Dr. Jain and, in this sense, was adverse to his interests.
The omission of Dr. Jain to challenge the correctness of the list then lulled the appellant into a sense of security that the merit list was acceptable to all.
We, therefore, think that Dr. Jain should be barred, on equitable considerations, from challenging the order of merit at the present stage.
Another important consideration which prevents us from giving 442 any relief to Dr. Jain even if we accept all his conten tions is this.
The M.D. course, admission to which is the bone of controversy, started in August 1989 and is coming to a close shortly.
Though the appellant lost in the High Court, she was permitted by this Court though, obviously, subject to the result of this appeal to continue attending the classes for M.D. in Radiology.
Now she has almost com pleted her course and, to deprive her of her seat at this stage, apart from irretrievably harming her, will not bene fit Dr. Jain who cannot now be admitted against the M.D. seat of 1989.
This again is a development which militates against the grant of any relief to Dr. Jain.
Before we conclude, we should like to touch upon one more aspect.
The course of events narrated above will show that Dr. Jain has been the victim, partly, of a lapse on the part of the medical college authorities in properly applying the rules governing transfer and, partly, of courts ' delay in disposing of his writ petition and the present appeal.
In the course of the hearing, therefore, we were tempted to consider whether we should give some relief to Dr. Jain by directing the authorities to consider his case for admission to the M.D. course atleast this year.
On careful thought, however, we find it difficult to make any specific direc tions or recommendations for a number of reasons.
In the first place, we are told that Dr. Jain has, in the meantime, undergone and completed a diploma course in Radiology and, in terms of a rule recently promulgated, is not eligible to apply for the M.D. course for another three years, even if he is interested to do so.
Secondly, as noted already, the rules permit admission in M.D. in any year only to candi dates who have finished their house jobs in that year and, Dr. Jain having completed his house job in 1989, may not be eligible to be considered for admission this year.
Thirdly, if any direction of the above nature is given by us, it will operate to the prejudice of some other candidate who is eligible for admission to that course in the normal course.
Fourthly, it would not also have been possible for us even if we had come to the conclusion that Dr. Jain and not the appellant should have been admitted in 1989 to direct the University to carry forward that vacancy and grant him admission to it now.
We therefore refrain from giving any directions to the authorities in the matter as had been mooted in the course of the hearing.
For the reasons above mentioned, we have come to the conclusion that the appeal should be allowed and the appel lant 's admission to the M.D. Radiology course 1989 91 should be upheld.
We direct accordingly.
No costs.
Y.L. Appeal allowed. | The appellant and Dr. Jain, respondent No. 4, completed their M.B.B.S. course in the years 1983 87.
from Gandhi Medical College, Bhopal.
While Dr. Jain had been admitted into that course in the Gandhi Medical College, Bhopal after he had passed the entrance test, the appellant first sought admission to M.B.B.S. course in the M.S. Ramayya Medical College, Bangalore, after paying the capitation fee and after completing the first year of the course in that Col lege she got herself transferred in 1984 to the Gandhi Medical College, Bhopal, with the approval of the State Government and with no objection from the Ramayya College, Bangalore.
After passing M.B.B.S. both of them cleared their internship of one year and also joined a house job in Radiology in the same college and completed the same in August 1989.
Both of them then applied for a single seat in the Master 's Degree (M.D.) course in Radiology at Gandhi Medical College, Bhopal.
The appellant having secured higher marks got admission to this seat in preference to Dr. Jain.
Dr. Jain, thereupon, challenged the admission of the appellant by means of a writ petition before the High Court on the ground inter alia that the transfer of the appellant from the Bangalore Medical College to the Bhopal Medical College was itself invalid and since the very admission of the appellant to the M.B.B.S. course degree in the Bhopal College was invalid, she could not at all have been considered for admission to the M.D. course which was available only to the institutional candidates.
The High Court allowed the writ petition, quashed the admission of the appellant and directed that Dr. Jain, be admitted to that seat.
Hence this appeal by the appellant.
Allowing the appeal, this Court, HELD: The validity of an order for transfer may be chal lenged 430 contemperaneonsly by a third party whose claim for admission or transfer is superseded by such order but cannot be al lowed to be challenged by a third party because he finds, in retrospect, at a future point of time, that it has affected his interests as a result of subsequent events.
[437E] The order of the State of Madhya Pradesh permitting the transfer of the appellant cannot be struck down as void.
There has been some irregularity hut, in the circumstances in which it was passed, it was one within the competence of the State Government.
[437F] There is the need to avoid disturbing settled issues which affect the life and career of an individual after a lapse of time or after the interposition of further events, as a result of which he has rightly developed a sense of security.
[441B] In the instant case, the merit list of 1989 is nothing but a reproduction of the merit list of 1988 confined to a narrower group of students of the same hatch.
The latter did show the appellant to have obtained more marks than Dr. Jain and, in this sense, was adverse to his interests.
The omis sion of Dr. Jain to challenge the correctness of the list then lulled the appellant into a sense of security that the merit list was acceptable to all.
Dr. Jain, should therefore be barred, on equitable consideration from challenging the order of merit at the present stage.
[441G] |
vil Appeal Nos.
1339 40 of 1988.
From the judgment dated 7.7.1987 of the Madras High Court in W.P. Nos. 9781 and 10545 of 1986.
G.L. Sanghi, P.P. Rao, R. Mohan, R. Perumal, V. Krishna murthy, M.N. Krishnamani, V. Sekhar, K.V. Vishwanathan, T. Raja, S.R. Setia, P. Chaudhary, A. Mariarputham and M.A. Krishnamurthy for the appearing parties.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY, J.
In these appeals by special leave, the legality of the judgment of the Madras High Court dated 7 July 1987 quashing the promotions made to the cadre of professors in law colleges in the State of Tamil Nadu has been called into question.
The appeals arise in the following circumstances: During the period from 197 1 to 1982 the Government appointed temporary junior professors in different law colleges in the State.
The appointments were made under Rule 10(a)(i)(1) of the Tamil Nadu State and SubOrdinate Services Rules, 1955 (Viz.
Preliminary and The General Rules) (hereinafter called 'the Rules ').
In 1979 the State Public Service Com mission invited applications for regular appointment of junior professors.
The temporary junior professors and others applied for the posts.
The Public Service Commission selected 25 candidates out of whom 21 were already working as temporary junior professors.
The selected candidates were arranged in the list called "approved list '. ' in the order of merit.
The list was prepared by the Public Service Com mission on 16 August 1983.
It was approved by the Government 'on 9 December 1983.
On 27 June 1985 the State Government made an order regularising the services of those 21 junior professors.
Their services were regularised with effect from the dates of original appointments as temporary junior professors.
On 10 September 1986 some of the junior professors were promoted and appointed as professors in the law colleges.
promotion was challenged before the Madras High Court on the ground that the claim of the seniors has been over looked ' It, was urged before the High Court that once the temporary services have been regularised retrospectively with effect from the date of entry in the service, the seniority should be reckoned by giving the benefit of regu larised service 621 notwithstanding the ranking in the approved list prepared by the Public Service Commission.
The High Court accepted that plea and queshed the promotion of professors and directed the Government to make a proper order of promotion in the light of the views expressed in the judgment.
The correctness of the judgment of the High Court has been assailed in these appeals.
We must first outline the necessary statutory provisions bearing on the question raised.
Section 10(a)(i)(1) provides as follows: "10.
Temporary appointments: (a)(i)(1) Where it is necessary in the public interest owing to an emergency which has arisen to fill immediately a vacancy in a post borne on the cadre of a service, class or category and there would be undue delay in making such appointment in accordance with these rules and the Special Rules, the ap pointing authority may temporarily appoint a person, otherwise than in accordance with the said rules.
Rule 22 so far as relevant reads: "Reservation of Appointments Where the Spe cial Rules lay down that the principle of reservation of appointments shall apply to any service, class or category, selection for appointment thereto shall with effect on and from the 7th June 197.1, in cases such selec tion is made by the Commission, and 8th Novem ber 1971, in other cases, be made on the following basis (a) The unit of selection for appointment, for the purpose of this rule, shall be one hun dred, of which ,eighteen shall be reserved for the Scheduled Castes and the Scheduled Tribes and thirty one shall be reserved for the Backward Classes and the remaining fifty one shall be filled on the basis of merit.
(b) The claims Of members of the Scheduled Castes and the Scheduled Tribes and the Back ward Classes shall also be considered for the fifty one appointments, which shall be filled on the basis of merit; and where a candidate 622 belonging to a Scheduled Caste, Scheduled Tribe or Back ' ward Class is selected on the basis of merit, the number of posts reserved for the Scheduled Castes and the Scheduled Tribes or for the BackWard Classes, as the case may be, shall not in any way be affected.
XXXXX XXXX XXXX Rule 23, so far.
as material, is as follows: "23(a)(i) Date of Commencement of probation of persons first appointment temporarily If a person appointed temporarily either under sub rule (a) or sub rule.
(d) of rule 10 to fill a vacancy in any service, class or cate gory otherwise than in accordance with the rules governing appointment thereto, such vacancy being a vacancy which may be filled by direct recruitment, is subsequently appointed to the service, class or category in accord ance with the rules, he shall commence his probation; if any, in such category either from the date of his first temporary appoint ment or from such subsequent date, as the appointing authority may determine.
XXXXX XXXXX XXXXX Provided that on the date so determined, the person possesses all the qualifications pre scribed for appointment to the service, class or category, as the case may be.
(ii) A person who commences probation under clause (i) shall also be eligible to draw increments in the time scale of pay applicable to him from the date of commencement of his probation.
Where commencement of probation is ordered from a date earlier than the date of the order and if this has not been enabled by relaxation of any rule, he shall draw incre ments, including arrears, in the time scale Of pay applicable to him from such ' earlier date.
The appointing authority shall include a provision to this effect while issuing orders in all such cases.
Rule 35 omitting immaterial words, is in these terms: "35(a) The seniority of a person in a service, class or cate 623 gory or grade shall unless he has been reduced to a lower rank as a punishment, be determined by the rank obtained by him in the list of approved candidates drawn up by the T.N.P.S.C. or other appointing authoritY, as the case may be, subject to the rule of reser vation.
where it applies.
The date of com mencement of his probation shall be the date on which he joins duty irrespective of his seniority.
" , It is under these Rules the Public Service Commission invit ed applications for selecting candidates for direct recruit ment to the cadre of Assistant professors in Law.
The Public Service Commission prepared the list of selected candidates by following the reservation provided under rule 22.
The list was approved by the State Government. ' Rule 35(a) states that seniority of a person ' be determined by the rank 'obtained by him in the list of approved candidates drawn by the Public Service Commission subject to rule of reservation where it applies.
The contention urged for the respondents, is.
that since their temporary service as junior professors were regula rised, the regularised service should count for the purpose of determining, their seniority and not the rankings in the select ,list approved by the Government.
We find little substance in it.
The order of regularisation is in these terms: "ORDER DATED 27.6.1985 In G.O Ms. No. 2288 Education dated 9.12.1983 the Government approved the selection made by the Tamil Nadu Public Serv ice Commission of the 25 candidates mentioned therein for appointment by direct recruitment as Junior Professor in the Tamil Nadu 'Legal Educational Service These 25 candidates were appointed temporarily as from their taking charge 'in G.O.
Ms. No. 897 Education dated 11.7.
The Government have however, decided to appoint them, regularly with effect from, the dates on which, they were declared fully qualified to hold the post of Junior professor in the Law Colleges in Tamil Nadu prior to their selection by the Tamil.
Public.
Service.
Commission and appointment as Junior ,Profes sors,in Law Colleges with reference to their selection.
The Government accordingly direct that the services of the 21 individuals men tioned in 624 the Annexure to this order as Junior Profes sors in the Tamil Nadu Legal Educational Service, be regularised with retrospective effect from the dates noted against them.
The inter se seniority of the 21 candi dates.indicated in the annexure is in accord ance with the seniority fixed by the Tamil Nadu Public Service Commission.
The inter se seniority position will not be affected in any way with reference to the dates 'of regulari sation mentioned in column 3 of the annexure.
Under Rule 23(a)(ii) of the General Rules for State and Subordinate Services, the incum bents are eligible for increments from the date of their regularisation as they are fully qualified to hold the post on that date.
The increments already sanctioned to them, for their services as temporary.
junior professors prior to regular appointment, is ratified.
XXXXX XXXXX ' ' The first paragraph of the order refers to the selection of 25 candidates by the Public Service Commission for ap pointment as Junior Professors in the ' law colleges and their appointment with effect from their ' taking charges.
The second paragraph of the order deals with the regularisa tion of the services of/21 candidates out of 25 appointed.
The Government directed that the services of the 21 Junior Professors specified in the order be regularised with retro spective effect from the date noted against them.
In the third paragraph it is stated that the inter se seniority of the 21 candidates is in accordance with the seniority fixed by the Public Service Commission and the inter se seniority position will not be affected in any way with reference to the dates of regularisation of their services.
The paragraph four of the order deals with the rights of the candidates to draw increments under rule 23(a)(ii) in the service rendered as temporary Junior Professors.
The High Court has stated that Rule 35(a) could not have been properly invoked by the State Government after the regularisation of :he services of the candidates and it would be against the very concept of order of regularisa tion.
It has been pointed out that by regularisaion the period of temporary service has been converted into a period of regular service and a deeming, fiction is introduced that the candidates whose services have been regularised retro spectively must be 625 treated for all purposes as being in regular service from the respective dates of regularisation.
In our opinion, the view.
expressed by the.
High Court not only runs counter to the terms of the order of the.
regularisation but also is inconsistent with Statutory principle of determining seniority under Rule 35(a).
In the first place the order of regularisation of the services 'of the candidateS expressly states that the inter se seniority of, the candidates would be in accordance with the rankings in the approved list prepared by the Public Service Commis sion and will not be affected in any way by the date of regularisation of services.
When the ' order of regularisa tion of temporary service itself denies such service for the purpose of determining seniority, the Court cannot count that service for the purpose of seniority.
Secondly, Rule 3.5(a) provides for determining the inter se seniority of the candidates selected by the Public Service Commission.
It states that the seniority of a person in a service, class or category or trade shall be determined unless he has been reduced to a lower rank as a punishment, by the rank ob tained by him in the list of approved candidates drawn by the Public Service Commission or other appointing authority as the case may be '.
Since the parties in these cases ap peared for selection before the Public Service Commission for regular recruitment as Junior Professors, the list of approved candidates prepared by the Public Service 'Commis sion in the order.of merit and accepted by the Government should be the basis for determining their inter se seniori ty.
It is not open to the parties to claim that their tempo rary service as Junior Professors upon regularisation should be counted for the purpose of determining the seniority in the cadre.
There is no rule supporting such contention.
The services rendered in the temporary post is available either for earning increments or for commencement of probation.
That would be clear from Rule 23(a).
Consistent with the Rule 23(a), the Government in the order of regularisation has directed that the incumbents are eligible for increments from the date of their regularisation as they are fully qualified to hold the post on that date.
The increments already sanctioned to them during their services as tempo rary Junior Professors prior to.regular appointment has been ratified by the said order.
The High Court was plainly in error in ignoring the statutory Rules and the terms and conditions of the order of regularisation of services.
Apart from that, Rule 10(a)(i)(1) provides for making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately.
Such appointments are made otherwise than in accor 626 dance with the procedure prescribed under the Rules.
In the instant case the respondents were appointed temporarily and otherwise than in accordance with 'the Rules.
They were later selected along with others for direct ,recruitment.by the Public Service CommisSion.
They were not entitled to count their temporary service for seniority.
In A.P.M. Mayakutty etc, vs Secretary, Public Service Department etc., at 942 this Court observed that the serv ices rendered by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointment is a matter of stop gap, emergency or fortuitous arrangement.
The present case cannot ' be an exception to this principle even though their temporary services have been regularised, since regularisation 'was only for limited purposes.
In any view of the matter the decision of the High Court cannot be sustained.
In the result the appeals are allowed and the impugned judgment is set aside with no order as to costs.
V.P.R. Appeals allowed. | The Government appointed temporary junior professors in different law colleges in the State under Rule 10(a)(1)(1) of the TamilNadu State and Subordinate Services Rules, 1955 during 1971 1982.
In 1979 the State Public Service Commission invited applications for regular appointment of junior professors.
The temporary junior professors and others applied for the posts.
The Commission selected 25 candidates out of whom 21 were already working as temporary junior professors.
On 16.8.1983, the selected candidates were arranged in the list called "approved list" in the order of merit prepared by the Commission which was approved by the Government on 9.12.1983.
On 27.6.1985 the State Government regularised the serv ices of the 21 junior professors with effect from 'the dates of original appointments as temporary junior professors.
Some of the junior professors were promoted on 10.9.1986 and appointed as professors.
The respondents challenged that promotion before the.
High Court contending that once the temporary services were regularised retrospectively with effect from the date of entry in the. service, the seniori ty should he reckoned by glvlng the benefit of regularised service notwithstanding the ranking in the approved list.
The High Court allowing the writ petitions directed the Govern 619 ment to make a proper order of promotion in the light of the views expressed in the judgment, against which appeals were made in this Court.
Allowing the appeals, this Court, HELD: 1.
The order of regularisation of the services of the candidates expressly States that the inter se seniority of the candidates would be in accordance with the rankings in the approved list prepared by the Public Service Commis sion and will not be affected in any way by the date of regularisation of services.
When the order of regularisation of temporary service itself denies such service for the purpose of determining seniority, the Court cannot count that service for the purpose of seniority.
[625B C] 2.
Since the parties in these cases appeared for selec tion before the Public Service Commission for regular re cruitment as Junior professors, the list of approved candi dates prepared by the Public Service Commission in the order of merit and accepted by the Government should be the basis for the determining inter se seniority.
It is not open to the parties to claim that their temporary service aS junior professors upon regularisation should be counted for the purpose of determining the seniority in the cadre.
[625D E] 3.
Rule 10(a)(i)(1) provides for making of temporary appointments.
Such appointments are made otherwise than in accordance with the procedure prescribed under the Rules.
[625H 626A] 4.
In the instant case, the respondents were appointed temporarily and otherwise than in accordance with the Rules.
They were later selected along with others for direct re cruitment by the Public Service Commission.
They were not entitled to count the temporary service for seniority.
The services rented by the applicants under Rule 10(a)(i)(1) cannot be considered for the purpose of seniority as such appointment is a matter of stop gap, emergency or fortuitous arrangement.
Even though their temporary services have been regularised, since regularisation was only for limited purposes.
[626A C] A.P.M. Mayakutty etc.
vs Secretary, 'Public Service Department etc.
, at 942, followed.
The services rendered in the temporary post is avail able either for earning increments or for commencement of probation.
[625E F] 620 |
ivil Appeal Nos.
1852 & 4772 of 1989.
From the Judgment and Order dated 25.5.1988 & 11.11.1988 of the Punjab and Haryana High Court in R.S.A. Nos.
2404 of 1987 and 2246 of 1988.
666 A.S. Sohal and G.K. Bansal for the Appellants.
Atul Nanda, ,Francis Victor, S.K. Mehta (N.P.), Subhash G. Jindal and N.A. Siddiqui for the Respondents.
The Judgment of the Court was delivered by K. JAGANNATHA SHETTY , J.
These appeals against the decision of the High Court of Punjab & Haryana raise a short issue, concerning limitation governing the suit for declara tion by a dismissed employee that he Continues to be in service since his dismissal was void and inoperative.
The High Court has observed that if the dismissal of the employ ee is illegal, void or inoperative being in contravention of the mandatory provisions of any rules or conditions of service, there is no limitation to bring a suit for declara tion that the employee continues to be in service.
The facts giving rise to these appeals, as found by the Courts below, may be summarised as follows: CA No. 1852/89 The respondent in this appeal was ap pointed as an ad hoc sub inspector in the District Food and Supply Department of Punjab State.
He absented himself from duty with effect from 29 September 1975.
On 27 January 1977, his services were .terminated.
On 18 April 1984, he insti tuted the suit for declaration that the termination order was against the principles of natural justice, terms and conditions of employment, void and inoperative and he con tinues to be in service.
The State resisted the suit con tending inter alia, that the plaintiff 's services were terminated in accordance with the terms and conditions of his ad hoc appointment and the suit was barred by time.
The trial court accepted the plea of limitation and dismissed the suit, but on appeal the Additional District Judge, Jullundhar decreed the suit.
He observed that the termina tion order though simpliciter in .nature ' was passed as a measure of punishment.
The plaintiff 's services were termi nated for unauthorised absence without an enquiry and he should have been given an opportunity to explain his conduct by holding proper enquiry.
On the plea of limitation, learned Additional District Judge held that no limitation is prescribed for challenging an illegal order.
Since the.
order of termination was bad, the suit was not barred by time.
In the second appeal preferred by the State the High Court agreed with the View following its earlier decisions.
CA No. 4772/89 The respondent in this appeal was a Railway 667 Police Constable.
He was appointed on 14 November 1977.
On 15 March 1979, he was discharged from service for some misconduct.
On 15 June 1979, his appeal was rejected by AIG, Railways, Patiala, Punjab.
On 30 November 1979, his revision petition was dismissed by the Inspector General of Police, Punjab.
On 12 February 1985 he brought a suit seeking declaration that the order discharging him from service and confirmed in the appeal and revision, was illegal, ultra vires, unconstitutional and against the principles of natu ral justice and he continues to be in service as constable.
The trial court dismissed the suit.
The appeal preferred by the plaintiff was accepted by the Additional District Judge who decreed the suit as prayed for.
He has inter alia stated that the plaintiff was discharged from service in contraven tion of the mandatory provisions of the rules and as such it has no legal effect.
There is no period of limitation for.
inStituting the suit for declaration that such a dismissal order is not binding upon the plaintiff.
While affirming that principle, the High Court dismissed the second appeal in limine.
These are not the only cases in which the Punjab and Haryana High Court has taken the view that there is no limitation for instituting the suit for declaration by a dismissed or discharged employee on the ground that the dismissal or discharge was void or inoperative.
The High Court has repeatedly held that if the dismissal, discharge or termination of services of an employee is illegal, uncon stitutional or against the principles of natural justice, the employee can approach the Court at any time seeking declaration that he remains in service.
The suit for such reliefs is not governed by any of the provisions of the Limitation Act [See: (i) State of.
Punjab vs Ajit Singh, and (ii) State of Punjab vs Ram Singh, First of all, to say that the suit is not governed by the law of Limitation runs afoul of our Limitation Act.
The statute of limitation was intended to provide a time limit for all suits conceivable.
Section 3 of the Limitation Act provides that a suit, appeal or application instituted after the prescribed "period of limitation" must subject to the provisions of Sections 4 to 24 be dismissed although limita tion has not been set up as a defence, Section 2(J) defines the expression "period of limitation" to mean the period of limitation prescribed in the Schedule for suit, appeal or application.
Section 2(J) also defines, "prescribed period" to mean the period of limitation computed in accordance with the provisions of the Act.
The Court 's function on the presentation of plaint is simply to examine whether, on the assumed facts the plaintiff is within time.
The Court has to find out when the 668 "right to sue" accrued to the plaintiff.
If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fail within the residuary article.
The purpose of the residuary article is to provide for cases which could not be covered by any other provision in the Limitation Act.
The residuary article is applicable to every variety of suits not otherwise provided for.
Article 113 (corresponding to Article 120 of the Act 1908) is a residu ary article for cases not covered by any other provisions in the Act.
It prescribes a period of three years when the right to sue accrues.
Under Article 120 it was six years which has been reduced to three years under Article 113.
According to the third column in Article 113, time commences to run when the right to sue accrues.
The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings.
Generally, the right to sue accrues only when the 'cause of action arises, that is, the right to prosecute to obtain relief by legal means.
The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and unequivocal threat to infringe that right by the defendant against whom the suit is insti tuted (See: (i) Mt. Bole vs Mt. Koklam and Ors., AIR 1930 PC 270 and (ii) Gannon Dunkerley and Co. vs The Union of India, ; In the instant cases, the respondents were dismissed from service.
May be illegally.
The order of dismissal has clearly infringed their right to continue in the service and indeed they were precluded from attending the office from the date of their dismissal.
They have not been paid their salary from that date.
They came forward to 'the Court with a grievance that their dismissal from service was no dis missal in law. ' According to them the order of dismissal was illegal, inoperative and not binding on them.
They wanted the Court to declare that their dismissal was void and inoperative and not binding on them and they continue to be in.
service.
For the purpose of these cases, we may assume that the order of dismissal was void inoperative and ultra vires, and not voidable.
If an Act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically.
It need not be set aside.
The aggrieved party can simply seek a declaration that it is void and not bind ing upon him.
A declaration merely declares the existing state of affairs and does not 'quash ' so as to produce a new state of affairs.
But nonetheless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court.
In Smith vs East.
Elloe Rural District Council, ; at 769 Lord Redcliffe observed: 669 " An order even if not made in good faith, is still an actcapable of legal consequences.
It bears no brand of invalidity upon its fore head.
Unless the necessary proceedings are taken at law to establish the cause of inva lidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders.
" Apropos to this principle, Prof. Wade states: "the principle must be equally true even where the 'brand ' of invalidity ' is plainly visible; for their also the order can effectively be resisted in law only by obtaining the deci sion of the Court (See: Administrative Law 6th Ed.
p. 352).
Prof. Wade sums up these principles: "The truth of the matter is that the court will invalidate an order only if 'the right remedy is sought by the right person in the right proceedings and circumstances.
The order may be hypothetically a nullity, but the Court may refuse to quash it because of the plain tiff 's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason.
In any such case the 'void ' order remains effective and is, in reality, valid.
It follows that an order may be void for one purpose and valid for another, and that it may be void against one person but valid against another." (Ibid p. 352) It will be clear from these principles, the party ag grieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him.
He must approach the Court within the prescribed period of limitation.
If the statutory time limit expires the Court cannot give the declaration sought for.
Counsel for the respondents however, has placed strong reliance on the decision of this Court in State of M. P.v.
Syed Quamarali, The High Court has also relied upon that decision to hold that the suit is not governed by.
the limitation.
We may examine the case in detail.
The respondent in that case was a sub inspector in the Central Province Police Force.
He was dismissed from service on 22 December 1945.
His appeal against that order was dismissed by the Provincial Government, Central Prov inces and Berar on 9 April 1947.
He brought the suit on 8 December 1952 on allegation that the order of dismissal was contrary to the para 24 1 of the Central Provinces and 670 Berar Police Regulations and as such contrary to law and void, and prayed for recovery of Rs.4724/5 on account of his pay and dearness allowance as sub inspector of police for the three years immediately preceding the date of the insti tution of the suit.
The suit was decreed and.
in the appeal before the Supreme Court, it was urged that even if the order of dismissal was contrary to the provisions of.law, the dismissal remained valid until and unless it is set aside and no relief in respect of salary could be granted when the time for obtaining an order setting aside the order of dismissal had elapsed.
It was observed: "We therefore hold that the order of dismissal having been made in breach of a mandatory provision of the rules subject to which only the power of punishment under section 7 could be exercised, is totally invalid.
The order of dismissalhad therefore, no legal existence and it was not necessary for the respondent to have .the order set aside by a Court.
The defence of limitation which was based .only on the contention that the order.had to be set aside by a court before it became invalid must therefore be rejected.
" These observations are of little assistance to the plaintiffs in the present case.
This Court only emphasized that since the order of dismissal was invalid being contrary to para 241 of the Berar Police Regulations, it need not be set aside.
But it may be noted that Syed Qamarali brought the suit within the period of limitation.
He was dismissed on 22 December 1945.
His appeal against the order of dis missal was rejected by the Provincial Government on 9 April 1947.
He brought the suit which has given rise to the appeal before the Supreme Court on 8 December 1952.
The right to sue accrued to Syed Qamarali when the Provincial Government rejected his appeal affirming the original order of dismissal and the suit was .brought within six years from that date as prescribed under Article 120 of the Limitation Act, 1908.
The Allahabad High Court in Jagdish Prasad Mathur and Ors.
vs United Provinces Government, AIR 1956 All 114 has taken the view that a suit for declaration by a dismissed employee on the ground that his dismissal is void, is gov erned by Article 120 of the Limitation Act.
