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Appeal No. 760 of 1962. Appeal by special leave from the judgment and order dated July 16, 1959 of the Andhra Pradesh High Court in Writ Petition No. 1123 of 1956. K. R. Chaudhuri, for the appellant. A. Ranganadham Chetty and B. R. G. K. Achar, for the respondent. February 21, 1964. The appellant filed a writ petition in the High Court questioning the validity of section 11 (2) of the Hyderabad General Sales Tax Act, No. XIV of 1950, (hereinafter referred to as the Act). The material facts on which the petition was based were these. The appellant acted as agent in the then State of Hyderabad to both resident and non resident principals in regard to sale of betel leaves. Under the Act betel leaves were taxable at the purchase point from May 1, 1953, by virtue of a notification in that behalf. We are here concerned with the assessment period from May 1, 1953 to March 31, 1954, covered by the assessment year 1953 54. The appellant collected sales tax from the purchasers in connection with the sales made by it on the basis that the incident of the tax lay on the sellers and assured the purchasers that after paying the tax to the appellant, there would be no further liability on them. After realising the tax, however, the appellant did not pay the amount realised to the Government but kept it in the suspense account of its principals, namely, 870 the purchasers. When the accounts were scrutinized by the Sales Tax Department, this was discovered and thereupon the appellant was called upon to pay the amounts realised to the Government. The appellant however objected to the payment on the ground that it was the seller and the relevant notification for the relevant period imposed tax at the purchase point, i.e. on the purchaser. This objection was over ruled and the appellant was directed to pay the amount to Government. The main contention raised on behalf of the appellant in the High Court was that section 11 (2) of the Act, which authorised the Government to recover from any person, who had collected or collects, after May 1, 1950, any amount by way of tax otherwise than in accordance with *.he provisions of the Act, as arrears of land revenue, was beyond the legislative competance of the State legislature. The argument was that the Act was passed under Entry 54 of List 11 of the Seventh Schedule to the Constitution, which enables the State legislature to enact a law taxing transactions of sale or purchase of goods. The entry therefore vests power in the State legislature to make a law for taxing sales and pur chases of goods and for making all necessary incidental provisions in that behalf for the levy and collection of sales or purchase tax. But it was urged that that entry did not empower the State legislature to enact a law by which a dealer who may have collected a tax without authority is required to hand over the amount to Government, as any collection without the authority of law would not be a tax levied under the law and it would therefore not be open to the State to collect under the authority of a law enacted under Entry 54 of List II any such amount as it was not a tax on sale or purchase of goods. The High Court held section 11 (2) good as an ancillary provision with regard to the collection of sales or purchase tax and therefore incidental to the taxing power under Entry 54 of List 11. Further the High Court took the view that assuming that Entry 54 of List II could not sustain section 11 (2), it could be sustained under Entry 26 of List H. Consequently the writ petition was dismissed. The High Court having refused a certificate to appeal to this Court, the appellant obtained special leave and that is how the matter has come up be fore us. 871 It is necessary to read section II of the Act in order to appre ciate the point urged on behalf of the appellant. Section 11 is in these terms: 1 1 (1) No person who is not registered as a dealer &hall collect any amount by way of tax under this Act nor shall a registered dealer make any such collection before the 1st day of May, 1950, except in accordance with such conditions and restrictions, if any, as may be prescribed Provided that Government may exempt persons who are not registered dealers from the provisions of this sub section until such date, not being later than the 1st day of June, 1950, as Government may direct. (2) Notwithstanding to the contrary contained in any order of an officer or tribunal or judgment, decree or order of a Court, every person who has collected or collects on or before 1st May, 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act shall pay over to the Government within such time and in such manner as may be prescribed the amount so collected by him. and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue. " It will be seen that section 11 (1) forbids an unregistered dealer from collecting any amount by way of tax under the Act. That provision however does not apply in the present case, for the appellant is admittedly a registered dealer. Further section II (1) lays down that a registered dealer shall not make any such collection before May 1, 1950, except in accordance with such conditions and restrictions, if any, as may be prescribed. This provision again does not apply, for we are not concerned here with any collection made by the appellant before May 1, 1950. The prohibition therefore of section 11 (1) did not apply to the appellant. Then comes section 11 (2). It applies to collections made after May 1, 1950 by any person whether a registered dealer or otherwise and lays down that any amount collected by way of tax otherwise than in accordance with the provisions of the Act shall be paid over to 872 the Government and in default of such payment, the said amount shall be recovered from such person as if it were arrears of land revenue. It is clear from the words "other wise than in accordance with the provisions of this Act" that though the amount may have been collected by way of tax it was not exigible as tax under the Act. Section 11 (2) thus provides that amounts collected by way of tax though not exigible as tax under the Act shall be paid over to Government, and if not paid over they shall be recovered from such person as if they were arrears of land revenue. Clearly therefore s, 11 (2) as it stands provides for recovery of an amount collected by way of tax as arrears of land revenue though the amount was not due as tax under the Act. The first question therefore that falls for consideration is whether it was open to the State legislature under its powers under Entry 54 of List II to make a provision to the effect that money collected by way of tax, even though it is not due as a tax under the Act, shall be made over to Government. Now it is clear that the sums so collected by way of tax are not in fact tax exigible under the Act. So it cannot be said that the State legislature was directly legislating for the imposition of sales or purchase tax under Entry 54 of List II when it made such a provision, for on the face of the provision, the amount, though collected by way of tax. was not exigible as tax under the law. The provision however is attempted to be justified on the ground that though it may not be open to a State legislature to make provision for the recovery of an amount which is not a tax under Entry 54 of List 11 in a law made for that purpose, it would still be open to the legislature to provide for paying over all the amounts collected by way of tax by persons, even though they really are not exigible as tax, as part of the incidental and ancillary power to make provision for the levy and collection of such tax. Now there is no dispute that the heads of legislation in the various Lists in the Seventh Schedule should be interpreted widely so as to take in all matters which are of a character incidental to the topics mentioned therein. Even so, there is a limit to such incidental or ancillary power flowing from the legislative entries in the various Lists in the Seventh Schedule. These incidental and ancillary powers have to be exercised in aid of the main topic of legislation, 873 which in the present case, is a tax on sale or purchase of goods. All powers necessary for the levy and collection of the tax concerned and for seeing that the tax is not evaded are comprised within the ambit of the legislative entry as ancillary or incidental. But where the legislation under the relevant entry proceeds on the basis that the amount concerned is not a tax exigible under the law made under that entry, but even so lays down that though it is not exigible under the law, it shall be paid over to Government, merely because some dealers by mistake or otherwise have collected it as tax, it is difficult to see how such provision can be ancillary or incidental to the collection of tax legitimately due under a law made under the relevant taxing entry. We do not think that the ambit of ancillary or incidental power goes to the extent of permitting the legislature to provide that though the amount collectedmay be wrongly by way of tax is not exigible under the law as made under the relevant taxing entry, it shall still be )aid over to Government, as if it were a tax. The legisla turd cannot under Entry 54 of List II make a provision to the effect that even though a certain amount collected is not a tax on the sale or purchase of goods as laid down by the law, it will still be collected as if it was such a tax. This is what section 11 (2) has provided. Such a provision cannot in our opinion be treated as coming within incidental or ancillary powers which the legislature has got under the relevant taxing entry to ensure that the tax is levied and collected and that its evasion becomes impossible. We are therefore of opinion that the provision contained in section 1 1 (2) cannot be made under Entry 54 of List 11 and cannot be justified even as an incidental or ancillary provision permitted under that entry. An attempt was made to justify the provision as providing for a penalty. But as we read section 11 (2) we cannot find anything in it to justify that it is a penalty for breach of any prohibition in the Act. Penalties imposed under taxing statutes are generally with respect to attempts at evasion of taxes or to default in the payment of taxes properly levied (see sections 28 and 46 of the Indian Income Tax Act. 1922). The Act also provides for penalties, for example section 19 and section 20. The latter section makes certain acts or omissions of an 874 assessee offences punishable by a magistrate subject to com position under section 21. Section 11 (2) in our opinion has nothing to do with penalties and cannot be justified as a penalty on the dealer. Actually section 20 makes provision in cl. (b) for penalty in case of breach of section II (1) and makes the person committing a breach of that provision liable, on conviction by a Magistrate of the first class, to a fine. We are therefore of opinion that section 11 (2) cannot be justified under Entry 54 of List II either as a provision for levying the tax or as an incidental or ancillary provision relating to the collection of tax. In this connection we may refer to cl. (c) of section 20, which provides that any person who fails "to pay the amounts specified in sub section (2) of section 11 within the prescribed time" shall on a conviction by a Magistrate be liable to fine. It is remarkable that this provision makes the person punish able for his failure to pay the amount which is not authorised as a tax at all under the law, to Government. It does not provide for a penalty collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects of the taxing legislation. If a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be done directly for it is not a tax at all within the meaning of Entry 54 of ,List II, nor can the State legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. We are therefore of opinion that s.11 (2) is not within the competence of the State legislature under Entry 54 of List II. The respondent in this connection relies on the decision of this Court in The Orient Paper Mills Limited vs The State of Orissa("). That case in our opinion has no application to the facts of the present case. In that case the dealer had been assessed to tax and had paid the tax. Later in view of the judgment of this Court in State of Bombay vs The United Motors (India) Limited(2) the amounts paid in (1) ; (2) ; 875 respect of goods despatched for consumption outside the State were held to be not taxable. The dealer then applied for refund of tax, which was held to be not exigible. The refund was refused and and the dealer went to the High Court by a writ petition claiming that it was entitled to refund under section 14 of the Orissa Sales Tax Act (which was the law under consideration in that case). The High Court allowed the petition in part and there were appeals to this Court both by the dealer and the State. In the meantime, the Orissa legislature amended the law, by introducing section 14A, in the principal Act, which provided that refund could be claimed only by a person from whom the dealer had actually realised the amount as tax. That provision was challenged in this Court but was upheld on the ground that it came within the incidental power arising out of Entry 54 of List 11. That matter dealt with a question of refund and it cannot be doubted that refund of the tax collected is always a matter covered by incidental and ancillary powers relating to the levy and collection of tax. We are not dealing with a case of refund in the present case. What section II (2) provides is that something collected by way of tax, though it is not really due as a tax under the law enacted under Entry 54 of List II must be paid to the Government. This situation in our opinion is entirely different from the situation in the Orient Paper Mills Limited 's case("). The respondent further relies on a decision of the Madras High Court in Indian Aluminium Co. vs The State of Madras(2). That decision was with respect to section 8 B of the Madras General Sales Tax Act of 1939 as amended by Madras Act 1 of 1957. Though the words in section 8 B (2) were not exactly the same as the words in section 11 (2), with which we are concerned here, the provision in substance was to the same effect as section 11 (2). In view of what we have said above, that decision must be held to be incorrect. Lastly, we come to the contention of the respondent that section 11 (2) is within the legislative competence of the State legislature in view of Entry 26 of List 11. That entry deals with "trade and commerce within the State subject to the provisions of entry 33 of List III". It is well settled that (1) ; (2) [1962] XIII S.T.C. 967. 876 taxing entries in the legislative Lists I and II of the Seventh Schedule are entirely separate from other entries. Entry 26 of List 11 deals with trade and commerce and has nothing to do with taxing or recovering amounts realised wrongly as tax. It is said that section 11 (2) regulates trade and commerce and the State legislature therefore was competent under Entry 26 of List II to enact it. We have not been able to understand what such a provision has to do with the regulation of trade and commerce; it can only be justified as a provision ancillary to a taxing statute. If it cannot be so justified as we hold that it cannot we are unable to uphold it as regulating trade and commerce under Entry 26 of List II, There is in our opinion no element of regulation of trade and commerce in a provision like s, 11 (2). We are therefore of opinion that the State legislature was Incompetent to enact a provision like section 11 (2). We may also add that the provision contained in section 20(c), being consequential to section 11 (2) will fall along with it. In consequence it was not open to the Sales Tax Officer to ask the appellant to make over what he had collected from the purchasers ,wrongly as sales tax. It is not disputed, as appears from the final assessment order of the Sales Tax Officer, that the appellant was not liable to pay the amount as sales tax for the relevant period. We therefore allow the appeal and quash the assessment order dated September 27, 1956 insofar as it is based on section II (2). The appellant will get his costs in this Court as well as in the High Court. Appeal allowed.
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The appellant collected sales tax from the purchasers of betel leaves in connection with the sales made by it.
But it did not pay the amount collected to the Government.
The Government directed the appellant to pay the amount to the Government and it thereupon filed a writ petition in the High Court questioning the validity of section 11(2) of the Hyderabad General Sales Tax Act 1950.
The main contention of the appellant before the High Court was that section 11(2) of the Act which authorises the Government to recover a tax collected without the authority of law was beyond the competence of the State Legislature because a tax collected without the authority of law would not be a tax levied under the law and it would therefore not be open to the State to collect under the authority of a law enacted under the Entry 54 of List II of the VII Schedule to the Constitution any such amount as it was not a tax on sale or purchase of goods.
The High Court held that a. 11(2) was good as an ancillary provision with regard to the collection of sales or purchase tax and therefore incidental to the power under Entry 54, List II.
The High Court also held that even if section 11(2) cannot be justified under that entry it could be justified under Entry 26, List II and in the result the writ petition was dismissed.
The present appeal is by way of special leave granted by this Court.
Held: (i) It cannot be said that the State Legislature was directly legislating for the imposition of sales or purchase tax under Entry 54, list II when it made the provisions of a. 11(2) for on the face of the provisions the amount, though collected by way of tax was not exigible as tax under the law.
(ii) It is true that the heads of legislation in the various lists in the Seventh Schedule should be interpreted widely so as to take in all matters which are of a character incidental to the topic mentioned therein.
Even so there is a limit to such incidental or ancillary powers These have to be exercised in aid of the than topic of legislation, which in the present case is a tax on sale or purchase of goods.
The ambit of ancillary or incidental powers does not so to the extent of permitting the legislature to provide that though the amount collected, may be wrongly, by way of tax is not exigible under the law as made under the relevant taxing entry, it shall still be paid over to the Govern ment as if it were a tax.
Therefore the provision contained in a. 11(2) cannot be made under Entry 54, List II and cannot be justified as incidental or ancillary provisions permitted under that Entry.
(iii) Section 11(2) cannot be justified as providing for a for the breach of any provision of the Act.
(iv) Entry 26, List II deals with trade and commerce and has nothing to do with taxing or recovering amount realised wrongly as tax.
There is no element of regulation of trade and commerce in a provision like section 11(2) and therefore that section cannot be justified under Entry 26.
List II.
869 (v) The provision in section 20(c) is also invalid as it is merely consequential to section 11(2).
The Orient Papers Mills Ltd. vs State of Orissa, ; , distinguished.
State of Bombay vs United Motors (India) Ltd., [1953] S.C.R. 1069, referred to.
Indian Aluminium Co. vs State of Madras, (1962) XIII Sales Tax Cases 967.
held to be wrongly decided.
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The business collected sales tax on betel leaves from buyers when they made sales.
However, the business did not give the collected tax money to the government.
The government told the business to pay the money. So, the business asked the High Court to review if Section 11(2) of the Hyderabad General Sales Tax Act of 1950 was valid. They did this by filing a writ petition (a formal request to the court).
The business argued that Section 11(2) of the Act was not legal. This section let the government take a tax that was collected without the law's permission. The business said that a tax collected without legal authority is not a real tax. So, the state can't use Entry 54 of List II of the Constitution's VII Schedule to collect this money, because it's not a tax on buying or selling goods.
The High Court said that Section 11(2) was okay as a supporting rule for collecting sales or purchase tax. They believed it was related to the power given in Entry 54, List II.
The High Court also said that even if Section 11(2) wasn't allowed under Entry 54, it could be allowed under Entry 26, List II. Because of this, the court rejected the business's request.
The business is now appealing this decision using special permission from this Court.
Held: (i) The State Legislature wasn't directly creating a sales or purchase tax under Entry 54, list II when it made Section 11(2). This is because the money, even though collected as tax, wasn't actually a required tax under the law.
(ii) It's true that the areas of law in the Seventh Schedule lists should be interpreted broadly. This way, they include things related to the main topic.
But there's a limit to these related powers. They must help the main topic of the law, which in this case is a tax on selling or buying goods.
The power to add related rules doesn't let the legislature say that even if money is wrongly collected as tax and isn't required by law, it must still be given to the government as if it were a tax.
So, Section 11(2) can't be made under Entry 54, List II. It also can't be allowed as a related rule under that Entry.
(iii) Section 11(2) can't be allowed as a penalty for breaking any rule of the Act.
(iv) Entry 26, List II deals with trade and business and isn't about taxing or getting back money wrongly taken as tax.
There's no control of trade and business in a rule like Section 11(2). So, that section can't be allowed under Entry 26, List II.
(v) The rule in Section 20(c) is also not valid because it depends on Section 11(2).
The Orient Papers Mills Ltd. vs State of Orissa case was different.
The State of Bombay vs United Motors (India) Ltd. case was referenced.
The Indian Aluminium Co. vs State of Madras case was decided incorrectly.
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Civil Appeal No. 2132 of 1977. Appeal by special leave from the judgment and order dated the 23rd September, 1976 of the Gujarat High Court in First Appeal No. 76 of 1963 D.V. Patel, R. Shroff, Gopal Subramaniam and D.P. Mohanty for the Appellant. M.N. Phadke, S.C. Patel and R.N. Poddar for the Respondent. The Judgment of the Court was delivered by MISRA J. The present appeal by special leave is directed against the Full Bench decision of the High Court of Gujarat at Ahmedabad dated 23rd of September, 1976. The sole question for consideration in this appeal is whether Civil Court has jurisdiction to entertain and decide the suit giving rise to the present appeal. There is an old institution known as Edroos Dargah of Hazrat Sayedina Mohomed Bin Abdulla El Edroos at Surat. Village Orma is an inam village held by the said institution. The dispute in the present case relates to the property of the said village orma comprising its soil, trees, lanes, roads together with cultivated lands of about 1093 acres with land revenue alienated Rs. 2,747.10.5. Pursuant to the Bombay Personal Inams Abolition Act, 1952 (Act 42 of 1953) hereinafter referred to as 'the 1952 Act ', the State of Bombay and after the reorganization of States, the State of Gujarat, declared that the said Act was applicable to village Orma from I st of August, 1955 and, therefore, the exemption from the payment of land revenue was extinguished from the 1st of August, 1955. Accordingly the State of Bombay through its Mamlatdar of Olpad sent a notice to the Sajjadanashin of the institution to that effect and also demanded the village records from his possession. He also proceeded to take further and consequential action and declared that the rights of the institution in public roads, lanes, village site and land etc. are extinguished. In the circumstances the Sajjadanashin was obliged to file the suit which was later on numbered as suit No. 9 of 1956. The stand of the plaintiff is that village Orma was an inam village held by the religious institution of Edroos Dargah and the 885 provisions of section 4 of the 1952 Act have no application in view of clause (2) of section 3 of the said Act. The defendant State contested the suit on grounds inter alia that the village in question was a personal inam within the meaning of section 2 (1) (a) of the 1952 Act and the State Government alone is competent to decide the question whether the grant is a personal inam or not and the Civil Court has no jurisdiction to decide the question. B The pleadings of the parties gave rise to fourteen Issues and the Trial Court decided all the substantial issues against the plaintiff. Consequently it dismissed the suit holding that the inam in question was personal inam. Feeling aggrieved, the plaintiff went up in appeal to the High Court. The appeal came up for hearing before a learned Single Judge. He took up the question of jurisdiction first. The stand of the plaintiff appellant was that the Civil Court had the jurisdiction to entertain the suit and in support of his contention he placed reliance on Sayed Mohmed Baquir El Edroos vs The State of Bombay.(1) The learned Single Judge, however, doubted the correctness of the proposition laid down in that case and referred the case to a larger Bench and it was eventually decided by a Full Bench of that Court. It appears that during the pendency of the appeal another Act was passed known as the Gujarat Devasthan Inams Abolition Act, 1969 (Act 16 of 1969) hereinafter referred to as 'the 1969 Act '. It came into force on I 5th of November, 1969. By this Act devasthan inams or inams held by religious and charitable institutions were also abolished. The inevitable result of the 1969 Act is that whether the inam in question is a personal inam or a devasthan inam it cannot subsist. The plea of the plaintiff, on the basis of which he filed the suit, was no more available to him after the passing of the latter Act. But the question was still to be enquired into because if the plaintiff succeeds in establishing that the inam in question was a religious or charitable inam, it would be abolished only by the 1969 Act and, therefore, the plaintiff will be entitled to all the benefits of devasthan inam open to him till the enforcement of that Act. The High Court, therefore, proceeded to hear the appeal despite the passing of the 1969 Act and by its judgment dated 2nd of September, 1976 came to the conclusion that the exclusive jurisdiction to decide the question was with the State 886 Government and the Civil Court has no jurisdiction to entertain the suit. In view of its finding on the question of jurisdiction, the High Court did not think it necessary to enter into other issues involved in the case. The plaintiff has now come to challenge the judgment of the Full Bench on obtaining special leave of this Court to appeal. In the present appeal the plaintiff again reiterates that the Civil Court has jurisdiction to entertain the suit. In order to appreciate the contentions, of the counsel of the parties on the question of jurisdiction, it will be appropriate to refer to the relevant provisions of the 1952 Act Section 2 (1) (e) defines personal inams. Insofar as it is material, it reads: "2. (1) In this Act, unless there is anything repugnant in the subject or context, (e) "personal inam" means (i) a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept under section 53 of the Code. (ii) . . Explanation 1: If any question arises whether any grant is a personal inam such question shall be referred to the State Government and the decision of the State Government shall be final and the entry, if any, in respect of such grant in the alienation register kept under section 53 of the Code shall be deemed to have been amended accordingly. Explanation II. . " The expression 'Code ' has been defined in section 2 (1) (b) of the Act as the Bombay Land Revenue Code 1879 (Bombay V of 1879). Section 3 of the Act insofar as it is material, reads: "3. Act not to apply to certain inams and grants Nothing in this Act shall apply to (1) . . (2) devasthan inams or inams held by religious or charitable institutions. 887 (3) . (4) . (5) . Explanation: For the purposes of this section inams held by religious or charitable institutions means Devasthan or Dharmadaya inams granted or recognised by the ruling authority for the time being for a religious or charitable institution and entered as such in the alienation register kept under section 53 of the Code or in the records kept under the rules made under the (XXIII of 1871). " Section 4 of the Act reads: "4. Abolition of personal inams and rights in respect of such inams. Notwithstanding anything contained in any usage, settlement, grant, sanad or order or a decree or order of a Court or any law for the time being in force, with effect from and on the appointed date . (i) all personal inams shall be deemed to have been extinguished, (ii) save as expressly provided by or under the provisions of this Act, all rights legally subsisting on the said date in respect of such personal inams shall be deemed to have been extinguished: Provided that in the case of a personal inam consisting of exemption from the payment of land revenue only, either wholly or in part, such exemption shall be deemed to have been extinguished: (a) if the amount of such exemption is or exceeds Rs. 5,000 with effect from the 1st day of August, 1953, and (b) in all other cases, with effect from the 1st day of August, 1955." Mr. D.V. Patel, senior counsel for the appellant, assisted by Mr. G. Subramaniam, has contended that the High Court has gravely erred in holding that the Civil Court had no jurisdiction to deal with the suit. According to the learned counsel unless the 888 jurisdiction of the Civil Court is barred specifically or by necessary implication the Civil Court would have jurisdiction. Admittedly there is no specific bar under the 1952 Act. No provision has been brought to our notice specifically excluding the jurisdiction of the Civil Court. Now the question is whether the jurisdiction of the Civil Court has been excluded by necessary implication. The only bar is provided by Explanation I to section 2 (1) (e). Explanation r provides that if any question arises whether any grant is personal inam, such question shall be referred to the State Government and the decision of the State Government shall be final. Whether Explanation I to section 2 (1) (e) excludes the jurisdiction of the Civil Court by necessary implication is the question for consideration. The finality of the decision of the State Government contemplated by the explanation, says the learned counsel, is only for the purpose of the Act, namely, the 1952 Act, and this finality cannot stand in the way of the Civil Court to entertain the suit. In support of his contention the learned counsel has strongly relied upon two decisions: Secretary of State, Represented by the Collector n of South Arcot vs Mask and Company,(1) and Dhulabhai and Ors. vs The State of Madhya Pradesh and Anr.