A similar view has been taken by Oudh Chief Court in Abdul Vakil vs Secre tary of State and Anr., AIR 1943 Oudh 368.
That in our opinion is the correct view to be taken.
A suit for declara tion that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act The decision to the contrary taken by the Punjab & Haryana 671 High Court in.
these and other cases ((i)State of Punjab vs Ajit Singh,.
and (ii) State of Punjab vs Ram Singh, is not correct and stands overruled.
In the result, we allow the appeals, set aside the judgment and decree of the High Court and dismiss the suit in each case.
In the circumstances, however, we make no order as to costs.
V.P.R. Appeals allowed. | The respondent plaintiff in C.A. No. 18S2/89 was appointed as an ad hoc Sub inspector in the District Food and Supply Department.
He absented himself from duty from 29 September 197S. On 27 January 1977, his services were terminated.
On 18 April 1984, he instituted 'the mir for declaration that the termination order was against the principles of natural Justice, terms and conditions of employment, void and inoperative and be continued to be in service.
The State the appellant defendant contended that the plaintiff 'sservices were terminated in accordance with the terms and conditions of his ad hoc appointment and the suit was barred by time.
The trial Court dismissed the Suit on the ground of limitation, but on appeal the Additional District Judge decreed the suit, holding that the termination order though simplicitor in nature was passed as a measure of punishment without an 'enquiry and he should have been given an oppor tunity to explain his conduct by holding proper enquiry and that, since the order of termination was bad, the suit was not barred by time.
The second appeal preferred by the State was dismissed by the High Court holding that as the dismissal of the employee was illegal, 664 void or inoperative being in contravention of the mandatory provisions of any rules or.
conditions of service, there was.no limitation to bring a suit for declaration of contin uance in service.
The respondent plaintiff in C.A. No. 4772/89 was ap pointed on.
14 November 1977.
On 15 March 1979, he was discharged from service for some misconduct and against which appeal was made, which was rejected on 15.6.1979.
When his revision petition was dismissed on 30.11.1979 he brought a suit on 12.2.1985 seeking declaration that the order discharging him from service was illegal, ultra vires, unconstitutional against the principles of natural justice and continuance in service.
The trial court dismissed the suit.
The appeal preferred by the plaintiff was allowed by the Additional District Judge that the plaintiff was discharged from service in contravention of the mandatory provisions of the rules and as such it had no legal effect.
There was no period of limitation .for instituting the suit for declaration that such a dismissal order was not binding upon the plaintiff.
The High Court dismissed the second appeal in limine.
On the question, whether limitation governs the suit for declaration by a dismissed employee, if the dismissal was illegal, void or inoperative being in contravention of the mandatory provisions of any rules or conditions of service, this Court, allowing the appeals of the State the defendant, HELD: 1.
The Court 's function on the presentation of plaint is simply to examine whether, on the assumed facts, the plaintiff is within time.
The Court has to find out when the "right to sue" accrued to the plaintiff.
If a suit is not covered by any of the specific articles prescribing a period of limitation, it must fall within the residuary article.
[667H 668.
A suit for declaration that an order of dismissal or termination from service passed against the plaintiff is wrongful, illegal or ultra vires is governed by Article 113 of the Limitation Act.
[6TOG.H] 3.
The party aggrieved by the invalidity of the order has to approach the Court for relief of declaration that the order against him is inoperative and not binding upon him.
He must approach the Court within the prescribed.period of limitation.
If the statutory time limit expires the Court cannot give the declaration sought for.
[669E F] 665 4.
If an act is void or ultra vires it is enough for the Court to declare it so and it collapses automatically.
It need not be set aside.
The aggrieved party can simply seek a declaration that it is void and not binding upon him.
A declaration merely declares the existing state of affairs, and does not 'quash ' so as to produce a new state of af fairs.
[668F G] But none theless the impugned dismissal order has at least a de facto operation unless and until it is declared to be void or nullity by a competent body or Court.
[668H] Smith vs East Elloe Rural Disrict Council, ; at 769, referred to.
Prof. Wade: Administrative Law, 6th Ed.
P. 352, referred to.
State of M.P.v.
Syed Quamarali, , distin guished.
Jagdish Prasad Mathur and Ors.
United Provinces Government, AIR 1956 All 114 and Abdul Vakil vs Secretary of State and Anr , AIR 1943 Oudh 368, Approved.
State of Punjab vs Ajit Singh, and State of Punjab vs Ram Singh, , over ruled.
The words "right to sue" ordinarily mean the right to seek relief by means of legal proceedings.
Generally, the right to sue accrues only when the cause of action arises, that is, the right to prosecute to obtain relief by legal means.
The suit must be instituted when the right asserted in the suit is infringed or when there is a clear and une quivocal threat to infringe that right by the defendant against whom the suit is instituted.
[668C D] Mt. Bole vs Mt. Koklam and Ors., AIR 1930 PC 270 and Gannon Dunkerley and Co. vs The Union of India, ; followed. |
Civil Appeal No. 2640(L) of 1980 From the Judgment and order dated 14.2.1978 of the Central Govt.
Industrial Tribunal Cum Labour Court New Delhi in L.C.A. Nos.
389. 391 393, 395 406 of 1978.
Mrs. Urmila Kapur Advocate, for the Appellants.
V.C. Mahajan, Miss A. Subhashini, R.P Srivastava and C.V. Subba Rao for the Respondents.
The Judgment of the Court was delivered by VENKATARAMlAH, J.
This appeal by special leave is filed by 16 workmen of the Small Arms Factory, Kanpur against the common order dated 14th February, 1979 passed by the Central Government Industrial Tribunal cum Labour Court, Alipur Road, Delhi in applica 473 tions bearing L.C.A. Nos. 389, 391 to 393 and 395 to 406 of 1978 filed under section 33 C(2) of the (hereinafter referred to as 'the Act ') rejecting their claims.
The appellants filed the applications under section 33 C(2) of the Act for computation of the wages payable to them for certain periods as detailed in the respective petitions.
Their case was that even though they had been engaged as 'C ' Grade Fitters, they were entitled to the salary and allowances payable to 'B ' Grade Fitters, since they were doing the same duties as 'B ' Grade Fitters.
The Management contested the applications filed by the appellants stating that they were not maintainable since the principal question involved in all the applications related to the re classification of the workmen concerned and that such a relief could not be claimed under section 33 C(2) of the Act.
The Central Government Industrial Tribunal cum Labour Court upheld the objection of the Management and rejected the applications by its common order dated 14th February, 1979.
Aggrieved by the said common order the appellants filed this appeal by special leave.
It is not disputed that the appellants had been employed as 'C Grade Fitters and in order to get the salary and allowances payable to 'B ' Grade Fitters they had to be promoted to the cadre of 'B ' Grade Fitters on their passing certain trade tests.
Admittedly, the appellants had not been so promoted.
But, their case before the Central Government Industrial Tribunal cum Labour Court was that since they were doing the same duties which are performed by a 'B ' Grade Fitter, they were entitled to claim the wages payable to 'B ' Grade Fitters under section 33 C(2) of the Act.
Section 33 C(2) of the Act reads thus: "33 C(2).
Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises as to the amount of money due or as to the amount at which such benefit should be computed, then the question may.
subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government within a period not exceeding three months.
Provided that where the presiding officer of a Labour Court considers it necessary or expedient so to do he may, for reasons to be recorded in writing extend such period by such further period as he may think fit.
" 474 The above provision came up for consideration before this Court A in the Central Bank of India Ltd. vs P.S. Rajagopalan etc.
; , At pages 150 151 of the said Report this Court observed thus: "The Legislative history to which we have just referred clearly indicates that having provided broadly for the investigation and settlement of industrial disputes on the basis of collective bargaining, the legislature recognised that individual workmen should be given a speedy remedy to enforce their existing individual rights, and so, inserted section 33 A in the Act in 1950 and added section 33 C in 1956.
These two provisions illustrate the cases in which individual workmen can enforce their rights without having to take recourse to section 10(1) of the Act, or without having to depend upon their Union to espouse their cause.
Therefore, in construing section 33 C we have to bear in mind two relevant considerations.
The construction should not be so broad as to bring within the scope of section 33 C cases which would fall under section 10(1).
Where industrial disputes arise between employees acting collectively 'and their employers, they must be adjudicated upon in the manner prescribed by the Act, as for instance, by reference under section 10(1).
These disputes cannot be brought within the purview of section 33 C. Similarly, having regard to the fact that the policy of the Legislature in enacting section 33 C is to provide a speedy remedy to the individual workmen to enforce or execute their existing rights, it would not be reasonable to exclude from the scope of this section cases of existing rights which are sought to be implemented by individual workmen.
In other words, though in determining the scope of section 33 C we must take care not to exclude cases which legitimately fall within its purview, we must also bear in mind that cases which fall under section 10(1) of the Act for instance, cannot be brought within the scope of section 33 C." It is obvious from the facts narrated above, which are not in dispute, that by merely doing the same kind of work which is done by a 'B ' Grade Fitter, a workman appointed as a 'C ' Grade Fitter will not be entitled to claim the wages of a 'B ' Grade Fitter unless he is duly promoted after getting through the prescribed trade tests Such a workman cannot complain that he is not being paid the salary and allowances due to a 'B ' Grade Fitter, since he does not possess an 475 existing right to claim it.
If on an adjudication made on the said question on a reference made under section 10(1) of the Act, it is held that he should be deemed to be a member of the cadre of 'B ' Grade Fitters, then only he would be able to claim the salary and allowances payable to 'B ' Grade Fitters.
The case before us is analogous to the claim made by a Junior Clerk, who can become a Senior Clerk only on promotion, to the salary attached to the post of Senior Clerk on the ground that both the Junior Clerk and the Senior Clerk are engaged in clerical work.
The learned counsel for the appellants, however, relied upon two other decisions of this Court State Bank of Bikaner and Jaipur vs Khandelwal (R. L.), and State Bank of Bikaner and Jaipur vs Gopal Sahal Pareek, which were decided on the same day.
On going through those two decisions we feel that they are of no assistance to the appellants.
In the said cases this Court clearly laid down that a workman could not put forward a claim in an application filed under section 33 C(2) of the Act in respect of a relief which was not based on an existing right and which could be appropriately the subject matter of an industrial dispute requiring a reference under section 10 of the Act.
The decision of this Court in R.B. Bansilal Abirchand Mills Co. Ltd. vs Labour Court, Nagpur & Ors., ; is clearly distinguishable from the present case.
In the said case the only dispute was whether workmen were not entitled to lay off compensation.
The Management in that case contended that the business had been closed and the workmen were not entitled lay off compensation.
This Court held that from the facts and circumstances of the case, it was clear that the business of the company was continuing and that the Labour Court 's jurisdiction could not be ousted by a mere plea denying the workmen 's claim to the computation of benefit in terms of money.
It was also held that the Labour Court in the circumstances had to go into the matter and come to a decision as to whether there was really a closure or a lay off.
If in the present case the claim of the appellants was that they had been actually promoted to 'B ' Grade Fitters cadre and that the Management had denied that there was such promotion, the Labour Court would have been under an obligation to determine whether there was such a promotion or not.
But the case of the workmen before us is that they should be classified as 'B ' Grade Fitters even though they had been appointed as 'C ' Grade Fitters merely because they had been performing the duties which were similar to the duties of 'B ' Grade Fitters.
476 The decision of the Gujarat High Court rendered by Thakkar, C.J. (as he then was) in V.M. Vankar (Macwana) vs Indian Farmers Fertiliser, is again of no assistance to the appellants.
In that case there was a settlement arrived at between the Management and the workmen and under the said settlement persons working as Conveyor Attendants, Bag Stitchers, Bag Fillers and Pointsmen were entitled to the pay scale of Rs.225 9 333.
The complaint of the workman concerned was that even though he was performing the duties of persons in the above category, he was being paid as per the pay scale of workmen in a lower category, i.e., the pay scale of Rs.210 8 314.
In that case the High Court rightly came to the conclusion that the Labour Court was required to decide whether the workman concerned was doing the work of an employee who was in the category which carried a higher pay scale or was doing the work of an employee in a category which carried a lower pay scale for the purpose of granting relief to the workman.
The question of promotion from a lower post to a higher post or of the passing of a trade test for the n purpose of securing such promotion was not involved in that case.
In any view of the matter we feel that there is no ground to set aside the order of the Central Government Industrial Tribunal cum Labour Court against which this appeal is filed.
The appeal fails and it is dismissed.
There will be no order as to costs.
It is open to the workmen, if they are so advised, to seek a reference of the question whether they are entitled to be treated as 'B ' Grade Fitters under section 10 of the Act and if such a reference is sought we hope that the appropriate Government would decide expeditiously the question whether a reference should be made accordingly or not.
If a reference is made, the Tribunal or the Court to which the reference is made shall dispose of the case as early as possible.
P.S.S. Appeal dismissed. | The appellant engaged as 'C ' Grade Fitters in a Central Government Undertaking filed applications under section 33 C(2) of the for computation of wages payable to them for certain periods.
Their case before the Central Government Industrial Tribunal cum Labour Court was that since they were doing the same duties which were performed by a 'B ' Grade Fitter, they were entitled to claim wages payable to 'B ' Grade Fitters.
The Management contended that since the principal question involved in all the applications related to re classification of the workmen concerned, a relief which could not be claimed under section 33 C(2) of the Act, these were not maintainable.
The Tribunal rejected the applications by a common order.
In this appeal by special leave, it was contended for the workmen that they should be classified as 'B ' Grade Fitters even though they had been appointed as 'C ' Grade Fitters because they had been performing the duties which were similar to the duties of 'B ' Grade Fitters.
Dismissing the appeal, ^ HELD:1.1 A workman cannot put forward a claim in an application filed under section 33 C(2) of the in respect of the relief which is not based on an existing right and which can be appropriately the subject matter of an industrial dispute requiring a reference under section 10 of the Act.
[475C D] 1.2 By merely doing the same kind of work which is done by a senior grade workman, a junior grade workman will not be entitled to claim the wages of senior grade unless he is duly promoted.
Such a workman cannot complain that he is not being paid the salary and allowances due to a senior grade workman, since he does not possess an 472 existing right to claim it.
If on an adjudication made on the said question on a reference made under section 10(1) of the Act, it is held that he should be deemed to be a member of the senior cadre, then only he would be able to claim the salary and allowances payable to senior grade workmen.
[474G H;475A B] Central Rank of India Ltd. vs P.S,.
Rajagopalan etc.
; , ; State Bank of Bikaner and Jaipur vs Khandelwal (R.L.).
[1968] I L.L.J. 589 and State Bank of Bikaner and Jaipur vs Gopal Sahal Pareek.
[1968] 1 L.L.J. 593, referred to.
R. B. Bansilal Abirchand Mills Co. Ltd. vs Labour Court, Nagpur & Ors., ; and V.M Vankar (Macwana) vs Indian Farmers Fertilizer, [1984] Lab.
I.C. 1342, distinguished.
1.3 In the instant case, the appellants had been employed as 'C ' Grade Fitters and in order to get the salary and allowances payable to 'B ' Grade Fitters they had to be promoted to the cadre of 'B ' Grade Fitters on their passing certain trade tests.
They had not been so promoted.
The claim of the appellants, therefore, is not tenable.
[473D E] 2.
It is open to the workmen, if they are so advised, to seek a reference of the question whether they are entitled to be treated as 'B ' (grade Fitter Under section 10 of the Act.
[476E] |
Appeal No. 316 of 1959.
Appeal by special leave from the judgment and decree dated August 22, 1959 of the Madras High Court in Appeal No. 282 of 1952.
G.S. Pathak, B. Dutta, T.R. Ramchandra, J.B. Dadachanji, O.C. Mathur and Ravinder Narain, for the appellants.
H.N. Sanyal, Solicitor General of India, K. Jayaram and R. Ganapathy Iyer, for respondent No. 1 N. Panchapagesa Iyer, M.P. Swami and R. Thiagarajan, for respondent No. 2.
December 11, 1963.
The Judgment of the Court was delivered by DAS GUPTA J.
Thirteen month old Bhakthavathsalam brought this suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father V.R. Sadagopa Naidu, the first defendant, in the suit, formed with the other nine persons impleaded as defendents 2 to 10.
His case is that Padmavathi and Sadagopa were validly married on June 24, 1948 and of that marriage he was born.
The main contention of the contesting defendants is that there was never any marriage of Padmavathi and Sadagopa and that Bhakthavathsalam is not Sadagopa 's son.
On both these points the Trial Court found the plaintiffs ' case proved and rejected the defence pleas.
At the trial a further point was raised that even if any marriage between Padmavathi and Sadagopa 913 did take place that was not a valid marriage as Padmavathi was a Brahmin girl and Sadagopa a Shudra.
The Trial Court was of opinion that Padmavathi was a Brahmin, and as admittedly Sadagopa was a Shudra, the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act, 1949.
It held however that the position had been entirely changed by section 3 of this Act and that even if Padmavathi belonged to the Brahmin caste and not to the caste to which Sadagopa belonged the marriage is valid under the existing law.
The validity of the Act itself appears to have been challenged before the Trial Court, but, this was rejected.
In the result, the Trial Court passed a preliminary decree for partition providing for allotment to the plaintiff of 1/8th share of the property set out in the plaint.
Some other directions were also given in the decree, with which however we are not concerned.
On appeal by the defendants, the High Court of Judicature at Madras agreed with the Trial Court that Padmavathi and Sadagopa had been duly married and that the plaintiff Bhakthavathasalam was the issue of that marriage, being born of Padmavathi to Sadagopa.
The High Court was however of opinion that Padmavathi was a Shudra, the same as Sadagopa.
Assuming however for argument 's sake that Padmavathi was a Brahmin the High Court agreed with the Trial Court that the marriage was validated by the Hindu Marriages Validity Act, 1949, and so, the plaintiff would have all the rights of legitimate son vis a vis the coparcenary to which his father belonged.
The validity of the Act was unsuccessfully challenged.
Accordingly, the High Court affirmed the judgment and decree passed by the Trial Court and dismissed the appeal.
Against this decision of the High Court the present appeal has been filed by the defendants with special leave.
In support of the appeal, Mr. Pathak tried first to attack the concurrent findings of facts of the courts below as regards the marriage between Sadagopa 914 and Padmavathi and the fact of the plaintiff being born of Padmavathi to Sadagopa in that marriage.
Learned counsel wanted to.
say that the findings of the High Court on these points were vitiated by misreading of important items of evidence.
He could not however point out any such misreading nor any other error to justify our re assessment of the evidence Having failed in this attempt Mr. Pathak contended that as a matter of law the plaintiff did not become a legitimate son of Sadagopa inspite of the provisions of the Hindu Marriages Validity Act, 1949.
According to the learned counsel the only effect of this Act is that the marriage becomes valid and it has no effect as regards the legitimacy of the child born before the date of the Act.
The relevant provisions of the Act is in section 3 and is in these words: "Notwithstanding anything contained in any other law for the time being in force or in any text, or interpretation of Hindu law, or in any custom or usage, no marriage between Hindus shall be deemed to be invalid or ever to have been invalid by reason only of the fact that the parties thereto belonged to different religions, castes, sub castes or sects.
" For his proposition the learned counsel could not cite any authority; and that is natural because the contention raised is entirely misconceived and can be characterised as extravagant.
He tried to persuade us however that a proper construction of the words used in the section,justifies the conclusion that it was the status of the parties to the marriage that was only sought to be affected.
He conceded that in the case of every marriage celebrated after the date of the Act, the result of the marriage being valid would be, that the children born of the marriage would be legitimate, 'but argued that the same result would not follow in the case of a marriage which having been celebrated before the date of the Act was invalid at the time and the children were illegiti 915 mate then.
The illegitimate children , he argues, were not made legitimate by this Act.
For that purpose an express provision was necessary, according to the learned counsel.
In support of his arguments he has drawn our attention to the wordings of section 1 of the Hindu Widows ' Re Marriage Act, 1856, which is in these words: "No marriage contracted between Hindus shall be invalid, and the issue of no such marriage shall be illegitimate, by reason of the women having been previously married or betrothed to another person who was dead at the time of such marriage, any custom and any inter pretation of Hindu law to the contrary notwithstanding.
" The absence of any phrase similar to "the issue of no such marriage shall be illegitimate" in the Hindu Marriages Validity Act, 1949, is claimed by the learned counsel to support his contention.
We cannot agree.
In our opinion, the use of the words "the issue of no such marriage shall be illegitimate" was not really necessary in section 1 of the Hindu Widows ' Re Marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the, issue of the marriage was legitimate.
These words were put in the section.
, by the legislature in 1856 as a matter of abundant, caution.
The absence of such words in the Hindu Marriages Validity Act, 1949 is of no consequence.
If the Act had not retrospectively validated marriages celebrated before the date of the Act, the children of those marriages could not have claimed to be legitimate.
The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different,, castes, sub castes and sects.
It is idle to contend that the object of the legislature was only to regu larise the status of the husband and the wife.
That ' certainly was part of the object.
But equally important, or perhaps more important object was that the children of the marriages would become legitimate.
916 We have therefore come to the conclusion that even if the Trial Court was right in thinking that Padmavathi was a Brahmin girl and not a Shudra, the position in law was, as found by the courts below, viz., it was a valid Hindu marriage and Bhakthavathasalam a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters.
No other point was urged in appeal.
The appeal is accordingly dismissed with costs.
Appeal dismissed. | The minor respondent No. I brought a suit for partition on a claim that on his birth he became a member of the joint Hindu family which his father Sadagopa Naidu, the first defendant, in the suit, formed with the other nine persons impleaded as defendants 2 to 10.
His case was that Padmavathi and Sada Gopa were validly married on June 24, 1948 and of that marriage he was born.
The case of the defendant was that the impugned marriage was not a valid marriage as Padmavathi was a Brahmin girl and Sada Gopa a Shudra.
On these facts the Trial Court passed a preliminary decree for partition in favour of the respondent No. 1.
The Trial Court was of opinion that the marriage would be invalid according to the Hindu Law as it stood before the Hindu Marriages Validity Act, 1949.
It held however that the position had been entirely changed by section 3 of the Hindu Marriages Validity Act, 1949 and that the marriage was validated by the Act of 1949.
On appeal by the defendants, the High Court affirmed the judgment and decree passed by the trial court.
Hence this appeal.
Held: (i) The Hindu Marriages Validity Act, 1949 was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different 912 castes, sub castes and sects.
It is idle to say that the object of the legislature was only to regularise the status of the Husband and the Wife.
That certainly was part of the object.
But equally important, or perhaps more important object was that the children of the marriages would become legitimate.
On the facts of this case it was held that the impugned marriage was a valid Hindu marriage and the respondent No. 1 a legitimate son of Sadagopa with all the rights of a coparcener in regard to the joint family properties and other matters. |
ivil Appeal No. 630 of 1981.
, From the Judgment and Decree dated 24.8.
1979 of the Andhra Pradesh High Court in Second Appeal No. 358 of 1977.
WITH S L .P Nos. 438/79 & 2113/80.
724 T.S. Krishnamurty lyer, G. Narasimhalu, G.S. Narayana, K. Ram Kumar, Mrs. Anjani, Mrs. J. Ramachandran, T.T. Kunhi kannan, section Srinivasan and A.T.M. Sampath for the appearing parties.
The Judgment of the Court was delivered by KASLIWAL, J.
In the above appeal and Special Leave Petitions question has been raised about the ambit and scope of Sec.
14(1) and 14(2) of the (hereinafter referred to as the 'Act ').
Before adverting to the legal question, it would be proper to narrate in short the facts of each case.
Civil Appeal No. 630 of 1981 Thota Madhav Rao, the plaintiff filed a suit against Thota Manikyamma on the allegation that the plaintiffs father Yellamanda and the defendant 's husband Late Venkata Subbayya were brothers.
As the defendant and her husband had no issue they brought up the plaintiff as their foster son from the age of eight years and thereafter the plaintiff continued to live with them and was brought up treating him as their own son.
Venkata Subbayya died on 14.1.1932 and before his death he executed a will bequeathing the suit properties in favour of his wife Smt.
Thota Manikyamma for her life with a vested remainder in favour of the plaintiff.
Both the parties lived together with perfect understanding but after some time there was misunderstanding and the defendant assumed hostile attitude towards the plaintiff and began to claim the suit property as her absolute property.
The defendant also executed a registered will on 26.10.69 bequeathing the suit properties in favour of one Ramisetti Koteswar Rao.
The plaintiff in these circumstances claimed absolute right in the suit properties after the lifetime of the defendant and challenged the right of the defendant to execute any will in respect of the suit properties.
The defendant took the plea that her husband died issueless and intestate and did not execute any will at any time.
Neither she nor her husband brought up the plaintiff as their foster son nor did they educate him.
The defendant had brought up Ramisetti Koteswar Rao, who is her nephew, from his child hood and performed his marriage.
On account of love and affection for him and his children, the defendant executed a registered will on 26.10.69 bequeathing all her properties in his favour.
The Trial Court held the will dated 14.1.1932 proved and decreed the plaintiffs suit.
The First Appellate Court upheld the Judgment and decree of the Trial Court.
The defendant preferred a second ' appeal in the High Court.
During the pendency of the Second Appeal in the 725 High Court the plaintiff died and his legal representatives were brought on record.
The High Court by Judgment dated 24.8.1979 allowed the second appeal and dismissed the suit with costs throughout.
The legal representatives of the plaintiff have come to this Court by grant of special leave.
The question involved is whether the life interest in the property acquired by Thota Manikyamma under the will execut ed by her husband and continued to be in her possession became her absolute property under Sec.
14(1) of the Act.
Special Leave Petition (C) No. 438 of 1979 One Meenammal is the wife of Ovi Reddiar.
Married life between Ovi Reddiar and his wife.
was not happy and cordial.
Ovi Reddiar executed a registered will exhibit A 4 dated 21.3.1921 bequeathing all his properties including the suit properties in favour of .his mother and sister for their lifetime and thereafter in favour of Ramalinga Reddiar and Dhanush Koti Reddiar, the two sons of his sister and their issues.
In the said will reference was made regarding the ' conduct of Meenammal in deserting him and in any event if she changed her mind and agreed to live under the protection of the legatees she was allowed to enjoy the income from item I of the suit properties and that she should construct a house in item referred to in the will and to live there during her lifetime and after her death the said Item and the house site .with the house shall go to the above men tioned Ramalinga Reddiar and Dhanush Koti Reddiar.
Ovi Reddiar died in 1922 and thereafter the legatees under the will entered into possession of all the proper ties.
Meenammal put obstruction to the legatees in getting possession.
There was some criminal litigation between Smt.
Meenam mal and the legatees under Sec.
145 Cr.
P.C. which resulted in favour of the legatees (exhibit A 1).
Meenammal then filed a suit in 1923 praying for a declaration that the will made by her husband was not valid and as such be cancelled and for possession and mesne profits and in the alternative she claimed for maintenance both past and future.
In the said suit the parties entered into a compromise and a com promise decree was passed on 5.3.1924, vide (exhibit A 1).
Under the terms of said compromise the execution of the will was accepted and the same was made subject to the terms of the compromise decree.
Under the compromise .decree it was agreed that Smt.
Meenammal would enjoy items 1 & 2 of the properties mentioned in the will and also 50 cents of land during her lifetime.
She would also have an enjoyment of the 726 house site during her lifetime without any right of aliena tion. ' Dhanush Koti died unmarried in 1930 but during his lifetime he sold his interest in.
the properties in favour of Ramalinga Reddiar.
Ramalinga Reddiar died in 1962.
On his death the petitioners before this Court being the sons and daughters of Ramalinga Reddiar Claimed to have become enti tled for all the properties of Ramalinga Reddiar including the rights in the suit property.
Meenammal during her lifetime executed a settlement deed in favour of the re spendents before this Court giving absolute rights in the suit properties.
The petitioners before this Court filed a suit against Smt.
Meenammal and the respondents for declara tion that the settlement deed (exhibit A 10) executed by Smt.
Meenammal will not enure beyond the lifetime of Smt.
Meenammal.
Meenammal contested the suit and took the plea that the limited interest given to her under the com promise decree had become enlarged into absolute right by virtue of Section 14(1) of the Act.
The Trial Court decreed the suit and it was.
affirmed in first appeal.
Meenam mal having died.
, the respondents in this Court preferred a second appeal in the High Court of Judicature at Madras.
The High Court allowed the Second Appeal and dismissed the suit filed by the petitioners.
The petitioners in these circum stances have filed the S .L.P. under Article 136 of the Constitution of India, S.L.P. (C) No. 2113 of 1980 The suit properties as well as some other properties originally belonged to one Ramalinga Udayar.
He had two wives, namely, Alamolu and Saraswati.
the first wife Alamolu was living away from her husband.
Ramalinga did not have any issue from both the wives.
Ramalinga being attached with one Siva Subramania the petitioner before us executed a will on 2.7.
1945 ,bequeathing his properties in favour of his second wife Saraswati for her lifetime and thereafter, absolutely in favour of Siva Subramania.
A provision was also made for the payment of Rs.68 and a direction to make available 18 kalams of paddy in favour of Alamolu for her lifetime.
In order to ensure the payment of the maintenance and delivery of paddy a charge was also created over the properties to go ultimately in favour of Siva Subramania Udayar.
As Siva Subramania Udayar was a minor at that time the second wife Smt.
Saraswati was appointed as his guard ian.
Ramalinga died on 8.7.45 and subsequently his first wife Alamolu was awarded 50 kalams of paddy and a sum Of Rs.250 in cash perannum 'by way of maintenance.
On appeal the High Court modified the decree of the Trial Court and en hanced the maintenance to Rs.480 per annum 727 and directed Siva Subramania the legatee under the will to give one building for the residence of Alamolu.
Thereafter in 195 1 Alamolu sought the recovery of possession of one of the buildings and the Executing Court alltted to her the eastern house backyard and the shops.
The second wife saras wati preferred an appeal to the High Court against the above order of the executing court.
A compromise was entered into between the parties in the High Court.
According to the terms of compromise Alamolu was permitted to occupy the eastern house together with the two shops but the backyard portion was not given.
Alamoler however remained in posses sion of that portion as well, where some coconut trees were standing.
Lateron Saraswati was removed from the guardian ship of Siva Subramania Udayar, and natural father was appointed as his guardian.
Alamolu died on 2.2.1966.
The respondents before us are brother 's grandsons of Alamolu.
Alamolu settled the suit properties in favour of one Chan drashekhar Udayar claiming title to the same in pursuance to a compromise in A.A.O. 567 of 1950.
Ramayya Mudaliar another respondent before us initially took on lease the properties from Chandrashekhar and lateron purchased the eastern half of the building and backyard portion.
Siva Subramania Udayar challenged these transactions on the grounds that Alamolu was given a right of residence only in the building and the same lasted till her lifetime and such right could never be enlarged into an absolute right.
The settlement deed made by her in favour of Chandrashekhar Udayar and the sale made by Chandrashekhar in favour of Ramaiah were invalid and no title could be conveyed by Alamolu in their favour.
Siva Subramania Udayar as such filed a suit for recovery of possession of the suit properties with mesne profits.
The Trial Court held that Alamolu was not the absolute owner of the suit properties as contemplated under Section 14(2) of the Act.
The suit as such was decreed in favour of the plaintiff Siva Subramania Udayar.
Learned Single Judge of the High Court dismissed the appeal.
On a Letters Patent Appeal the Division Bench of the High Court allowed the appeal and dismissed the suit.
The plaintiff Siva Subramania Udayar has filed the S.L.P. under Article 136 of the Consti tution of India.
The controversy raised in these cases is almost settled by a number of decisions of this Court.
However, Learned counsel for the appellant in the appeal as well as Learned counsel for the petitioners in the Special Leave Petitions have raised an argument, placing reliance on Mst.
Karrni vs Amru and Ors., that the life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu succession Act, as 728 such we consider it proper to deal with this case in the light of other cases decided by this Court.
Section 14 of the reads as under: 14"(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation In this sub section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person.
Whether a relative or not, before.
at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner what soever, and also any such property held by her as stridhana immediately before the commence ment of this Act.
(2) Nothing contained in sub section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order or a civil court or under an award where the terms of the gift, will or other instrument or the decree.
order or award prescribe a restricted estate in such property".
The contention raised is that if a female Hindu acquires any property under a will which gives her a restricted estate in such property then provisions of sub section (2) will over ride, the provisions of subsection (1) of Section 14 of the Act which makes a female Hindu as full owner.
In Badri Prashad vs Smt.
Kanso Devi, ; a Bench of three Judges considered the question in detail.
In the above case a Hindu having self acquired properties, died in 1947 leaving five sons and a widow.
On a dispute between the parties an Arbitrator was appointed in 1950.
The Arbitrator gave an award and a decree was passed in terms of award.
Under the award the widow was given widow 's estate.
It was held that the widow inherited the property under Section 3 (1) of the Hindu Women 's Right to Property Act, 1937 and was in possession of it within the meaning of the word possession in Scetion 14(1) of the Act and when by an award her share was separetaed by metes and bounds, she also acquired the property within 729 the meaning of that section.
It was held that she had become full owner of the property in her possession under Section 14(i) on the coming into force of the , even though previously she was a limited owner.
It was clearly held in the above case that Section 14(2) of the Act is in the nature of a proviso or an excep tion to Section 14(1) and comes into operation only if acquisitiOn in any of the methods indicated therein is made for the first time without there being any pre existing right in the female Hindu to the property.
The Bench con sisted of Hon.
J.C. Shah, V. Ramaswamy and A.N. Grover, JJ.
The case of Mst.
Karmi vs Amru and Others, (supra) on which reliance has now been placed by Learned Counsel for the appellant and petitioners was also decided by a Bench of three Judges Hon.
J.C. Shah, K.S. Hegde and A.N. Grover, JJ.
It may be noted that two Hon 'ble Judges, namely, J.C. Shah and A.N. Grover were common to both the cases.
In Mst.
Karmi vs Arnru and Others, one Jaimal died in 1938 leaving his wife Nihali.
His son Ditta pre deceased him.
Appellant in the above case was the daughter of Ditta and the respondents were collaterals of Jaimal.
Jaimal first executed a will dated 18.12.1935 and by a subsequent will dated 13.11.1937 revoked the first will.
By the second will a life estate was given to Nihali and thereafter the property was made to devolve on Bhagtu and Armu collaterals.
On the death of Jaimal in 1938, properties were mutuated in the name of Nihali Nihali died in 1960/61.
The appellant Mst.
Karmi claimed right on the basis of a will dated 25.4.1958 execut ed by Nihali in her favour.
It was held that the life estate given to a widow under the will of her husband cannot become an absolute estate under the provisions of the Hindu Succes sion Act.
Thereafter, the appellant cannot claim the to the properties on the basis of the will executed by the widow Nihali in her favour.
It is a short Judgment without advert ing to any provisions of Sections 14(1) or 14(2) of the Act.
The Judgment neither makes any mention of any argument raised in this regard nor there is any mention of the earli er decision in Badri Pershad vs Smt.
Kanso Devi, (supra).
The decision in Mst.
Karmi & Anr.
cannot be considered as an authority on the ambit and scope of Sections 14(1) and (2) of the Act.
The controversy regarding sub Section (1) and (2) of Section 14 of the Act again came up for consideration in V. Tulsamrna & Ors.
vs V. Sesha Reddy (dead) by Lrs.
; , This case was also, decided by a Bench of three Judges.
In this case the controversy now raised before us was considered in detail.
All the earlier cases were 730 considered including Badri Prasad vs Smt.
Kanso Devi, (supra) and the ratio of this case was followed and approved in V. Tulsamma 's case.
Hon 'ble Bhagwati, J. who wrote the leading judgment dealt with the question in detail and after applying the mind to the controversy decided the same in a well considered manner.
V. Tulsamma 's case again was dis cussed in extenso and followed in Bai Vajia (dead) by L. Rs. vs Thakorbhai Chelabhai & On., ; , by a Bench of three Judges.
The same view has been consistently adopted in long series of cases of this Court and to mention a few of them are Jagannathan Pillai vs Kunjithapadam Pillai & Ors.
, [ ; ; Gopal Singh & Anr.
vs Dill Ram (dead) by L.Rs.
& Ors.
; , ; Gulwant Kaur and Others vs Mohinder Singh and Others, [ ; and Jaswant Kaur vs Major Harpal Singh, [ A mention of all the above cases shows that this Court in a long series 'of cases has taken a consistent view that Sec.
14(2) of the Act is in the nature of a proviso or an exception to Sec.
14 and comes into operation only if acqui sition in any of the methods indicated therein is made for the first time without there being any pre existing right in the female Hindu to the property.
If the case falls under the provisions of Sec.
14(1)of the ACt then the female Hindu shall be held to be full owner of the property and sub section (2) of Section 14 will only apply where the property is acquired without there being and pre exisitingisting right of the female Hindu in such property.
Thus we a firm and reiterate that sub section (2) of Sec.
14 will be con strued more in the nature of a proviso or an exception to sub section
(1) of Sec. 1 of the Act.
This view lends support to the object of the section which was to remove the disability on women imposed by law and to achive a social purpose by bringing about change in the social and economic position of women in Hindu society.
In the result we find no force in all the above cases and are dismissed with cost.
K. RAMASWAMY, J. 'I have had the advantage to read the draft judgment of my learned brother.
I fully agree with the resoning and conclusions.
The repeated attempts to reopen the ratio in Tulasamma 's case, in particular, from its proponent i.e. Sri Krishna Murthy lyar made me to tread the route through which I reached the same result thus: Sir Main Henry in his "Earlier History of Institutions" at p. 339 stated that, "the degree in which personal immuni ty and proprietory 731 capacity of women are recognised in a particular state or community is a test of the degree of the advance of its civilisation.
It is, therefore, clear that the esteem in which woman is held, the status occupied by her in society and the treatment meted out to her are regarded as index to the degree of civilisation and culture attained in a coun try.
Manu in his Smriti, Chapter III Verses 55 to 57 stated that where women are honoured and adorned there Gods are pleased, but where women are not honoured no sacred fire yields rewards.
What is the status held by women in the Hindu society is a matter of history reflected from Vedic culture, Smrities, the Shastric law, the statutory privision and ultimately converged and recognised in the supreme law of the land, i.e. egalitarian socialist Indian Constitution.
Shivaswamy lyer in his "Revolution of Hindu Women, " 1935 ,Edn.
p. 64 stated that the ideals of the society as to womanhood includes not merely the relations of husband and wife or mother and children or the other intimate rela tionship of family life, but also the notions we find about her capacity, her character, her claim to equality, inde pendence and freedom for developing, her rights to personal ownership and control of property, to the choice of her vocation and other rights as well as duties as member of the society.
Status and rights of Hindu woman fluctuated and swung like a pendulum with ups and downs from period to period starting from 4000 B.C. uptodate.
However esteem for women remained constantly high in the society.
In Vedic society woman enjoyed equal status economical ly, socially and culturally with men, vide p. 335,339 and 409 of The Position of Woman in Hindu Civilization, 1955 Edn.
by Altakar.
He stated that initiation to education upanayanam was performed in Vedic period to the girls as well as boys.
Women studied the Vedas, even composed Vedic rhymes.
They participated in public life freely.
Vishvavara, Apala, Lopamudra and Shashayasi are only few examples in the initial Vedic period.
Thereafter Ghosha, Maitrai and Gargi occupied price of place for equality in intellectual excel lence and equal status with men.
Selfishness and male chau vanism made woman to gradually degrade and were given no voice even in the settlement of their marriages or so on.
She was denied participation in public affairs.
Though Yajnavalkya was a proponent to her economic status but ultimately Manu Smriti took firm hold and in Chapter IX Verse 18, Manu stated that woman had no right to study the Vedas.
Thereby, denied the right to education, fundamental human right to acquire knowledge and cultural and intellec tual excellence.
In Chapter IX Verse 149, he stated that woman must not seek.
separation from father, husband or 732 son and bondaged her for ever.
In Chapter IX Verse 45, the husband was declared to be one with the wife that the wife can seek no divorce but allowed immunity to a male to dis card an unwanted wife.
All through the ages till Hindu Marriage Act was made a male was allowed polyandry.
In Chapter IX Verse 4 16, he stated that a wife, a son and a slave are declared to have no property and if they happened to acquire it would belong to male under whom she is in protection.
Thus she was denuded or her right to property or incentive to decent and independent living and made her a dependent only to rare children and bear the burdens.
When she becomes a widow, she was declared to have only mainte nance and if in possession of her husband 's property or coparcenery, to be a widow 's estate with reversionery right to the heirs of last male holder.
Fidality was a condition precedent to receive maintenance.
In Chapter IX Verse 299, he prescribed corporeal punishment to a wife who commits faults, should be beaten with a rope or a split bamboo.
If she was murdered it was declared to be an Upapattaka that is a minor offence vide Chapter XI Verse 67.
I did not adhere to literal translation but attempted to portray their sweep and deep incursion on social order.
Thus laid firm founda tion to deny a Hindu female of equality of status.
opportu nity and dignity of person with no independent right to property and made her a subservient, socially, educationally and culturally.
Widows were murdered by inhuman Sati and now by bride burnings.
Gautam Budha gave her equality of status and opportuni ty.
Efforts of social reformers like Raja Ram Mohan Rai, Kandukuri Veeresalingam and a host of other enlightened made the British Rulers gradually to make statute law, given her right to separate residence and maintenance and a right over property of her husband or joint family for maintenance and a charge by a decree of court.
Mahatma Gandhiji, the father of the nation, in Young India on October 17, 1929 had writ ten thus: "I am uncompromising in the matters of women 's rights.
In my opinion she should live under no legal disa bility, no suffering by men, we should treat the daughters and sons on the footing of perfect equality".
Shri Ravindra Nath Tagore, the Noble laureate in his speech in 1913 re printed in "To the Women" at page 18 stated "that women is the champion of man, gifted with equal mental capacity.
She has a right to participate in any minutest activity of men and she has equal right of freedom and liberty with him".
The Constitution of India accords socio economic and political justice, equality of status and of opportunity assuring the dignity of person with stated freedoms.
Article 14 guarantees equality.
In other 733 words frowns upon discrimination on any ground.
Article 15(1) abolishes discrimination and removed disability, liability or restriction on grounds of sex and ensures equality of status.
Arti cle 29(2) gives equal right to education.
In the earliest decision this Court upheld it in State of Madras vs Srimathi Champakam Dorairajan, ; Article 16(1) accords equality of opportunity in public service for an appointment or employment to an office or post under the State and prohibits gender discrimination.
Marriage as a disability for appointment to Indian foreign service was declared unconstitutional in C.S. Muthammav.
Union of India & Ors., ; Pregnancy as a disqualification to contin ue in public employment was held to be an affront to equali ty of status, dignity of person and equal opportunity vio lating Articles 14 and 16(1) in Air India vs Nergesh Meerza & Ors., ; It abhors or is loathe to civili ty.
These are few classic illustrations.
Article 15(3) treats women as a class, mitigates the rigour of absolute equality enshrined in article 14 and its species article 15(1) & 16(1) and enjoins the State to make any special provision to remedy past injustice and to advance their status, soeio econmic and political.
Article 21 assures protection of life which includes right to livelihood.
Article 38(1) obligates the State to promote the welfare of the people by securing social order in which socio economic and political justice shall inform all the institutions of the national life.
Subarticle (2) thereof further enjoins the State to minimise the inequalities in income and to eliminate inequalities ,in status by providing facilities and opportunities to all individuals.
Women should have adequate means of livelihood on par with men, article 39(a); should have equal pay for equal work, article 39(d); health and strength of working women are not abused.
Economic necessity is not a sanctuary to abuse her person or she should not be forced to an unsuited avoca tion, article 39(e); State shall provide just and human condi tions of work and maternity relief [article 42].
Article 46 mandates the State to promote with special care the economic and educational conditions of the weaker sections of the people.
It also enjoins to protect them from social injus tice and all forms of exploitation.
To enliven and alongate this constitutional goal to render socioeconomic justice, to relieve Hindu female from degradation, disabilities, disadvantages and restrictions under which Hindu females have been languishing over cen turies and to integrate them in national and international life, Bharat Ratna Dr. Baba Saheb Ambedkar, the first Law Minister and rounding father of the Constitution drafted Hindu Code Bill.
The Hindu, Marriage Act, Adoption and Maintenance Act; Minority and Guardianship Act and Succes sion Act 1956, for short 734 'the Act ' became a part of this package.
They ensue equal status and socio economic justice to Hindu female.
In a socialist democracy governed by rule of law, law as a social engineering should bring about transformation in the social structure.
Whenever a socio economic legislation or the rule or instruments touching the implementation of welfare meas ures arise for consideration, this historical evidence furnishes as the foundation and all other relevant material would be kept at the back of the court 's mind.
Section 14(1) of the Act declares that any property, movable or immovable, possessed by a female Hindu shall be held by her as full owner thereof and not as a limited owner irrespective of the time when the acquisition was made, i.e., whether it was before or after the Act.
Undoubtedly as contended by Sri Krishna Murty Iyer, a Hindu male has free dom of testamentary disposition of his property or by con tract and section 14(1) stand an impediment in his way.
Freedom of contract would yield place to public policy envisaged above.
Its effect must be tested on the envil of socio economic justice, equality of status and to oversee whether it would subserve the constitutional animation or frus trates.
article 15(3) relieves from the rigour of article 15(1) and charges the State to make special provision to accord to women socioeconomic equality.
The court would, therefore, endeavour to find whether terms of the disposition or clauses in the instruments, will etc. enumerated in section 14 would permeate the aforestated constitutional conscience to relieve the Hindu female from the Shastric bondage of limit ed estate.
Both sub sections (1) and (2) of section 14 attract the conferment of restricted estate had by a Hindu female under an instrument, i.e. gift, will, decree or order of a Civil Court or an award.
Section 14 and the impugned docu ment must be read harmoniously as an integral scheme.
The disability attached to Hindu female by Shastric Law was removed by statutory provisons in .
Section 14(1) thereof was thought to be a tool to remove disabilities or restrictions imposed by Customary or Shas tric Law on Hindu women.
section 14(1) declares in unequivocal terms that the property whether movable or immovable held by a Hindu female acquired either before or after the Act shall be her absolute property, abolishing the limited estate known to Shastric law.
Hindu women as a class are declared as class I heirs entitling to intestate succession to a 0Hindu Male.
This Court in Pratap Singh vs Union of India, [1985] Suppl.
2 SCR 773 held that section 14 of the Act does not discriminate on grounds of sex and is intra vires of article 15(3).
The preferential treatment accorded, thereby, was held to be not .violative of articles 14 and 15(1).
Sub section (2) of section 14 of the Act attempts to denude the object of sub section (1) and 735 emasculates its efficacy.
It should, therefore, be ' read as an exception or a proviso to sub section (1) of section 14.
The interpretation of the ' proviso or an exception should not be to allow.
to 'eat away the vital veins of full ownership accorded by sub section (1) of section 14 when this Court upheld the validity of section 14(1) on the envil of Art; 15(3)what should be the message thus intended to convey? It would mean that the court would endeavour to give full effect tO legis lative and constitutional vision of socio economic equality to female 'citizen by granting full ownership of property to a Hindu female.
As a fact article 15(3) as a fore runner to common code does animate 'to 'make law to accord socio economic equality to every female citizen of India, irre spective of religion, race cast or region.
In Seth Badri Preasad vs Smt.
Kanso Devi, [.1969] 2 SCC :586 in an injunction suit against the respondent, the appellant ,contended that the respondent was given limited estate in a decree passed in an award and that, therefore, section 14(2) applies.
Negating that contention, this court held that sub sec.
(2) of section 14 is more in the nature of a provi so or an exception to sub sec.
It can come into opera tion only if the acquisition is in any of the methods indi cated in sUb sec.
(2).without there being any pre existing right in the female Hindu who is in possession of the property.
I Section 14(1) removes the disability of the woman. 'It was accordingly held that though she came into possession by virtue of decree passed in an award as limited estate, she acquired the absolute ownership under sub sec.
(1) of section 14.
Section 14 was subject of critical consideration in V. Tulasamma vs
V. Sesha Reddy (dead) by L.Rs.; , and its ratio has become a Tulsidalam to Hindu.
women as locus classicus giving forward thrust.
to constitutional goal according full ownership in the property, movable or immovable,.
held by: her as full owner thereof; redeemed her from the shackles of women estate known to Shastric law.
Fazal Ali, J. undertook extensive survey into sources of Hindu Law and found 'that Hindu widow 's right to maintenance is a personal obligation of the husband and he has a duty to maintain her even if he has no property.
Her right to maintenance would become an eqUitable charge on her hus band 's property though no charge was created by a decree of civil court as "jus ad rem", i.e. right over property though not right to property "jus in rem" and any person who suc ceeds to the property carries with it a legal obligation to maintain the wife from her husband 's estate.
Only .bona fide purchaser for value without notice alone was relieved of this Obligation; The right to maintenance is a pre existing right preceding Hindu Women 's Right to Property and 736 Separate Residence Act, 1946.
Section 14(1) recognises her preexisting right.
Any property acquired by Hindu female by inheritence or device or at a partition or.
in lieu of maintenance or arrears of maintenance or by gift from any person Whether relative or not, before, at or after her marriage, or by her own skill or,exertion, or by purchase or by prescription or in any other manner whatsoever, and also suCh property held by her as stridhana immediately before the commencement of this Act, movable or immovable property shall be held by her as full owner thereto and not as a limited owner.
Subsection (2) thereto shall be construed as an exception or a proviso which cannot be read to ,emascu late the purpose enunciated under sub section (1).
There fore, the property held by her or property given to her at a partition, or under a compromise decree, gift, or in lieu of maintenance .and held by her,on the date when the ACt.came into force, namely, June 17, 1956 shall be her absolute property as full owner.
Bhagwati J. (as he then was) speak ing for himself and Gupta, J. while pointing out the faulty drafting of section 14, held that section 14(1) seeks to do away with the traditional limitation of her power of disposition which were regarded under the Hindu law as inherent all her es tate.
The words "possessed of" means as the state of owning or having in one 's hand or power which need not be actual or physical possession or personal occupation of the property by the Hindu female.
It may be actual or constructive or in any form recognised by law.
Sub section (1) of section 14cannot be interpreted in a manner which would deprive the Hindu woman of the protection sought to be given to her by sub section (1).
The social purpose of the law would be frus trated and reformist zeal underlying the statutory provison would be chilled.
It was not the intention of the legisla ture in enacting sub section (2) which must be construed as an exception or a proviso to sub section (1).
No provision should be construed in isolation and be read in the context so as to .
make a consistent enactment of the whole statute.
Sub section (2) must be read in the context of sub section (1) of section 14 and if so read sub section (2) must be confined to cases where the Hindu female acquires the property for the first time as a grant without any preexisting right to the property under a will or by way of gift.
or in any other instruments or a decree or order of the civil court or an award, the terms of which prescribe a restricted estate in the property.
Subsection (2) must be read as an exception or proviso to sub section (1) so as to leave aS large a scope for operation as possible to sub section (1) of section 14.
It was, therefore, held that the property given to Tulasmma in a compromise decree in lieu of her maintenance with re stricted estate known as widow 's estate in Hindu law was enlarged and she became an absolute owner under the Act.
She had the right to 737 alienate the property in favour of the others.
An attempt to reopen the ratio was thwarted by this Court in Bai Vajia (dead) by L.Rs, vs Thakorbhai Chelabhai &.Ors., ; while reaffirming the ratio of Tulasamma 's case as correct law, this Court further held that limited ownership is sine quo non for the applicability of sub section (1) of section 14 of the Act.
When a widow holds a property for her enjoyment, as long as she lives, no body is entitled to deprive her or to deal with the property in any manner, to her detriment.
The property is for the time being beneficially Vested in her and she has the occupation, control and usufruct of it to the exclusion of all others.
SUch relationship to property falls squarely within the meaning of expression of "limited owner" as under section 14(1) of the Act.
In that context approved the dictum of Bhagwati, J. that section 14(1) aimed to achieve a social purpose.
to bring about change "in the social and economic position of women 'in Hindu Society", It was a step to accord equality of sex, elevating women from subservient position in the economic field to higher pedestal with full ownership untrammelled by artificial limitation of Women 's estate created by male dominence to subjugate her. ' .
In Jagannathan Pillai vs Kunithapadam Pillai & Ors., ; this Court held that if, the question arises as to what was the .nature of the widow 's interest in the property and a challenge was made during her life time or after her death, all that has to be shown by the con cerned Hindu female was that she had acquired the property and that She was possessed of the property at the point of time when her title was called into question.
The 'question then was whether she became full owner? In that case the widow as a limited owner sold the property but later on re purchased the self same property and was in possession at the date when the question of holding the property and" ' the nature of the right held by her had arisen.
It was held that she was in possession as limited owner and after the Act she became full owner, and not limited owner of the property.
It was further held that ' the legislative intent is abundantly 'loud and clear.
To erase the injustice .and remove the legal shackles by abolishing the concept of limited estate, or the women 's or widow 's estate once and for all.
To obvi ate hair splitting, the legislature 'has made it abundantly clear that whatever be the property possessed by a Hindu female, it will 'be, Of her absolute ownership and not of limited ownership, notwithstanding the position obtaining under the traditional Hindu law.
In Gulwant Kaur & Anr.
vs Mohinder Singh & Anr., [1987] 3 738 SCR 576 construing a letter written by the husband giving the property for wife 's maintenance, this court laid that section 14 is aimed at removing restrictions or limitations on the right of a female Hindu to enjoy, as a full owner, property possessed by her so long as her possession is traceable to a lawful origin, that is to say, if she has a vestige of a title.
It makes no difference whether the property was acquired ' by inheritance or 'devise, etc.
The right to main tenance is not a grant made for the first time without any pre existing right.
Even if the instruments are silent as to the nature of the interest given to the widow in the proper ty and did not, in so many terms, prescribe that she has a limited interest 'in the property, she would have no more than a limited interest in the property under the Hindu law as it stood 'prior to the ' enactment of the Act.
Hence a provision in the instrument prescribing that she would have only a limited interest in the property, would be merely recording the true legal position and would not attract the applicability of sub sec.
(2), but would be governed by sub sec.
(1) of section 14.
The conclusion was, therefore, held inescapable that where the property is allotted to a widow under an instrument, decree, etc.for her maintenance, sub sec.
(2) of section 14 had no application.
In Maharaja Pillai Lakshmi Ammal vs Maharaja Pillai Thilanayakom Pillai & Anr., [19881 1 SCR 780 under a parti tion deed, limited .
estate in lieu of maintenance was created and this court held that the deed or any other ar rangement by which the husband gives property to his wife for maintenance need not specifically say thatit was given in lieu of maintenance.
The right to maintenance is a per sonal obligation of the husband.
If the wife is put in possession of the property with the right to take the income for her maintenance, it must be presumed that the property was given to her in lieu of maintenance attracting section 14(I) and the ' limited ownership ripened into full ownership.
Accordingly it was 'held that section 14(1) attracted to the facts in that case.
In Jaswant Kaur vs MajOr Harpal Singh, under a will executed by the husband the widow was given a life estate which was held to be enlarged into an absolute estate attracting section 14(1),but not section 14(2) as Hindu female acquired property under the instrument.
Her title was trace able to her antecedent over her widow 's estate by gift deed of 1954 to the appellant, one of her daughters.
The widow died in 1968.The appellant filed a suit for injunction, based on gift deed, against the respondent, another Sister claiming exclusive right, title and interest in the property and also pleaded adverse possession.
The respondent filed a cross suit for partition into two shares and claimed half share pleading that their mother was not in possession of 739 property on the date when the Act came into force.
The appellant.
acquired only limited ownership of their mother and on her death as a reversioner of her father she was entitled to partition.
The High Court ultimately upheld the respondent 's contention and held ' that the widow did not acquire absolute estate under section 14(1).