(2) In the first case the Privy Council dealing with the jurisdiction of the Civil Court observed as follows (at page 236): "It is settled law that the exclusion of the jurisdiction of the civil courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. " In Dulabhai 's case (supra) Hidayatullah C.J., speaking for the Court, on an analysis of the various decisions cited before the Court expressing diverse views, laid down the following propositions: (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 889 do what the Civil Courts would normally do in a suit. A 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. B (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. C Where there is no express exclusion the examination of the remedies and the scheme or the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case lt 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. (3) Challenge to the provisions of the particular Act as ultra views cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of Certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. G (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the 890 authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred unless the conditions above set down apply. " If we consider the present case, in the light of the principles laid down by the Supreme Court in the above noted case, in our opinion the finality of the decision of the Government as contemplated by Explanation I to section 2 (1) (e) cannot exclude the jurisdiction of the Civil Court. Except for the Explanation, there is no other provision in the Act touching upon the jurisdiction of the Civil Court and none has been referred to before us by either party. The Act does not give any details about the reference to and the enquiry by the Government. No appeal has been provided for and it cannot be said that the case of the plaintiff has been considered by the Government in the same way as it would have been considered if the case had been filed before a Civil Court. The very first principle laid down in the case of Dhulabhai postulates that where a statute gives a finality to the orders of the special tribunal the Civil Court 's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. From a perusal of the provisions of the Act it cannot be said that there is adequate remedy available to the plaintiffs on reference made to the Government. Even according p to the second principle laid down by the Supreme Court where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find out the adequacy or the sufficiency of the remedies provided may be relevant. The Act does not give any details about the reference to be made to the Government, the procedure to be followed by the Government, the opportunity to be afforded to the aggrieved party. In the absence of any such details in the Act it is not possible to hold that the use of the expression 'finality of the decision of the Government ' in Explanation I to section 2 (1) (e) of the 1952 Act was meant to bar the jurisdiction of the Civil Court. The High Court in our opinion has committed a manifest error in travelling beyond the 1952 Act and referring to the provi 891 sions of the 1969 Act. The High Court referred to section 4 of the 1969 Act, which exclusively vests the power to decide whether any village, portion of a village, or land is held in devasthan inam, in the authorised officer, and the State Government is empowered to authorise any officer under the proviso to section 4 (l) to decide questions arising under clauses (a) (b) or (c) of section 4. Subsection (2) of section 4 of the said Act enables the person aggrieved by the decision of the authorised officer to go up in appeal to the State Government within sixty days from the date of the decision. The High Court also referred to section 20 of the 1969 Act which specifically bars the jurisdiction of the Civil Court. It reads: "20. No Civil Court shall have jurisdiction to settle, decide or deal with any question which is by or under this Act required to be settled, decided or dealt with, by the officer authorised under the proviso to sub section (I) of section 4 or section 25 or the Collector, the Gujarat Revenue Tribunal in appeal, or the State Government in appeal or revision or in exercise of their power of control. " On the basis of the provisions of the 1969 Act the High Court came to the conclusion that Explanation 1 to section 2 (1) (e) of the 1952 Act and section 20 or the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular inam is a personal or a devasthan inam. We are concerned in the present case with the provisions of the 1952 Act. There is no corresponding provision like section 20 of the 1969 Act in the 1952 Act nor is there any detailed procedure of appeal and revision in that Act as contemplated by the 1969 Act. The High Court in our opinion was not justified in invoking the provisions of the 1969 Act while deciding the case under the 1952 Act. The counsel for the State of Gujarat on the other hand referred to the definition of personal inam as given in section 2 (1) (e) of the 1952 Act and according to the learned counsel the inam in question is a personal inam in view of the definition itself which says: Personal inam means a grant of a village, portion of a village, land or total partial exemption from the payment of land revenue entered as personal inam in the alienation register kept 892 under section 53 of the Code. " So, entry of the nature of the inam in the alienation register is a decisive factor. In the instant case the inam in question has been entered as personal inam in the alienation register. Therefore, perforce it has to be taken as a personal inam and the plaintiff cannot escape the definition of the expression 'personal inam ' as given in section 2 (1) (e). Likewise, for a devasthan inam also it is necessary to be so entered in the alienation register kept under section 53 of the Code in view of Explanation to section 3 of the 1952 Act. The counsel for the appellant on the other hand referred to Explanation I to section 2 (1) (e) of the 1952 Act which indicates that the entry in the register is not an essential part of the definition of the personal inam but it is only descriptive. If the Government decides the case contrary to t he entry in the alienation register, the alienation register shall be deemed to have been amended accordingly. This part of the Explanation takes away the rigour of the entry in the alienation register. If the entry in the alienation register will be deemed to have been automatically amended by the decision of the Government on the question whether it is a personal inam or a devasthan inam there is no sanctity attached to such entry which is mainly intended to serve the purpose of realisation of land revenue. The entry cannot be said to be so sacrosanct that it cannot be changed. Indeed the explanation itself contemplates a change in view of the decision of the Government on the question. It was next contended for the State that the Revenue Court alone has exclusive jurisdiction to correct the entries in the revenue records and the counsel referred to section 53 of the Bombay Land Revenue Code. It reads: "53. A Register shall be kept by the Collector in such form as may from time to time be prescribed by the State Government of all lands, the alienation of which has been established or recognized under the provisions of any law for the time being in force; and when it shall be shown to the satisfaction of the Collector that any sanad granted in relation to any such alienated lands has been permanently lost or destroyed, he may, subject to the rules and the payment of the fees prescribed by the State Government under section 213, grant to any person whom he may deem entitled to the same a certified extract from the said Register, which shall be endorsed by the Collector to the effect that it has been issued in lieu of the sanad said to have been lost or destroyed, and shall be deemed to be as valid a proof of title as the said sanad. " 893 Section 203 of the said Code provides for appeal from any order passed by the Revenue officer to his superior and on the strength of these provisions it is sought to be argued that the plaintiff could have gone up in appeal against the decision of the officer under section 53 of the Code and the jurisdiction of the Civil Court is completely barred. If we refer to section 212 of the Code, the argument of the counsel for the State cannot be accepted. Section 212 con templates that whenever in this Code it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order. If this is what finality means under section 212 it cannot be argued with any force on behalf of the State that the jurisdiction of the Civil Court is barred. C For the foregoing discussion the decision of the Full Bench of the High Court cannot be sustained. We accordingly accept the appeal, set aside the judgment of the High Court dated 23rd September, 1976 and remand the case to the High Court for deciding other points involved in the case. The parties shall, however, bear their own costs. P.B.R. Appal allowed.
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A notice was issued to the Sajjadanashin of the appellant institution stating that consequent on the coming into force of the Bombay Personal Inams Abolition Act 1952 exemption from payment of land revenue was extinguished in respect of the inam village and that he should hand over the village records to mamlatdar.
The appellent in a suit filed in the Civil Court claimed that the inam was held by a religious institution and that, therefore, the provisions of the 1952 Act had no application to it.
In replication the State claimed that under the provisions of the 1952 Act the State Government alone was competent to decide the question whether the grant was a personal or a religious inam and that the Civil Court had no jurisdiction to decide it.
Holding that it was a personal inam the Trial Court dismissed the appellant 's suit.
When the appellant 's appeal was pending before the High Court the Gujarat Devasthan Inams Abolition Act, 1969 was passed abolishing the inams held by religious charitable institutions as well.
On the question of jurisdiction to decide whether an inam was personal or religious the High Court held that it was the State Government and not the Civil Court which had exclusive jurisdiction in this respect.
In appeal to this Court it was contended on behalf of the appellant that unless the jurisdiction of the Civil Court is barred specifically or by necessary implication the Civil Court would have jurisdiction and that the finality contemplated by Explanation I to section 2 (1) (e) (which provides that if any question arises whether any grant is a personal inam such question shall be referred to the State Government and that the decision of the State Government shall be final) is only for the purposes of the 1952 Act and could not stand in the way of the Civil Court entertaining the suit.
883 Allowing the appeal, ^ HELD: 1.
The finality of the decision of the Government as contemplated by Explanation I to section 2(1) (e) of the Act cannot exclude the jurisdiction of the Civil Court.
Except for the Explanation, there is no other provision in the Act touching upon the jurisdiction of the Civil Court.
[890 C D] 2.
In Dulabhai vs State of Madhya Pradesh, ; this Court held that where a statute gave finality to the orders of the special tribunal the .
Civil Court 's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit.
Under the provisions of the 1952 Act it cannot be said that an adequate remedy is available to the plaintiffs on reference made to the Government.
[888 G.H] 3.
The second principle laid down in the above case is that where there is an express bar to the jurisdiction of the Court, an examination of the scheme of the Act to find out the adequacy or the sufficiency of the remedies provided there in may be relevant.
In the absence of any details in the enactment about the reference to be made to the Government, the procedure to be followed by the Government, and the opportunity to be afforded to the aggrieved party, it cannot be held that the expression "finality of the decision of the Government" used in the Explanation was meant to bar the jurisdiction of the Civil Court.
[890 F G] 4.
The High Court, however, erred in travelling beyond the provisions of the 1952 Act by referring to the provisions of the 1969 Act and coming to the conclusion that Explanation I to section 2(1) (e) of the 1952 Act and section 20 of the 1969 Act put beyond the pale of any doubt that the jurisdiction of the Civil Court had been taken away by the legislature to determine the question whether a particular Inam was a personal or devasthan inam.
The High Court was not justified in invoking the provisions of the 1969 Act while deciding a case under the 1952 Act.
[891 E G] 5.
An entry in the alienation register as to whether an inam is personal or religious cannot be said to be so sacrosanct that it cannot be changed.
Explanation 1 to section 2 (1) (e) of the 1952 Act indicates that the entry in the register is not an essential part of the definition of personal inam but is only descriptive.
If the Government decides a case contrary to the entry in the register of alienation the register shall be deemed to have been amended.
If an entry in the register would be deemed to have been automatically amended by the decision of the Government, there is no sanctity to such entry.
The explanation itself contemplates a change in view of the decision of the Government on the question.
An entry in the register is mainly intended to serve the purpose of realisation of land revenue.
[892 C D] 6.
Section 203 of the Bombay Land Revenue Code provides for an appeal to a superior officer from an order passed by the revenue officer.
This section cannot be said to completely bar the jurisdiction of the Civil Court because section 212 of the Code contemplates that whenever it is declared that a decision or order shall be final such expression shall be deemed to mean that no appeal lies from such decision or order.
If this is what finality meant under section 212 it cannot be said that the jurisdiction of the Civil Court is barred.
[893 A C] 884
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Someone sent a notice to the head of a religious group. The notice said that because of a new law (the Bombay Personal Inams Abolition Act of 1952), they no longer had an exemption from paying taxes on their land. They were told to give the land records to the local official.
The religious group then filed a lawsuit in a regular court. They claimed that the land was owned by a religious organization. Because of this, they argued, the 1952 law should not apply to them.
The government responded that only the government could decide if the land was for personal use or religious use, based on the 1952 law. They said the regular court didn't have the power to make that decision.
The trial court agreed with the government. It said the land was for personal use and dismissed the religious group's lawsuit.
While the religious group was appealing this decision, a new law was passed (the Gujarat Devasthan Inams Abolition Act, 1969). This law also got rid of tax exemptions for land owned by religious charities.
The higher court said that only the state government, not the regular court, could decide if the land was for personal or religious use.
The religious group appealed to a higher court. They argued that regular courts should have the power to decide cases unless a law specifically prevents them from doing so. They also said that the part of the 1952 law that makes the government's decision "final" only applies to that specific law and shouldn't stop the regular court from hearing the case.
The higher court agreed with the religious group.
**HELD:**
1. The fact that the government's decision is "final" under the 1952 law does not mean that regular courts can't hear the case. The law only mentions this "final" decision in one small part.