Being a limited owner, what was conveyed by her to the appellant was only a limited estate and the appellant would not get the benefit of full ownership as she herself was not the limited owner under sec.
14(1).
On demise of the .mother as reversioner, the respondent was entitled to file the. suit for partition.
The appellant did not acquire title by adverse possession as she was a co owner and there .was no right.
Therefore, sub sec.
(2) of section 14 would not attract.
Munshi Singh vs Smt.
Sohan Bai (dead)by L.Rs., was a case where limited owner gifted away the property, and was parted with possession and the plea of repurchase was negatived by all the courts.
So this court held that section 14( 1) ' does not apply.
In Pearey Lal vs Ra meshwar Das, [1963] Suppl.
2 SCR 834 in construing a will vis a vis sections 75, 82, 86 of the this Court held that the limited estate is not enlarged into an absolute 'estate.
In Karme vs Amru, AIR 1971 SC 745 the attention of this Court to section 14(1) was not drawn nor had an occasion to angulate in this perspective.
Therefore, the ratio therein is of little assistance to the appellant.
In Kalawatibai vs Soiryabai & Ors., ; the mother of the parties, a Hindu widow gifted adverse posses sion as against the other co owner unless it was so asserted and acquiesced by the respondent.
Therefore, the decree for partition was upheld and the suit for injunction was dis missed.
The ratio therein does not assist the appellant.
Thus I hold that ' the Act revolutionised the status of a 'Hindu female; used section 14(1) as a tool to undo past injus tice to elevate her to equal status with dignity of person on par with man; extinguished pre existing limitation of woman 's estate, or widow 's estate known to Shastric law removed all the fetters to blossom the same into full Owner ship.
The discrimination sufferred by Hindu female under Shastric law was: exterminated by legislative fiat.
The social change thus envisaged must be endeavoured to be given full vigour, thrust and efficacy.
Section 14(1) enlarges the restricted estate into full ownership when the Hindu female has pre existing right to maintenance etc.
Sub sec.
(2) operates when the grant was made for.the first time Under the document with no pre existing right.
Sub sec (2), therefore, must be .
, 740 read as an exception or a proviso to sub sec.
Both the sub sections read with the explanation to be pragmaticably considered as a constituent integral scheme.
The Court would sit in the armed chair of the testator, or its maker and summon to its aid the attending circumstances to execute the instrument; the relationship of the parties and to see whether the Hindu female acquired the property with vestige of pre existing right and the will, gift deed, order, decree or an award of the civil court or in any of the forms ' known to law was executed in recognition thereof or entitled under the existing law.
If the finding is positive her limited estate, though created with restrictive covenants in instru ment or an omission to expressly so mentioned in full par ticulars thereof in the instrument in that regard are of little consequence.
Her limited estate gets blossomed into full ownership under sec.
14(1) with a right to bequeath, gift over, alienation or to deal in any manner.
recognised by law.
If on the other hand the Hindu female acquires for the first time the tittle therein as a grant with restric tive estate under the instrument with no pre existing title or right, sub section (2) of section '14 gets attracted and the restrictive.
covenants.
contained in the instrument would bind her.
She remains to be a limited owner in terms there of.
The subsequent alienee or transferee acquires no higher right thereunder than the legatee etc.
The reversioner to the last male holder is not bound by such transfer and is entitled to succeed the estate, on her demise, in terms of the instrument.
It is too late in the 'day to take retro grade step to reopen Tulasamma 's ratio.
In Civil Appeal No. 630 of 1981 of Thota Madhav Rao, Sri Narsimhalu, his learned counsel contended that Thota Mani kyamma, the respondent, having come into posses 'sion and in enjoyment of the lands bequeathed under a will with a vested reminder in the appellant, her rights are circumscribed.
by the restrictions contained in the 'will and section 14(1) does not apply.
He also contended that by application of section 14(1) to the instruments executed anterior to the Act amounts to giving retrospective operation of section 14(1).
We find no substance in either contention.
It is settled law that a legatee under a testamentary disposition is bound by the restrictive convenants contained therein.
But distinction should be maintained between an ordinary legatee and a legatee/Hindu female coupled with vistage of pre existing title to the property but with a limited estate known to Shastric law as reflected in the impugned deed etc.
Undoubt edly section 14 is not retroactive in its operation.
Devolution of the property under the will would take effect after the demise of the testator and the legatee would be bound by the terms of gift over etc.
The .stranger legatee cannot take shelter under subsequent change of law to enlarge the opera tion of restrictive covenant to claim absolute ownership in the property bequeathed to her.
741 But socio economic amelioration under the Act engulfs an instrument under the sweep of section 14(1) thereof, it extin guishes the pre existing limited estate or restrictive condition and confer absolute and full ownership of the property possessed by a Hindu female as on the date when the Act had come into force, namely, June 17, 1956.
The courts are 'not giving retrospective operation to section 14(1) or to the instrument.
The courts only would be applying the law to the facts round as on the date when the question arose to find whether legatee has pre existing vistage of title under law; and the nature of possession of the property held by her and 'whether the legatee would get the benefit of section 14(1) of the Act.
There need be no express recital even in the will of the enjoyment of the property devised under the will in lieu of maintenance as a limited owner for her life.
Even if so mentioned, it would be a reflection or restate ment of the law existing as in 1932 when the will was exe cuted.
The respondent, admittedly, being a widow of the testator who.
under Shastric law, was obligated to provide maintenance to his wife, and it being personal obligation, the property bequeathed was in lieu of maintenance for her life.
She was in enjoyment of the property and the benefi cial interest therein stood vested in her.
As per existing law as in 1932 the widow as a legatee was entitled to wid ow 's estate and she remained in possession on the date of the Act came into force and was in enjoyment of the income derived therefrom for her life.
No one had a right to inter dict it.
The restrictive covenant, therefore, does not stand an impediment to section 14(1) to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership.
The restrictions contained in the will, though falls both under sub sec.
(2) as well as sub sec.
(1), of section 14, the right to maintenance being a pre existing right over property "red ad rem" section 14(1) would apply.
The testamentary succession with a restrictive conditions in the will was obliterated.
She became an absolute owner on or after June 17, 1956.
Accordingly I have no hesitation to hold that, though the will created a restrictive covenant, section 14(2) does not apply.
Section 14(1) enlarged the widow 's limited estate held by Manikyamma into an absolute ownership as full owner with a right to disposition by testamentary instrument or otherwise.
As regards the claim in S.L.P. No. 2113 of 1980 is concerned, admittedly the decree was granted with restrictive covenant to remain in possession of a portion of the house and enjoyment for life and by operation of the ratio in Tulasiamrna 's case the restrictive covenant has enlarged into absolute estate.
The appeal and special leave petitions are accordingly dismissed with costs.
V.P.R. Appeal and Petitions dismissed. | Plaintiff 's case was that as the defendant and her husband had no issue they brought up the plaintiff as their foster son from the age of eight years and thereafter the plaintiff continued to live with them and was brought up treating him as their own son.
Defendant 's husband 'died on 14.1.1932 and before his death he executed a will bequeathing the suit properties in favour of his wife, for her life with a vested remainder in favour of the plaintiff.
Both the parties lived together with perfect ' under standing 'but after some time there was misunderstanding and the defendant assumed hostile attitude towards the plaintiff and began to claim the suit property as her absolute proper ty.
The plaintiff claimed absolute right in the suit proper ties after the lifetime of the defendant and challenged the right of the defendant to execute any will in respect of the suit properties.
The defendant took the plea that her husband died issueless and 718 intestate and did not exeCute any will at any time.
Neither she nor her husband brought up the plaintiff as their foster son nor did they educate him.
The defendant had brought up her nephew from his childhood and performed his marriage.
On account of love and affection for him and his children, the defendant executed a registered will on 26.10.69 bequeathing all her properties in his favour.
The Trial Court held the will dated 14.1.1932 proved and decreed the plaintiff 's suit.
The First Appellate Court upheld the Judgment and decree of the Trial Court.
The defendant preferred a second appeal in the High Court.
During the pendency of the Second Appeal in the High Court the plaintiff died and his legal representatives were brought on record.
The High Court allowed the second appeal.
The legal representatives of the plaintiff came to this Court by grant of Special Leave.
S.L.P. (C) No. 438/1979.
Married life between '0 ' and his wife, 'M ' was not happy and cordial. 'o ' executed a registered will dated 21.3.1921 bequeathing all his properties including the suit properties in favour of his mother and sister for their lifetime and thereafter in favour of 'R ' and 'D ' two sons of his sister and their issues.
In the said will reference was made re garding the conduct of 'M ' in deserting him and in any event if she changed her mind and agreed to live under the protec tion of the legatees she was allowed to enjoy the income from item I of the suit properties and that she should construct a house in item referred to in the will and to live there during her lifetime and after her death the said Item I and the house site with the house shall go to his sister 's sons. '0 ' died in 1922 and thereafter the legatees under the will entered into possession of all the properties. 'M ' put obstruction to the legatees in getting possession. 'M ' filed a suit in 1923 praying for a declaration that the will made by her husband was not valid and as such be cancelled and for possession and mesne profits and in the alternative she claimed for maintenance both past and fu ture.
719 In the said suit the parties entered into a compromise and a compromise decree was passed on 5.3.1924.
Uuder the terms of the said compromise the execution of the will was accepted and the same was made subject to the terms of the compromise decree.
Under the compromise decree it was agreed that 'M ' would enjoy items 1 & 2 of the properties mentioned in the will and also 50 cents of land during her lifetime.
She would also have an enjoyment of the house site during her lifetime without any right of aliena tion. 'D ' died unmarried in 1930 but during his lifetime he sold his interest in the properties in favour of 'R ', his brother, who died in 1962.
On his death the petitioners being his sons and daughters claimed to have become.
enti tled for all their father 's properties including the rights in the suit property. 'M ' during her life time executed a settlement deed in favour of the respondents giving absolute rights in the suit properties.
The petitioners filed a suit against M and the respond ents for declaration that the settlement deed executed by 'M ' will not enure beyond the lifetime of 'M '. 'M ' took,the plea that the limited interest given to her under the com promise decree had become enlarged into absolute right by virtue of Section 14(1) of the Act.
The Trial Court decreed the suit and it was affirmed in first appeal. 'M ' having died, the respondents preferred a second appeal in the High Court.
The High Court allowed the second appeal against which.
the petitioners filed the S.L.P. S.L.P. (C) No. 2113 of 1980 'R 'did not have any issue from 'A ' and 'S ', his wives.
He being attached with the petitioner, executed a will on 2.7.1945 bequeathing his properties in favour of his second wife 'S ' for her lifetime and thereafter, absolutely in favour of the petitioner.
A provision was also made for the payment of Rs.68 and a direction to make available 18 kalams of paddy in favour of 'A ' for her lifetime.
In order to ensure the payment of the maintenance and delivery of paddy a charge was also created over the properties to go ulti mately in favour of the petitioner.
As the petitioner was a minor at that time the second wife was 720 appointed as his guardian. 'R ' died on 8.7.45 and subse quently his first wife 'A ' was awarded 50 kalams of paddy and a sum of Rs.250 in cash per annum by way of maintenance.
On appeal the High Court modified the decree of the Trial Court and enhanced the maintenance to Rs.480 per annum and directed the petitioner, the legatee under the will to give one building for the residence of 'A '.
Thereafter in 1951 'A ' sought the recovery of possession of one of the buildings.
The Executing Court allotted to her the eastern house backyard and the shops, against which the second wife preferred an appeal to the High Court.
A compromise was entered into between the parties in the High Court.
According to the terms of compromise 'A ' was permitted to occupy the eastern house together with the two shops but the backyard portion was not given.
Later on 'S ' was removed from the guardianship of the petitioner, and natural father was appointed as his guardian.
The respondents were brother 's grandsons of 'A ' who died on 2.2.1966, had settled the suit properties in favour of one 'C ' claiming title to the same in pursuance to a compro mise in A.A.O. 567 of 1950. 'R ' another respondent initially took on lease the properties from 'C ' and later on purchased the eastern half of the building and backyard portion.
The petitioner, challenging the transactions on the grounds that 'A ' was given a right of residence only in the building and the same lasted till her lifetime and such right could never be enlarged into an absolute right; that the settlement deed made by her in favour of 'C ' and the sale made by 'C ' in favour of 'R ', a respondent were invalid and no title could be conveyed by 'A ' in their favour, filed a suit for recovery of possession of the suit properties with mesne profits.
The Trial ' Court held that 'A ' was not the absolute owner of the suit properties as contemplated under Section 14(2) of the Act and decreed the suit in favour of the plaintiff.
Single Judge of the High Court dismissed the appeal.
On a Letters Patent Appeal the Division Bench of the High Court allowed the appeal and dismissed the suit.
The plaintiff petitioner has filed the S.L.P. under Article 136 of the Constitution of India.
721 Whether, the life estate given to a widow under the will of her Hindu husband beome san absolute estate under the provi sions of the Succession Act was the controversy raised in these cases.
The contention raised was that if a female Hindu acquires any property under a will which gives her a restricted estate in such pro perty then provisions of sub section (2) will override, the provisions of sub section (1) of Section 14 of the Act which makes a female Hindu as full owner.
Dismissing the appeal and the S.L.Ps.
this Court, HELD: PER N.M. KASLIWAL, J. on his behalf and on behalf of K. RAMASWAMY, J. of the Act is in the nature of a proviso or an exception to Sec.
14 and comes into operation only if acqui sition in any of themethods indicated therein is made for the first time without there being any pre existing right in the female Hindu to the property.
If the case falls under the provisions of Sec.
14(1) of the Act then the female Hindu shall he held to he full owner of the property and sub section (2) of Section 14 will only apply where the property is acquired without there being any pre existing right of the female Hindu in such property.
[730D E] 2.
Sub section (2) of Sec.
14 will he construed more in the nature of a proviso or an exception to sub section
(1) of Sec.
14 of the Act.
This view lends support to the object of the section which was to remove the disability on women imposed by law and to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society.
[730E F] Mst.
Karmi vs Arnru and Ors.
, ; Badri Pershad vs
Kanso Devi; , ; V. Tulsamma & Ors.
vs Sesha Reddy (dead) by L.Rs.; , ; Bai Vajia (dead) by L.Rs.
vs Thakorbhai Chelabhai & Ors., ; ; ' Jagannath Pillai vs Kunjithapadam Pillai & Ors., ; ; Gopal Singh & Ant.
vs Dill Ram (dead) by L.Rs.
& Ors.
; , ; Gulwant Kaur and Others vs Mohinder Singh and Others, ; and Jaswant Kaur vs Major Harpal Singh, , referred to.
PER K. RAMASWAMY.
The Act revolutionised the status of a Hindu female; used 722 s.14(1) as a tool to undo past injustice to elevate her to equal status with dignity of person on par with man; extin guished pre existing limitation of woman 's estate, or wid ow 's estate known to Shastric law removed all the fetters to blossom the same into full ownersip.
The discrimination suffered by Hindu female under Shastric law was exterminated by legislative fiat.
The social change thus envisaged must be endeavoured to be given full vigour,thrust and efficacy.
[739F G] 2.
Section 14(1) enlarges the restricted estate into full ownersip when the Hindu female has pre existing right to maintenance etc.
Subsec.
(2) operates When the grant was made for the first time under the document with no pre existing right.
Sub sec.
(2) therefore, must be read as an exception or a proviso to sub sec.
Both the sub sec tions read with the explanation to be pragmaticably consid ered as a constituent integral scheme.
[739G 740A] 3. section 14 is not retroactive in its operation.
Devolution of the property under the will would take effect after the demise of the testator and the legatee would be bound by the terms of gift over etc.
The stranger legatee cannot take shelter under subsequent change of law to enlarge the opera tion of restrictive covenant to claim absolute ownership in the property bequeathed to her.
But socio economic amellora tion under the Act engulfs an instrument under the sweep of section 14(1) thereof, it extinguishes the pre existing limited estate or restrictive condition and confer absolute and full ownership of the property possessed by a Hindu female as on the date when the Act had come into force, namely, June 17, 1956.
The courts are not giving retrospective operation to section 14(1) or to the instrument.
The courts only would be applying the law to the facts found as on the date when the question arose to find whether legatee has pre existing vistage of title under law; and the nature of possession of the property held by her and whether the legatee would get the benefit of section 14(1) of the Act.
There need be no express recital even in the will of the enjoyment of the property devised under the will in lieu.
or maintenance ass limited owner for her life.
Even if 'so mentioned, it would be a reflection or restatment of the law existing as in 1932 when the will was executed.
[740G 741C] 4.
A legatee under a testamentary disposition is bound by the restrictive covenants contained therein.
But distinc tion should be maintained between an ordinary legatee and a legatee/Hindu female coupled with vistage of pre existing title to the property but with a limited estate known to Shastric law.
[740F G] 723 5.
As per existing law as in 1932 the widow as a legatee was entitled to widow 's estate and she remained in posses sion of the date of the Act came into force and was in enjoyment of the income derived therefrom for her life.
No one had a right to interdict it.
The restrictive covenant, therefore, does not stand an impediment to section 14(1) to have full play to extinguish the same and enlarge the limited estate of widow into an absolute ownership.
[741D E] 6.
The restrictions contained in the will, though fails both under sub sec.
(2) as well as sub sec.
(1) of section 14, the right to maintenance being a pre existing right over property "res ad rem" section 14(1) would apply ' The testamentary succession with a restrictive conditon in the will was obliterated.
She became absolute owner on or after June 17, 1956.
[ 741E F] Sir Main Henry: Earlier History of Institutions, at P. 339; E.S. Shivaswamy lyer: Revolution of Hindu Women, [1935] Edn.
P. 64; Manu Smriti, Chapter III verses 55 57, Chapter IX verses 18, 149, 45, 416, 299, Chapter XI verse 67; Mahat ma Gandhiji 'S (article) Young India, dated October 17.
1929; Ravindra Nath Tagore, (his speech in 1913 reprinted in) To the women, P. 18.
The Position of Woman in Hindu civilisa tion, 1955 Edn.
By Altaken, referred to.
State of Madras vs Srimati Charnpakam Doraira/an, ; ; C.B. Muthatmma vs Union of India & Ors., ; ; Air India vs Nergesh Meerza & Ors., ; ; Pratap Singh vs Union of India, |19851 Suppl.
2 SCR 773; Seth Badri Prasad vs Smt.
Kanso Devi, ; V. Tulasamma vs Sesha Reddy (dead) by L.Rs.; , ; Bai Vajia (dead) by L.Rs.
vs Thakorbhai Chelabhai & Ors., ; ; Jagannathan Pillai vs Kunithapadam Pillai & Ors., ; ; Gulwant Kaur & Anr.
vs Mohinder Singh & Anr., ; ; Maharaja Pillai Lakshmi Ammal vs Maharaja Pillal Thillanayakom Pillai & Anr., ; Jaswant Kaur vs Major Harpal Singh, ; Munshi Singh vs Smt.
Sohan Bai (dead) by L.Rs., '[1989] 2 SCR 1012; Pearey Lal vs Rameshwar Das, [1963] Suppl.
2 SCR 834; Karmi vs Amru, AIR 1971 SC 745 and Kalawatibai vs Soiryabai & Ors.
, ; , referred to. |
Criminal Appeal No. 303 of 1984.
From the Judgment dated 19.5.1984 of the Rajasthan High Court in D.B. Criminal Appeal No. 129 of 1983.
R.K. Jain, R.P. Singh and R.K. Khanna for the Appellants.
Sushil Kumar and AruneShwar Gupta for the Respondent.
The Judgment of the Court was delivered by 824 K. JAYACHANDRA REDDY, J.
There are two appellants.
They are father and son respectively and they figured as A 1 and A 2 before the trial court.
They were tried for offences punishable ' under Sections 302, 201 and 120 B I.P.C. for causing murder of Madhu Saxena, wife of A 2 and daughter in law of A 1, the deceased in the case.
They were acquitted by the trial court.
The State preferred an appeal before the Division Bench of the High Court and the Division Bench of the High Court convicted them under Section 120 B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life.
They have preferred this appeal under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act.
The deceased was married to A 2 in the year 1961.
Two sons and one daughter were born to them.
A 1, father of A 2, was a practising lawyer after retiring from the Government Service.
The matrimonial life of the deceased and A 2 was not smooth.
There were frequent quarrels.
The accused lived in their own house alongwith the deceased.
It is in the evidence that the deceased was not healthy both physically and mentally.
She was also admitted in mental hospital once.
She used to confine herself to her room and she appeared to be somewhat mentally deranged.
The daughter of the deceased, who was examined as D.W. 2, aged 13 years was studying in 1Oth Class and she was also living in the same house.
On 18.3.82 the dead body of the deceased was found in her room in the house of the accused.
At that time admittedly A 2 was not in the house and he was at Suratgarh.
On 'being informed about the death A 1 sent for Dr. Madan Lal Arora, who exam ined the deceased and declared her to be dead.
Thereafter A 1 informed P.W. 5, Jagmohan Prasad, the father of the de ceased.
P.W. 5 went there and enquired.
A 1 told P.W. 5 that the deceased be cremated at 9 A.M.
The brother of the de ceased told P.W. 5 that he has .seen the dead body lying in the room and that it was giving rotten smell.
P.W. 6 lodged a report before the Police.
P.W. 22 took up the investiga tion, held the inquest, examined the witnesses and sent the dead body for post mortem.
The Doctor P.W. 2 conducted the postmortem.
He found that the body was giving rotten smell and the skin here and there was peeled off, nails were loose and the tongue was found in between the teeth.
He found an injury on the head.
He also found that some of the organs were decomposed and noticed greenishbrown discolouration on the neck.
He opined that the death was due to head injury and pressure in the neck region.
He, however, sent the tissues of the trachea though decomposed and a piece of neck skin and also viscera for histopathology and for chemical analysis, but the 825 pathologist could not give opinion regarding the piece of skin and the tissues of the trachea.
The pathologist noted that the skin was discoloured and that the tissues and the mussle attached to the trachea showed no abnormality.
The Doctor P.W. 2 opined that the head injury was caused by blunt weapon: and that death is.
result of neck injury.
The pressure on the left and front of the neck was apparent.
After completion of the investigation, the charge sheet was laid.
22 witnesses were examined on behalf of the prosecu tion.
The accused dented the offences.
A 1 stated that he was away from 14.3.
1982 onwards and was at Jodhpur in his daughter 's house.
In support of his plea D.W. 1, Dr. Ram Krishna Mehta, the neighbour of A 1 's daughter, was exam ined.
He also examined his grand daughter D.W. 2, namely the daughter of A 2 and the deceased.
A 2 stated that he was at Suratgarh from 11.3.1982 onwards.
Both of them denied the allegations of the prosecution.
The case registered rests on circumstantial evidence: The trial court held that there was no evidence of conspira cy between the A 1 and A 2 for murdering the deceased.
It further held that there is no legal proof also that the Circumstances relied upon by the prosecution are hardly sufficient to connect them with the murder.
The trial court.
however, severely criticised about the iII treatment and hard behaviour of A 1 and A 2 towards the deceased.
The High Court, however, took a different view.
The High Court mainly relied on the evidence regarding the ill treat ment of the deceased by A 1 and A 2 and held that the ac cused had strong motive.
The High Court has also referred to the earlier incidents in some of the letters.
The High Court accepted the medical evidence in to and reached the con clusion that the death was homicidal and due to asphyxia due to head injury and pressure on the neck.
Finally, the High Court, relying on the conduct of the accused after coming to know about the death of the deceased, reached the conclusion that the two accused conspired and got .the deceased mur dered and accordingly convicted them under Sections 302 read with 34 I.P.C. and 120 B I.P.C. Shri R.K.Jain, the learned counsel for the appellants submitted that the High Court has merely acted on prejudice and suspicion and that there is absoluteIy no material to prove the conspiracy and muchless to connect the two accused in any manner with themurder The prosecution examined 22 witnesses.
P.W. 1 an Assistant 826 School teacher in Jaipur and related to the deceased deposed that she attended a dinner in the house of the deceased and A 2 and in the year 1978 when the deceased came to her house she was having some spots ' of beating by sticks on her back and the deceased told PW. 1 that she was beaten by her hus band.
On 18.3.82 P.W. 1 's neighbour told her that there was a telephone message fxom A 1 that the deceasd was about to die.
On that P.W. 1 and others went to the house of the deceased.
They opened the room from where bad smell was coming and in that room they saw the dead body of the de ceased which was decomposed.
A 1 who was present there told them that they would cremate the dead body that night.
On that P.W. 5, the husband of P.W. 1 and the brother of the deceased objected to.
P.W. 1 has also mentioned about other incidents of cruel treatment meted out to the deceased.
P.W. 2 is the Doctor, who conducted the post mortem and we shaft advert to his evidence later.
P.W. 3 is the eider sister of the deceased.
She only stated that she got the information about the death of the deceased.
P.W. 4 is the son of the deceased and A 2.
He deposed that on 11th March, 1982 his father A 2 came with him to the bus stand to see him off.
P.W. 4 met the deceased before leaving on the evening of 11th March, 1982 and talked to her.
At that time the condi tion of the deceased was very weak and she was unhealthy.
P.W. 4 also deposed that his father A 2 was to go to Surat garh by the evening of 11.3.82.
This witness was treated hostile.
In the crossexamination by the defence this witness stated that his sister Gianwati who was examined as D.W. 2 told him that she went regularly to the room of the deceased to give food from 11.3.82 to 15.3.82 and that on 16.3.82 D.W. 2 did not meet the deceased due to headache and on 17th and 18th March the deceased did not respond when D.W. 2 called her.
P.W. 4 further deposed that D.W. 2 also told the same to her grand mother.
P.W. 5 is the father of the de ceased.
He also deposed about the iII treatment of the deceased by the accused and their demand for dowry.
He further deposed that the neighbour told them that he re ceived a telephone message from A 1 that the deceased was ' about to die.
Thereupon P.W. 5 sent his son P.W. 6 to A 1 s house.
Later he was told by A 1 who came to his house that the deceased died and the Doctor has declared her dead.
ThereUpon P.W. 5 wanted to know the name of the Doctor.
Thereupon A 1 told him that the deceased would be cremated.
A little later P.W. 6 also came and told him that the de ceased had died before many days and her dead body was giving rotten smell.
P.W. 6 is brother of the deceased and son of P.W. 5.
He also.deposed about the ill treatment meted out to the deceased.
He further stated that on 18.3.82 on receiving the information about the serious condition of the deceased he went to house of 827 the deceased and he found that the deceased had already died and the A 1 told him that the dead body would be cremated, whereupon he informed his father P.W. 5 and then lodged a report before the police.
The police arrived and prepared a panchnama.
P.W. 7 is the neighbour of the accused.
He only attested the site plan prepared by the police.
P.W. 8 is a practising Doctor and he deposed that on 18.3.82 A 1 came to him ' at about 5.30.
P.M. and told him that his daughter in law namely the deceased was in serious condition.
Thereupon he went to the house and saw the deceased.
He examined the deceased and declared her to be dead.
P.W. 9 also was exam ined to speak about the cruelty but he was treated hostile.
P.W. 10 also belongs to the same locality.
He only deposed that the body was emitting foul smell and he signed the inventory prepared by the police.
P.W 11 is a photographer who took the photographs of the room and the dead body.
P.W. 12 is Gurubux Saxena who got the telephonic message from A 1 that the deceased was seriously ill and thereupon he in formed P.Ws 1, 5 and 6.
P.W. 13 is the cousin of the de ceased.
He also deposed about the cruelty meted out to the deceased.
He further deposed that on 18.3,82 the deceased died and he was asked by P.W. 5 to go to the house of the deceased.
He was informed by A 1 that the body would be cremated.
Thereupon he and P.W. 6 went and .gave a report to the police.
P.Ws 14 to 21 are the formal official witnesses.
Out of them P.Ws 17, 18, 19 and 20 are examined who spoke about the movements of A 2.
The sum and substance of their evidence is that A 2 was posted as expert of plant protec tion in Suratgarh and that leave was granted to him on 11.3.82.
This evidence may not be very much relevant because it is not the prosecution case that A 2 was present in the house at the time of the death of the deceased.
P.W. 22 is the Sub inspector who investigated the case.