2. In a previous case (Dulabhai vs State of Madhya Pradesh), the court said that if a law gives a special court the power to make final decisions, then regular courts can't hear the case if there's a good way to fix the problem through that special court. But in this case, the 1952 law doesn't provide a good enough way for the religious group to get their problem solved by the government.
3. The previous case also said that if a law clearly prevents regular courts from hearing a case, then it's important to look at the whole law to see if it provides good ways to fix problems. The 1952 law doesn't explain how the government should make its decision, what steps it should follow, or if the religious group gets a chance to present their side. Because of this, the part of the law that says the government's decision is "final" doesn't mean that regular courts can't hear the case.
4. The higher court made a mistake by using the 1969 law to help decide the case. The case was about the 1952 law, so the court shouldn't have considered the 1969 law.
5. Just because a record says land is for personal use doesn't mean that it can never be changed. The 1952 law suggests that the record is not the most important thing when deciding if land is for personal use. If the government makes a decision that goes against what's in the record, then the record should be changed to match the decision. So, the record doesn't have special importance. It's mainly used to help collect taxes.
6. Another law (the Bombay Land Revenue Code) allows people to appeal a local official's decision to a higher official. But this doesn't completely prevent regular courts from hearing the case. The law also says that when a decision is "final," it just means that you can't appeal it to another official. So, "final" doesn't mean that you can't take the case to a regular court.
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ivil Appeal No. 1009 of 1980. From the Judgment and Order dated 15.1.80 of the Punjab and Haryana High Court in L.P.A. No. 592 of 1975. P.P. Rao and Jitender Sharma for the appellants. Rajinder Sachhar, Govind Mukhoty, Dr. Shankar Ghosh, S.C. 474 Mohanta, Mahabir Singh, T.C. Sharma, P.P. Singh, S.K. Verma, C.M. Nayyar and C.V.S. Rao for the Respondents. The Judgment of the Court was delivered by SINGH, J. This appeal by special leave is directed against the order of the High Court of Punjab and Haryana dated 15th January, 1980 quashing the Notification dated 3rd May, 1973 issued by the State Government of Haryana promot ing the appellants to the Haryana Service of Engineers Class I post (Public Health Branch). The facts giving rise to this appeal are that the appel lants S/Sh. J.C. Yadav, B.R. Batra, O.P. Juneja, S.L. Cho pra, M.S. Miglani, C.P. Taneja, Surjit Singh and V.P. Gulati and respondents Vyas Dev were members of the Haryana Service of Engineers Class II in the Public Health Branch. Members of the Class II service are eligible for promotion of Class I posts in accordance with the provisions of the Haryana Service of Engineers Class 1 Public Works Department (Public Health Branch) Rules 1961 (hereinafter referred to as 'the Rules '). In 1971 the appellants were promoted to the post of Executive Engineers in the cadre of Class 1 on ad hoc basis while Vyas Dev respondent was not considered for promotion. He made representation but nothing came out in his favour. Later a Committee was constituted under Rule 8 for selecting suitable members of Class 12 service promotion to Class I post. The Committee considered the case of appellants and Vyas Dev respondent, but it did not find the respondent suitable for promotion, his name was not included in the select list prepared by the Committee while the names of the appellants were included therein. The Selection Committee 's recommendation was approved by the Public Service Commission and it was forwarded to the State Government. Since the appellants did not possess the requisite minimum period of service of eight years ' in Class II service as required by Rule 6(b) and as no other suitable candidates were avail able, the Selection Committee made recommendation to the State Government for granting relaxation to the appellants. The Committee 's recommendation was reiterated by the Public Service Commission. The State Government accepted the recom mendations and appointed the appellants to Class I service by the Notification dated May 3, 1973. Vyas Dev, respondent challenged validity of the appel lants ' promotion by means for a writ petition under Article 226 of the Constitution before the High Court of Punjab and Haryana on the ground that the appellants did not possess requisite qualification for promo 475 tion to Class I service, therefore their promotions were contrary to Rules. His further grievance was that he was not considered along with the appellants for promotion and he was not afforded opportunity of hearing before he was super seded. A learned single Judge of the High Court dismissed the petition on the finding that the Selection Committee had considered the case of Vyas Dev along with the appellants for promotion but he was not found suitable. As regards the appellants ' promotions the learned Judge held that since the State Government had relaxed Rule 6(b) in their favour their promotions were sustainable in law. The learned Judge fur ther held that no personal hearing was necessary to be afforded to Ved Vyas before his supersession. On appeal by the respondent a Division Bench of the High Court set aside the order of the single Judge and quashed the appellants promotions on the sole ground that the State Government had no authority in law to grant relaxation to the appellants under Rule 22 in a general manner, as the power of relaxa tion could be exercised only in individual cases to mitigate hardship caused to an individual. On these findings the Division Bench set aside the appellants ' promotions. The appointment and promotion to Class I Engineering Service in the State of Haryana are regulated by the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules 1961. Initially these Rules had been framed by the Governor of Punjab before the formation of the Haryana State. There is no dispute that subsequently the State of Haryana had adopted these Rules and the recruitment to Class I service of Engineers in PWD (Public Health Branch) is regulated by the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961 as amended from time to time. Rule 5 provides for appointment to Class I service by direct appointment, by transfer of an officer already in service of the State Government or of the Union Government, or by promotion from Class II Service. Rule 6 prescribes qualifications for appointment to Class I service. The relevant provisions of the Rule are as under: "6. Qualifications: No person shall be appointed to the service, unless he: (a) possesses one of the University Degree or other qualifi cations prescribed in Appendix 8 of these rules: Provided that Government may waive this qualification in the case of particular officer belonging to Class II Service: 476 (b) in the case of an appointment by promotion from Class II Service, has eight years completed Class II and has passed the professional examination of the department Rule 8 provides for constitution of the Committee for making selection for appointment to Class I service by promotion. The Committee is required to prepare a list of officers suitable for promotion on the basis of the criteria of merit and suitability with due regard to seniority. Rule 9 lays down, field of eligibility as well as criteria for promotion to the post of Executive Engineer, Superintending Engineer and Chief Engineer. Rule 15 provides for departmental exami nations, according to this Rule the officers appointed to the Service, Unless they have already done so, shall pass such departmental examination and within such period as may be prescribed by the Government. The Rule confers power on the Government to prescribe for any other test in addition to the departmental examination for promotion or appointment to any rank in the service. Rule 22 confers power on the Government to relax any of the Rules as it may consider necessary. There is no dispute that none of the appellants had completed eight years ' service in Class II service as required by Rule 6(b) and as such they were not eligible for promotion to the post of Executive Engineer. On the recom mendation of the Selection Committee and with the approval of the Public Service Commission the State Government re laxed the requirement of eight years ' service so far as the appellants were concerned. Consequently, the appellants were promoted and appointed as Executive Engineers under the Notification dated 3rd May, 1973. The sole question for consideration is whether the relaxation granted by the State Government in favour of the appellants is valid. Rule 22 which confers power on the Government to relax requirement of Rules, is as under: "Rule 22. Power to relax . . Where Government is satisfied that the operation of any of these Rules causes undue hardship to any particular case, it may by order dispense with or relax the requirements of that Rule to such extent, and subject to such conditions, as it may consider necessary for dealing with the case in a just and equitable manner. 477 The Rule confers power on the Government to dispense with or to relax the requirement of any of the Rules to the extent and with such conditions as it may consider necessary for dealing with the case in a just and equitable manner. The object and purpose of conferring this power on the Government is to mitigate undue hardship in any particular case, and to deal with a case in a just and equitable man ner. If the Rules cause undue hardship or Rules operate in an inequitable manner in that event the State Government has power to dispense with or to relax the requirement of Rules. The Rule does not restrict the exercise of power to individ ual cases. The Government may in certain circumstances relax the requirement of Rules to meet a particular situation. The expression "in any particular case" does not mean that the relaxation should be confined only to an individual case. One of the meanings of the expression "particular" means "peculiar or pertaining to a specified person thing time or place not common or general". The meaning of the word particular in relation to law means separate or special, limited or specific. The word 'case ' in ordinary usage means 'event ', 'happening ', 'situation ', 'circumstances '. The expression 'case ' in legal sense means 'a case ', 'suit ' or 'proceeding in Court or Tribunal '. Having regard to these meanings the expression 'in any particular case ' would mean; in a particular or pertaining to an event, situation or circumstance. Rule 22 postulates relaxation of Rules to meet a particular event or situation, if the operation of the Rules causes hardship. The relaxation of the Rules may be to the extent the State Government may consider necessary for dealing with a particular situation in a just and equitable manner. The scope of Rule is wide enough to confer power on the State Government to relax the requirement of Rules in respect of an individual or class of individuals to the extent it may consider necessary for dealing with the case in a just and equitable manner. The power of relaxation is generally contained in the Rules with a view to mitigate undue hardship or to meet a particular situation. Many a times strict application of service rules create a situation where a particular individual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service. In such a situation the Govern ment has power to relax requirement of Rules. The State Government may in exercise of its powers issue a general order relaxing any particular Rule with a view to avail the services of requisite officers. The relaxation even if granted in a general manner would enure to the benefit of individual officers. The State of Haryana was formed in March, 1966 prior to that it was part of the State of Punjab. The service rules relating to Public 478 Works Department as applicable to the State of Punjab were made applicable to Haryana. Rule 6(b) which prescribed qualification for appointment to Class I service lays down that no person shall be appointed to the service by promo tion from Class II service unless he has completed eight years ' service in Class II and has passed departmental examination prescribed under Rule 15. None of the appellants had completed eight years ' service in Class II. In fact no other member of Class II service possessing the requisite qualifications was available for selection to Class I post. The respondent no doubt possessed the requisite qualifica tion with regard to the eight years length of service in Class II but he did not possess requisite educational quali fication. Thus no qualified officer of Class II service was available for promotion to Class I service although a number of vacancies were existing in Class I service. Having regard to these facts the Selection Committee made recommendation for the relaxation of Rule 6(b) in favour of the appellants, who were found otherwise suitable. The Public Service Com mission also agreed with the recommendation made by the Selection Committee. The non availability of suitable Class II officers in Engineering Department possessing the neces sary and prescribed qualifications for promotion to Class I posed a problem for the State Government, as on account of the large scale expansion of Engineering Department a number of posts in Class I service were lying vacant. A similar situation prevailed in the Building and Road Branch of Public Works Department. In the circumstances, the State Government with a view to meet the particular situation decided to relax the qualifying length of service to such officers who had completed four years of service in Class II, it therefore relaxed the requirement of Rule 6(b) to the extent that a member of Class II service having four years ' service was qualified for being considered for promotion to Class I service. These facts would clearly show that the relaxation had been granted to particular individuals with a view to meet the situation, which was in public interest. We find no legal infirmity in the order of relaxation. In B.S. Bansal vs State of Punjab and Ors., a Bench of the Punjab and Haryana High Court held that if the power of relaxation could be exercised in order to meet a general situation, then the whole purpose of the Rule would be frustrated and the Government would be armed with an arbitrary power which could cause great hardship to some officers. We have already referred to the relevant facts which show that in the instant case, power of relaxation was exercised by the State Government to meet a particular situation, it did not result into any injustice or cause hardship to any one. If power of 479 relaxation is exercised on extraneous consideration for oblique purposes or mala fide, the court has power to strike down the same but exercise of power of relaxation to meet a particular situation cannot be held to be arbitrary or illegal. In B.S. Jain vs State of Haryana, the High Court set aside the promotions made in pursuance of the relaxation granted under Rule 22 placing reliance on the decision of the Division Bench in B.S. Bansal 's case. On appeal, this Court in Ashok Gulati vs B.S. Jain, ; observed that the findings of the High Court that the State Government could not have relaxed the condition of passing the departmental professional examination by taking recourse to Rule 22 which conferred power of relaxation on the State Government could hardly be sustained. In Jit Singh & Ors. vs State of Pubjab & Ors. , ; the State Government 's order granting relaxation under Rule 14 of the Punjab Police Service Rules 1959 in respect of the period of service, was questioned. Rule 14 was almost identical in terms as Rule 22 of