He deposed that on receipt of the report he went to the place of occurrence, held the inquest and sent the dead body for postmortem.
He also speaks the seizure of some letters.
In the examination under Section 313 Cr.
P.C. both the accused stated that they are innocent.
A 1 's case was that he was away at Jodhpur from 15th March, 1982 onwards and was staying in her daughter 's house and he ' came to Jaipur only on 18th March, 1982 and then he was told about 'the death of the deceased.
Thereupon he called the Doctor P.W. 8 who examined and pronounced the deceased to be dead.
He denied about the allegations of iii treatment of the deceased.
A 2 stated that he married the deceased in the year 1961 and they were blessed with two sons land one daughter.
He also stated that he was a Gazetted Officer in Agriculture Depart ment and he was transferred to various places and he also took the deceased with him.
He further 828 stated that the deceased was sick and unhealthy and was staying at Jaipur.
He also stated that his daughter used to give food to the deceased.
On 11.3.82 he left for Suratgarh and later he came to know about the death of the deceased.
The accused examined D .Ws 1 to 3 on their behalf.
D .W. 1 is a Doctor at Jodhpur.
He deposed that he knew A 1 and that he was staying in his daughter 's house in Jodhpur from 15th March, 1982 to 17th March, 1982.
D.W. 2 is the daughter of A 2 and the deceased aged about 13 years.
She in general stated that her mother was sick and unhealthy and used to confine herself to the room and she used to give food to her.
She also stated that she gave food to the deceased on 15.3.82 and that she could not give food on 16.3.82 due to her own sickness.
Then on 17th and 18th March, 1982 her mother did not talk to her, therefore she returned with the food.
She also stated that A 1 went to Jodhpur on the evening of 14th March and returned from Jodhpur on 18th March, 1982.
On that day they found that the deceased was not talking and two ladies who came to meet the deceased, told that there was something wrong.
When her grand father A 1 returned from Jodhpur he sent for a Doctor and the Doctor after examining pronounced the deceased to be dead.
D.W.2 further stated that the relations between the deceased namely her mother and grand mother were not good.
In the cross examination she affirmed that she fell ill on 16.3.82 after coming from school and therefore could not give food to her mother.
She denied the suggestion that the body was decomposed even on 16th and 17th March, 1982.
D.W. 3 is the son of A 1 and brother of A 2 residing at Jodhpur.
He also deposed that A 1 came to Jodhpur and stayed from 15th on wards upto 17th March, 1982.
From the above resume of evidence it is clear that the case rests entirely on circumstantial evidence.
The dead body was found in the house of A 1 and A 2, where admittedly the deceased ' was also living but she used to confine her self to that room where the dead body was found She was sick and unhealthy and that she was not even coming out of the room.
From the evidence it is also clear that the food was given to her in the room itself and she was not even going out to answer the calls of nature.
Some of the wit nesses, no doubt, have deposed that the accused used to ill treat the deceased.
But the main question is whether A 1 and A 2 conspired, as held by the High Court and got the murder committed.
From the record it is clear and it is also not disputed thatA 2 was not in the house and that A i also left Jaipur and was staying at Jodhpur with his daughter upto 17th March, 1982 and came to Jaipur only on 18th March, 1982.
Therefore he was also not in the house at the time of death.
There is no other evidence to 829 show that as to who could have caused the death of the deceased if it is held to be homicidal.
The trial court has doubted the prosecution case that the death was homicidal.
The High Court after having elaborately examined the medical evidence reached the conclusion that it was homicidal.
But .even assuming that it was homicidal, there is absolute paucity of evidence, suggesting even remotely as to who could have caused the death.
Though, in our view, it is not strictly necessary in this case to decide the nature of death because even assuming it 'to be homicidal, the accused A 1 'and A 2 cannot be convicted unless there is other material to connect them with the crime either ,directly or indirectly.
However, we shall first consider the medical evidence regarding the cause of the death.
P.W. 2 Dr. M.R. Goel examined the dead body on 19.3.82 and found 10 injuries which were ante mortem.
Many of them were in the shape of bruises and swellings.
He found the dead body as highly decomposed and had reached an advanced stage of putrefaction.
In his opinion the death was due to the injury on the head and pressure on the neck due to asphyxia.
He was cross examined at length.
He admitted that since the brain was decomposed and was in semi liquid condi tion no injury therein could be traced.
He also admitted that the swelling of the eye was not due to the injury.on the forehead.
Coming to the injury on the neck, the Doctor stated that no injury was found on the bones of wind pipe and that portion also was decomposed.
In further cross examination he admitted that he did not make the culture of the maggots crawling on the head.
He also stated that he could not say definitely whether the death in the circum stances should ' have occurred before four days.
He, however, denied the suggestion that he could not form a definite opinion.
As far as this medical evidence is concerned, the trial court also considered the same at length.
The learned Sessions Judge noted the details in the post mortem certifi cate exhibit P, 1,.
There he found against the column cause of death, the Doctor has put only a question mark.
It is also noted in the postmortem certificate that P.W. 2 sent a part of the neck and viscera for chemical and histopathological examination.
After considering the whole evidence of the Doctor, the trial court was of the opinion that it was very difficult to say that the injuries on the head were antemor tem.
In nature and at any rate P.W. 2 's evidence has not proved beyond reasonable doubt that the death of the de ceased was due to injuries causing asphyxia and that the death was homicidal.
The High Court, on the other hand, has also noted that the death of the deceased was 4 to 8 days ' earlier ,as shown in the post mortem certificate.
The learned Judges observed thus: 830 "It is to be noticed that Dr. M.R. Goyal, who conducted the post mortem examination, is not a novice but a 'senior Medical Jurist of the S.M.S. Hospital.
According to him there was ' sub dural hammatoma over occipital region.
Bruises were found on the forehead left side . .
We have carefully examined the reasons given by the Sessions Judge for holding that the posecution has failed to prove thatit was homicidal death . . . .
In 'our considered opinion, all these injuries wereanti mortem in nature." The learned Judges thereafter explained away the dis crepancies between the post mortem and the medical evidence.
We may observe that the learned Judges of the High Court have bestowed considerable part of the judgment on the aspect of medical evidence and ultimately held thus: "In substance, we are convinced that it was a case of homicidal death.
We cannot accept the finding of the trial court on this aspect of the case and have got no hesitation in revers ing it and holding that the finding is not based on just and proper appreciation of the evidence.
" We have also gone through the medical evidence carefully and we may observe that 'we are unable to hold that the view taken by the learned Sessions Judge is altogether unreasona ble.
However, for the purpose of this appeal it may not be necessary for us to go through the details of the medical evidence.
Even accepting that the death was homicidal, we cannot on that ground alone hold the appellants guilty.
The proSecution has to, satisfactorily and beyond reasonable doubt, establish that the two accused conspired and pursuant to that conspiracy, the offence was committed.
We ,have already given a brief resume of the evidence ' adduced on behalf Of the prosecution.
We have ,noticed that both the accused were not in the house on the day the occur rence is said 'to have taken place even assuming that, the same took place on 14.3.82.
the evidence of D.W. 2 who is the only inmate of the house that was examined and whose evidence cannot be brushed aside establishes that the occur rence probably took place on 15th or 16th March, 1982.
It is only on 18.3.82 that the dead body was discovered and it is only on that day the A 1 Came to his house, at Jaipur .from
Jodhpur and A 2 admittedly was 831 away on official duty The D.W. 2 also speaks to the same.
The High Court, however, drew some inferences based on the alleged conduct of the accused and held that the two accused conspired to kill the deceased.
In the first instance the High Court held that the accused has a strong motive to get rid of the accused.
For this reliance is placed on the evidence of some witnesses who spoke about the cruel treat ment meted out to the deceased by the accused.
The learned Judges have also relied on some letters written by the deceased.
P.W. 6, the brother of the deceased deposed that the two accused used to be angry with the deceased and they did not allow him and his family members to see the de ceased.
Reliance is placed on the evidence of P.W. 5 who spoke about the demand of money.
The learned Judges of the High Court mainly relied on this evidence to infer that the accused had motive to do away with the deceased.
The High Court was not prepared to place reliance on the evidence of P.W. 4 and D.W. 2 who did not support the theory of cruelty.
The High Court, after considering the above evidence, ob served as under: "Now the question is whether in these circum stances although there are circumstances of strong motive and of cruelty and of strong desire on the part of accused Bhagwan Swarup and Parmeshwar Swarup to get rid of Madhu, there is any further evidence of other circum stances, by which it can be said that no other hypothesis except the guilt of the accused is possible in the present case.
" Then the learned Judges proceeded to consider the evidence of P.W. 8 and others.
P.W. 8 is a local Doctor who deposed that A 1 informed him in the evening of 18.3.82 that his daughter in law was serious.
He went and examined the de ceased and pronounced her to be dead.
P.W. 8 also deposed that the body was giving bad smell and it was also in a decomposed condition.
Then the High Court relied on the evidence of P.W. 12 who stated that he received a telephonic message from A 1 stating that his daughter in law was at her last breathing and he must inform P.W. 5, the father.
Then the High CoUrt proceeded to consider some other circum stances which took place from 11th March onward namely A 2 leaving on official duty.
The High Court suspected that A 2 designedly left Jaipur to Suratgarh and also surmised that A 2 marking his attendance in the register at Suratgarh was with a view to create evidence of alibi.
Then there is reference to a letter exhibit P. 15 written by A 1 to A 2 on 18.3.82 and according to the learned Judges, this letter was an effort to show that the deceased was alive even after 11th March and according to learned.
Judges exhibit P. 15 a letter of A 1 832 on the alleged death of the deceased, written by him to his son is a significant feature.
This letter is dated 18th March, 1982.
In that A 1 has simply informed A 2 that the deceased breathed her last and that Doctor, P.W. 8, pro nounced her dead and that on the next day they are going ahead with cremation.
This letter which is on a post card, is the most crucial feature, according to the High Court and that its contents show that both A 1 and A 2 were guilty conscious.
We think we need not refer to the further sur mises made by the High Court.
Suffice it to say that in the rest of the entire judgment only such suspicions and sur mises have been mentioned or drawn to reach a conclusion that A 1 and A 2 conspired.
At one stage the learned Judges observed thus: "The more and more we read this letter exhibit P. 15 dated 18.3.82 more and more we are con vinced that it was a case of pre planned, pre determined conspiracy of committing murder of Madhu, which was done on 11th March, 1982 by both accused, who were anxiously waiting the time when they could get rid of her.
It is also not Without significance that Suratgath is in Ganganagar District and a far.
place from Jaipur and post card would not reach there at least before 24 hours as it reached on 20th March and further even if telephone message is sent one would take at least 12 to 18 hours to reach this place.
The fact that cremation was decided for the morning and the information was sent in the night only goes to show that since the death was a result of murder, in which both the accused were in volved, there was no occasion to wait for son, who was husband of the ill fated unfortunate lady Madhu to perform last rite or see her face at least before she is put on fire.
The merciless inhuman approach exhibited by this letter is heart beating, hair raising and society lacking and consicious shocking and we are convinced that such a conduct would not have been possible but for the fact that the object of conspiracy of Bhagwan Swarup and Parmeshwar Swarup was achieved by putting an. ,end to the life of Madhu, which was done on 11th and during all this time, all that Par meshwar and Bhagwan Swamp were being Were the unsuccessful effort to conceal the murder of helpless lady and to create a plea of alibi or pretended the natural death.
We are, there fore, convinced that these circumstances, if taken as a whole, proves beyond all reasonable doubts that Bhagwan Swarup and Parmeshwar Swarup entered into a criminal conspiracy 833 to commit the murder of Madhu and with this abode intention, common object to fulfill the object of conspiracy they committed the murder of Madhu in their house on 11th March, 1982, by causing 11 injuries on her person after they had made it sure that the son Prakash Swamp leaves for Ajmer in the morning and then Parmeshwar Swarup left for Suratgarh in the evening and Bhagwan Swarup ultimately left for Jodhpur on 14th.
These were all preplanned pre determined well calculated steps of the conspiracy to commit the murder and then to avoid its detection by these two accused, who had deep rooted patience and hatred towards the unfortunate lady Madhu, who was being treated with cruelty which started in the beginning with the demand of dowry but contin ued later on account of various other reasons.
" We have extracted the main part of the judgment only to show that how the High Court has acted merely on suspicion.
We are unable to say as to on what basis the High Court could reach the conclusion that on 11th March, 1982 itself both A 1 and A 2 committed the murder of the deceased and left the dead body.
Such a conclusion should be based on acceptable evidence.
There is absolutely no material that the deceased was murdered on 11th March, 1982 itself.
The medical evi dence simply states that the death could have taken place 4 to 8 days prior to post mortem.
D.W. 2, the daughter is categorical that her mother, the deceased, was alive till 16th March, 1982 and that being the nature of the evidence On record, we are unable to appreciate the above conclusion of the High Court purely based on suspicion and surmises.
Further, the learned Judges of the High Court have mentioned in the above passage that both the accused conspired to commit the murder of deceased and having conspired they themselves committed the murder.
In our view there is no evidence worth men , tioning to establish these offences.
Naturally in a case of this nature, the question that arises from a layman 's point of view is then who else could have committed the murder in .the house itself? Perhaps if A 1 and A 2 were present in the house on the day of homicide then the situation would have been different and 'both of them would have been under an obligation to give an explana tion and the absence of a plausible explanation or giving a false explanation could have been very much incriminating against them.
The same coupled with other circumstances would have perhaps brought home the guilt to the accused.
But the circumstances 834 are different now.
A 1 and A 2 were away from the house.
The medical evidence does not at all support that the murder, assuming it to be one, could have taken place on 11th March itself as conjectured by, the High Court.
If the murder has taken place some time after 11th March, then A 1 and A 2 cannot directly be connected with the murder.
That being so unless conspiracy as such is established, they cannot be held liable.
Then the other inmates in the house are only the mother in law and the children of the deceased.
None of them was suspected and at any rate no one of them was charge sheeted or tried.
Therefore the question of any one of them being held responsible for the death does not arise.
No doubt a grave suspicion does arise namely that some of the inmates of the house must have been responsible and an accusing finger Can be pointed against A 1 and A 2 but from 11th March onward they were not in the house.
D.W. 2 's evidence clinches the .issue that the death must have been taken place only after 16th and before 18th March.
It is in this situation the High Court surmised on mere suspicion that A 1 and A 2 conspired and also committed the murder on 11.3.82 itself.
If the murder has been committed on 11th March itself the body would have been highly decomposed by 18th March, 1982 and would have been emitting very bad smell.
One cannot imagine that the other remaining inmates of the house would have simply and silently suffered in the house without informing anybody.
On the other hand D.W. 2 's evidence is different and she categorically stated that the deceased was alive upto 16th March.
That appears to be natural and there is no reason whatsoever to doubt the same.
As indicated supra we are inclined.
to agree with the Sessions 'Court that the medical evidence does not establish the death to be one of homicidal.
At any rate there is a grave doubt in this regard.
The evidence on record clearly shows that the deceased was not mentally sound.
The fact that she was not coming out of the room and used the same for answering the calls of nature also would snow that there was something abnormal about her and she confined her move ments to the four corners of the room.
15th March, 1982 was the last day when D.W. 2 served food to the deceased.
There after she did not go inside the room and on 18th March, 1982 the dead body was discovered.
The evidence of P.W. 2, the Doctor, also shows that no brain injury could be traced and he also did not find any injury on the bones of wind pipe.
In view of these and other admissions the trial court right ly felt that there was a reasonable doubt about the cause of death also and accordingly acquitted the accused.
From the above discussion the following important points 835 emerge; It is an undisputed case that the second accused was not present in the scene house were the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his .daughter 's houseI from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82.
There fore they were not present in the house when the deceased died The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court.
The evidence of D.W. 2 who is none other than the daughter of the de ceased and was very much in the house throughout ategorical ly stated that her mother was alive on 15th March also.
Apart from D .W. 2 the only other inmate of the house during the crucial period was the mother in law of the deceased who was not even charge sheeted.
The letter exhibit P 15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjec tures and surmises drawn from the letter.
P.Ws 4, 9 and 10 have not supported the prosecution case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother ln law of the deceased, was not even suspected.
Therefore having given our anxious and careful consideration to the facts and circumstances of the case we feel that the prosecution has miserably failed to bring home the guilt of the appellants and consequently we are inclined to allow the appeal.
The accused were tried for offences punishable under Sections 302 read with Section 34, 201 and 120 B I,P.C. only and in our view the trial court rightly held that none of these charges were proved against them.
The learned counsel for the respondent State of Rajas than, however, submitted that the accused would atleast be liable of having committed other offences.
It may be noted that the question whether they would be liable under Section 498 A or 304 B does not arise for consideration inasmuch as these provisions were not on the statute on the day of occurrence.
However, A 1 was atleast under an obligation to give information about the death of the deceased since the same was unnatural.
Assuming that the prosecution has not positively proved that the death was homicidal yet from the medical evidence it is clear that it was not a natural death and consequently the death should atleast be noted as one of suicide.
Even in the case of suicide an offence of abetment punishable under Section 306 is inherent.
There 836 fore, even in the case of a suicide there is an obligation on the person, who knows or has reason to believe that such a suicidal death has occured, to give information.
In Kali das Achamma vs The State of A.P., S.H.O. Karimnagar.
I Town P.S., it was observed as under: "In the case of every suicide abetment is inherent.
Whether ultimately it is proved or not, it is a different aspect.
Abetment of suicide is an offence punishable under Section 306 I.P.C. and therefore whenever a case of suicide is there, the body cannot be disposed of without informing the Police and further as provided under Section 174 Cr.
P.C. the Police have to hold an inquest Since it is an unnatu ral death. ' ' In the instant case A 1, who reached his house on 18.3.82 knowing fully well that the deceased had already died, informed P.W. 8 that the deceased was in a serious condi tion.
Likewise he informed P.W. 12 on telephone without disclosing that the deceased was already dead.
However, when P.W. 6, the brother of the deceased, came to the house where the dead body was lying, A 1 told him that the body would be cremated.
To the same effect is the evidence of P.W. 13.
P.W. 6, the brother of the deceased, on his own went and gave a report to the police.
It can thus be seen that A 1 intentionally omitted to give the information in respect of the death of the deceased which he was legally bound to give.
Section 202 I.P.C. is in the following .terms: "202.
Intentional omission to give information of offence by person bound to inform Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment of either description for a term which may extend to six months, or with fine, or with both.
" This Section punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give particularly being the head of the family.
Under this provision it is necessary for the prosecution to prove (1) that the accused had knowl edge or reason to believe that some offence had been commit ted (2) that the accused had intentionally omitted to give information respecting that offence and (3) that the accused was legally bound to give that information.
Shri R.K. Jain, however, relied 837 on a judgment of this Court in Harishchandrasing Sajjansinh Rathod and AnOther vs State of Gujarat, [ and contended that the word "Whoever" occurring in the opening part of the Section refers to a person other then the offender and has no application to the person who is alleged to have committed the principal offence In that case the accused were tried for offences punishable under Sections 331 and 304 read with Section 34 I.P.C. in respect of the death of the deceased and were acquitted.
On appeal by the State the High Court, however, convicted them under Section 202 I.P.C. A Bench of this Court while reversing the order of High Court observed thus: "We have gone through the entire evidence bearing on the aforesaid offence under Section 202 but have not been able to discern anything therein which may go to establish the afore said ingredients of the offence under Section 202 of the Penal Code.
The offence in respect of which the appellants were indicted viz. having intentionally omitted to give informa tion respecting an offence which he is legally bound to give not having been established, the appellants could not have been convicted under Section 202 of the Penal Code.
It is well settled that in a prosecution under Section 202 of the Penal Code, it is necessary for the prosecution to establish the main offence before making a person ' liable under this section.
The offence under Section 304 (Part II) and the one under Section 33.1 of the Penal Code not having been established on account of several infirmities is difficult to sustain the conviction of the appellants under Section 202 of the Penal Code.
The High Court has also missed to notice that the word 'whoever ' occurring at the opening part of Section 202 of the Penal Code refers to a person other than the offender and has no application to the person who is al leged to have committed the principal offence.
This is so because there is no law which casts duty on a criminal to give information which would incriminate himseft.
That apart the aforementioned ingredients of the offence under Section 202 of the Penal Code do not appear to have been made out against the prosecution There is not an iota of evidence to show that the appellants knew or had reason to believe that the aforesaid main offences had been committed." (emphasis supplied) From these observations it is clear that there was .no evidence to show 838 that the accused therein knew or had reason to believe that the said offences have been committed and on the other hand they were made principal offenders.
In such a situation the ingredients of Section 202 can not be said to have been made out.
It is in this context that the meaning of the word "whoever" has been considered.
But in the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death.
Therefore he had knowledge or atleast had reason to believe that an offence had been committed even if, at that stage; he thought that it was only a suicide.
Therefore it was his bounden duty particularly as head of the family to inform the authorities.
He omitted to do so.
On the other hand, he went about telling that the deceased was still alive and her condition was serious.
But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be cremated and he intended to do so without informing the authorities.
Therefore all the ingredients of Section 202 are made out against him and he clearly commit ted the offence ' punishable under this Section at that stage.
The fact that he himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Section 202 I.P.C. So far A 2 is concerned, he came to the house only after the investigation commenced.
Therefore his case stands on a different footing.
In the result the convictions and sentences awarded against A 1 and A 2 are set aside.
A 1, however, is convicted under Section 202 I.P.C. and sentenced to undergo six months ' R.I.
The appeal is disposed of ac cordingly. | The appellants father and son (A 1 and A 2) were tried under Sections 302, 201 and 120 B I.P.C. for causing murder of the wife of A.2.
The deceased was married to A 2 in 1961.
Two sons and one daughter were born to them.
Their matrimonial fife was not smooth.
There were frequent quarrels.
It was in the evidence that the deceased was not healthy both physically and mentally.
She was also admitted in 821 mental hospital once.
She used to confine herself to her room and she appeared to be somewhat mentally deranged.
On 18.3.82 the dead body of the deceased was found in her room in the house of the accused.
At that time admitted ly A 2 was not in the house and he was at Suratgarh.
On being informed about the death, A 1 sent for a doctor, who examined the deceased and declared her to be dead.
Thereaf ter A 1 informed P.W. S, the father of the deceased.
The brother of the deceased, P.W. 6 told P.W. 5 that he had seen the dead body lying in the room and that it was giving rotten smell.
P.W. 6 lodged a report before the Police.
The investigation was taken up, held the inquest, exam ined the witnesses and sent the dead body for post mortem.
The Doctor P.W. 2, who conducted the post mortem, opined that the death was due to head injury and pressure in the neck region.
After completion of the investigation, the charge sheet was laid.
22 witnesses were examined on behalf of the prose cution.
The accused denied the offences.
A 1 stated that he was away from 14.3.1982 onwards and was at Jodhpur in his daughter 's house.
In support of his plea D.W. 1, the neighb out of A 1 's daughter and his grand danghter, D.W. 2, namely the daughter of A 2 and the deceased were examined.
A 2 stated that he was at Suratgarh from 11.3.1982 onwards.
Both of them 'denied the allegations of the pfrosecution.
The trial court held that there was no evidence of conspiracy between the A 1 and A 2 for murdering the de ceased and the circumstances relied upon by the prosecution were hardly sufficient to connect them with the murder and the accused were acquitted by the trial court.
The State preferred an appeal before the Division Bonch of the High Court and the High Court convicted them under Section 120 B and Section 302 read with 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life, against which this appeal was preferred under Section 2(a) of the Supreme Court (Enlargement of General Appellate Jurisdiction) Act, 1970.
The appellants contended that the High Court acted an prejudice and suspicion and that there was absolutely no material to prove the conspiracy and muchless to connect the two accused in any manner with the murder.
822 The respondent supported the findings of the High Court and also contended that the accused would at least be liable of having committed other offences.
Disposing of the appeal by making modification in the sentence, this Court, HELD: 1.
The second accused was not present in the scene house, where the occurrence took place from 11th to 20th March, 1982 and that the first accused was at Jodhpur in his daughter 's house from 14.3.82 to 17.3.82 and returned to Jaipur on 18.3.82.
Therefore, they were not present in the house when the deceased died.
The Medical Officer, P.W. 2 could not say definitely as to whether the death has occurred before four days of his examination and there is absolutely no evidence either circumstantial or direct to hold that the death took place on 11.3.82 itself as found by the High Court.
The evidence of D.W. 2 who is none other than the daughter of the deceased and was very much in the house throughout categorically stated that her mother was alive on 15th March, also.
Apart from D.W. 2 the only other inmate of the house during the crucial period was the moth er in law of the deceased who was not even charge sheeted.
The letter exhibit
P 15 written by the first accused does not in any manner incriminate them and the High Court has grossly erred in holding that A 1 and A 2 entered into conspiracy merely on the basis of conjectures and surmises drawn from theletter.
P.Ws. 4, 9 and 10 have not supported the prosecu tion case and the remaining evidence does not in any manner implicate A 1 and A 2 and the other remaining inmate of the house, the mother in law of the deceased, was not even suspected.
Therefore having given anxious and careful con sideration to the facts and circumstances of the case it is felt by the Court that the prosecution has miserably failed to bring home the guilt of the appellants.
[835A E] 2.
Section 202 I.P.C. punishes the illegal omission of those who under law are bound to give information in respect of an offence which he is legally bound to give, particular ly being the head of the family.
Under this provision it is necessary for the prosecution to prove (1) that the accused had knowledge or reason to believe that some offence had been committed (2) that the accused had intentionally omit ted to give information respecting that offence and (3) that the accused was legally bound to give that information.
[836G H] 3.
A 1 was at least under an obligation to give infor mation about the death of the deceased since the same was unnatural.
From the 823 medical evidence, it is clear that it was not a natural death and consequently the death should at least be noted as one of suicide.
Even in the case of suicide an offence of abetment punishable under Section 306 is inherent.
Therefore even in the case of a suicide there is an obligation on the person, who knows or has reason to believe 'that such a suicidal death has occured, to give information.
[835G 836A] 4.
In the instant case A 1 returned to his house where the dead body was lying on 18.3.82 and the circumstances clearly go to show that he had knowledge that the deceased died of an unnatural death.
Therefore he had knowledge or at least had reason to believe that an offence had been commit ted even if, at that stage, be thought that it was only a suicide.
Therefore it was his bounden duty particularly as head of the family to inform the authorities.
He omitted to do so.
On the other hand, he went about telling that the deceased was still alive and her condition was serious.
But when P.W. 6, the brother of the deceased, came to the house and enquired, A 1 told him that the body would be Cremated and he intended to do so without informing the authorities.
Therefore all the ingredients of Section 202 are made out against him and he clearly committed the offence punishable under this Section at.
that stage.
[838B D] 5.
The fact that A 1 himself was made an accused in other offences subsequently does not absolve him of his complicity in respect of the offence punishable under Sec tion 202 I.P.C. [838D] Kalidas Achamma vs The State ofA.P S.H.O. Karimnagar, I Town P.S., , Approved.
Harishchandrasing Sajjansingh Rathod and Another vs State of Gujarat, , Distinguished. |
Criminal Appeal No. 538 of 1983.
From the Judgment and Order dated 6.4.1982 of the Andhra Pradesh High Court in Crl.
A. No. 469 of 1981.
G. Narasimhulu for the Appellants.
T.V.S.N. Chari, Ms. Suruchi Aggarwal and Ms. Manjula Gupta for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Nethala Pothuraju, Nethala Dhananjaya, Nethala Remudu and four others (hereinafter referred to as 'A 1 to A 7 ') were tried for the offences under Sections 147, 148, 323, 379 and 302 read with Section 149 I.P.C. on the allegations that they caused the death of Madda Laksha mandas of village Ramaraogudem on November 1, 1980 near the Tobacco garden of A 1.
The Trial Court acquitted A 7 of all the charges A 1 to A 6 were, however, found guilty for the offences punishable under Sections 148 and 302 read with section 149 I.P.C. They were sentenced to imprisonment for life.
On appeal, the High Court confirmed the conviction and sentence of A 1 to A 3.
The conviction and sentence of A 4 to A 6 was set aside by the High Court and they were acquit ted on the following reasoning: . . .
We feel that it would be safe to accept the evidence of P.Ws. 1 and 2 to the extent it is corroborated by the evidence 6 of P.W.3 in so far as the presence and partic ipation of the accused in the attack on the deceased is concerned.
Accepting the evidence of P.W.3 we hold that the identity of A 1 to A 3 in the unlawful assembly consisting of A 1. to A 3 and some other unidentified persons is satisfactorily established.
The manner in which the attack was made on the deceased can only lead to one inference namely that the common object of the unlawful assembly was to kill the deceased.
We accordingly confirm the conviction and sentence of A 1 to A 3 under Sections 148 and 302 read with 149 I.P.C. We set aside the conviction and sentence of A 4 to A 6 under Sections 148 and 302 read with 149 I.P.C. and acquit them." This Court granted leave to appeal on the limited ques tion of applicability of Section 149 I.P.C.
The learned counsel for the appellants has contended that after the acquittal of four accused persons by the courts below the conviction of the appellants under Section 148 and on applying 149 I.P.C. cannot be sustained.
It is argued that the appellants, being three in number, could not have formed an unlawful assembly within the definition of Section 141 I.P.C.
In our view, there is force in the contention of the learned counsel for the appellants.
The appellants being only three in number, there was no question of their forming an unlawful assembly within the meaning of Section 141 I.P.C.
It is not the prosecution case that apart from the seven accused persons there were some other unidentified persons who were involved in the crime.
The High Court clearly fell into error in confirming the conviction and sentence of the appellants under Sections 148 and on apply ing 149 I.P.C. on the ground that they formed an unlawful assembly alongwith some unidentified persons.
The prosecu tion case from the very beginning was that A1 to A7, the named persons, formed the Unlawful assembly.
A 4 to A 7 having been acquitted, the remaining three appellants cannot be convicted under Sections 148 and on applying 149 I.P.C. We, therefore, set aside the conviction of the appellants under the said sections.
The question still remains as to whether the appellants can be convieted under Section 302 read with Section 34 I.P.C.
Both Sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences.
The non applicability of Section i49 I.P.C. is, therefore, no bar in convicting the appellants under 7 Section 302 read with section 34 I.P.C. if the evidence discloses commission of an offence in furtherance of the common intention of them all.
PW 1, the wife of the deceased, PW 2, the daughter of the deceased and PW 3, an adjoining land owner, are the three eye witnesses to the occurrence.
It is in evidence that the complainant and the accused belonged to opposite factions and there was long standing enmity between the parties.
During the last 30 years, there had been murders and rioting between the two factions.
The deceased Madda Lakshamandas was undergoing life imprisonment for the murder of one of the persons belonging to the group of the accused.
He had come on parole.
On the day of occurrence at about 7.00 A.M. when he was passing near the field of A 1 he was attacked by the accused party.
According to the eye witness es, A 1 and A 3 were armed with spears, A 2, A 4, A 5 and A 6 with knives and A 7 was armed with a stick.
All of them way laid the deceased and dragged him into the Tobacco garden of A 1.
It is in evidence that all the accused indis criminately inflicted injuries on the deceased with their respective weapons.
When the deceased fell down the ac cused kept on giving him spear, knife and stick blows.
The deceased was crying for water and when his daughter brought water A 2 caught hold of her and pushed her aside.
She was also given beating by fists.
Thereafter, A 1 left the spear and took a stick and gave beating to the deceased on his heals and chest and A 3 chopped of the fingers of left hand of the deceased with the knife.
A 2 further gave blows to the deceased on his head.
The deceased died instantaneously on the spot.
Thereafter, at the asking of A 1, A 2 and A 3 dragged the dead body from the field of A 1 and placed the same on the road.
There were as many as 18 injuries on the person of the deceased.
Seven of those were deep penetrating wounds, 8 lacerated wounds and remaining were abrasions.
The injuries caused fracture on the right perietal bone result ing in the opening of the skull.
The fourth rib was broken and there was an injury to the lung.
There were injuries all over the body.
Keeping in view the manner of attack as disclosed by the eye witnesses and the number and nature of injuries, we have no hesitation in holding that the appellants made the mur derous attack on the deceased and caused his instantaneous death.
We are satisfied that the appellants acted in fur therance of their common intention of murdering the de ceased.
We, therefore, hold the appellants guilty under Section 302 read with Section 34 I.P.C. 8 Accordingly, we convert the conviction of the appellants to one under Section 302 read with section 34 I.P.C. and keep them sentenced to fife imprisonment.
Appellants A 1 and A 3 are on bail under orders of this Court.
We cancel the bail order.
These appellants shall surrender to their bail bonds to undergo the sentence of imprisonment.
T.N.A Appeal disposed of. | Appellants (A1 to A3) were tried for the offences under Sections 147, 148, 323 and 309 read with section 149 of the Indian Penal Code.
The Trial Court acquitted A 7 of all the charges but convicted A 1 to A 6 under sections 148 and 302 read with section 149 and sentenced them to imprisonment for life.
On appeal the High Court acquitted A 4 to A 6 but confirmed the conviction and sentence of the appellants.
In appeal to this Court it was contended on behalf of the appellants that in view of the acquittal of four ac cused, the appellant 's conviction under section 148 and on applying section 149 cannot be sustained.
The appellants being three in number could not have formed unlaWful assem bly under section 141 IPC.
Disposing the appeal, this Court, HELD: 1.
The High Court erred in confirming the convic tion and sentence of the appellants under Section 148 and on applying 149 I.P.C. on the ground that they formed an unlaw ful assembly alongwith some unidentified persons.
The prose cution case was that the seven named accused formed the unlawful assembly and not that apart from the seven accused persons there were some other unidentified persons who were involved in the crime.
Four accused having been acquitted there was no question of the remaining three appellants forming an unlawful assembly within the meaning of section 141 of the Indian Penal Code.
Accordingly the appellants cannot be convicted under section 148 and an applying 149 I.P.C. Their conviction under the said sections is set aside.
[6F G] 5 2.
Both sections 149 and 34 I.P.C. deal with a combina tion of persons who become liable to be punished as sharers in the commission of offences.
The non applicability of Section 149 I.P.C. is, therefore, no bar in convicting the accused under Section 302 read with section 34 I.P.C. if the evidence discloses commission of offence in furtherance of the common intention of them all.
[6H, 7 A] 2.1 Keeping in view the manner of attack and the number and nature of injuries there is no hesitation in holding that the appellants acted in furtherance of their common intention, made the murderous attack on the deceased and caused his instantaneous death.
Therefore, they are held guilty under Section 302 read with Section 34 I.P.C. and are sentenced to life imprisonment.
[7G H] |
Criminal Appeal No. 393 of 1979.
From the Judgment and Order dated 26.4.1979 of the Tamil Nadu High Court in Criminal Appeal No. 197 of 1978 and Crl.
Revision Case No. 833 of 1977.
U.R. Lalit and K.R. Choudhary for the Appellants.
K.V. Venkataraman for the Respondent.
The Judgment of the Court was delivered by KULDIP SINGH, J.
Parusuraman @ Velladurai, Karuppaiah, Nagasundaram and four others (hereinafter referred to as A1 to A7) were tried for the murder of one Jawahar.
Three charges were framed against them.
A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder.
The second charge related to rioting wherein A1, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 I.P.C. respectively.
The third charge under Section 302 read with Section 149, I.P.C. was against Al to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with aruval (bill hook) and A6 armed with vel stick (spear stick), attacked Jawahar at about 8.30 A.M. on January 2.8, 1977 and caused him multiple injuries as a result of which he died on the same day.
All the ac cused persons were acquitted by the learned Trial Judge.
On appeal the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect.
of A1to A3.
Believing the prosecution evidence, the High Court came to the conclusion that the commission of offence by A1 to A3 was proved.
They were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigor ous imprisonment for five years.
This appeal by A1 to A3 via special leave petition is against the judgment of the High Court.
While granting special leave to appeal this Court by its order dated August 10, 1979 allowed bail to the appel lants.
We have heard learned counsel for the parties.
We agree with the High Court that the participation of the appellants in the occurrence which resulted in the death of Jawahar has been proved beyond doubt.
We are, however, of the view that keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the 3 offence committed by the appellants come within the mischief of Section 325 read with 34, I.P.C. Thirteen external in juries were found on the dead body of Jawahar.
Out of those 11 were on lower legs and arms.
The High Court while consid ering the nature of offence observed as under: "These accused and their associates who be set themselves on Jawahar could never have intend ed to cause the death of Jawahar for, if such was their intention, they could have certainly killed him especially after carrying him into the cholam field and left him dead there instead of merely causing simple and grievous injuries to him.
Even with reference to the aspect whether the accused persons could have, intended to cause such injuries as would be sufficient, in the ordinary course of nature, to cause death, we are not able to give a finding in favour of the prosecution.
Even according to Jawahar 's statement (Exhibit P 6) all that first accused had remarked was that the attack on him was in retaliation for the injuries Jawahar had caused on the first accused a few weeks earlier.
" Agreeing with the above observations of the High Court we are of the opinion that the intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. We, therefore, set aside the conviction and sentence of the appellants under Section 304 Part I, I.P.C. read with Sec tion 34, I.P.C. and instead convict them under Section 325, I.P.C. read with Section 34, I.P.C. We impose the sentence of imprisonment already undergone by the appellants.
We also impose the sentence of Rs. 7,000 each as fine on the appel lants.
The appellants shall deposit Rs. 7,000 each before the Trial Court within four months from today.
In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years.
The amount of Rs. 21,000 rea lised as fine from the appellants be paid to the father/mother of deceased Jawahar.
In the event of none of them surviving the amount shall be paid to Indra sister of deceased Jawahar.
The appeal is disposed of in the above terms.
V.P.R Appeal disposed of. | Three charges were framed against the appellants A1 to A7.
A7 was charged under Section 302 read with Section 109, I.P.C. for instigating A1 to 6 to commit the murder Al, A2, A4, A5 and A3, A6 were tried under Sections 147 and 148 IP.C., respectively and the third charge under section 302 read with Section 149, I.P.C. was against A1 to A6 on the allegations that Al, A2, A4 and A5 armed with sticks, A3 armed with/ aruval (bill hook) and A6 armed with vel stick (spear stick), attacked the deceased at about 830 A.M. on January 28, 1977 and caused him multiple injuries, as a result of which he died on the same day.
All the accused persons were acquitted by the learned Trial Judge, against which when appeal was filed, the High Court maintained the acquittal of A4 to A7 but reversed the findings in respect of A1 to A3 and were convicted under Section 304 Part I read with Section 34, I.P.C. and were sentenced to undergo rigorous imprisonment for five years, against that, this appeal was filed by the appellants A1 to A3 via Special Leave Petition.
Disposing the appeal, by modifying the sentence, this Court, HELD: 1.
Thirteen external injuries were found on the dead body of the deceased.
Out of these 11 were on lower legs and arms.
The intention of the appellants was to cause grievous hurt and as such the offence committed by them comes within the parameters of Section 325, I.P.C. Keeping in view the nature of injuries on the person of the deceased and the facts and circumstances of this case the offence committed by the appellants comes within the mischief of Section 325 read with 34, I.P.C. and convicted them under Section 325, I.P.C. read with Section 34, I.P.C. imposing the sentence of imprisonment already undergone by them, and the sentence of Rs. 7,000 each as fine, to be deposited before the Trial Court, within four months, which be paid to the father/mother of deceased. 2 In the event of non payment of fine the appellants shall undergo rigorous imprisonment for five years.
[3A, 3D F] |
ivil Appeal No. 3674 of 1988.
From the Judgment and Order dated 15.3.1988 of the Allahabad High Court in Civil Misc.
Writ Petition No. 20328 of 1986.
V.C. Mahajan, C.V.S. Rao and A. Subba Rao for the Appel lants.
Deoki Nandan Aggarwal in person and Mrs. section Dixit for the Respondents.
The Judgment of the Court was delivered by V. RAMASWAMI, J.
The respondent was elevated as Judge of the Allahabad High Court on November 17, 1977.
He retired on October 3, 1983 on superannuation at the age of 62.
He had elected to receive his pension under Part I of the First Schedule to the High 878 Court Judges (Conditions of Service) Act, 1954.
As he had put in only a period of five years 10 months and 17 days service as a Judge.
of the High Court, under paragraph 9 Part I of the First Schedule pension payable was determined at the rate of Rs.8,400 per annum and the family pension in the event of his death earlier than his wife at Rs.250 per month in the letter of Accountant General, Allahabad dated December 2, 1983.
The gratuity was worked out at Rs. 11,665.66 P. in lump sum under Section 17A(3) also on the ground that he had put in only five completed years of service.
The pension was payable with effect from October 4, 1983.
The Act was amended by the Amending Act No. 38 of 1986 providing for an increased pension with effect from November 1, 1986.
On December 10, 1986 the petitioner filed a writ petition before the Allahabad High Court under Article 226 of the Constitution praying for an order or directions declaring (i) that he was entitled to refixation of his pension from the date of his retirement, namely, October 4, 1983 to October 31, 1986 at Rs.9,600 per annum plus dearness allowance admissible under the rules from 'time to time on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days to the 5 years 10 months and 17 days; (ii) for refixa tion of pension for the period from November 1, 1986 at Rs.20,580 per annum plus dearness allowance or other allow ances as may be admissible under the rules from time to time, at the rate of Rs.3,430 per annum for six completed years of service as stated above; (iii) to retix the family pension admissible to his wife on the scale allowed under Section 17A as amended by Act 38 of 1986 again taking the period of completed years of service as 6 years and not as total service of 5 years, 10 months, and 17 days.
During the pendency of the writ petition the respondent made representations to the Government of India stating that since the respondent fell short for 6 completed years of service only by one month and 13 days, the President may be pleased to allow him to add the period so as to calculate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge.
By its order dated April 16, 1987 the Government of India rejected the repre sentation of the respondent among other grounds that the request was belated.
By its judgment dated March 15, 1988 the High Court allowed the writ petition directing the Government to retix his pension, his family pension and gratuity treating him as having put in six completed years of service and in the manner provided in the judgment.
The main grievance of Union of India in this appeal is that the High Court has rewritten the retirement benefit provisions of the First 879 Schedule to tile Act which it was not entitled to and the refixation of the pension on that basis was wholly illegal and unconstitutional.
Since the High Court issued the manda mus directing the Union of India to add one month and 13 days to the total length of service renderred by the re spondent as Judge of the Allahabad High Court for the com puting the pension under Section 16 of the Act, during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of one month and 13 days "subject to the final decision of this Court in Special Leave Petition 6798 of 1988 (CA No. 3674 of 1988).
" However, they added that the period shall be disregarded in calculat ing additional pension, if any, under Part I and Part II and Part HI of the First Schedule of the Said Act.
In order to appreciate the argument of the learned counsel for the appellant Union of India it is necessary to set out certain provisions relating to pension payable to a Judge of the High Court on his retirement.
Clause 17 of the Government of India (High Court Judges) Order, 1937 relating to pension payable to a Judge on his retirement which was in force prior to the coming into force of the Constitution provided that "a pension shall be payable to a Judge on his retirement if, but only if, either: "(a) he has completed not less than 12 years ' service for pension; or (b) he has completed not less than 7 years ' service for pension and has attained the age of sixty; or (c) he has completed not less than 7 years ' service for pension and his retirement is medically certified to be necessitated by ill health.
" Thus it may be seen that under the provisions then existing a Judge who had completed less than seven years of service was not allowed any pension.
As we are concerned in this case to the provisions applicable to a Judge to whom Part I of the First Schedule of the is applicable either by reason of his appointment directly to the High Court from the Bar or who has elected to receive pension payable under that part we need to set out 880 only relevant provisions relating to pension in of the First Schedule.
Paragraphs 2, 3, 4, 5, and 9 as stood prior to its amendment by Act 35 of 1976 read as follows: "2.
Subject to the other provisions of this part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be the basic pension specified in para graph 3 increased by the additional pension, if any, to which he is entitled under para graph 5. 3.
The basic pension to which such a Judge shall be entitled shall be (a) for the first seven completed years of service for pension, Rs.5,000 per annum; and (b) for each subsequent completed year of service for pension, a further sum of Rs. 1,000 per annum: provided that the basic pension shall in no case exceed Rs. 10,000 per annum.
For the purpose of calculating additional pensions, service as a Judge shall be classi fied as follows: Grade I. Service as Chief Justice in any High Court; Grade II.
Service as any other Judge in any High Court.
For each completed year of service for pension in either of the grades mentioned in paragraph 4, the Judge who is eligible for a basic pension under this Part shall be enti tled to the additional pension specified in relation to that grade in the second column of the table annexed hereto.
provided that the aggregate amount of his basic and additional pension shall not exceed the amount specified in the third column of the said table in relation to the higher grade in which he has rendered service for not less than one completed year.
881 TABLE Service Additional pension Maximum aggregate per annum pension per annum Rs. Rs. Grade I 740 20,000 Grade II 740 16,000 9.
Where a Judge to whom this Part applies, retire or has retired at any time after the 26th January, 1950 without being eligible for a pension under any other provision of this Part, then, notwithstanding anything contained in the foregoing provisions, a pension of Rs.6,000 per annum shall be payable to such a Judge.
Provided that nothing in this paragraph shall apply (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appoint ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State.
Note: The Proviso was added by Act No. 46 of 1958.
" By the Amending Act 35 of 1976 the First Schedule was amended by substituting paragraphs 2 and 9 and deleting paragraphs 3, 4 and 5.
The substituted paragraphs 2 and 9 read as follows: "2.
Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies and who has completed not less than seven years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs.2,400 per annum; and (b) for service as any other Judge in any High Court, Rs. 1,600 per annum: provided that the pension shall in no case exceed Rs.28,000 per annum in the case of a Chief Justice and Rs.22,400 per annum in the case of any other Judge.
882 9.
Where a Judge to whom this Part ap plies, retires or has retired at any time after the 26th January, 1950 without being eligible for pension under any other provision of this part, then, notwithstanding any thing contained in the foregoing provi sions, a pension of Rs.8,400 per annum shall be payable to such a Judge.
Provided that nothing in this paragraph shall apply (a) to an additional Judge or acting Judge; or (b) to a Judge who at the time of his appoint ment is in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Union or a State." These amended provisions Were held applicable in respect of all the Judges of the High Court who have retired irre spective of their dates of retirement in the decisions of this Court in Union of.
India vs B. Malick, ; and N.L. Abhyankar vs Union of India, ; However the increased pension was payable only with effect from October 1, 1974, Part I of the First Schedule was further amended by Act 38 of 1986 with effect from November 1, 1986 and the amended paragraph 2 reads as follows: "2.
Subject to the other provisions of this Part, the pension payable to a Judge to whom this Part applies, and who has completed not less than seven years of service for pension shall be (a) for service as Chief Justice in any High Court, Rs.4,500 per annum for each completed year of service; (b) for service as any other Judge in any High Court, RS.3,430 per annum for each completed year of service: provided that the pension shall in no case exceed Rs.54,000 per annum in the case of a Chief Justice and Rs.48,000 per annum in the case of any other Judge.
" The Act further amended paragraph 9 by substituting Rs. 15,750 for the figure Rs.6,000 883 At this stage itself, we may note that this Amending Act 38 of 1986 provided that the amended liberalised pension scheme would apply only to a Judge "who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act, 1986." A similar provision which made the amendment by Act 35 of 1976 applicable Only to those judges who have retired on or after October 1, 1974 was held ultra vires and struck down in the two decisions of this Court above referred to and it was held that the benefit of the amendment was available to all the retired judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974.
That was also ratio of the decision of the Constitution Bench of this Court in D.S. Nakara vs Union of India, ; On the same reasoning and logic we have to hold that Amending Act.
38 of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act.
The resultant position would be that the provisions of pension in Part I of First Schedule as amended by Act 38 of 1986 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from NOvember 1, 1986, As already stated, the respondent retired from service on October 3, 1983.
For the period from October 4, 1983 till October 31, 1986 the respondent claimed that he is entitled to be paid at the rate of Rs.9,600 and at the rate of Rs.20,580 per year from November 1, 1986 when the Amending Act 38 of 1986 came into force, plus the usual dearness allowance admissible from time to time.
This claim was made on the ground that the power of the President under Section 16 of the Act though discretionary could not be exercised arbitrarily or on extraneous or other unsupportable grounds that on the facts and circumstances the refusal to include the period of one month and 13 days to the length of his service by the order of 'the Government dated April 16, 1987 was illegal and on the facts and circumstances, his case is a fit one for enlarging the period of his service to six years.
On the assumption that he is entitled for such en largement and the had completed six years of service, the further case of the respondent was that he is entitled for calculation on the pension at the rate of Rs. 1,600 for each completed year of service and for six.years at Rs.9.600 per annum for the period prior to November 1, 1986.
He further contended that in paragraph 2 of Part I of the First Sched ule the words "who has completed not less than seven years of service for pension ' ' shall be read as "who has completed more than five years of service for pension" on 884 the ground that while a Judge who has completed seven years of service is permitted to calculate at the rate of Rs. 1,600 for each completed years of service, a person who had not completed seven years of service could not be denied that benefit.
But finding that a person who had completed only five years of service or less than five years of serv ice, if the pension is to be calculated at the rate of Rs. 1,600, would get Rs.8,000 or less than Rs.8,000 though Rule 9 provided for a fixed pension of Rs.8,400 per annum for those who had not completed seven years of service, he wanted to read "not less than five years" of service in paragraph 2 as "more than five years" of service.
This argument was accepted by the High Court on the ground that there is no rational basis for depriving a Judge who had put in six completed years of service to calculate the benefit of pension at the rate of Rs. 1,600 per year of service which was provided for those who had completed seven years of service.
The High Court was of the view denying the benefit of calculation at the rate of Rs. 1,600 per year would lead to the striking down of the provision as a dis criminatory piece of legislation and that however the provi sion can be saved by "reading down paragraph 2 of Part I of the First Schedule to the Act and reading 'more than five years ' in the place of not less than seven years.
" In that view the High Court amended paragraph 2 so to say by substi tuting the words "not less than 7 years" as "more than 5 years" and allowed the claim for payment of pension at Rs.9,600 per annum for the period from 4.10.1983 to 31.10.1986.
As already stated as per the Amending Act 38 of 1986 the pension payable for those who have completed 7 years of service was to be calculated at the rate of Rs.3,430 for each completed year of service and for those who have not completed 7 years of service a sum of Rs.15,750 was payable as pension.
On the same reasoning which prompted the High Court to read "less than seven years" as "more than five years" in the provision which was in force prior to November 1, 1986 the High Court further held that since in four years service the Judge would have earned Rs. 13,720 and on com pletion of five years service he would have earned Rs.17,150 calculated at the rate of Rs.3430 per annum as against a sum of Rs.15,750 provided in paragraph 9, necessarily paragraph 2 will have to be read down by providing instead of "not less than seven years" as "more than four years".
The learned Judges read the provisions in the manner as was amended by them and calculated the pension payable to the respondent at Rs.20,580 per annum for the period November 1, 1986.
Consequential relief relating to the payment of the gratuity and family pension in the light of the relief granted relating to pension was also directed to be given.
885 We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as "more than five years" and as "more than four years" in the same paragraph for the period subsequent to November 1, 1986.
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous.
The Court cannot re write, recast or reframe the legislation for the very good reason that it has no power to legislate.
The power to legislate has not been conferred on the courts.
The Court cannot add words to a statute or read words into it which are not there.
Assuming there is a defect or an omission in the words used by the legislature the Court could not go to its aid to correct or make up the deficiency.
Courts shall decide what the law is and not what it should be.
The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself.
But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
Vide P.K. Unni vs Nirmala Industries, at 488; Mangilal vs Suganchand Rathi, ; Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Smt.
Hira Devi & Ors.
vs District Board, Shahjahanpur, ; at 113 1; Nalinkhya Bysack vs Shyam Sunder Haldar & Ors., ; at 545; Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdaor Sabha, ; ; section Narayanaswa mi vs G. Pannerselvam & Ors., ; at 182; N.S. Vardachari vs G. Vasantha Pai & Anr., ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr., ; and Commissioner of Sales Tax, U.P.v.
Auriaya Chamber of Commerce, Allahabad; , at 438.
Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimination.
If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power.
The view of the High Court that paragraph 2 discrimi nates between those who have completed seven years of serv ice and those who have not completed that much service is in our opinion not correct.
It is a well known practice in pensionary schemes to fix a minimum period for purposes of pension.
What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service, the normal period which he is expected to serve before his retirement on superannuation, and vari 886 ous other factors.
There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary.
So far as the Judges of the High Court is concerned as we have noticed earlier even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension.
In fact no pension was provided for those who had not completed seven years of service under preconstitu tion scheme.
Thus we have history or historical grounds or reasons for fixing not less than seven years of service for pension.
Part I deals with a pensionary scheme.
Prescribing a minimum period of service before retirement on superannua tion, for pension is the very scheme itself and not a clas sification.
It is so to say a qualification for eligibility.
It is different from computation of pension.
All those who satisfy that condition are eligible to get pension.
Even those who had completed seven years of service were not given pension for all the completed years of serv ice at the rate Rs. 1,600 per annum and a maximum limit has been fixed for purposes of pension.
If we calculate the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount.
Any service above that period is not taken into account.
Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated.
Thus the reasonableness of the provision in the pensionary scheme cannot be consid ered in this line of reasonings.
It is not impossible to visualise a case where the pension payable would be more than the last drawn pay if the maximum limit had not been fixed.
It is also not correct to state that the amount of pension provided in paragraph 9 is minimum pension.
The said paragraph does not use the word 'minimum ' but only state that if a Judge retires without being eligible for pension under any of the provisions, notwithstanding anything con tained in the other provisions, the pension of a particular amount mentioned therein shall be paid to the Judge.
This amount is not calculated or has any reference to any period of service.
For instance a Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who have completed six years of service.
Again if we run down the provision and strike as unconstitutional the condition relating to completion of seven years of service in paragraph 2 all those who had put in less than six completed years of service would be seri ously affected and 887 paragraph 9 also would become inapplicable.
Further if we amend paragraph 2 of Part I of the First Schedule of the Act as done by the High Court it may be open to those who have ' put in more than five years or more than four years as the case may be to, contend that they are discriminated against because persons who had put in less than that period will get pension at much higher rate.
We have, therefore, no doubt that the High Court had exceeded its jurisdiction and power in amending and altering the provisions of paragraph 2 by substituting different minimum period for eligibility of pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Schedule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum.
We have already noticed that during the pendency of the appeal in this Court in the proceedings dated December 15, 1988 the Government of India communicated to the Chief Secretary, Government of Lucknow, in compliance with the mandamus issued by the High Court, that the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal.
In the circumstances however and in the view we have expressed earlier on the question of pension, we do not want to go into the question whether the High Court was right in setting aside the earlier rejection for addition of the period.
Since the addition of one month and 13 days does not make any difference in calculation of pension as we have already stated, this Presidential sanction has become rele vant only for the purpose of calculating the gratuity under section 17A(3) of the Act.
As the period is less than three months and as the President was pleased to sanction the addition in exercise of his power under Section 16 of the Act though subject to the final decision of this Court we would consider it just and necessary to allow this addition remain in force for the purposes of calculation of gratuity, and family pension only though not for pension.
The appeal is accordingly allowed and the order of the High Court is set aside.
The respondent will however be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service.
There will be no orders as to costs.
G.N. Appeal al lowed. | The Respondent retired as Judge of the High1 Court on 3.10.1983 on superannuation and elected to receive his pension under of the First SChedule to the .
As a Judge of the High Court, he had put in service of 5 years 10 months and 17 days and his pension was determined at Rs.8,400 p.a. and family pension at Rs.250 p.m.
In 1986, the Act was amended providing for an increased pension from 1.11.1986.
Thereafter, the Respondent filed a Writ Petition before the High Court praying for directions that he was entitled to refixation of his pension from the date of his retirement at Rs.9,600 per annum on the basis that the period of his service for pension was fit to be enlarged to six years, by addition of 1 month and 13 days; that from November 1, 1986 his pension may be refixed at Rs.20,580 per annum at the rate of Rs.3,430 for six complet ed years of service; and that the family pension admissible to his wife be calculated on the basis that he had completed six years of service.