the instant case. In Jit Singh 's case (supra) promotion of Inspectors to the post of Deputy Superintendent of Police was involved. Under the Police Service Rules 1959 a Police Inspector having six years ' continuous service was eligible for promo tion to the post of Deputy Superintendent of Police. The State Government in exercise of its power under Rule 14 granting relaxation to Inspectors who had been found fit for promotion, as a large number of vacancies had occurred in the cadre of Deputy Superintendent of Police and no suitable persons having the requisite period of service were avail able. Promotions made pursuant to the relaxation were chal lenged before the High Court. The High Court dismissed the writ petition on the ground that the petitioners before it were not qualified for promotion. On appeal before this Court, the High Court 's judgment was upheld. This Court took the view that since the appellants before it were not eligi ble for promotion as their names were not included in the Select List prepared by the Public Service Commission and further as they had not completed six years ' of continuous service prior to the respondents, they were not entitled to any relief. The appeal was accordingly dismissed by this Court. While considering the question of validity of relaxa tion, the Court made observation that Rule 14 did not permit any general relaxation of the nature ordered by the State Government. The Court, however, did not examine the matter in detail as it was of the view that since the appellants in that case were not eligible for promotion they could not question the validity of the appointment of those who had been promoted on the basis of relaxation being granted by the State Government. The Court upheld the promotions in view of the extra 480 ordinary situation in which the State Government made ap pointments iv derogation of requirement of Rules. On a careful scrutiny of the Rules in its various as pects we do not agree with the observations made in Jit Singh 's case (supra). Though Rule 22 is not happily worded, as apparently it gives an impression that no general relaxa tion can be granted by the State Government, out on a close scrutiny of the scope of the power we find that a narrow construction of the Rules would nullify the Government 's power of relaxing Rules to meet a particular situation. Rule 22 is beneficial in nature it must be construed in a liberal manner and it should not be interpreted in a manner to defeat the very object and purpose of such power. Power to grant relaxation may be exercised in case of an individual to remove hardship being caused to him or to a number of individuals who all may be similarly placed. This power may also be exercised to meet a particular situation where on account of the operation of the Rules hardship is being caused to a set of individual officers. In the instant case the appellants were found suitable for promotion by the screening committee, the Commission and the State Govern ment, and the contesting respondent Yvas Dev was not found suitable even otherwise for promotion, the State Government granted relaxation of Rule 6(b) in favour of the appellants. In such a situation, it is beyond comprehension that the power of relaxation under Rule 22 was exercised arbitrarily or that it caused hardship or injustice to any one. On the formation of the new State of Haryana no promotion from Class II officers could be made to Class I service without granting any relaxation since 1966 to 1978. In 1971 72 eleven vacancies in the post of Executive Engineers were filled by promotion from Class II officers although none of them had completed requisite period of service prescribed by the Rules for promotion. In 1976 77 and 1977 78 sixteen and nine vacancies respectively in the post of Executive Engi neers were filled by promotion by granting relaxation as no officer of Class II service possessing requisite number of years of service was available for promotion. In 1978 79 seven officers of Class II service were promoted to the post of Executive Engineer but only one of them possessed the requisite period of service and all others were granted relaxation. These facts clearly show that in the absence of relaxation there could be no promotion to the post of Execu tive Engineer and the officers who were found suitable would have suffered great hardship. In 1973 also the State Govern ment with a view to meet the particular situation exercised its power of relaxation in appellants ' favour. Having regard to these facts and circumstances, we find no illegality in the appellants ' promotions, pursuant to the relaxation granted by the State Government. 481 In Bansal 's case (supra) the High Court, and even in Jit Singh 's case (supra) this Court did not set aside the promo tions made by the Government pursuant to relaxation of Rules on the ground that the petitioner who challenged the promo tions was himself not qualified, and he had no legal right to hold the post in dispute, although in both these cases Government 's order granting general relaxation was held to be outside the scope of Rule 22 and Rule 14 of the Punjab Police Service Rules 1959. In the instant case the High Court has set aside the appellants ' promotions following Bansal 's case interpreting Rule 22 but it failed to notice that in that case the High Court did not set aside the promotions instead it dismissed the petition on the ground that the petitioner therein was not qualified and none of his rights were affected. The High Court failed to notice that Vyas Dev respondent was considered for promotion but he was not found suitable, therefore he was not entitled to any relief. Since no legal right of the respondent was adversely affected the High Court should not have quashed the appel lants ' promotions. On behalf of the appellants an alternative submission was made that since the appellants had already completed eight years ' of service in Class H service during the pend ency of the writ petition their appointment stood regula rised. To support this submission reliance was placed on the decision of this Court in Ram Sarup vs State of Punjab, [1979] 1 SCC 168. In that case appointment to the post of Labour cum Conciliation Officer was made in breach of Rule 4 Clause (I) of the Punjab Labour Service Class I and II Rules 1955 as Ram Sarup did not possess five years ' experience, required by sub clause (I) of Rule 4, In spite of that he had been appointed to the post of Labour cum Conciliation Officer. Subsequently, Ram Sarup was reverted on the ground that he was not qualified to be appointed as a Labour cum Conciliation Officer as he did not possess the minimum qualification of length of service. This Court held that the appointment of Ram Sarup made in breach of Rules was irregu lar, but not wholly void and since Ram Sarup had completed five years of experience of working of labour laws before his reversion, his appointment to the post of Labour cum Conciliation Officer stood regularised with effect from the date he completed five years of service. On these findings order of reversion was set aside by this Court. Undisputa bly, the appellants completed eight years of service before January 15, 1980, the date on which the Division Bench of the High Court set aside their promotions. In view of the principles laid down in Ram Sarup 's case (supra) the appel lants ' appointment, even if irregular, stood regularised on the 482 date they completed eight years of their service and there after their promotions could not be set aside. We accordingly allow the appeal, set aside the judgment and order of the Division Bench dated 15.1.1980 and restore the order of the learned single Judge dismissing the re spondents ' writ petition. There will be no order as to costs. N.P.V. Appeal al lowed.
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The appointment and promotion to Class I Engineering Service in the State of Haryana are regulated by the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961.
Rule 5 provides for appointment to Class I Service, inter alia, by promotion from Class II Service.
Rule 6(b) prescribed that no person shall be promoted unless he has completed eight years service in Class II and has passed professional examination to the department.
Rule 22 confers power on the Government to relax any of the Rules it may consider necessary.
The appellants and the contesting respondent were mem bers of the Haryana Service of Engineers Class II in the Public Health Branch.
In 1971 the appellants were promoted to the post of Executive Engineers in the cadre of Class I service on ad hoc basis while the respondent was not consid ered for promotion.
Later, a Committee constituted under Rule 8 for selecting suitable candidates for promotion to Class I post, considered the names of the appellants and the respondent but did not find the respondent suitable.
Hence it included the appellant 's|ant 's names only in the select list.
The appellants did not possess the requisite minimum period of service of 8 years in Class II service but since no other suitable candidates were available, the Committee recommended to the Govt.
for granting relaxation to the appellants.
The State Public Service Commission approved the recommendations.
The State Government accepted the recommendations and appointed the appellants to Class I service by a Notification dated May 3, 1973.
471 The contesting respondent filed a Writ Petition before the High Court challenging the validity of the appellants ' promotion on the ground that since the appellants did not possess the requisite qualification for promotion to Class I Service their promotions were contrary to rules.
A Single Judge of the High Court dismissed the petition holding that since the Government had relaxed Rule 6(b) in appellants ' favour, their promotions were sustainable in law.
On appeal, the Division Bench quashed the appellants ' promotion on the ground that the State Government had no authority in law to grant relaxation to the appellants under Rule 22 in a general manner as the power of relaxation could be exercised only in individual cases to mitigate hardship caused to an individual.
Hence the appeal by special leave.
Allowing the Appeal, this Court, HELD: 1. Power to grant relaxation may be exercised in case of an individual to remove hardship being caused to him or to a number of individuals who all may be similarly placed.
This power may also be exercised to meet a particu lar situation where on account of the operation of the rules hardship is being caused to a set of individual officers.
[477G H] 2.
I Rule 22 of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules 1961 confers power on the Government to dispense with or to relax the requirement of any of the Rules to the extent and with such conditions as it may consider necessary for dealing with the case in just and equitable manner.
The object and purpose of conferring this power on the Government is to mitigate undue hardship in any particular case.
If the Rules cause undue hardship or operate in an inequitable manner, the State Government has power to dispense with or to relax the requirement of Rules.
The Rule does not restrict the exercise of power to individ ual cases.
The Government may in certain circumstances relax the requirement of Rules to meet a particular situation.
[477A B] 2.2.
The expression "in any particular case" does not mean that the relaxation should be confined only to an individual case.
One of the meanings of the expression "particular" means "peculiar or pertaining to a specified person thing time or place not common or general".
The meaning of the word 'particular ' in relation to law means separate or special, limited or specific.
The word 'case ' in ordinary usage means 472 'event ', 'happenings ', 'situation ', 'circumstances '.
The expression 'case ' in legal sense means 'a case '. 'suit ' or 'proceeding in Court or Tribunal '.
Having regard to these meanings the expression 'in any particular case ' would mean in a particular or pertaining to an event, situation or circumstance.
[477C D] 2.3.
Rule 22 postulates relaxation of Rules to meet a particular event or situation, if the operation of the Rules causes hardship. '[he Scope of the said Rule is wide enough to confer power on the State Government to relax the re quirement of Rules in respect of an individual or class of individuals to the extent it may consider necessary dealing with the case in a just and equitable manner.
[477E F] 2.4 The power of relaxation is generally contained in the rules with a view to mitigate undue hardship or to meet a particular situation.
Many a time strict application of service rules create a situation where a particular individ ual or a set of individuals may suffer undue hardship and further there may be a situation where requisite qualified persons may not be available for appointment to the service.
In such a situation, the Government has power to relax requirement of rules.
The state Government may in exercise of its powers issue a general order relaxing any particular rule with a view to avail the service of requisite officers.
The relaxation even if granted in a general manner would enure to the benefit of individual officers.
[477F G] 2.5 Rule 22 is a beneficial one.
It must be construed in a liberal manner and should not be interpreted in a manner to defeat the very object and purpose of such power.
A narrow construction would nullify Government 's power of relaxing rules of meet a particular situation.
[480C] Jit Singh & Ors.
vs State of Punjab & Ors.
, ; differed; Ashok Gulati vs B.S. Jain, ; referred to.
In the instant case, the non availability of Class II officers in Engineering Department possessing the necessary and prescribed qualifications for promotion to Class I posed a problem for the State Government, as on account of the large scale expansion of Engineering Department a number of posts in Class I service were lying vacant.
A similar situa tion prevailed in the Building and Road Branch of Public Works Department.
In the circumstances, the State Government with a 473 view to meet the particular situation decided to relax the qualifying length of service to such officers who had com pleted four years of service in Class 1I.
It, therefore, relaxed the requirement of Rule (b) to the extent that a member of Class II service having four years service was qualified for being considered for promotion in Class I service.
These facts would clearly show that the relaxation had been granted to particular individuals with a view to meet the situation which was in public interest.
There is no legal infirmity in the order of ' relaxation.
[478D F] 3.
I If power of relaxation is exercised on extraneous consideration for oblique purposes or mala fide, the Court has power to strike down the same, but bona fide exercise of power of relaxation to meet a particular situation cannot be held to be arbitrary or illegal.
[479A] 3.2 Since the appellants were found suitable for promo tion by the screening committee, the Commission and the State Government, and as the contesting respondent was not found suitable even otherwise for promotion, the State Government granted relaxation of Rule (b) in favour of the appellants.
In such a situation, it cannot be said that the power of relaxation under Rule 22 was exercised arbitrarily or that it caused hardship to any one.
In the absence of relaxation, there could be no promotion to the post of Executive Engineer and the officers who were found suitable would have suffered great hardship.
Therefore, the State Government with a view to meet the particular situation exercised its power of relaxation in appellants ' favour.
Having regard to the facts and circumstances of the case, there is no illegality in the appellants ' promotion, pursu ant to the relaxation granted by the State Government.
[480D E; G H] Ashok Gulati vs B.S. Jain, AIR 1987 424; Jit Singh & Ors.
vs State of Punjab & Ors.