During the pendency of the Writ Petition the Respondent made representations to the Government of India that since the respondent fell short of 6 completed years of service only by 1 month and 13 days, the President may be pleased to allow him to add the period so as to 874 caluclate the pension, gratuity and family pension on the basis of 6 completed years of service as a Judge.
By its order dated April 16, 1987 the Government of India rejected the representation of the respondent among other grounds that the request was belated.
By its judgment dated March 15, 1988 the High Court allowed the Writ Petition directing the Government to retix his pension, family pension and gratuity treating him as having put in six completed years of service.
The Union of India has preferred the present appeal, by special leave against the High Court 's order.
It was contended on behalf of the appellants that the High Court has re written the retirement benefit provisions of the First Schedule to the Act which it was not entitled to and hence the refxation of the pension on that basis was wholly illegal and unconstitutional However, during the pendency of the appeal this Court in its proceedings dated December 15, 1988 the Government directed, after obtaining the necessary sanction from the President under Section 16 of the Act, the addition of 1 month and 13 days subject to the final decision of this Court in the appeal.
However, it was added that the period shall be disregarded in calculating additional pension.
if any, under , and of the First Sched ule of the said Act.
Allowing the appeal, this Court.
HELD: 1.
It is a well known practice in pensionary schemes to fix a minimum period for purposes of pension.
What shall be the minimum period for such pension will depend on the particular service, the age at which a person could enter into such service.
the normal period which he is expected to serve before his retirement on superannuation, and various other factors.
There is nothing in evidence to suggest that the period of seven completed years of service fixed for pension is arbitrary.
So far as the Judges of the High Court are concerned even under the Government of India Act a period of seven completed years of service before superannuation was prescribed for eligibility for pension.
In fact no pension was provided for those who had not com pleted seven years of service under pre constitutional scheme.
Thus there are historical grounds or reasons for fixing not less than seven years of service for pension.
Part I deals with pensionary scheme.
Prescribing a minimum period of service before retirement on superannuation, for pension is the very scheme itself and not a classification.
It is a qualification for eligibility.
It is different from computation of pension.
All those who 875 satisfy that condition are eligible to get pension.
[885G H; 886A C] 2.
Even those who had completed seven years of service were not given pension for all the completed years of serv ice at the rate of Rs.1,600 per annum and a maximum limit has been fixed for purposes of pension.
If one calculates the maximum amount provided with reference to the rate per year roughly in about 14 years of service one would have reached the maximum amount.
Any service above that period is not taken into account.
Thus a person who had put in the minimum period for getting the maximum pension could be said to be favourably treated against the person who had put in more number of years of service than needed for the maximum pension and thereby discriminated.
[886D E] 3.
It is not correct to state that the amount of pension provided in paragraph 9 is minimum pension.
The said para graph does not use the word 'minimum ' but only states that if a Judge retires without being eligible for pension under any of the provisions.
notwithstanding anything contained in the other provisions.
the pension of a particular amount mentioned therein shall be paid to the Judge.
This amount is not calculated or has any reference to any period of serv ice.
A Judge who had put in only two years of service before retirement will also receive the same amount as that of a Judge who has completed six years of service.
If the provision is struck down as unconstitutional the condition relating to completion of seven years of service in para graph 2, all those who had put in less than six completed years of service would be seriously affected and paragraph 9 also would become inapplicable.
Further, it may be open to those who have put in more than five years or more than four years as the case may be.
to contend that they are discrimi nated against because persons who had put in less than that period will get pension at much higher rate.
[886F H: 887A] 4.
The Amending Act 38 of 1980 provided that the amend ed liberalised pension scheme would apply only to a Judge who has retired on or after the commencement of the High Court and Supreme Court Judges (Conditions of Service) Amendment Act.
A similar provision which made the amendment 01 1976 applicable only to those Judges who have retired on or after October 1.
1974 was struck down as ultra vires and it was decided that the benefit of the amendment was available to.
all the retired Judges irrespective of the date of retirement but subject to the condition that the enhanced pension was payable only with effect from October 1, 1974.
The Amending Act of 1986 could not restrict the applicability of the amended provision to only those who have retired on or after the commencement of the Amending Act.
It 876 would be applicable to all the Judges irrespective of the dates of retirement and they would be entitled to be paid pension at the rates provided therein with effect from November 1, 1986.
[883A D] Union of India vs B. Malick. ; ; N.L. Abhyankar vs Union of India, ; and D.S., Nakara vs Union of India, ; , referred to.
In the instant case.
High Court had exceeded its jurisdiction and power in amending and altering the provi sions of paragraph 2 by substituting different minimum period for eligibility for pension in paragraph 2 of Part I. Since the respondent has not put in seven completed years of service for pension he will be eligible for pension at the rates provided in paragraph 9 of Part I of the First Sched ule to the Act, that is to say for the period from 4.10.1983 to 31.10.1986 at the rate of Rs.8,400 per annum and for the period on and from November 1, 1986 at the rate of Rs. 15,750 per annum.
[887B C] 6.
Since in compliance with the mandamus issued by the High Court, the President of India was pleased to sanction the addition of one month and 13 days to the service of the respondent to make it six years of completed service subject to the final decision in this appeal, this Court does not go into the question whether the High Court was right in set ting aside the earlier rejection for addition of the period.
The addition of one month and 13 days does not make any difference in calculation of pension it is relevant only for the purpose of calculating the gratuity under section 17A(3) of the Act.
As the period was less than three months and as the President was pleased to sanction the addition in exer cise of his power under Section 16 of the Act though subject to the final decision of this Court it is just and necessary to allow this addition to remain for the purposes of calcu lation of gratuity, and family pension only though not for pension.
The respondent will be entitled to fixation of family pension and for payment of gratuity calculated on the basis of his having completed six years of service.
[887D H] 7.1.
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legis lature when the language of the provision is plain and unambiguous.
The Court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate.
The power to legislate has not been conferred on the courts.
The Court cannot add words to a statute or read words into it which are not there.
Assuming there is a defect or an omission in the 877 words used by the legislature the Court could not go to its aid to correct or make up the deficiency.
Courts shall decide what the law iS. and not what it should be.
The Court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself.
But to invoke judicial activism to set at naught legislative judgment is subversive of the constitutional harmony and comity of instrumentalities.
[885A D] 7.2 Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts some times in order to avoid discrimina tion.
What the High Court has done in this case is a clear and naked usurpation of legislative power.
[885F] P.K. Unni vs Nirmala Industries, ; Mangilal vs Suganchand Rathi, ; Sri Ram Ram Narain Medhi vs The State of Bombay, [1959] Supp. 1 SCR 489; Smt.
Hira Devi & Ors.
vs District Board, Shahjahanpur, ; ; Nalinakhya Bysack vs Shyam Sunder Haldar & Ors., ; ; Gujarat Steel Tubes Ltd. vs Gujarat Steel Tubes Mazdoor Sabha, ; ; section Narayanaswa mi v.
G. Pannerselvam & Ors., ; ; N.S. Varda chari vs G. Vasantha Pai & Anr., ; ; Union of India vs Sankal Chand Himatlal Sheth & Anr., ; and Commissioner of Sales Tax, U.P.v.
Auriaya Chamber of Commerce, Allahabad; , , relied on. |
erred Case No. 2 of 1991.
(Under Article 139 A(1) of the Constitution of India) Salman Khurshid, Madhan Panikkar, Mrs. Vimla Sinha and Gopal Singh for the Appellant.
Kapil Sibal and Arun Jaitley, Additional Solicitor Generals, Ms. Kamini Jaiswal and C.V.S. Rao for the Respond ents.
The Judgment of the Court was delivered by section RATNAVEL PANDIAN, J.
The above case has been regis tered in pursuance of our order dated 23.11.90 in Transfer Petition (Civil) No.546/90 transferring O.A.No.191 of 1990 under Article 139 (A) of the Constitution of India from the file of the Central Administrative Tribunal, Patna Bench, Patna.
the appellant 's prayer is to dispose of the above case along with Civil Appeal Nos.
5439 52/90 (arising out of SLP (Civil) Nos.
13525 38 of 1990).
The relief sought for by the appellant before the CAT, Patna Bench was similar to the one before the CAT, Principal Bench, Delhi that being to declare the second proviso to Rule 4 of C.S.E. as violative of Articles 14 and 16 of the Constitution of India.
On 29.8.90 the 114 Patna Bench in M.P. No. 36/90 granted an interim relief which reads thus: "Heard the learned counsel for the applicant.
The applicant may be allowed to appear at the Civil Services Main Examination, 1990, subject to result of the final orders in the original application.
The respondents are directed accordingly.
Copy be given to the parties today." Mr. Salman Khurshid appearing for the appellant submit ted that the interim direction given by the Patna Bench if covered by the directions given in paras 5(ii) and 6 of the order of CAT, Delhi he has no further submission to be made, and the implementation of those directions will satisfy his relief.
We in our order dated 7.12.1990 have clarified certain directions given by the CAT, Delhi with reference to the various interim orders passed by it in a number of OAs and finally gave the following direction: "Hence we permit all those candidates falling under Para Nos. 5 (ii), 6 and 7 to sit for the main examination subject to the condition that each candidate satisfies the Secretary, Union public Service Commission that he/she falls within these categories and that the concerned candidates have passed the preliminary exami nation of 1990 and have also applied for the main examination within the due date.
This permission is only for the ensuing examina tion.
, As we are now permitting those who have passed the preliminary examination of 1990 and have applied for the main examination on the basis of the unquestioned and unchallenged directions given under paras 5(ii), 6 and 7 of the judgment of the CAT, Principal Bench, New Delhi, the same benefit is extended to the other appellants also who satisfy those condi tions as mentioned under paras 5 (ii), 6 and 7.
" The above direction virtually confirms the direction given by the Patna Bench in M.P. No.36/90 allowing the appellant therein to sit for C.S.E. (Main) of 1990.
However, we have not subjected our direction with any rider in the sense that that direction will be subjected to the result of the appeals.
In fact, we have in the judgment rendered today in Civil Appeal Nos.
5439 52/90 and batches given a direction to the respondents inclusive of the Union Public Service Commission that "all those candidates who have appeared for the Civil Services (Main) Examination, 1990, pursuant to our permission given in the order dated 7.12.90 and who have 115 come out successfully in the said examination and thereby have qualified themselves for the interview, shall be per mitted to appear for the interview test and that if those candidates completely and satisfactorily qualify themselves by getting through the written examinations as well as the interview shah be given proper allocation and appointment on the basis of their rank in the merit list notwithstanding the restriction imposed by the second proviso and our present judgment upholding the validity of the said proviso since the respondents have not questioned and challenged the directions given by CAT, Principal Bench, Delhi in para graphs 5(ii), 6 and 7 of its judgment dated 20.8.1990.
We would like to make it clear that the unchallenged directions given by the CAT in its judgment as well as directions given by us in our order dated 7.12.90 are not.controlled by any rider in the sense that the said directions were subject to the result of the cases and hence those directions would be confined only to those candidates who appeared for CSE, 1990 and no further.
The seniority of those successful candidates in CSE, 1990 would depend on the service to which they have qualified.
The seniority of the left out candidates would be maintained in case they have joined the service to which they have been allocated on the result of previous CSE and such candidates will not be subjected to suffer loss of seniority as held by the CAT, Delhi in its judgment".
Therefore, we hold that this appellant is also entitled for the same above benefit.
In other respects, this trans ferred case is dismissed for the reasons mentioned in the main judgment in Civil Appeal Nos.
5439 52/90 and batches.
No order as to costs.
R.P. Appeal dismissed. | The appellant filed an application before the Central Administrative Tribunal, Patna Bench, for a declaration that the second proviso to rule 4 of Civil Services Examination Rules was violative of Articles 14 and 16 of the Constitu tion of India.
By an interim order the Tribunal allowed the appellant to appear at the Civil Services (Main) Examina tion, 1990, subject to the result of the final orders in the original application.
The said application was transferred to this Court.
In a bunch of similar cases, the Central Administrative Tribunal, Delhi upheld the validity of Rule 4 of Civil Services Examination Rules.
In appeal to this Court (Civil Appeal Nos. 5439 52/90)** by an interim order dated 7.12.1990, the appellants therein were allowed to appear in Civil Services (Main) Examination, 1990; and while finally disposing of the appeals, the judgment of CAT, Delhi was affirmed.
Dismissing the case of the appellant in view of the judgment in C.As Nos.
5439 52/90,** this Court, HELD: The appellant was also entitled to the same benefits as granted to the appellants in Civil Appeals No. 5439 52/90, namely: (i) All those candidates who appeared for the Civil Services (Main) Examination, 1990, pursuant to this Court 's order dated 7.12.90 and qualified themselves for the inter view, shall be permitted to appear for the interview test and that if those candidates completely and satisfactorily qualify themselves by getting through the written examina tions as well as the interview shall be given proper alloca tion and appointment on the basis of their rank in the merit list notwithstanding the restriction imposed by the second proviso to rule 4 and this Court 's judgment 113 upholding the validity of the said proviso since the re spondents have no/ questioned and challenged the directions given by C.A.T. Principal Bench, Delhi in its judgment dated 20.8.1990.
(ii) The un challenged directions given by the C.A.T. in its judgment as well as directions given by this Court in its order dated 7.12.90 were not controlled by any rider in the sense that the said directions were subject to the result of the cases and hence those directions would be confined only to those candidates who appeared for C.S.E. 1990 and no further.
The seniority of those successful candidates in C.S.E. 1990 would depend on the service to which they have qualified.
The seniority of the left out candidates would be maintained in ease they have joined the service to which they have been allocated on the result of previous C.S.E. and such candidates will not be subjected to suffer loss of seniority as held by the C.A.T. Delhi in its judgment.
[pp 114 H, 115A D] **Mohan Kumar Singhania & Ors.
vs Union of India, [1991] Supp. 1 SCR 46 |
Appeal No.2168 of 1980.
From the Judgment and Order dated 2.8.1979 of the Patna High Court in C.W.J.C. No.1819 of 1979.
R.K. Khanna and R.P. Singh for the Appellant.
L.C. Goyal for the Respondents.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The appellant, the Ex Treasurer of the Gopalganj Co op.
Development & Cane Marketing Union, Gopal ganj, was said to have defalcated a sum of Rs. 95,790.54 and for recovery thereof, proceedings were initiated under section 48 of the Bihar and Orissa Co operative Societies Act, VI of 1935, for short 'the Act ' with interest accrued thereon of Rs. 25,555 as on December 30, 1976.
The Registrar referred the matter to the Asstt.
Registrar, Gopalganj, who on en quiry and having given the opportunity to the appellant passed an award in Case No. 400 of 1975 on December 30, 1976 for the aforesaid sums.
On appeal, the Deputy Registrar set aside the award on the ground that the appellant was surch arged in Surcharge Case No. 18 of 1976.
On further revision, the first respondent set aside the appellate order and confirmed the award with a further direction to pay interest till date of recovery.
The appellant filed C.W.J.C. No. 1819 of 1979 which was dismissed in limine by the Patna High Court on August 2, 1979.
Thus this appeal by Special Leave.
The learned counsel for the appellant raised two fold contentions.
His first contention is that the Registrar has no revisional jurisdiction under section 56 since the award of the Asstt.
Registrar is by the Registrar under the Act and the Asstt.
Registrar acted as his delegate.
In support thereof he placed strong reliance on Din Dayal Singh vs The Bihar State Cooperative Marketing Union Ltd, It is further contended that surcharge proceedings against the appellant were initiated under section 40 in 147 which the appellant was found payable of partial amount as against which the society filed an appeal before the Govern ment which is pending.
The award amounts to double jeopardy for the same liability.
Therefore, it is illegal.
We find no substance in either contention.
Section 2 (i) of the Act defines 'Registrar ', which means a person appointed to perform the duties of Registrar of Co operative Societies under this Act.
Section 6 in Chapter II provides thus: "6.
The Registrar (1) The State Government may appoint a person to be registrar of Co operative Societies for the State or any portion of it, and may appoint persons to assist such Registrar.
(2) The State Government may, by general or special order published in the Official Ga zette, confer (a) on any person appointed under sub section (1), to assist the Registrar, all or any of the powers of the Registrar under this Act except the powers under Section 26; and (b) on any Co operative Federation or financ ing bank all or any of the powers of the Registrar under Section 20, sub section (3) of Section 28 and Section 33.
(3) Where the State Government is of opinion that the Registrar needs the assistance of Additional Registrar for speedy disposal of business, it may by order published in the Official Gazette, appoint such number of Additional Registrar as it may deem fit.
(4) Notwithstanding anything to the contrary contained in any other provision of the Act, the Registrar may delegate, transfer or assign to the Additional Registrar such of his powers and functions and duties as he may consider necessary including the power under sections 26 and 56 and the Additional Registrar shall, thereupon have powers of Registrar in matters so delegated, transferred or assigned to him.
" From a reading of sub sections (1) to (3) of section 6, it is clear that the State Government may appoint a person to be the Registrar of the Cooperative Societies besides Addition al Registrar and also appoint persons to assist such Regis trar.
Under sub section 2 (a) the persons appointed to 148 assist the Registrar are entitled to exercise all or any of the powers of the Registrar under the Act except under section 26.
Sub section (4) gives power to the Registrar to dele gate, transfer or assign to the Addl.
Registrar all the powers including the power under sections 26 and 56 and thereupon the Addl.
Registrar as a delegate of the Registrar is empow ered to exercise powers so transferred or assigned or dele gated to him.
Section 6 thereby makes a clear distinction between the.
exercise of the powers of the Registrar, by the Addl.
Registrars as a delegate of the Registrar and of the Assn.
Registrars or Dy.
Registrars appointed to assist the Registrar empowered as such in the discharge of their func tions under the Act.
Such assistants are entitled by statu tory operation to exercise the powers under the Act con ferred by the State Govt.
except to the extent expressly excluded by the statute.
Section 48 provides procedure to adjudicate any dispute touching the business of a registered Society other than a dispute regarding disciplinary action taken by the Society or its Managing Committee against a paid servant of the society, arising amongst its members covered by clauses (a) to (e) and (c) covering any officer, agent or servant of the society (past or present).
Such disputes shall be referred to the Registrar.
Under sub section (2) thereof the Regis trar may on receipt of such reference (a) decides the dis pute by himself or (b) transfer for disposal to "any person exercising the powers of the Registrar in this behalf '.
Under sub section (3) the Registrar (Assistant or Deputy) on reference shall dispose of the same in th manner provided and the rules.
A right of appeal under s.48 (6) is provided against the award made under sub section (3).
Sub section (9) provides the subject to the orders of the Registrar on appeal or review a decision given in a dispute transferred or referred under clauses (b) and (c) shall be final.
Sec tion 56 provides power of revision thus: Power of revision by Registrar The Registrar may on application or of his own motion revise any order passed by a person exercising the powers of a Registrar or by a liquidator under section 44" A bare reading of these relevant provisions clearly manifests the legislative intention that the Registrar on reference, himself may decide the dispute or transfer it for disposal to a person exercising powers of the Registrar in this behalf.
If the Registrar himself decides the dispute under section 48(3) the question of either appeal or revision to him does not arise except a review.
This dichotomy is to be maintained when a revisional power is to be exercised by the Registrar.
The power of the revision is conferred expressly only, either on application or suo moto, against any 149 order passed by "a person exercising the powers of the Registrar".
Obviously it refers to the person appointed to assist him under section 6(2)(a) of the Act.
In Chintapalli Agency Taluk Arrack Sales Co op.
Society Ltd. vs Society (Food & Agriculture), Govt.
of Andhra Pradesh, ; a similar question had arisen.
The Dy.
Registrar of Co operative Societies gave notice to the appellant and amended under section 16 (5) of the A.P. Co operative Societies Act, the Bye laws of the Society so as to restrict the area of operation within the specified area.
On a revision filed against the order under section 77, the Registrar gave certain directions which was assailed being without jurisdiction.
When it came before the High Court, the High Court allowed the writ petition.
On appeal this court held that the power of the Registrar is in accordance with the pre eminent position accorded by the Act to the Registrar under whose supervision any other person appointed under s.3 (1) may function and act.
"It is, therefore, not correct that the Registrar could not exercise powers under section 77 in examining the correctness, legality or propriety of the proceedings initiated by the Dy.
Registrar under section 16(5) of the Act".
It was further held that the power under s.16 is that of the Registrar, but the Dy.
Registrar is empowered by the Government to exercise the powers, but under the general superintendence of the Registrar.
Accord ingly it was held that the revision was maintainable.
The same ratio applies to the facts on hand.
The Registrar under section 6 (1) of the Act has his pre eminent supervisory authori ty over the functions and orders of the Registrars appointed under section 6(2) (a) to assist him in the discharge of the duties or functions under the Act except over his delegate under sub section (4) of section 6.
His supervisory or revisional power is to correct all palpable material errors in the orders passed or the action taken by the subordinate offi cers feeding injustice.
The language couched in section 56 advis edly was wide of the mark to reach injustice whenever found in the orders or actions of his subordinate officers.
Merely because the Asstt.
Registrar on reference exercised the power under sub section
(3) of s.48, the Registrar is not denuded of his supervisory or revisional powers under section 56 of the Act.
Therefore, the Addl.
Registrar as delegate of the Registrar is clearly within his power to exercise his revi sional power over the appellate order under section 48 (6) of the Act.
It is accordingly legal and valid.
The ratio in Roop Chand vs State of Punjab, [1963] Suppl.
1 SCR 539 is clearly distinguishable.
Therein the State Govt.
have expressly delegated their power to the Asstt.
Director.
Thereby the Subordinate Officer exercised the powers of the State Govt.
as their delegate.
The Govt.
was thereafter devoid of powers to exercise the revisional powers over the subordinate officers.
This court in Chintapalli Agency 's case (supra) distinguished Roop 150 Chand 's ratio.
Din Dayal Singh 's case (supra) no doubt supports the contention of the appellant.
Relying upon the language in sub section (9) of section 48 "save as expressly provided in this section ", the Division Bench construed that the appellate order of the Deputy Registrar passed under section 48 (6) was otherwise provided and so was not amena ble to revision under section 56.
The learned Judges construed that since the appellate order shall be final.
The effect of language under sub sec.
(9) of section 48 was to exclude the revisional jurisdiction of the Registrar under section 36.
In addition, the Division Bench also construed that the Regis trar himself referred the dispute to the Asstt.
Registrar and any person exercising the power of the Registrar in this behalf is to be in the parameters of his delegate and that, therefore, the Registrar himself cannot revise his own order under section 56.
We find it difficult to approve the ratio of the High Court.
At the cost of repetition we point out that section 6, sub section (1) and sub section 2 (a) make a distinc tion between "the Registrar" and "a person exercising the powers of the Registrar".
Sub section (4) further amplifies the exercise of the power of the Registrar by the Additional Registrar as his delegate.
That apart, it is clear that the Registrar is the final supervisory authority over the subor dinate officers exercising the powers or performing the duties under the Act.
The language in section 56 was couched very widely without being hedged with any limitation like the revisional powers under section 115 C.P.C. or the similar language used in sister Acts in some other States like A.P. The reason appears to be obvious.
The order of the Dy.
Registrar by language of sub section (6) of section 48, undoubt edly shall be final.
We are aware that when the legislature gives "finality" to an order, it is normally not open to revision.
But still in must be construed in the light of the scheme of the Act, its operation and resultant effect.
The language in s.56 is not hedged with any limitation of the finality in sub section (6) of section 48.
Thus we hold that the revisional power under section 56 is independent of the appellate power under section 48(6).
The letter is amenable to revi sion by the Registrar.
The ratio of the Division Bench in Din Dayal 's case (supra) is, therefore, not good law.
The second contention that the award of the Asstt.
Registrar amounts to double jeopardy offending his right under article 20 is misconceived and without substance.
Un doubtedly section 40 gives power to the Registrar to initiate surcharge proceedings, on receipt of audit report under section 33 or an enquiry under section 35 or on inspection under Ss. 34, 36 or 37 or of the winding up proceedings, if it appears to the Registrar that any person who has taken part in the organisation or the management of the society or any past or present officers of the society made any illegal payment under clause (a); or by reason of his culpable negligence or mis 151 conduct causes loss or deficiency to the funds of the socie ty under clause (b); or failed to bring into account any sums which ought to have been brought into the account under clause (d); or misappropriated or fraudulently retained any property of the society or of the financing bank etc.
The proceedings under section ,18 are in the nature of a civil suit, otherwise cognisable by a civil court under section 9 of the C.P.C.
The statute has taken out the jurisdication of the civil court and expressly conferred on the Registrar or a person exercising the powers of the Registrar to decide the dispute touching the business or management of the society between its members, past members etc.
or their office bearers, agent or officers or servants of the society etc.
The proceedings under section 40 are not in substitution of section 48, but are independent of and in addition to the normal civil remedy under section ,18.
The culpable negligence, miscon duct, misappropriation, fraudulent conduct etc.
are relevant facts to be established in the proceedings under section 40.
But that is not so under section 48.
Therefore, mere initiation or an order passed under section 40 does not divest the jurisdiction or power of the Registrar under section 48 when it was referred to for a decision of the dispute.
Exercise of the jurisdiction to pass an award under section ,18(3) or revision under section 56 does not amount to double jeopardy.
We are informed that an appeal before the Government is pending against surcharge order under section 40.
We express no opinion thereon.
We hold that exercise of the power to pass an award under section 48 does not amount to double jeopardy.
The appellate order of the Dy.
Registrar is obviously and palpably illegal and rightly corrected.
The appeal is accordingly dismissed, but since none appeared for the respondents we order no costs.
V.P.R Appeal dismissed. | The appellant, an Ex Treasurer of a Co operative Society was said to have defalcated a sum of Rs. 95,790.54 and for recovery thereof, proceedings were initiated under section 48 of the Bihar and Orissa Co operative Societies Act, 1935 with interest accrued thereon of Rs. 25,55 as on December 30, 1976.
The Registrar referred the matter to the Asstt.
Regis trar who on enquiry and having given the opportunity to the appellant passed an award, against which appeal was filed.
The Deputy Registrar allowed the appeal on the ground that the appellant was surcharged.
On revision, the first respondent set aside the appel late order and confirmed the award with a further direction to pay interest till date of recovery.
The appellant filed a writ petition which was dismissed in limine by the High Court against which this appeal by special leave.
The appellant contended that the Registrar had no revi sional 144 jurisdiction under Section 56 since the award of the Asstt.
Registrar was by the Registrar under the Act acting as Registrar 's delegate; that surcharge proceedings against the appellant were initiated under Section 40 in which the appellant was found payable of partial amount, as against which, the society filed an appeal before the Government, which was pending and the award amounted to double jeopardy for the same liability and therefore, it was illegal.
Dismissing the appeal, this Court, HELD: 1.
A bare reading of the relevant provisions in Section 48 clearly manifests the legislative intention that the Registrar on reference, himself may decide the dispute or transfer it for disposal to a person exercising powers of the Registrar in this behalf.
If the Registrar himself decides the dispute under Section 48(3) the question of either appeal or revision to him does not arise except a review.
This dichotomy is to be maintained when a revisional power is to be exercised by the Registrar.
The power of revision is conferred expressly only, either on application or suo moto, against any order passed by "a person exercis ing the powers of the Registrar".
Obviously it refers to the person appointed to assist him under section 6(2) (a) of the Act.
[148G H, 149 A] 2.
The Registrar under section 6(1) of the Act has his pre eminent supervisory authority over the function and orders of the Registrars appointed under section 6(2)(a) to assist him in the discharge of the duties or functions under the Act except over his delegate under sub section (4) of section 6.
His supervisory or revisional power is to correct all palpable material errors in the orders passed or the action taken by the subordinate officers feeding injustice.
Merely because the Asstt.
Registrar on reference exercised the powers under sub,section (3) of section 48.
The Registrar is not denuded of his supervisory or revisional powers under section 56 of the Act.
Therefore, the Addl.