, ; and Ram Sarup vs State of Punjab, [1979] 1 SCC 168 referred to.
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The rules for hiring and promoting engineers to a high-level position (Class I Engineering Service) in Haryana are found in a document called the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules, 1961.
Rule 5 explains how people can be appointed to Class I Service, including being promoted from a lower-level position (Class II Service).
Rule 6(b) says that someone can't be promoted unless they've worked for eight years in Class II and passed a professional exam for the department.
Rule 22 gives the government the power to change or ignore any of the rules if they think it's needed.
The people who are appealing this case (the appellants) and the person they are arguing against (the respondent) all worked as engineers in the Class II level in the Public Health Branch.
In 1971, the appellants were promoted to a higher position called Executive Engineer in Class I, but only temporarily. The respondent was not considered for a promotion at that time.
Later, a committee that was created to choose people for Class I positions looked at the appellants and the respondent. They didn't think the respondent was qualified.
So, the committee only put the appellants' names on the list of people who could be promoted.
The appellants didn't have the required eight years of experience in Class II. But, because there weren't any other qualified people available, the committee asked the government to make an exception for the appellants.
The State Public Service Commission agreed with the committee.
The state government accepted the recommendations and officially appointed the appellants to Class I service on May 3, 1973.
The respondent filed a legal challenge (a Writ Petition) in the High Court, saying that the appellants' promotions were not valid because they didn't meet the requirements for Class I service. The respondent argued that the promotions went against the rules.
A single judge in the High Court dismissed the case, saying that the government had the power to make an exception to Rule 6(b) for the appellants, so their promotions were legal.
However, another court (the Division Bench) overturned the first court's decision. They said the government didn't have the authority to make a general exception to Rule 22 for the appellants. They said the power to make exceptions could only be used for individual cases to help someone who was facing a difficult situation.
That's why the appellants are now appealing this decision.
The higher court agreed with the appellants and stated:
1. The power to make exceptions can be used for one person who is facing a hardship, or for a group of people who are in a similar situation. This power can also be used when the rules are causing problems for a group of officers.
2. Rule 22 of the Haryana Service of Engineers Class I PWD (Public Health Branch) Rules 1961 gives the government the power to ignore or change any of the rules as much as they think is needed to handle a situation fairly.
The reason for giving the government this power is to help people who are facing unfair difficulties. If the rules are causing problems or seem unfair, the government can ignore or change them. The rule doesn't say that this power can only be used for individual cases. The government can change the rules to deal with a specific situation.
2.2. The phrase "in any particular case" doesn't mean that the exception can only be for one person. "Particular" can mean something that is specific to a person, thing, time, or place, and not common. In law, "particular" means separate, special, limited, or specific.
The word "case" usually means an event, happening, situation, or circumstance. In a legal sense, "case" means a lawsuit or legal process in a court or tribunal.
So, the phrase "in any particular case" means in a situation that is specific to an event or circumstance.
2.3. Rule 22 allows the rules to be changed to deal with a specific event or situation if the rules are causing problems. The rule is broad enough to give the government the power to change the rules for one person or a group of people, as much as they think is needed to handle the situation fairly.
2.4 The power to make exceptions is usually included in the rules to help with unfair difficulties or to deal with a specific situation. Sometimes, following the rules exactly can create a situation where someone or a group of people face unfair problems. Also, there might be times when there aren't enough qualified people available for a position.
In these situations, the government has the power to change the rules. The government can issue a general order that changes a specific rule to make it possible to hire the needed officers. Even if the exception is made in a general way, it can still help individual officers.
2.5 Rule 22 is helpful. It should be understood in a broad way and not in a way that defeats its purpose. A narrow understanding would limit the government's power to change the rules to deal with a specific situation.
The court looked at other similar cases for guidance.
In this case, the government faced a problem because there weren't enough Class II officers in the Engineering Department who had the necessary qualifications for promotion to Class I. This was because the Engineering Department was growing quickly, and many Class I positions were empty.
A similar situation was happening in the Building and Road Branch of the Public Works Department.
So, the government decided to make an exception to the rule about the length of service required. They decided that officers who had completed four years of service in Class II could be considered for promotion to Class I.
This shows that the exception was made for specific people to deal with a situation that was in the public's best interest. There is nothing illegal about the decision to make the exception.
3. If the power to make exceptions is used for the wrong reasons or in bad faith, the Court can strike it down. However, using the power in good faith to deal with a specific situation is not arbitrary or illegal.
3.2 The screening committee, the Commission, and the state government all agreed that the appellants were qualified for promotion. The respondent was not considered qualified. So, the state government made an exception to Rule (b) for the appellants.
In this situation, it can't be said that the power to make exceptions under Rule 22 was used unfairly or that it caused problems for anyone. Without the exception, there could be no promotions to the position of Executive Engineer, and the qualified officers would have faced a difficult situation.
Therefore, the state government used its power to make an exception for the appellants to deal with the specific situation. Considering the facts of the case, there is nothing illegal about the appellants' promotion, which was based on the exception made by the state government.
The court referred to other similar cases for guidance.
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tion (Civil) No. 339 of 1986. (Under Article 32 of the Constitution of India) S.P. Pandey and Mrs Rekha Pandey for the Petitioner. J.R Dass, D.K Sinha, D Goburdhan and R.K. Mehta for the Respondent. PG NO 308 The Judgment of the Court was delivered by RANGANATH MISRA, J. A letter addressed to the learned Chief Justice of this Court from two citizens of Patna in regard to the Mental Hospital at Kanke near Ranchi in Bihar State was considered as a public interest litigation and registered as an application under Article 32 of the Constitution. On 7.4.1986, this Court called upon the State of Bihar to file its counter affidavit and the Chief Judicial Magistrate of Ranchi or any other Judicial Magistrate nominated by him to visit the hospital and submit a report about the conditions prevailing in the Hospital. The Chief Judicial Magistrate visited the hospital on 8.6.1986, and on several other occasions thereafter and submitted a detailed report on 15th of July, 1986. He found that there were 1580 beds. The Hospital was in the sole management of the Health Department of the State of Bihar. The State received financial contributions from West Bengal and Orissa. There is a Managing Committee of the Hospital consisting of 14 members in all with the Commissioner of South Chotanagpur Division as its Chairman. The sanctioned strength of medical officers was 16 but only 9 had been filled up and there were 7 vacancies. In the Hospital the male patients wing had 10 blocks in all, apart from the Isolation Ward, the Medical Ward and the Infirmary Ward. These are in 10 double storied blocks and three single storied wards in charge of separate doctors. The female patients ' unit consisted of two double storied and two single storied blocks. Each block had the capacity of 120 patients. Some of the patients had to pay for their treatment while the treatment to the general category was intended to be free. All the three residential quarters within the complex meant for the medical officers were occupied by others, one by the suspended Superintendent, the other by the retired Superintendent and the third one was by the Acting Superintendent. Three doctors were residing in the quarters meant for non gazetted officers and the remaining doctors were staying in private houses at Ranchi about 11 kilometers away. The Chief Judicial Magistrate found that there was acute shortage of water in the Hospital. There was only one tubewell within the campus located in the male block. There were five ordinary wells but there was no motor pumps installed in any one of them. These wells were the only source of supply of water. Several representations had been made to the State Government for supplying water on permanent basis to the Hospital but there was no response from the Government. PG NO 309 The Chief Judicial Magistrate was surprised that none of the toilets within the hospital complex was in order. The sanitary fittings were not operating having got chocked. The patients were, therefor, forced to ease themselves in the adjacent open field. Consequently the environment had become polluted and unhygienic. Though there were fan points and even electric fans were hanging from the roof in some places, no fan excepting the one in the chamber of the Superintendent was in working condition. He also found that though there were electric connections with bulbs and tubes yet light was not available and, therefore, total darkness prevailed in the campus between dusk and dawn. The Superintendent explained to the Chief Judicial Magistrate that the Hospital had no electrician and the Institution had to depend upon the mercy of the State Electricity Board and despite correspondence there was no response. He found that old iron cots had been provided in the year 1925 and only 300 more had been added by purchase. The total number of patients were 1580. Most of the iron cots having been broken were out of use and, therefore, only 300 beds were actually available. None of the wards had doors and windows in working condition. The Superintendent pointed to him that he had made repeated requests to the Public Works Department of the State Government but no letter had even been acknowledged. In the absence of device to close the doors and windows there had been occasions when mentally ill patients had jumped through the windows or had run out from the rooms. To meet such situations, the broken cots were mostly used to block the passages. The Chief Judicial Magistrate further found that the mattresses and linen were in very bad shape, he noticed several patients to be lying on the bare floor; some of the patients were using a single blanket both as mattress and cover. Some patients were naked in the absence of clothing and others were found wearing torn shirts and pants. Mosquito nets were not available pillows were not provided and the patients were left to their fate. The Chief Judicial Magistrate noticed marks of buy bitings as also mosquito biting on the body of the patients. In the absence of clothing the patients were forced to wear the same shirt and pant for four to six weeks without a wash on account of unavailabiliy of water. The Superintendent told the Chief Judicial Magistrate that Government of Bihar had sanctioned Rs. 3 a day per patient for the two meals and breakfast and it was wholly inadequate. The Managing Committee had recommended for sanction of Rs. 10 per patient per day but PG NO 310 there had been no response. The diet as prescribed included an egg, 250 gms. of milk every day and meat and fish, once in a week, but in the absence of appropriate funds those had been discontinued for years. The Chief Judicial Magistrate having visited the place on several occasions noticed that there was no account of the stock of medicines; life saving drugs were not stored properly in the absence of a refrigerator. The instruments were not in working condition and the employees meant for working the instruments were idlying away their time. The patients were now referred to Medical College Hospital at Ranchi for X ray and E.C.G. as and when necessary. Many of the patients told the Chief Judicial Magistrate that they had not been getting any medicine for months together. The Chief Judicial Magistrate had noticed that several doctors were not available in the Hospital for days together. Some of the patients in the wards complaind to him that the doctor was not visiting the ward even for one hour in a week; he carne across a weak and emaciated patient who told him that he had not been given any food for two days on the plea that he was suffering from diarrhoea and he had not even been given any treatment. C)n the 11th of July, 1980, when he visited the Hospital along with the local Additional District Magistrate? he found not a single doctor on duty though that was the time when all the doctors, were supposed to be on duty within the campus. Though this was the actual position. the attendance register showed all the doctors to be present as required according to the duty chart . The Chief Judicial Magistrate collected the death rate from the Superintendent for the period between 1977 and 1986 which are as per the particulars given below: Year Male Female Total 1977 38 11 49 1978 72 12 84 1979 74 31 l05 1980 66 24 90 1981 39 33 172 PG NO 311 1982 173 50 231 1983 87 44 131 1984 152 94 246 1985 90 69 159 From 1 1 1986 30 6 1986 49 25 74 In Paragraph 28 of the Report the Chief Judicial Magistrate stated: "This chart clearly shows abrupt rise in the graph of death rate after 1980. 1984 was the most unfortunate year for Arogyashala, when maximum escapes and deaths took place. Mass scale escapes and deaths of patients in 1984 is said to be the result of internal politics in the Arogyashala campus, for which, the then Superintendent and Dr. Durga Bhagat and Deputy Superintendent. Dr. B.B. Singh are said to be largely responsible. " The Magistrate further reported that the present acting Superintendent had failed to improve the administration. He lacked adequate control over his colleagues and the staff. The out going Superintendent residing within the campus was inciting the people and the acting Superintendent was gradually losing his grip and control over the administration. The innocent, miserable and vioceless patients were the victims of the situation. The practice prevailing in the Hospital had been that the Superintendent alone was competent to admit patients and as such the guardians and attendants of the patients seeking admission into the Hospital had been exploited by a group of persons friendly with the Superintendent and those who did not come to terms with the Superintendent had been denied the benefits of the Hospital. This led to friction and unpleasant relationship. He recommended that a non medical man, if possible, a retired army officer or a District Judge could be posted as the head of the Hospital to take control and tone up the deteriorating situation. He found that a large garden was attached to the Hospital but on account of the all pervading mismanagement there was no return but one Dr. Buxy had recently been put in charge of the garden and had improved the same. Last of all in his report he adverted to the fact that some petients who had recovered and their number he found was about 300, being both men and women were not in a position either to return to their take to any employment in the absence of any facility. He found that these persons who PG NO 312 no more required treatment should be removed from the Hospital so that there would be room available for patients who required treatment; unnecessary expenditure on such large number of people could be avoided and the standard of discipline within the Institution could be improved and there could be a general toning up of the atmosphere. Along with the report he gave various relevant details in the annexures. Annexure 11 is a list of criminal patients who had come from different jails for treatment and had been declared fit for discharge. We may refer to the cue of one Rupa Santhal. This person was admitted to the Hospital on 28.9.1947 at the instance of the Superintendent of Chittagang Hill Tract Jail, where on being convicted by the Deputy Commissioner of Chittagang Hill Tract for an offence punishable under Section 326 IPC, he had been imprisoned for undergoing the sentence. Obviously he could not have been detained in jail for 41 years for the offence under Section 326 IPC. Several letters were sent from the Hospital but there was no response. We may also refer to the case of Madhu Mahanta who was admitted to the Hospital on 15.11.1950 at the instance of the Superintendent, District Jail, Keonjhar in the State of Orissa. He had been convicted under Section 302 IPC and was languishing in the Hospital for 36 years though he had been cured several years back. The Magistrate has given a list of 13 persons of this category. We are astonished that even when prisoners are transferred for treatment from jails where they were undergoing sentences of imprisonment, no follow up action has been taken from the jails on their own and even when the Hospital authorities had required the prisoners to be taken back no response has been made. This only exhibits total callousness. We have given sumptuous extracts from the report of the Chief Judicial Magistrate with a view to bringing out as clear a picture as possible of the shocking and savage conditions that prevail in the mental hospital. There can be no two opinion that the hospital was in a shape a shade worse than Oliver Twist 's Orphanage. From all accounts, perhaps. many of zoos housing animals have better conditions than those that prevail in this hospital. While the mentally ill require a soothing environment for treatment, as psychatrists say, the State of Bihar as converted what was once a prestigious mental hospital Into a den to house about sixteen hundred patients. The reports of the Chief Judicial Magistrate gives the reader the feeling of a medieval torture house. On 11.8.1986, the Court noticed the report and observed: PG NO 313 "The report makes a painful reading and shows how badly is this institution managed and in what in human condition the patients are made to live & work there. It is surprising that the State of Bihar has allowed this institution to de generate into the present condition. It is necessary that immediate steps should be taken to improve the functioning of this institution in all respects. We would therefore direct the Chief Secretary and Health Secretary to the Government of Bihar to file affidavit or affidavits putting forth a definite scheme for improving the working of the Institution and for remedying the drawbacks and deficien cies pointed out in the report, including the neglect of patients by the Medical Superintendent attached to the Institution. This matter must have urgent priority since it concerns the well being of the mentally handicapped. We would therefore direct that the affidavit be filed within three weeks from today setting out a time bound programme for improving the functioning of the Institution. We would like to observe that the Chief Judicial Magistrate has made an excellent job of the task assigned to him and we express our sense of appreciation for the work done by him. These observations may be sent to the High Court of Patna and the Chief Judicial Magistrate". On 1.9.1986, the Health Secretary filed a short affidavit together with a scheme for the improvement of the Hospital. The opening words of the scheme have to be quoted to be believed: "The Government of Bihar are aware of the conditions prevailing in the Mansik Arogyashala, Kanke, and the Government for sometime in past have been discussing measures to be taken for improvement of the same. The subject was discussed by the representatives of the State of Bihar with the members of the Planning Commission at a meeting held at New Delhi in the month of january, 1986, and accordingly it is contemplated to develop the Mansik Arogyashala, Ranchi on the lines of NIMHANS in Bangalore The scheme indicated that a letter had been written to the Director, NIMHANS at Bangalore for information on 17th of April, 1986, i.e. 4 1/2 months before the scheme was filed PG NO 314 in this Court. There is no indication as to what was received from the Director or as to what further follow up action was taken during the 4 1/2 months. The scheme indicated that out of 16 sanctioned posts three posts were earmarked for West Bengal Government and were vacant; out of 13 posts, 9 had been filled up and 4 were vacant and were to be filled up by October, 1986. The scheme admitted with reference to the water supply system that the internal system was choked and was not functioning. In the year 1985 86, Rs.10 lakhs had been sanctioned for renovation of water supply system and the Public Health Engineering Department could utilise only Rs.61,000 during the financial year; therefore, the balance amount of Rs.9,39,000 was again to be sanctioned in the year 1986 87. The lavatories and bathrooms were not in working condition as accepted and the scheme proposed that the Superintendent of the Hospital is to supervise the sanitary system. In regard to electricity it was indicated that the electric fittings, fixtures and other equipments would be replaced by March, 1987 which meant six months beyond the date when the scheme was framed. It was proposed that a 100 KV Generator set was to be installed. In regard to cots and mattresses it was stated that 400 of them would be acquired in the year 1986 87 and the remainder in the year 1987 88. It was stated that the doors and windows required total replacement and it was indicated that Rupees six lakhs were sanetioned during the financial year for repair work. In regard to diet it was indicated in the scheme: "In the State of Bihar, the rate of the diet per patient for the hospital is Rs.3.00 per day except the T.B. patient to whom the rate of diet is Rs.4.15 per day. In the year 1986 87, rate of diet per patient has been increased to Rs.3.55. The Superintendent of Kanke hospital has been directed to improve dietary management". It was admitted that E.C.G. machine was out of order and efforts would be made to instal the machine in the financial year. It was also proposed in the scheme that there would be a regular Superintendent posted soon. In regard to supply of medicines it was stated that the prescribed rate was Rs.1.00 per patient per day and it has been increased to Rs.1.90 per patient per day from 1986. PG NO 315 On 20th of October, 1986, this Court made the following order: "1. In respect of each patient in the Ranchi Mansik Arogayashala the daily allocation for diet will be increased from the existing inadequate articles of that value shall be supplied to each patient. Arrangements should be made forthwith to supply adequate quantity of pure drinking water to the hospital, if necessary, by engaging water tankers to transport potable water from outside. Immediate arrangements should be made for the restoration of proper sanitary conditions in the lavoratories and bathrooms of the hospital. All patients in the hospital who are not at present having mattresses and blankets should be immediately supplied the same within 15 days from today. Such of the patients who have not been given cots should also be provided cots within six weeks from today so that no patient shall be thereafter without a cot. The ceiling limit at present invogue in respect of cost of medicines allowable for each patient will stand removed, with immediate effect and the patients will be supplied medecines according to the prescription made by the doctors irrespective of the costs. The State Government shall forthwith take steps to appoint a qualified Psychiatrist and a Medical Superintendent for the hospital and they should be posted and takecharge in the Institution within six weeks from today. The Chief Judicial Magistrate, Ranchi to whom a copy of this order will be forwarded by the Registry shall visit the hospital once in 3 weeks and submit quarterly reports to this Court as to whether the aforesaid directions given by us are being complied with. " On 20th of November, 1986, the Health Secretary gave a report as to programme relating to aspects covered by the scheme. It indicated that no reply had been received from NIMHANS and therefore, an officer had been sent from Bihar PG NO 316 to obtain the information. The medical officers against the vacant posts had been posted; water supply and electricity were yet to be attended to. The repair to the building was in progress and other aspects were yet to be attended. A Superintendent in the rank of Civil Surgeon had been posted. The Chief Judicial Magistrate furnished a further report in December, 1986. While he noticed certain improvements, he pointed out that there were 400 female patients and there was only one lady doctor in the Hospital. There was no lady Psychiatrist or Psychologist. The Superintendent had written to the Government about it but there has been no response. On 14th of September, 1987, the Court noticed the fact that the State of West Bengal was in huge arrears in the matter of payment of contribution to the running of the Hospital. Counsel for State of Bihar had agreed to send details of the arrears to the State of West Bengal within a fortnight and the Court directed the West Bengal Government to pay the same. The State of West Bengal filed its affidavit through the Joint Secretary in the Department of Health and Family Welfare. The affidavit while accepting the fact that 38% of the seats in the hospital were reserved for West Bengal alleged that in the absence of furnishing of proper accounts by the State of Bihar, the payment of contribution had not been made in time by the State of West Bengal after 1979 80. It agreed to pay Rs.20 lakhs during the year and the balance in suitable instalments in future. The State of Orissa has pointed out in its affidavit that it has been regularly paying its contribution of Rs.3 lakhs and was not in arrears. The Deputy Director (Medical) Health Services, Government of Bihar filed an affidavit claiming that the rate of diet had been enhanced with effect from 1.12.1986 and in diet all the patients were provided rice, bread, dal, vegetable, egg, milk, loaf, biscutt, tea, fruit . Fish, meat and chicken were being provided alternatively thrice a week. Old Pipe lines had been replaced and the flow of water was increased; storage facility for water had been arranged. Medicine as per requirement is being provided without refering to any ceiling limit. new X ray machine has been purchased; the old E.C.G. machine has been condemned and a new one has been purchased. One of the petitioners filed an affidavit denying many of the aforesaid claims. On 14th of March, 1988, this Court made the following order: PG NO 317 "We have perused the affidavit filed by Shri Subodh Chandhra Naryayan, one of the petitioners, wherein several allegations of mismanagement have been made. It has also been alleged that in spite of the direction of this Court that the daily diet expenses should be Rs.10 per patient actually Rs.7 is being spent and though this Court had directed that there should be no ceiling of expenses for medicines beyond Rs.2 per patient is not being issued. We are of the view that copy of the affidavit should be sent to the Chief Secretary, State of Bihar with a direction that he would personally look into the matter and should send a report within four weeks. " A report, beyond the time indicated in the order dated 14th of March, 1988, was furished by the Chief Secretary and the same was covered by an affidavit of the Joint Secretary of Department of Health and Family Welfare of the State Government. The Chief Secretary reported: "The entirc hospital complex is spread over a sprawling area. The buildings are old. but they have been extensively repaired and white washed. Many old cots. matresses linen etc. have been replaced by new ones. Government has spent several lakhs of rupees on improvements in the running of the Agrogyashala during the last two years. In course of my visit, l did not find that patients were being given inadequate food or medicine. ' ' He also found that the toilets had not been attended to, the position of water supply was not satisfactory, the automatic boiler had not yet been repaired or replaced. The Court 's Order of 14th of March, 1988, indicated that the affidavit filed by Subodh Chandra Narayan containing several allegations of mismanagement was to be forwarded to the Chief Secretary and with reference to the allegations therein, he was to send his report. We do not find that the report of the Chief Secretary covers all the aspects. The hospital authorities would not, in their own interests, be too ready to expose their own deficiencies during the visit of the Chief Secretary. Therefore, to have been satisfied and to report that during his visit he did not find any patient being given inadequate food or medicine is no appraisal of the situation. The fact that lakhs of rupees had been spent on improvement is indeed of no consequence PG NO 318 until the Agorgyashala is restored to acceptable hospital standards. The report gives us a feeling that the Chief Secretary was more conscious about the expenditure made by the State Government than assessing the actual situation. From his report, however, it is clear that inspite of several orders made by this Court and assurances held out by the State Government of Bihar, the defects were not being remedied. The awareness of the governmental authorities of the sordid situation prevailing in the hospital, as admitted in the scheme furnished to this Court, the non compliance in an effective way with the directions made from time to time by this Court and the general lethargy shown in rising from slumber leaves a clear impression in our mind that the institution cannot be run as a mental hospital of that magnitude unless there be change in the administrative set up, the control is altered and a total new service to patient oriented thrust given to the institution. In a welfare State and we take it that the State of Bihar considers itself to be one such it is the obligation of the State to provide medical attention to every citizen. Running of the mental hospital, therefore, is in the discharge of the State 's obligation to the citizens and the fact that lakhs of rupees have been spent from the public exchequer (perhaps without or inadequate return) is not of any consequence. The State has to realise its obligation and the Government of the day has got to perform its duties by running the hospital in a perfect standard and serving the petients in an appropriate way. The reports and affidavits of the Government of Bihar and its officers (not the reports furnished to the Court by the judicial officers) have not given us the satisfaction of the touch of appropriate sincerity in