Registrar as delegate of the Registrar is clearly within his power to exercise his revisional power over the appellate order under section 48(6) of the Act.
It is accordingly legal and valid.
[149 E G] 3.
The language in section 56 was couched very widely without being hedged with any limitation like the revisional powers under section 115 C.P.C. or the similar language used in sister Acts in some other States.
The reason appears to be obvious.
The order of the Dy.
Registrar by language 145 of sub section (6) ors.
48, undoubtedly shall be final.
When the legislature gives 'finality ' to an order, it is normally not open to revision.
But still it must be construed in the light of the scheme of the Act, its operation and resultant effect.
The language in section 56 is not hedged with any limita tion of the finality in sub section (6) of Section 48.
The revisional power under section 56 is independent of the appellate powers under section 48(6).
The latter is amenable to revision by the Registrar.
[150 D F] 4.
The proceedings under section 40 are not in substitution of section 48, but are independent of and in addition to the normal civil remedy under section 48.
The culpable negligence, misconduct, misappropriation, fraudulent conduct etc.
are relevant facts to be established in the proceedings under section 40.
But that is not so under section 48.
Therefore, mere initiation or an order passed under section 40 does not divest the jurisdiction or power of the Registrar under section 48 when it was referred to for a decision of the dispute.
Exercise of the jurisdiction to pass an award under section 48(3) or revision under section 56 does not amount to double jeopardy.
[151 C D] 5.
Section 2(i) of the Act defines "Registrar", which means a person appointed to perform the duties of Registrar or Co operative Societies under this Act.
The State Govern ment may appoint a person to be the Registrar of the Co operative Societies besides Additional Registrar and also appoint persons to assist such Registrar.
Under sub section 2(a) the persons appointed to assist the Registrar are entitled to exercise all or any of the powers of the Regis trar under the Act except under section 26.
Sub section (4) of Section 6 gives power to the Registrar to delegate, transfer or assign to the Addl.
Registrar all the powers including the powers under section 26 and 56 and thereupon the Addl.
Regis trar as a delegate of the Registrar is empowered to exercise powers so transferred or assigned or delegated to him.
Section 6 thereby makes a clear distinction between the exercise of the powers of the Registrar, by the Addl.
Regis trar as a delegate of the Registrar and of the Asstt.
Registrars or Dy.
Registrars appointed to assist the Regis trar empowered as such in the discharge of their functions under the Act.
Such assistants are entitled by statutory operation to exercise the powers under the Act conferred by the State Govt.
except to the extent expressly excluded by the statute.
[147 B, 148 A B] Din Dayal Singh vs The Bihar State Cooperative Marketing Union Ltd., 146 , over ruled Chintapalli Agency Taluk Arrack Sales Co op.
Society Ltd. vs Secretary (Food & Agricultural), Govt.
of Andhra Pradesh, ; , followed.
Roop Chand vs State of Punjab, [1963] Suppl.
1 SCR 539, distinguished. |
Appeal No. 528 of 1961.
Appeal by special leave from the judgment and decree dated October 10, 1956 of the Mysore High Court in Regular Appeal No. 171 of 1951 52.
K. P. Bhatt and R. Thiagarajan, for the appellant.
section T. Desai, K. Jayaram and R. Ganapathy Iyer for the respondents.
3 December, 18, 1963 The Judgment of P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and N. Rajagopala Ayyangar JJ. was delivered by Gajendragadkar, J. J. R. Mudholkar J. delivered a dissenting opinion.
GAJENDRAGADKAR J.
This appeal arises from a suit filed by the appellant Kanakarathanammal in the Court of the IInd Additional District Judge, Bangalore (O.S. No. 39 of 1947 48) in which she claimed to recover possession of the properties described in the Schedules attached to the plaint.
Schedules 1 and 2 consist of movable and immovable properties, while Schedule 3 refers to jewels and silver ware.
The appellant laid a claim to these properties as the sole heir of her mother Rajambal who died on the 13th September, 1946.
Her case was that she was entitled to these properties exclusively under sub clause (i) of Clause (1) of section 12 of the Mysore Hindu Law Women 's Rights Act, 1933 (No. X of 1933) (hereinafter called the Act).
A gold belt which is an item of jewellery was described by her in Schedule 4 and the same was claimed by her on the ground that it had been presented to her by her father before he died on the 20th March, 1947.
The case set out in the plaint showed that according to the appellant, the properties in Schedules 1, 2 and 3 belonged exclusively to her mother and when she made a claim against the respondents in that behalf, they challenged her title.
In that connection, the appellant relied on the fact that a sale deed had been executed in favour of her mother on the 1st April, 1942 for a consideration of Rs. 28,000 by Mr. Gibs under which several pieces of land together with all buildings and erections standing thereon and movable property consisting of articles of furniture and other things set out in the Schedules attached to the sale deed (Exhbt.
F), were covered.
Respondent No. 1 Loganatha Mudaliar alleged that on the 17th February, 1947, the father of the appellant had executed a will under which he had been appointed an executor and that as such executor, he obtained a probate under the said will, got possession of the properties and handed them 4 over to Respondent No. 2 Mudaliar Sangham, by its President, as directed under the will.
Respondents 1 and 2 thus set up a title in respect of the suit properties in the appellant 's father.
Alternatively, they urged that even if the property belonged to the appellant 's mother, she would not be entitled to claim exclusive title to it, because by succession the said property would devolve upon the appellant and her brothers; and the appellant 's failure to join her brothers made the suit incompetent for non joinder of necessary parties.
The third respondent, Vasudeva Setty & Sons, admitted that he was in possession of the gold belt described in Schedule 4, but urged that the appellant 's father had given it to him for purpose of sale and that a sum of Rs. 109 7 9 was due to him.
He pleaded that he had no objection to hand it over to the rightful claimant, provided the amount due to him was repaid to him.
On these pleadings, the trial Court framed six substantive issues, three of which were important.
These three issues were: ( 1) whether the appellant 's father or mother was the real owner of the property described in Schedules 1 and 2; (2) whether the will set up by respondents 1 & 2 was genuine and valid in law; and (3) whether the suit was not maintainable on the ground that necessary parties had not been joined by the appellant.
The learned trial Judge held that the appellant 's mother was the owner of the property described in Sch.
Regarding the movable property, the trial Judge held with some variation that the items admitted by the respondents also belonged to the appellant.
As regards the jewels, he found that they had never gone into the possession of respondents 1 and 2, and so, the appel lant 's claim in respect of the said jewels was rejected.
As to the gold belt mentioned in Sch. 4, the decision of the trial Court was that the appellant should recover the same from respondent No. 3 on her paying to him Rs. 109 7 9 claimed by him.
Having found the title of the appellant 's mother proved, the trial Judge came to the conclusion that the will executed by the appellant 's father was invalid.
These findings, however, did not materially assist the appellant, because the learned Judge upheld the respondent 's plea that the suit was bad for non joinder of necessary parties.
In 5 the result, the appellant 's suit was dismissed in regard to the main relief claimed by her.
Against this decision, the appellant preferred an appeal before the High Court of Mysore (R.A. No. 171 of 195152).
The High Court has held that the main property described in Sch.
I did not belong to the appellant 's mother, but to her father.
It found that the sale deed in respect of the property was taken by the appellant 's father in the name of the appellant 's mother benami.
Having held that the appel lant had not established her title to the said property, the High Court did not think it necessary to consider the validity of the finding of the trial Judge that the suit was bad for non joinder of necessary parties.
It also did not think it necessary to consider whether the will had been proved or not.
The appellant, however, succeeded before the High Court in respect of one minor point and that was in relation to her claim for the gold belt.
The High Court has ordered that Respondent No. 3 should return the said gold belt to the appellant and that the appellant was not bound to pay to Respondent No. 3 the amount claimed by him.
The result was that with a very slight modification, the decree passed by the trial Court was confirmed, though on a different ground.
It is against this decree that the appellant has come to this Court by special leave.
It appears that respondents 1 & 2 had also preferred an appeal in the High Court against a part of the decree passed by the trial Judge, and the said appeal was dismissed.
With that part of the case, we are not concerned in the present appeal.
The first point which has been urged before us by the appellant is that the High Court was in error in holding that the immovable property described in Sch.
I had been purchased by the appellant 's father benami in the name of his wife.
Some facts material to this issue are not in dispute.
It has been found by both the Courts below that the consideration which was paid for the sale transaction proceeded entirely from the appellant 's father; so that in dealing with the question as to whether the title to the property vested in the appellant 's mother or not, we have to proceed on the basis that the whole of the consideration was paid by the appellant 's father and not by her mother.
The case of the 6 appellant, however, is that the subsequent conduct of the parties and particularly the correspondence produced by the appellant clearly showed that the appellant 's father admitted the title of the appellant 's mother, and it is urged that the High Court was in error in reversing the finding of the trial Court that the property really belonged to the appellant 's mother.
In order to deal with the merits of this argument, it is necessary to refer to the material correspondence on which the appellant relies.
Exhibit B is a letter written by the appellant 's father to her (appellant 's) husband on the 1st August, 1944.
In this letter, the appellant 's father has used words which clearly show that he, treated the property as belonging to his wife.
He says "she (the appellant 's mother) tells me that you almost agreed to come and stay in the estate and for that purpose she has asked me not to let out both the houses occupied by Iyer", and then he adds, "she says that she will give Rs. 50 a month with the above free quarters".
Then on the 21st June, 1945, a letter was addressed to the Sub Division Officer, Bangalore Sub Division, Bangalore, by the appellant 's mother (Exbt.
This letter is in relation to the properties with which we are concerned, and it has been addressed clearly and unambiguously on the basis that the title to the property vests in the appellant 's mother.
In the course of this letter, she says that about the 10th May, 1945, the authorities of the Hindustan Aircraft approached her through her husband for permission to put up and install a few electric lights against the runway to the length of about 700 or thereabouts, and that she gave them the permission on the strict understanding that the rest of her plantation should not be disturbed.
Similarly, on the 28th May, 1946, the appellant 's father wrote to the Officer in charge Claims, Bangalore, acknow ledging receipt of a cheque which had been issued by the said Officer in favour of the appellant 's mother for Rs. 2511 3 0.
On the 23rd May, 1946, the appellant 's father wrote a letter to his wife, and some of the statements made in it clearly suggest that the appellant 's father admitted his wife 's title to the properties in question. "Mr. Loganatha Mudaliar," says the letter, "told me that you had said to write some Estate Will.
We have talked about this already.
You ought not 7 to have told him without telling me again .
Money also should be given along with estate.
I will see to all as per ,,convenience.
If you be without sorrow, you may come out happily early.
" At this time, the appellant 's mother was ill and was presumably thinking of making a will of her own properties.
In that context, the letter sent by the appellant 's father to his wife is very significant.
It is true that the actual management of the property was done by the appellant 's father; but that would inevitably be so having regard to the fact that in ordinary Hindu fami lies, the property belonging exclusively to a female member would also be normally managed by the Manager of the family; so that the fact that the appellant 's mother did not take actual part in the management of the property would not materially affect the appellant 's case that the property belonged to her mother.
The rent was paid by the tenants ,and accepted by the appellant 's father; but that, again, would be consistent with what ordinarily happens in such matters in an undivided Hindu family.
If the property belongs to the wife and the husband manages the property on her behalf, it would be idle to contend that the management by the husband of the properties is inconsistent with the title of his wife to the said properties.
What we have said about the management of the properties would be equally true about the actual possession of the properties, because even if the wife was the owner of the properties, possession may continue with the husband as a matter of convenience.
We are satisfied that the High Court did not correctly ;appreciate the effect of the several admissions made by the appellant 's father in respect of the title of his wife to the property in question.
Therefore, we hold that the property had been purchased by the appellant 's mother in her own name though the consideration which was paid by her for the said transaction had been received by her from her husband.
As soon as we reach this conclusion, it becomes necessary to consider whether the appellant 's suit must fail for nonjoinder of necessary parties.
It is common ground that the appellant has brothers alive, and even in the trial Court respondents 1 and 2 took the alternative plea that if the property was found to belong to the appellant 's mother, under 8 the relevant Mysore law the appellant and her brothers would be entitled to succeed to that property and the non joinder of the brothers was, therefore, fatal to the suit.
In fact, as we have already indicated, the trial Court had dismissed the appellant 's suit on this ground.
The decision about the question as to the appellant 's title to this property would thus depend upon the construction of the relevant provisions of the Act.
Section 10 is relevant for the purpose.
Section 10(1) defines 'Stridhan ' as meaning property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate.
Section 10(2) prescribes an inclusive definition of the word 'Stridhan ' by clauses (a) to (g).
The appellant contends that the property in question falls under section 10(2) (b), whereas according to the respondents it falls under section 10(2) (d).
There is no doubt that if section 10(2) (b) takes in the property, the appellant would be exclusively entitled to it and the plea of non joinder of her brothers would fail.
On the other hand, if section 10 (2) (d) applies to the property, the appellant will not be exclusively entitled to the property and her brothers would be necessary parties to the suit.
In that case the plea of non joinder would succeed and the appellant 's suit would be dismissed on that account.
The position with regard to the heirs who succeed to stridhan property belonging to a Hindu female dying intestate has been provided for by section 12 of the Act and there is no dispute on that account.
Let us, therefore, consider under which clause of section 10 (2) the property in question falls.
Section 10 (2) (b) refers to all gifts received by a female at any time (whether before, at or after her marriage) and from any person (whether her husband or other relative or a stranger).
It is thus clear that all gifts received from the husband at any time would fall under section 10(2) (b).
The appellant 's argument is that as soon as it is found that the consideration for the sale proceeded solely from the appellant 's father it must follow that the property purchased with the said consideration is a gift by the husband to his wife.
The fact that the property has been purchased in the name of the wife does not make any difference in substance.
Two transactions have taken place, 9 one a gift of the money by the husband to his wife, and the other purchase of the property with the said money in the name of the wife.
Treating the two transactions as inte grally connected, it should be held that the purchase itself was made by the husband in the name of his wife and that can hardly be distinguished from the gift of the said property to the wife.
On the other hand, the respondents contend that section 10 (2) (b) can take in only gifts and not properties purchased with the assistance of the gifts.
If the appellant 's father gave to his wife the amount with which the property was purchased, all that can be said is that the amount given by the husband to his wife was a gift under section 10 (2) (b).
What the wife purported or chose to do with the amount gifted to her by her husband is entirely a different matter.
She might have purchased the property, or she might have kept the amount in bank.
If the amount had continued in the bank and its identity was not in dispute, it may have been impressed with the character of Stridhan as described in section 10 (2) (b).
But if the amount was utilised by the wife for purchasing the property in her own name, the purchase is hers and the purchased property cannot be said to be gift from the husband to his wife.
Section 10(2 ) (d) refers to property acquired by a female by purchase, agreement, com promise, finding or adverse possession.
The respondents urged that one has merely to read clause 10(2)(d) to be satisfied that the purchase of the property in this case falls squarely under it.
We have carefully considered the arguments thus presented to us by the respective parties and we are satisfied that it would be straining the language of section 10(2)(b) to hold that the property purchased in the name of the wife with the money gifted to her by her husband should be taken to amount to a property gifted under section 10(2) (b).
The argument about the substance of the transaction is of no assistance in the present case, because the requirement of section 10(2) (b) is that the property which is the subject matter of devolution must itself be a gift from the husband to the wife.
Can we say that the property purchased under the sale deed was such a gift from the husband to his wife? The 10 answer to this question must clearly be in the negative.
With what funds the property is purchased by the female is irrelevant for the purpose of section 10(2)(d); so too the source of the title to the fund with which the said property was purchased.
All that is relevant to enquire is: has the property been purchased by the female, or has it been gifted to her by her husband? Now, it seems clear that in deciding under which class of properties specified by clauses (b) and (d) of section 10(2) the present property falls, it would not be possible to entertain the argument that we must treat the gift of the money and the purchase of the property as one transaction and hold on that basis that the property itself has been gifted by the husband to his wife.
The obvious question to ask in this connection is, has the property been gifted by the husband to his wife, and quite clearly a gift of immovable property worth more +.ban
Rs. 100 can be made only by registered deed.
The enquiry as to whether the property was purchased with the money given by the husband to the wife would in that sense be foreign to section 10 (2) (d) ; gift of money which would fall under section IO (2) (b) if converted into another kind of property would not help to take the property under the same clause, because the con verted property assumes a different character and falls under section 10(2) (d).
Take a case where the husband gifts a house to his wife, and later, the wife sells the house and purchases land with the proceeds realised from the said sale.
It is, we think, difficult to accede to the argument that the land purchased with the sale proceeds of the house should, like the house itself, be treated as a gift from the husband to the wife; but that is exactly what the appellant 's argument will inevitably mean.
The gift that is contemplated by section 10 (2) (b) must be a gift of the very property in specie made by the husband or other relations therein mentioned.
Therefore, we are satisfied that the trial Court was right in coming to the conclusion that even if the property belonged to the appellant 's mother, her failure to implied her brothers who would inherit the property along with her makes the suit incompetent.
It is true that this question had not been considered by the High Court, but since it is a pure point of law depending upon the construction of section 10 of the Act, we do not think it necessary to remand the case for that purpose to the High Court.
Facts which are necessary to 11 decide the question under section 10 (2) have been found and there is no dispute about them.
The only point to decide is, on a fair construction of section 10(2) (b) and (d) which of the said two clauses takes in the property in question.
This appeal was argued before us on the, 22nd August, 1963.
At the said hearing, we had suggested to the parties to consider whether they could amicably settle the dispute between themselves.
Accordingly, we allowed the matter to stand over to enable the parties to negotiate the settle ment, if possible.
Ultimately, on the 13th September, 1963, the Appellant 's counsel reported to the office that no settlement was possible.
However, in the meanwhile, on the 6th September, 1963, the appellant 's counsel filed an application for leave to add the appellant 's two brothers T. Narayanaswamy and T. Vasudevan as co plaintiffs to the plaint, or if they are not willing to join as co plaintiffs, then as defendants 4 and 5.
This application is opposed by respondents 1 and 2.
That is how this appeal was placed before the same Bench once again on the 13th December, 1963.
We do not think there is any justification for allowing the appellant to amend her plaint by adding her brothers at this late stage.
We have already noticed that the plea of non joinder had been expressly taken by respondents 1 and 2 in the trial Court and a clear and specific issue had been framed in respect of this contention.
While the suit was being tried, the appellant might have applied to the trial ,Court to add her brothers, but no such application was made.
Even after the suit was dismissed by the trial Court on this ground, it does not appear that the appellant moved the High Court and prayed that she should be allowed to join her brothers even at the appellate stage, and so, the High Court had no occasion to consider the said point.
The fact that the High Court came to the contrary conclusion ,on the question of title does not matter, because if the appellant wanted to cure the infirmity in her plaint, she should have presented an application in that behalf at the hearing of the appeal itself.
In fact, no such application was made even to this Court until the appeal was allowed to stand over after it was heard.
Under the circumstances, we do not 12 think it would be possible for us to entertain the said application.
In the result, the application for amendment is rejected.
It is unfortunate that the appellant 's claim has to be rejected on the ground that she failed to implead her two, brothers to her suit, though on the merits we have found that the property claimed by her in her present suit belonged to her mother and she is one of the three heirs on whom the said property devolves by succession under section 12 of the Act.
That, in fact, is the conclusion which the trial Court had reached and yet no action was taken by the appellant to bring the necessary parties on the record.
It is true that under 0. 1 r. 9 of the Code of Civil Procedure no suit shall be defeated by reason of the misjoinder or non joinder of parties; but there can be no doubt that if the parties who are not joined are not only proper but also necessary parties to it, the infirmity in the suit is bound to be fatal.
Even in such cases, the Court can under 0. 1 r. 10, sub rule 2 direct the necessary parties to be joined, but all this can and should be done at the stage of trial and that too without prejudice to the said parties ' plea of limitation.
Once it is held that the appellant 's two brothers are co heirs with her in respect of the properties left intestate by their mother,, the present suit filed by the appellant partakes of the character of a suit for partition, and in such a suit clearly the appellant alone would not be entitled to claim any relief against the respondents.
The estate can be represented only when all the three heirs are before the Court.
If the appellant per sisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property, she took the risk and it is now too late to allow her to rectify the mistake.
In Naba Kumar Hazra & Anr.
vs Radheshyam Mahish & Ors.(1) the Privy Council had to deal with a similar situation, In the suit from which that appeal arose, the plaintiff had failed to implead co mortgagors and persisted in not joining them despite the pleas taken by the defendants that the co mortgagors were necessary parties and in the end.
it was urged on his behalf that the said co mortgagors should be allowed to be impleaded before the Privy Council.
In (1) A.I.R 19 13 support of this plea, reliance was placed on the provisions of O. 1 r. 9 of the Code.
In rejecting the said prayer, Sir George Lowndes, who spoke for the Board observed that "they are unable to hold that the said Rule has any application to an appeal before the Board in a case where the defect has been brought to the notice of the party concerned from the very outset of the proceedings and he has had ample opportunity of remedying it in India.
" In the result, the appeal fails and is dismissed.
The appellant has been granted special leave to file this appeal as a pauper.
In the circumstances of this case, however, we direct that she need not pay the Court fees which she would have hadto pay if she had not been allowed to appeal as a pauper.
There would be no order as to costs throughout.
MUDHOLKARJ.
I regret my inability lo agree with the conclusion of my learned brother Gajendragadkar J. on the second point and consequently with the ultimate decision of the appeal as proposed by him.
My reasons for taking a different view are these: The sale deed on which the appellant relies admittedly 'stands in the name of her mother.
It is no longer in dispute that the consideration for the transaction proceeded not from her mother but from her father.
It was because of this latter circumstance that the respondents contended that the transaction was benami.
After examining the entire evi dence adduced by the parties,, the trial court negatived the respondent 's contention.
Though the High Court took a different view, my learned brother has held and in ,my opinion rightly, that the conclusion of the High Court was wrong and that of the trial court was correct on this point.
The position, therefore, is that the property in question was that of the appellant 's mother at her death.
The respondents, however, contended that even so the suit must fail because the appellant had failed to join her brothers as parties to the suit because they were co heirs of their mother along with her.
That would be the correct position under section 12 of the Mysore Hindu Women 's Rights Act provided the property is deemed to have been purchased by the mother herself.
The short question, therefore, is whether 14 upon the findings that the property was not purchased by the appellant 's father benami in the name of her mother and that the consideration for the transaction entirely flowed from the father, the inference must be that the property was purchased by the mother.
No doubt, the sale deed stands in her name.
But the fact remains that the consideration did not flow from her but from the appellant 's father.
It is interesting to mention that on February 9, 1948 the respon dent 's counsel made an application under 0.
VI, rr. 5 and 11, Code of Civil Procedure calling upon the appellant to furnish further particulars with regard to her claim to the property in question in view of section 12 of the Mysore Hindu Women 's Rights Act.
She furnished the following particulars on February 17, 1948: "The property detailed in Schedules 1 and 11 was all conveyed to Rajambal under one sale deed as stated in paragraph 5 of the plaint.
She stood by her husband in his adversity sacrificing her possessions for him which she got as presents from her own parents.
He was deeply attached to her, and indeed they were a loving couple.
Out of love, affection and gratitude and with a view to make her self sufficient, he provided the money to acquire the property for her own, absolute use, which she while alive had even decided and announced to give away to the plaintiff ultimately." The appellant 's case, therefore, clearly is that the purchase money was provided by her father for acquiring property for the absolute use of her mother.
By negativing the finding of benami made by the High Court we are in effect holding that the property was acquired by the appellant 's father with his own money for her mother.
In this state of affairs; it is difficult to see how the transaction could be split up into two parts, i.e.,, a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money.
In my judgment, upon the pleadings there is no scope for splitting up the transaction into two parts like this.
It is not even an alternative contention of the respondents that the trans 15 action was in two parts and that what the father gifted was the money and not the property.
It would be *indeed an artificial way of looking at the transaction as was done by the trial court as being constituted of two parts.
The transaction in my judgment is one indivisible whole, and that is, the father provided the money for acquiring the property in the mother 's name.
Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother.
Such a transaction must therefore amount to a gift.
In that view the property would not fall under cl.
(d) of section 10 of the Act but under cl.
(b) of that section.
Therefore, the appellant would be the sole heir of her mother and the non joinder of her brothers would not defeat the suit so far as she is conceded.
In the result I would set aside the decree of the courts below in so far as the property in question, Beverly Estates, is concerned and decree the appellant 's suit with respect to it in addition to the property with respect to which she has already obtained a decree in the courts below.
I would further direct that the respondents will pay to the appellant proportionate costs in all the courts.
ORDER BY COURT In accordance with the opinion of the majority the appeal is dismissed.
No order as to costs.
Appellant need not pay court fees. | The appellant in a suit against respondents claimed recovery of possession of the properties in Schedules 1, 2 and 3 as the sole heir of her mother.
She claimed these properties exclusively, under section 12(1) (i) of the Mysore Hindu Law Women 's Rights Act, 1933.
On challenge to her title by respondents she relied on a sale deed created in favour of her mother for a consideration of Rs. 28,000.
Respondents ,set up title in respect of the suit properties in the appellant 's father alleging that her father had executed a will under which respondent I had been appointed an executor and as such, he got possession of the properties and handed them over to Respondent 2, as directed under the will.
Alternatively, they urged that even if the property belonged to the appellant 's mother, she would not be entitled to claim exclusive title to it, because by succession it would devolve upon the appellant and her brothers; and her failure.
to join her brothers made the suit incompetent for non joinder of necessary parties.
The trial court dismissed the suit.
On appeal, the High Court confirmed the decree of the trial court, but held that the main property in Schedule 1 did not belong to the appellant 's mother, but to her father and the sale deed in respect of the property was taken by her father in the name of her mother benami.
On appeal by special leave, the appellant mainly contended that the property in question would fall under section 10(2)(b) :of the Act, and not under section 10(2)(d) as respondents had contended and therefore, she would be exclusively entitled to it and the plea of ,non joinder of her brothers would fail.
Held: (Per, P. B. Gajendragadkar, K. Subba Rao, K. N. Wanchoo and N. Rajagopala Ayyangar JJ.).
It would be straining the language of section 10(2)(b) of the Act to hold that the property purchased in the name of the wife with the money gifted to her by her husband should 'be taken to amount to a property gifted under section 10(2)(b).
The re quirement of section 10(2)(b) is that the property which is the subject matter of devolution must itself be a gift from the husband to the wife.
In deciding under which class of properties specified by cls.
(b) and (d) of section 10(2) the present property falls, it would not be possible to entertain the argument that the gift of the money and the purchase of the property must be treated as one transaction and held on that basis that the property itself has been gifted by the husband to his wife.
134 159 S.C. 1.
2 The gift that is contemplated by section 10(2)(b) must be a gift of the very property in specie made by the husband or other relations therein mentioned.
The trial court therefore, was right in holding that even if the property belonged to the appellant 's mother, her failure to implied her brothers who would inherit the property alongwith her made the suit incompetent.
In the present case, the estate could be represented only when all the three heirs were before the court.
When the appellant persisted in proceeding with the suit on the basis that she was exclusively entitled to the suit property she took the risk and it was now too late to allow her to amend the plaint by adding her brothers at this late stage.
Naba Kumar Hazra vs Radheshyam Mahish, A.I.R. 1931 P.C., 225 followed.
Per Mudholkar J. (dissenting) Upon the pleadings there is no, scope for spliting up the transaction into two parts, ie., a gift of the money by the father to the mother in the first instance and the purchase by the mother of that property subsequently with that money.
It was not even an alternative contention of the respondents that the transaction was in two parts and that what the father gifted was the money and not the property.
It would be indeed an artificial way of looking at the transaction, as was done by the trial court, as being constituted of two parts.
Thus the transaction was one indivisible whole and that is, the father provided the money for acquiring the property in the mother 's name.
Therefore, in effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother.
Such a transaction must therefore amount to a gift.
In that view the property would not fall under cl.
(d) of section 10 of the Act but under cl.
(b) of that section.
Therefore, the appellant would be the sole heir of her mother and the non joinder of her brothers would not defeat the suit so far as she is concerned. |
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