action. The scheme which was furnished to the Court was a half hearted one and no attempt therein was made to bring about any improvement except attending to certain obvious deficiencies and shortfalls. The hospital has been in existence from pre independence period. There have been epoch making breaks through in the field of psychiatry and treatment of psychiatric patients. The approach to mental health and the techniques of psychiatry have changed. Psychologists have developed their art and their tools. The method of care ar d attention for the mentally ill has also undergone a sea change. When we had called upon the State of Bihar to give a scheme for improving the conditions of the hospital, this Court had not intended a scheme for removing the deficiencies in the old hospital; we had really intended to look forward to a scheme of re orientation which the scheme did not even remotely touch except to say that NIMHANS at Bangalore has contacted. PG NO 319 The state Government authorities have not been able to assess the priorities. Provision of beds, though the scheme indicated had to be fully made by end of March, 1988, the report of the Chief Secretary and the accommpanying affidavit have not cleared that position. Provision for electricity and water has taken too long, though both are basic necessities of life. The fact that the existing lavatories have taken more than two years to repair is a slur on the administration. There does not seem to be the slightest interest on the part of the persons handling the matter, to improve the environment. In these cir cumstances, it becomes difficult for the Court with any sense of confidence to leave the management to the Health Department of the State of Bihar if the institution has to run as a good and useful hospital. We are cognizant of the position that it is difficult for the Court to monitor the management of a hospital particularly when it is located a thousand kilometres away; but since there have been some improvements with the Court 's intervention, to get out of the picture at this stage would only mean that the situation will again deteriorate no sooner the Court 's attention is withdrawn. As we have already pointed out mere restoration of the hospital to its old position would only bring into existence an archaic institution sans modernism. In our opinion, it will be much better if a Committee of Management is appointed with full powers to look after all aspects of the institution. It is appropriate to take note of the position that this institution receives contribution from two other States. 38 % of these beds, being about 600, are reserved for the State of West Bengal and the Government of West Bengal is to pay for the same. Similarly 75 beds are reserved for the State of Orissa and a sum of Rs. 3 lakhs is payable by the Orissa Government. There is no reason why the management of the hospital should be left exclusively to the Health Department of State of Bihar and the participating Governments should not be associated in such management. Taking note of the performances of the State administration of Bihar in regard to the hospital we are of the view that association of the States of West Bengal and Orissa in the management is likely to bring about some positive result. We would, accordingly, constitute a Committee of Management for the Mental Hospital in the manner indicated below. Chairman A consenting sitting Judge of the Patna High Court, Ranchi Bench, to be nominated by the Chief Justice of Patna High Court. PG NO 320 Members (1) Commissioner of Ranchi Division. (2) Station Commander, Ramgarh area, Ranchi. (3) Secretary of Health, Bihar Government. (4) Secretary of Health, West Bengal Government. (5) Secretary of Health, Orissa Government. (6) Deputy Commission of Ranchi. (7) Principal of the Ranchi Medical College. (8) District Judge, Ranchi. (9) Superintendent of the Hospital. The Commissioner of Ranchi Division and the Station Commander shall be Vice Chairmen and in the absence of the Chairman, shall in the order indicated act as Chairman when any of them too is absent. The Superintendent shall act as the Secretary. We hope and expect that the concerned Governments and authorities would accord the necessary consent/permission to the nominated officers to act on the Committee and the Committee would be able to have its first meeting in the first half of November, 1988. The Committee should meet every month in the first six months with a view to removing the defects and deficiencies within a time frame say of six months at the most and for reviewing the improvements in the conditions of the hospital. If it is satisfied that the situation has improved, the meetings thereafter may be quarterly. The Commissioner of the Ranchi Division shall make a monthly report with in 2 weeks of the end of every month about the state of the hospital during the first year and such reports as and when received by the Registry should be placed before the Court. The State of West Bengal is in arrears in regard to its contribution for several years. Though counsel for the State of Bihar had undertaken to furnish accounts, the same has not yet been done. The Committee shall ensure that the accounts are furnished to the State of West Bengal by the 15th of December, 1988. In its affidavit, the State of West Bengal has indicated that it would pay Rs.20 lakhs out of the dues during the current financial year and would pay the balance in suitable instalments. As the improvement to the hospital would involve huge expenditure, we direct the State PG NO 321 of West Bengal to pay Rs.50 lakhs out of its dues by 31st of March, 1989 and the balance amount shall be paid in two six monthly instalments, one by 30th of September, 1989, and the other by 31st of March, 1990. The Government of West Bengal and the Committee shall ensure that this time frame is adhered to. The entire arrears collected from the West Bengal Government shall be earmarked for development of the hospital to be expended in the manner approved by the Committee and no portion thereof would be otherwise spent. We are of the view that if the hospital is transformed into a better one, just as the hospital run by NIMHANS at Bangalore, the quality of the hospital would improve and the patients would have the benefit of modern scientific treatment. The Committee shall, therefore, take expeditious steps to explore the possibility of transforming the Mental Hospital at Ranchi into the pattern obtaining in the hospital run by NIMHANS at Bangalore by taking such steps as are necessary and furnish a report to this Court by the end of February, 1989 when that question will have to be considered by this Court after hearing the concerned State Governments and the parties. The State of Bihar shall provide a basic fund of Rs.50 lakhs in the year ending 31st of March, 1989, to be spent for improvement of the Hospital in the manner approved by the Committee and in case the Committee is of the view that further funds are necessary, it would be open to the Committee to make a report to this Court whereupon appropriate directions shall be given. There have been repeated allegations that the lady patients who have already been cured are not being released from the hospital. At one stage the explanation offered by the hospital authorities and the State administration was that the relations, even though notified, are not taking them back. The hospital is not a place where cured people should be allowed to stay. It is, therefore, necessary that there should be a rehabilitation centre for those who after being cured are not in a position to return to their families or on their own seek useful employment. The Committee shall, therefore, take immediate steps to have a rehabilitation centre at a convenient place around Ranchi where appropriate rehabilitation schemes may be operated and the patients after being cured, irrespective of being male or female, if they are not being taken back by the members of their families could be rehabilitated. The funds made available to the Committee may be utilised for such purpose. PG NO 322 We must reiterate that Court monitoring of an institution like the present one is indeed difficult but we cannot close the proceedings at this stage for the reasons we have already indicated. Parties including the Committee shall have liberty to move this Court from time to time. We make it clear that the directions regarding payment of the funds are pre emptory in nature and no application for modification thereof shall be entertained. This matter shall be deemed to be pending to deal with the various reports from the Committee and for purposes of giving other directions.
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A letter petition in regard to the Mental Hospital at Ranchi was considered as a public interest application under Article 32 of the Constitution, and the Court called upon the State of Bihar to file its counter affidavit.
At the same time, the Court directed the Chief Judicial Magistrate to visit the hospital and submit a report about the conditions prevailing there.
The hospital was in the sole management of the Health Department of the State of Bihar.
The State of Bihar received financial contributions from the States of West Bengal and Orissa on the basis of the number of beds reserved for each State.
The report submitted by the Chief Judicial Magistrate made a painful reading.
In the affidavit submitted by the State of Bihar it was stated that the Government was aware of the conditions and had since taken some steps to improve the working of the hospital, and had also drawn up a scheme to develop the hospital on the lines of NIMHANS in Bangalore.
From time to time, the Court had issued directions and made specific orders regarding provision of better food.
clothing, medical treatment, housing and improvement of sanitation, etc.
While keeping the matter pending, the Court, HELD: (1) In a welfare State it is the obligation of the State to provide medical attention to every citizen.
The State has to realise its obligation and the Government of the day has got to perform its duties by running the hospital in a perfect standard and serving the patients in an appropriate way.
[318D E] (2) It is clear that inspite of several orders made by this Court and assurances held out by the State Government of Bihar.
the defects were not being remedied.
The awareness PG NO 307 of the governmental authorities of the sordid situation prevailing in the hospital, as admitted in the scheme furnished to the Court, the non compliance in an effective way with the directions made from time to time by the Court and the general lethargy shown in rising from slumber leaves a clear impression that the institution cannot be run as a mental hospital of that magnitude unless there be change in the administrative set up, the control is altered and a new service to patient oriented thrust given to the institution.
[3I8 C] (3) The scheme which was furnished to the Court was a halfhearted one and no attempt therein was made to bring about any improvement except attending to certain obvious deficiencies and short falls.
The Court had looked forward to a scheme of re orientation which the scheme did not even remotely touch.
[318F G] (4) The State Government authorities have not been able to assess the priorities.
There does not seem to be the slightest interest on the part of the persons handling the matter, to improve the environment.
In these circumstances, it is difficult to leave the management exclusively to the Health Department of the State of Bihar if the institution has to run as a good and useful hospital.
Association of the States of West Bengal and Orissa in the management is likely to bring about some positive result.
It would, therefore, be much better if a Committee of Management is appointed with full powers to look after all aspects of the institution.
[319A; B D] (5) The Court accordingly constituted a Committee of Management for the Mental Hospital and gave directions regarding the financial contribution from the participating States, and also laid down guidelines regarding the functioning and management of the hospital.
The Court further directed that the Committee shall take expeditious steps to explore the possibility of transforming the hospital into the pattern obtaining in the hospital run by NIMHANS at Bangalore.
[321C D]
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Someone wrote a letter about the Mental Hospital in Ranchi. The court treated this letter as a case of public interest under Article 32 of the Constitution, which protects people's rights. The court asked the state of Bihar to respond with their side of the story.
At the same time, the court told the main judge in the area (Chief Judicial Magistrate) to visit the hospital. They wanted a report about what the hospital was like.
The hospital was run only by the Health Department of the state of Bihar.
Bihar got money from West Bengal and Orissa. This money was based on how many beds each state had reserved at the hospital.
The report from the Chief Judicial Magistrate was very upsetting to read.
Bihar said they knew about the problems. They said they had started making things better. They also had a plan to make the hospital like NIMHANS in Bangalore, a well-known mental health center.
The court gave instructions many times about how to improve the hospital. This included better food, clothes, medical care, housing, and cleanliness.
The court kept the case open and DECIDED: (1) A good government (welfare state) must give medical care to all its people. The state needs to understand this and run the hospital well. They need to treat patients properly.
(2) Even though the court had given orders and Bihar had promised to fix things, the problems were still there. The government knew the hospital was in bad shape. They didn't follow the court's orders. They seemed lazy and didn't care. This shows that the hospital needs new management. Someone needs to take control and focus on helping patients.
(3) Bihar's plan was weak. It only fixed some obvious problems. The court wanted a plan that would completely change the hospital for the better, but this plan didn't even come close.
(4) The people in charge in Bihar didn't seem to understand what was important. They didn't seem interested in making the hospital better. Because of this, the Health Department of Bihar shouldn't be the only ones running the hospital. West Bengal and Orissa should also be involved. This could help make things better. It would be best to have a Management Committee with the power to handle everything about the hospital.
(5) The court created a Management Committee for the Mental Hospital. It gave instructions about how much money each state should contribute. It also gave rules about how the hospital should be run. The court also said the Committee should quickly find out if the hospital could be changed to be like NIMHANS in Bangalore.
| 933
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"Civil Appeal No. 1349 of 1982. (From the judgment and order dated the 8.3.1982 of the Jammu & Kashm(...TRUNCATED)
| "Independence of the judiciary is one of the basic tenets and a fundamental requirement of our Const(...TRUNCATED)
| "Having an independent judiciary is a key part of our Constitution.\n\nSeveral parts of the Constitu(...TRUNCATED)
| 162
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"tition Nos. 5669 of 1980 and 1345 of 1981 (Under Article 32 of the Constitution of India) G. L. San(...TRUNCATED)
| "Regular recruitment after the initial recruitment to the Delhi Higher Judicial Service under Rule 7(...TRUNCATED)
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"ivil Appeal No. 1086 of 1971. From the Judgment and Order dated 28.4.71 of the Gujarat High Court i(...TRUNCATED)
| "The respondent who was carrying on the business of transporting goods challenged before the High Co(...TRUNCATED)
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